[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2981 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 2981
To provide for reform of management of Indian trust funds and assets
under the jurisdiction of the Department of the Interior, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 25, 2003
Mr. Udall of Colorado (for himself and Mr. Rahall) introduced the
following bill; which was referred to the Committee on Resources
_______________________________________________________________________
A BILL
To provide for reform of management of Indian trust funds and assets
under the jurisdiction of the Department of the Interior, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Indian Trust Fund
Management Reform Act Amendments Act of 2003''.
SEC. 2. DEFINITIONS.
Section 2 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4001) is amended--
(1) by redesignating paragraphs (1), (2), (3), (4), (5),
and (6) as paragraphs (7), (4), (6), (5), (2), and (3),
respectively, and moving those paragraphs so as to appear in
numerical order; and
(2) by inserting before paragraph (2) (as redesignated by
paragraph (1)) the following:
``(1) Audit.--The term `audit' means an audit using
accounting procedures that conform to generally accepted
accounting principles and auditing procedures that conform to
chapter 75 of title 31, United States Code (commonly known as
the `Single Audit Act of 1984');''; and
(3) by adding at the end the following:
``(8) Tribal government.--The term `tribal government'
means the governing body of an Indian tribe.
``(9) Trust asset.--The term `trust asset' means any
tangible property (such as land, a mineral, coal, oil or gas, a
forest resource, an agricultural resource, water, a water
source, fish, or wildlife) held by the Secretary for the
benefit of an Indian tribe or an individual member of an Indian
tribe in accordance with Federal law.
``(10) Trust funds.--The term `trust funds' means--
``(A) all monies or proceeds derived from trust
assets; and
``(B) all funds held by the Secretary for the
benefit of an Indian tribe or an individual member of
an Indian tribe in accordance with Federal law.
``(11) Trustee.--The term `trustee' means the Secretary or
any other person that is authorized to act as a trustee for
trust assets and trust funds.''.
SEC. 3. RESPONSIBILITIES OF SECRETARY.
Section 102 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4011) is amended to read as follows:
``SEC. 102. RESPONSIBILITIES OF SECRETARY.
``(a) Accounting for Daily and Annual Balances of Indian Trust
Funds.--
``(1) In general.--The Secretary shall account for the
daily and annual balances of all trust funds.
``(2) Periodic statement of performance.--
``(A) In general.--Not later than 20 business days
after the close of the second calendar quarter after
the date of enactment of this paragraph, and not later
than 20 business days after the close of each calendar
quarter thereafter, the Secretary shall provide to each
Indian tribe and individual Indian for whom the
Secretary manages trust funds a statement of
performance for the trust funds.
``(B) Requirements.--Each statement under
subparagraph (A) shall identify, with respect to the
period covered by the statement--
``(i) the source, type, and status of the
funds;
``(ii) the beginning balance of the funds;
``(iii) the gains and losses of the funds;
``(iv) receipts and disbursements of the
funds; and
``(v) the ending balance of the funds.
``(3) Audits.--With respect to each account containing
trust funds, the Secretary shall--
``(A) for accounts with less than $1,000, group
accounts separately to allow for statistical sampling
audit procedures;
``(B) for accounts containing more than $1,000 at
any time during a given fiscal year--
``(i) conduct, for each fiscal year, an
audit of all trust funds; and
``(ii) include, in the first statement of
performance after completion of the audit, a
letter describing the results of the audit.
``(b) Additional Responsibilities.--The responsibilities of the
Secretary in carrying out the trust responsibility of the United States
include, but are not limited to--
``(1) providing for adequate systems for accounting for and
reporting trust fund balances;
``(2) providing for adequate controls over receipts and
disbursements;
``(3) providing for periodic, timely reconciliations of
financial records to ensure the accuracy of account
information;
``(4) determining accurate cash balances;
``(5) preparing and supplying to account holders periodic
account statements;
``(6) establishing and publishing in the Federal Register
consistent policies and procedures for trust fund management
and accounting;
``(7) providing adequate staffing, supervision, and
training for trust fund management and accounting; and
``(8) managing natural resources located within the
boundaries of Indian reservations and trust land.''.
SEC. 4. AFFIRMATION OF STANDARDS.
Title I of the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4011 et seq.) is amended by adding at the end the
following:
``SEC. 105. AFFIRMATION OF STANDARDS.
