[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 175 Introduced in Senate (IS)]







108th CONGRESS
  1st Session
                                 S. 175

To establish a direct line of authority for the Office of Trust Reform 
 Implementation and Oversight to oversee the management and reform of 
Indian trust funds and assets under the jurisdiction of the Department 
  of the Interior, and to advance tribal management of such funds and 
  assets, pursuant to the Indian Self-Determination Act and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            January 15, 2003

 Mr. McCain (for himself, Mr. Daschle, and Mr. Johnson) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             Indian Affairs

_______________________________________________________________________

                                 A BILL


 
To establish a direct line of authority for the Office of Trust Reform 
 Implementation and Oversight to oversee the management and reform of 
Indian trust funds and assets under the jurisdiction of the Department 
  of the Interior, and to advance tribal management of such funds and 
  assets, pursuant to the Indian Self-Determination Act 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 ``Indian Trust Asset and Trust Fund 
Management and Reform Act of 2003''.

SEC. 2. FINDINGS.

    Congress finds and affirms that the proper discharge of trust 
responsibility of the United States requires, without limitation, that 
the trustee, using a high 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;
            (5) select and oversee persons that manage Indian trust 
        assets;
            (6) confirm that Indian tribes that manage Indian trust 
        assets pursuant to 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. 3. DEFINITIONS.

    Section 2 of the American Indian Trust Fund Management Reform Act 
of 1994 (25 U.S.C. 4001) is amended--
            (1) by striking paragraph (1);
            (2) in paragraph (2), by striking ``(2) The term'' and 
        inserting the following:
            ``(5) Indian tribe.--The term'';
            (3) in paragraph (3), by striking ``(3) The term'' and 
        inserting the following:
            ``(8) Secretary.--The term'';
            (4) in paragraph (4), by striking ``(4) The term'' and 
        inserting the following:
            ``(6) Office.--The term'';
            (5) in paragraph (5), by striking ``(5) The term'' and 
        inserting the following:
            ``(2) Bureau.--The term'';
            (6) in paragraph (6), by striking ``(6) The term'' and 
        inserting the following:
            ``(3) Department.--The term'';
            (7) by moving paragraphs (2), (3), (5), (6), and (8) (as 
        redesignated by this subsection) so as to appear in numerical 
        order;
            (8) by inserting before paragraph (2) (as redesignated by 
        paragraph (5)) the following:
            ``(1) Beneficial owner.--The term `beneficial owner' means 
        an Indian tribe or member of an Indian tribe that is the 
        beneficial owner of Indian trust assets.'';
            (9) by inserting after paragraph (3) (as redesignated by 
        paragraph (6)) the following:
            ``(4) Deputy secretary.--The term `Deputy Secretary' means 
        the Deputy Secretary for Trust Management and Reform appointed 
        under section 307(a)(2).'';
            (10) by inserting after paragraph (6) (as redesignated by 
        paragraph (4)) the following:
            ``(7) Reform office.--The term `Reform Office' means the 
        Office of Trust Reform Implementation and Oversight established 
        by section 307(e).''; and
            (11) by adding at the end the following:
            ``(9) Task force.--The term `Task Force' means the Tribal 
        Task Force for Trust Reform established under section 307(a).
            ``(10) Trust assets.--The term `trust assets' means all 
        tangible property including land, minerals, coal, oil and gas, 
        forest resources, agricultural resources, water and water 
        sources, and fish and wildlife held by the Secretary for the 
        benefit of an Indian tribe or an individual member of an Indian 
        tribe pursuant to Federal law.
            ``(11) Trust funds.--The term `trust funds' means all funds 
        held by the Secretary for the benefit of an Indian tribe or and 
        individual member of an Indian tribe pursuant to Federal law.
            ``(12) Trustee.--The term `trustee' means the Secretary or 
        any other person that is authorized to act as a trustee for 
        Indian trust assets and trust funds.''.