``Congress affirms that the proper discharge of trust
responsibility of the United States requires, without limitation, that
the trustee, using the highest degree of care, skill, and loyalty--
``(1) protect and preserve Indian trust assets from loss,
damage, unlawful alienation, waste, and depletion;
``(2) ensure that any management of Indian trust assets
required to be carried out by the Secretary--
``(A) promotes the interest of the beneficial
owner; and
``(B) supports, to the maximum extent practicable
in accordance with the trust responsibility of the
Secretary, the beneficial owner's intended use of the
assets;
``(3)(A) enforce the terms of all leases or other
agreements that provide for the use of trust assets; and
``(B) take appropriate steps to remedy trespass on trust or
restricted land;
``(4) promote tribal control and self-determination over
tribal trust land and resources without diminishing the trust
responsibility of the Secretary;
``(5) select and oversee persons that manage Indian trust
assets;
``(6) confirm that Indian tribes that manage Indian trust
assets in accordance with contracts and compacts authorized by
the Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) protect and prudently manage those Indian
trust assets;
``(7) provide oversight and review of the performance of
the trust responsibility of the Secretary, including Indian
trust asset and investment management programs, operational
systems, and information systems;
``(8) account for and identify, collect, deposit, invest,
and distribute, in a timely manner, income due or held on
behalf of tribal and individual Indian account holders;
``(9) maintain a verifiable system of records that, at a
minimum, is capable of identifying, with respect to a trust
asset--
``(A) the location of the trust asset;
``(B) the beneficial owners of the trust asset;
``(C) any legal encumbrances (such as leases or
permits) applicable to the trust asset;
``(D) the user of the trust asset;
``(E) any rent or other payments made;
``(F) the value of trust or restricted land and
resources associated with the trust asset;
``(G) dates of--
``(i) collections;
``(ii) deposits;
``(iii) transfers;
``(iv) disbursements;
``(v) imposition of third-party obligations
(such as court-ordered child support or
judgments);
``(vi) statements of earnings;
``(vii) investment instruments; and
``(viii) closure of all trust fund accounts
relating to the trust fund asset;
``(H) documents pertaining to actions taken to
prevent or compensate for any diminishment of the
Indian trust asset; and
``(I) documents that evidence the actions of the
Secretary regarding the management and disposition of
the Indian trust asset;
``(10) establish and maintain a system of records that--
``(A) permits beneficial owners to obtain
information regarding Indian trust assets in a timely
manner; and
``(B) protects the privacy of that information;
``(11) invest tribal and individual Indian trust funds to
ensure that the trust account remains reasonably productive for
the beneficial owner consistent with market conditions existing
at the time at which investment is made;
``(12) communicate with beneficial owners regarding the
management and administration of Indian trust assets; and
``(13) protect treaty-based fishing, hunting, gathering,
and similar rights-of-access and resource use on traditional
tribal land.''.
SEC. 5. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.
Section 202 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4022) is amended by striking subsection (c) and
inserting the following:
``(c) Management Through Self-Determination Authority.--
``(1) In general.--An Indian tribe may use authority
granted to the Indian tribe under the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450 et seq.) to manage
Indian trust funds and trust assets without terminating--
``(A) the trust responsibility of the Secretary; or
``(B) the trust status of the funds and assets.
``(2) No effect on trust responsibility.--Nothing in this
subsection diminishes or otherwise impairs the trust
responsibility of the United States with respect to the Indian
people.''.
SEC. 6. DEPUTY SECRETARY FOR INDIAN AFFAIRS.
(a) In General.--Section 302 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4042) is amended to read as
follows:
``SEC. 302. DEPUTY SECRETARY FOR INDIAN AFFAIRS.
``(a) Establishment.--
``(1) In general.--There is established within the
Department the position of Deputy Secretary for Indian Affairs
(referred to in this section as the `Deputy Secretary'), who
shall report directly to the Secretary.
``(2) Appointment.--The Deputy Secretary shall be appointed
by the President, by and with the advice and consent of the
Senate.
``(b) Duties.--
``(1) In general.--The Deputy Secretary shall--
``(A) oversee the Bureau of Indian Affairs;
``(B) be responsible for carrying out all duties
assigned to the Assistant Secretary for Indian Affairs
as of the day before the date of enactment of the
American Indian Trust Fund Management Reform Act
Amendments Act of 2003;
``(C) oversee all trust fund and trust asset
matters of the Department, including--
``(i) administration and management of the
Reform Office;
``(ii) financial and human resource matters
of the Reform Office; and
``(iii) all duties relating to trust fund
and trust asset matters;
``(D) engage in appropriate government-to-
government relations and consultations with Indian
tribes and individual trust asset and trust fund
account holders on matters involving trust asset and
trust fund management and reform within the Department;
and
``(E) carry out such other duties relating to
Indian affairs as the Secretary may assign.
``(2) Transfer of duties of assistant secretary.--As of the
date of enactment of the American Indian Trust Fund Management
Reform Act Amendments Act of 2003, all duties assigned to the
Assistant Secretary for Indian Affairs shall be transferred to,
and become the responsibility of, the Deputy Secretary.
``(3) Succession.--Any official who is serving as Assistant
Secretary for Indian Affairs on the date of enactment of the
American Indian Trust Fund Management Reform Act Amendments Act
of 2003 and who was appointed by the President, by and with the
advice and consent of the Senate, shall not be required to be
reappointed under subsection (a) to the successor position
authorized under subsection (a) if the Secretary approves the
occupation by the official of the position by the date that is
180 days after the date of enactment of the American Indian
Trust Fund Management Reform Act Amendments Act of 2003 (or
such later date determined by the Secretary if litigation
delays rapid succession).
``(c) Staff.--In carrying out this section, the Deputy Secretary
may hire such staff having expertise in trust asset and trust fund
management, financial organization and management, and Federal Indian
law and policy as the Deputy Secretary determines is necessary to carry
out this title.
``(d) Effect on Duties of Other Officials.--
``(1) In general.--Except as provided in subsection (c) and
paragraph (2), nothing in this section diminishes any
responsibility or duty of the Deputy Secretary of the Interior
appointed under the Act of May 9, 1935 (43 U.S.C. 1452), or any
other Federal official, relating to any duty established under
this Act or any other provision of law.
``(2) Trust asset and trust fund management and reform.--
Notwithstanding any other provision of law, the Deputy
Secretary shall have overall management and oversight authority
on matters of the Department relating to trust asset and trust
fund management and reform (including matters that, as of the
day before the date of enactment of the Indian Trust Asset and
Trust Fund Management and Reform Act of 2003, were carried out
by the Commissioner of Indian Affairs).
``(e) Office of Trust Reform Implementation and Oversight.--
``(1) Establishment.--There is established within the
Office of the Secretary the Office of Trust Reform
Implementation and Oversight.
``(2) Reform office head.--The Reform Office shall be
headed by the Deputy Secretary.
``(3) Duties.--The Reform Office shall--
``(A) supervise and direct the day-to-day
activities of the Deputy Secretary, the Commissioner of
Reclamation, the Director of the Bureau of Land
Management, and the Director of the Minerals Management
Service, to the extent that those officials administer
or manage any Indian trust assets or funds;
``(B) administer, in accordance with title II, all
trust properties, funds, and other assets held by the
United States for the benefit of Indian tribes and
individual members of Indian tribes;
``(C) require the development and maintenance of an
accurate inventory of all trust funds and trust assets;
``(D) ensure the prompt posting of revenue derived
from a trust fund or trust asset for the benefit of
each Indian tribe (or individual member of each Indian
tribe) that owns a beneficial interest in the trust
fund or trust asset;
``(E) ensure that all trust fund accounts are
audited at least annually, and more frequently as
determined to be necessary by the Deputy Secretary;
``(F) ensure that the Deputy Secretary, the
Director of the Bureau of Land Management, the
Commissioner of Reclamation, and the Director of the
Minerals Management Service provide to the Secretary
current and accurate information relating to the
administration and management of trust funds and trust
assets; and
``(G) provide for regular consultation with trust
fund account holders on the administration of trust
funds and trust assets to ensure, to the maximum extent
practicable in accordance with applicable law and a
Plan approved under section 202, the greatest return on
those funds and assets for the trust fund account
holders consistent with the beneficial owners intended
uses for the trust funds.
``(4) Contracts and compacts.--The Reform Office may carry
out its duties directly or through contracts and compacts under
section 102 of the Indian Self-Determination Act (25 U.S.C.
450f) or section 403 of the Indian Self Determination and
Education Assistance Act (25 U.S.C. 458cc) to provide for the
management of trust assets and trust funds by Indian tribes
pursuant to a Trust Fund and Trust Asset Management and
Monitoring Plan developed under section 202 of this Act.