SEC. 4. 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. 4011. 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 that are deposited 
        or invested pursuant to the Act of June 24, 1938 (25 U.S.C. 
        162a).
            ``(2) Periodic statement of performance.--
                    ``(A) In general.--Not later than 20 business days 
                after the close of a calendar quarter, the Secretary 
                shall provide a statement of performance to each Indian 
                tribe and member of Indian tribe with respect to which 
                funds are deposited or invested pursuant to the Act of 
                June 24, 1938 (25 U.S.C. 162a).
                    ``(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) Annual audit.--With respect to each account 
        containing trust funds in an amount in excess of $1,000, the 
        Secretary shall--
                    ``(A) conduct, for each fiscal year, an audit of 
                all trust funds described in paragraph (1); and
                    ``(B) include, in the first statement of 
                performance completed under paragraph (2) after 
                completion of the audit, a letter describing the 
                results of the audit.
    ``(b) Additional Responsibilities.--In addition to the 
responsibilities described in subsection (a), subject to the 
availability of appropriations, the Secretary, in carrying out the 
trust responsibility of the United States, shall, at a minimum--
            ``(1) provide for adequate systems for accounting for and 
        reporting trust fund balances;
            ``(2) provide for adequate controls over receipts and 
        disbursements;
            ``(3) provide for periodic, timely reconciliations of 
        financial records to ensure the accuracy of account 
        information;
            ``(4) determine accurate cash balances;
            ``(5) prepare and supply to account holders periodic 
        account statements;
            ``(6) establish and publish in the Federal Register 
        consistent policies and procedures for trust fund management 
        and accounting;
            ``(7) provide adequate staffing, supervision, and training 
        for trust fund management and accounting; and
            ``(8) manage natural resources located within the 
        boundaries of Indian reservations and trust land.''.

SEC. 5. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.

    Title II of the American Indian Trust Fund Management Reform Act of 
1994 (25 U.S.C. 4021 et seq.) is amended--
            (1) by striking sections 202 and 203; and
            (2) by inserting after section 201 the following:

``SEC. 202. PARTICIPATION IN TRUST FUND AND TRUST ASSET MANAGEMENT 
              ACTIVITIES BY INDIAN TRIBES.

    ``(a) Planning Program.--To meet the purposes of this title, an 
Indian Trust Fund and Trust Asset Management and Monitoring Plan (in 
this section referred to as the `Plan') shall be developed and 
implemented as follows:
            ``(1) Pursuant to a self-determination contract or compact 
        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), an Indian tribe 
        may develop or implement a Plan to provide for management of 
        the trust funds and assets (or portions of trust funds or 
        assets) of which the Indian tribe is the beneficial owner. 
        Subject to the provisions of paragraphs (3) and (4), the tribe 
        shall have broad discretion in designing and carrying out the 
        planning process.
            ``(2) To include in a Plan particular trust funds or assets 
        held by multiple individuals, an Indian tribe shall obtain the 
        approval of a majority of the individuals who hold an interest 
        in any such trust funds or assets.
            ``(3) The Plan shall be submitted to the Secretary for 
        approval pursuant to the Indian Self-Determination Act (25 
        U.S.C. 450f et seq.).
            ``(4) If an Indian tribe chooses not to develop or 
        implement a Plan, the Secretary shall, at the request of the 
        Indian tribe, develop or implement, as appropriate, a Plan in 
        close consultation with the affected Indian tribe.
            ``(5) Whether developed directly by the Indian tribe or by 
        the Secretary, the Plan shall--
                    ``(A) determine the amount and source of funds held 
                in trust;
                    ``(B) identify and include an inventory of trust 
                assets based on the information available to the Indian 
                tribe and the Secretary;
                    ``(C) identify specific tribal goals and 
                objectives;
                    ``(D) establish management objectives for the funds 
                and assets held in trust;
                    ``(E) define critical values of the Indian tribe 
                and its members and provide identified management 
                objectives;
                    ``(F) identify actions to be taken to reach 
                established objectives;
                    ``(G) use existing survey documents, reports and 
                other research from Federal agencies, tribal community 
                colleges, and land grant universities; and
                    ``(H)(i) be completed not later than 3 years after 
                the date of initiation of activity to establish the 
                Plan; and
                    ``(ii) be revised periodically thereafter as 
                necessary to accomplish the purposes of this Act.
    ``(b) Management and Administration.--Plans developed and approved 
under subsection (a) shall govern the management and administration of 
funds and assets (or portions of funds and assets) held in trust by the 
Bureau and the Indian tribal government.
    ``(c) Plan Does Not Terminate Trust.--Developing or implementing a 
Plan shall not be construed or deemed to constitute a termination of 
the trust status of the assets or funds that are included in, or 
subject to, the Plan.
    ``(d) Liability.--An Indian tribe managing and administering trust 
funds and trust assets in a manner that is consistent with an approved 
Plan shall not be liable for waste or loss of an asset or funds that 
are included in such Plan.
    ``(e) Indian Participation in Management Activities.--
            ``(1) Tribal recognition.--The Secretary shall conduct all 
        management activities of funds and assets held in trust in 
        accordance with goals and objectives set forth in a Plan 
        approved pursuant to and in accordance with all tribal laws and 
        ordinances, except in specific instances where such compliance 
        would be contrary to the trust responsibility of the United 
        States.
            ``(2) Tribal laws.--
                    ``(A) In general.--Unless otherwise prohibited by 
                Federal law, the Secretary shall comply with tribal law 
                pertaining to the management of funds and assets held 
                in trust.
                    ``(B) Duties.--The Secretary shall--
                            ``(i) provide assistance in the enforcement 
                        of tribal laws described in subparagraph (A);
                            ``(ii) provide notice of such tribal laws 
                        to persons or entities dealing with tribal 
                        funds and assets held in trust; and
                            ``(iii) upon the request of an Indian 
                        tribe, require appropriate Federal officials to 
                        appear in tribal forums.
            ``(3) Waiver of regulations.--In any case in which a 
        regulation or administrative policy of the Department of the 
        Interior conflicts with the objectives of the Plan, or with a 
        tribal law, the Secretary shall waive the application of such 
        regulation or administrative policy unless such waiver would 
        constitute a violation of a Federal statute or judicial 
        decision or would conflict with the Secretary's trust 
        responsibility under Federal law.
            ``(4) Sovereign immunity.--This section does not constitute 
        a waiver of the sovereign immunity of the United States, nor 
        does it authorize tribal justice systems to review actions of 
        the Secretary.
            ``(5) Trust responsibility.--Nothing in this section shall 
        be construed to diminish or expand the trust responsibility of 
        the United States toward Indian funds and assets held in trust, 
        or any legal obligation or remedy resulting from such funds and 
        assets.
    ``(f) Report.--
            ``(1) In general.--Not later than 180 days after the 
        enactment of this section, and annually thereafter, the 
        Secretary shall submit a report to the Committee on Indian 
        Affairs of the Senate and the Committee on Resources of the 
House of Representatives.
            ``(2) Contents.--The report required under paragraph (1) 
        shall detail the following:
                    ``(A) The efforts of the Department to implement 
                this section.
                    ``(B) The nature and extent of consultation between 
                the Department, Tribes, and individual Indians with 
                respect to implementation of this section.
                    ``(C) Any recommendations of the Department for 
                further changes to this Act, accompanied by a record of 
                consultation with Tribes and individual Indians 
                regarding such recommendations.''.