``(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.''.
(b) Conforming Amendments.--
(1) In general.--
(A) Section 5313 of title 5, United States Code, is
amended by inserting ``Deputy Secretary of the Interior
for Indian Affairs'' after ``Deputy Secretary of the
Interior''.
(B) Section 5315 of title 5, United States Code, is
amended by striking ``Assistant Secretaries of the
Interior (6)'' and inserting ``Assistant Secretaries of
the Interior (5)''.
(C) Title III of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4041 et seq.)
is amended by striking the title heading and inserting
the following:
``TITLE III--REFORMS RELATING TO TRUST RESPONSIBILITY''.
(D) Section 301(1) of the American Indian Trust
Fund Management Reform Act of 1994 (25 U.S.C. 4041(1))
is amended by striking ``by establishing in the
Department of the Interior an Office of Special Trustee
for American Indians'' and inserting ``by directing the
Deputy Secretary''.
(E) Section 303 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4043) is
amended--
(i) by striking the section heading and
inserting the following:
``SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF THE DEPUTY
SECRETARY. '';
(ii) in subsection (a)(1), by striking
``section 302(b) of this title'' and inserting
``section 302(a)(2)'';
(iii) in subsection (e)--
(I) by striking the subsection
heading and inserting the following:
``(e) Access of Deputy Secretary.--''; and
(II) by striking ``of his duties''
and inserting ``of the duties of the
Deputy Secretary''; and
(iv) by striking ``Special Trustee'' each
place it appears and inserting ``Deputy
Secretary''.
(F) Sections 304 and 305 of the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C.
4044, 4045) are amended by striking ``Special Trustee''
each place it appears and inserting ``Deputy
Secretary''.
(G) The first section of Public Law 92-22 (43
U.S.C. 1453a) is repealed.
(H) Any reference in a law, map, regulation,
document, paper, or other record of the United States
to the Assistant Secretary of the Interior for Indian
Affairs shall be deemed to be a reference to the Deputy
Secretary of the Interior for Indian Affairs.
(2) Effective date.--The amendments made by this subsection
take effect on the date on which a Deputy Secretary for Indian
Affairs is appointed under section 302 of the American Indian
Trust Fund Management Reform Act (as amended by subsection
(a)).
SEC. 7. COMMISSION FOR REVIEW OF INDIAN TRUST FUND MANAGEMENT
RESPONSIBILITIES.
(a) Establishment.--There is established a commission, to be known
as the ``Commission for Review of Indian Trust Fund Management
Responsibilities'' (referred to in this section as the ``Commission''),
for the purpose of assessing the fiduciary and management
responsibilities of the Federal Government with respect to Indian
tribes and individual Indian beneficiaries.
(b) Membership.--
(1) In general.--The Commission shall be composed of 12
members, of whom--
(A) 4 members shall be appointed by the President;
(B) 2 members shall be appointed by the Majority
Leader of the Senate;
(C) 2 members shall be appointed by the Minority
Leader of the Senate;
(D) 2 members shall be appointed by the Speaker of
the House of Representatives; and
(E) 2 members shall be appointed by the Minority
Leader of the House of Representatives.
(2) Qualifications.--The membership of the Commission--
(A) shall include a majority of individuals who are
representatives of federally recognized Indian tribes,
including at least 1 representative who is an
individual Indian trust fund account holder; and
(B) shall include members who have experience in--
(i) trust management;
(ii) fiduciary investment management;
(iii) Federal Indian law and policy; and
(iv) financial management.
(3) Chairperson.--The Commission shall select a Chairperson
from among the members of the Commission.
(4) Date of appointments.--The appointment of a member of
the Commission shall be made not later than 90 days after the
date of enactment of this Act.
(5) Term; vacancies.--
(A) Term.--A member shall be appointed for the life
of the Commission.
(B) Vacancies.--A vacancy on the Commission--
(i) shall not affect the powers of the
Commission; and
(ii) shall be filled in the same manner as
the original appointment was made.
(c) Meetings.--
(1) Initial meeting.--Not later than 60 days after the date
on which all members of the Commission have been appointed, the
Commission shall hold the initial meeting of the Commission.
(2) Procedures.--The Commission shall--
(A) meet at the call of the Chairperson; and
(B) establish procedures for conduct of business of
the Commission, including public hearings.
(3) Quorum.--A majority of the members of the Commission
shall constitute a quorum, but a lesser number of members may
hold hearings.
(d) Duties.--The Commission shall--
(1) review and assess Federal laws and policies relating to
the management of Indian trust funds;
(2) make recommendations (including legislative and
administrative recommendations) relating to management of
Indian trust funds, including but not limited to options for--
(A) historical accounting;
(B) settlement of disputed tribal and individual
accounts; and
(C) revisions of--
(i) management standards;
(ii) administrative management structure;
(iii) investment policies and accounting;
and
(iv) reporting procedures; and
(3) carry out such other duties as the President may assign
to the Commission.
(e) Report.--Not later than 32 months after the date on which the
Commission holds the initial meeting of the Commission, the Commission
shall submit to Congress, the Secretary of the Interior, and the
Secretary of the Treasury a report that includes the results of the
assessment conducted, and the recommendations made, by the Commission
under subsection (d).
(f) Powers of Commission.--
(1) Hearings.--The Commission may hold such hearings, meet
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable to
carry out this section.
(2) Information from federal agencies.--
(A) In general.--The Commission may secure directly
from a Federal agency such information as the
Commission considers necessary to carry out this
section.
(B) Provision of information.--On request of the
Chairperson of the Commission, the head of the agency
shall provide the information to the Commission.
(3) Access to personnel.--The Commission shall have
reasonable access to staff responsible for Indian trust
management in--
(A) the Department of the Interior;
(B) the Department of Treasury; and
(C) the Department of Justice.
(4) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other agencies of the Federal Government.
(5) Gifts.--The Commission may accept, use, and dispose of
gifts or donations of services or property.
(g) Commission Personnel Matters.--
(1) Compensation of members.--
(A) Non-federal employees.--A member of the
Commission who is not an officer or employee of the
Federal Government shall be compensated at a rate equal
to the daily equivalent of the annual rate of basic pay
prescribed for level IV of the Executive Schedule under
section 5315 of title 5, United States Code, for each
day (including travel time) during which the member is
engaged in the performance of the duties of the
Commission.
(B) Federal employees.--A member of the Commission
who is an officer or employee of the Federal Government
shall serve without compensation in addition to the
compensation received for the services of the member as
an officer or employee of the Federal Government.
(2) Travel expenses.--A member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for an employee of an agency
under subchapter I of chapter 57 of title 5, United States
Code, while away from the home or regular place of business of
the member in the performance of the duties of the Commission.
(3) Staff.--
(A) In general.--The Chairperson of the Commission
may, without regard to the civil service laws
(including regulations), appoint and terminate an
executive director and such other additional personnel
as are necessary to enable the Commission to perform
the duties of the Commission.
(B) Confirmation of executive director.--The
employment of an executive director shall be subject to
confirmation by the Commission.
(C) Compensation.--
(i) In general.--Except as provided in
clause (ii), the Chairperson of the Commission
may fix the compensation of the executive
director and other personnel without regard to
the provisions of chapter 51 and subchapter III
of chapter 53 of title 5, United States Code,
relating to classification of positions and
General Schedule pay rates.
(ii) Maximum rate of pay.--The rate of pay
for the executive director and other personnel
shall not exceed the rate payable for level V
of the Executive Schedule under section 5316 of
title 5, United States Code.
(h) Exemption From FACA.--The Federal Advisory Committee Act (5
U.S.C. App.) shall not apply to the Commission.
(i) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.
(j) Termination of Commission.--The Commission and the authority of
the Commission under this section terminates on the date that is 3
years after the date on which the Commission holds the initial meeting
of the Commission.
SEC. 8. REGULATIONS.
The Secretary of the Interior, in consultation with interested
Indian tribes, shall promulgate such regulations as are necessary to
carry out this Act and amendments made by this Act.
SEC. 9. EFFECT OF ACT.
(a) Court Proceedings.--Nothing in this Act limits the findings,
remedies, jurisdiction, authority, or discretion of the courts in the
matter entitled Cobell v. Norton, Civ. No. 96-1285 (RCL).
(b) Use of Funds.--No funds appropriated for the purpose of an
historical accounting of the individual Indian trust funds shall be
used except as provided in an order of the court in Cobell v. Norton,
Civ. No. 96-1285 (RCL) entered after the date of enactment of this Act.
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