SEC. 6. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.

    (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 TRUST MANAGEMENT AND REFORM.

    ``(a) Establishment.--
            ``(1) In general.--There is established within the 
        Department the position of Deputy Secretary for Trust 
        Management and Reform.
            ``(2) Appointment and removal.--
                    ``(A) Appointment.--The Deputy Secretary shall be 
                appointed by the President, by and with the advice and 
                consent of the Senate.
                    ``(B) Term.--The Deputy Secretary shall be 
                appointed for a term of 6 years.
                    ``(C) Removal.--The Deputy Secretary may be removed 
                only for good cause.
            ``(3) Administrative authority.--The Deputy Secretary shall 
        report directly to the Secretary.
            ``(4) Compensation.--The Deputy Secretary shall be paid at 
        a rate determined by the Secretary to be appropriate for the 
        position, but not less than the rate of basic pay prescribed 
        for Level II of the Executive Schedule under section 5313 of 
        title 5, United States Code.
    ``(b) Duties.--The Deputy Secretary shall--
            ``(1) oversee all trust fund and trust asset matters of the 
        Department, including--
                    ``(A) administration and management of the Reform 
                Office;
                    ``(B) financial and human resource matters of the 
                Reform Office; and
                    ``(C) all duties relating to trust fund and trust 
                asset matters; and
            ``(2) 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.
    ``(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 tribal 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 paragraph (2), 
        nothing in this section shall be construed to diminish any 
        responsibility or duty of the Assistant Secretary of the 
        Interior for Indian Affairs, or any other Federal official, 
        relating to any duty of the Assistant Secretary or official 
        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 Assistant Secretary of the Interior 
                for Indian Affairs, the Commissioner of Reclamation, 
                the Director of the Bureau of Land Management, and the 
                Director of the Minerals Management Service, to the 
                extent they 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 Assistant Secretary of the 
                Interior for Indian Affairs, 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;
                    ``(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; and
                    ``(H) enter into 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) 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''.

            (2) 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 this Interior 
        an Office of Special Trustee for American Indians'' and 
        inserting ``by directing the Deputy Secretary''.
            (3) Section 303 of the American Indian Trust Fund 
        Management Reform Act of 1994 (25 U.S.C. 4043) is amended--
                    (A) by striking the section heading and inserting 
                the following:

``SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF THE DEPUTY 
              SECRETARY.'';

                    (B) in subsection (a)(1), by striking ``section 
                302(b) of this title'' and inserting ``section 
                302(a)(2)'';
                    (C) in subsection (e)--
                            (i) by striking the subsection heading and 
                        inserting the following:
    ``(e) Access of Deputy Secretary.--''; and
                            (ii) by striking ``and his staff'' and 
                        inserting ``and staff of the Deputy 
                        Secretary''; and
                    (D) by striking ``Special Trustee'' each place it 
                appears and inserting ``Deputy Secretary''.
            (4) 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''.

SEC. 7. ADVISORY BOARD AND TRIBAL TASK FORCE.

    The American Indian Trust Fund Management Reform Act of 1994 is 
amended by striking section 306 (25 U.S.C. 4046) and inserting the 
following:

``SEC. 306. TRIBAL TASK FORCE ON TRUST REFORM.

    ``(a) Establishment.--As soon as practicable after the date of 
enactment of this section, the Deputy Secretary shall establish a 
Tribal Task Force on Trust Reform.
    ``(b) Composition.--
            ``(1) In general.--The Task Force shall be composed of 18 
        members and 12 alternates, of which--
                    ``(A) 6 members shall--
                            ``(i) serve as primary members; and
                            ``(ii) be selected by the Deputy Secretary;
                    ``(B) 12 members shall--
                            ``(i) serve as primary members; and
                            ``(ii) be selected by members of federally-
                        recognized Indian tribes located within the 
                        regions of the Bureau represented by the 
                        members; and
                    ``(C) the 12 alternates shall--
                            ``(i) serve as alternate members for the 
                        members described in subparagraph (B); and
                            ``(ii) be selected by members of federally-
                        recognized Indian tribes located within the 
                        regions of the Bureau represented by the 
                        members.
            ``(2) Regional representation.--Each region of the Bureau 
        shall be represented by a primary member and alternate member 
        on the Task Force.
            ``(3) Term.--A member of the Task Force shall serve for a 
        term of 2 years.
    ``(c) Duties.--The Task Force, in cooperation with the Deputy 
Secretary, shall--
            ``(1) not later than 1 year after the date of enactment of 
        this section, conduct and submit to Congress a report on a 
        study of appropriate standards and procedures for inventorying 
        and management of trust assets; and
            ``(2) not later than 2 years after the date of enactment of 
        this section, identify, and submit to Congress a report that 
        includes recommendations relating to, modifications to existing 
        law relating to trust reform, including recommendations on 
        matters such as--
                    ``(A) the need for an independent commission to 
                oversee the administration of trust funds and assets; 
                and
                    ``(B) the most beneficial administrative structure 
                and procedures.
    ``(d) FACA.--The Task Force shall not be subject to the Federal 
Advisory Committee Act (5 U.S.C. App.).
    ``(e) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as are necessary to carry out this section.
    ``(f) Termination of Authority.--The Task Force and authority of 
the Task Force under this section terminate on the date that is 3 years 
after the date of enactment of the Indian Trust Asset and Trust Fund 
Management and Reform Act of 2003.''.

SEC. 8. REGULATIONS.

    (a) In General.--Not later than 1 year after the date of enactment 
of this Act, the Secretary of the Interior shall promulgate regulations 
to carry out the amendments made by this Act.
    (b) Active Participation.--
            (1) In general.--All regulations promulgated under 
        subsection (a) shall be developed through a negotiated 
        rulemaking in accordance with subchapter II of chapter 5, and 
        chapter 7, of title 5, United States Code (commonly known as 
        the ``Administrative Procedures Act'').
            (2) Participants.--With the exception of the Secretary of 
        the Interior, each participant in the negotiated rulemaking 
        under paragraph (1) shall be a federally-recognized Indian 
        tribe.

SEC. 9. NO EFFECT ON CERTAIN JUDICIAL DECISION.

    Nothing in this Act or any amendment made by this Act limits or 
otherwise affects any finding, remedy, jurisdiction, authority, or 
discretion of any court with respect to Cobell v. Norton, Civ. No. 96-
1285 (RCL).
                                 <all>