[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2770 Introduced in Senate (IS)]







108th CONGRESS
  2d Session
                                S. 2770

 To establish a National Commission on American Indian Trust Holdings.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 22, 2004

  Mr. Daschle introduced the following bill; which was read twice and 
              referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL


 
 To establish a National Commission on American Indian Trust Holdings.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. NATIONAL COMMISSION ON AMERICAN INDIAN TRUST HOLDINGS.

    (a) Findings.--Congress finds that--
            (1) the United States has entered into treaties with Indian 
        tribes under which the United States made various commitments 
        to Indian tribes and Indian people;
            (2) the United States functions, by treaty and statute, as 
        a trustee for Indian tribes and individual Indians;
            (3) the United States has a fiduciary obligation to Indian 
        tribes and Indian people and, in accordance with that 
        obligation, must use the highest standard of care to protect 
        the assets of Indian tribes and individual Indians;
            (4) the United States has failed Indian tribes and 
        individual Indians and abridged its treaty and other 
        obligations relating to the handling of trust fund management 
        and historical accounting;
            (5) mismanagement of Indian trust assets by the United 
        States is a longstanding problem that spans many 
        administrations;
            (6) the complexity and longevity of that mismanagement 
        neither mitigates the injustice visited on Indian tribes and 
        the 300,000 individual Native Americans whose accounts have 
        been shortchanged nor absolves the United States of its 
        responsibility to correct the situation in a timely manner;
            (7) in 1996 a civil action, Cobell v. Norton, Civ. No. 96-
        1285 (RCL), was brought in the United States District Court for 
        the District of Columbia to attempt to obtain an order 
        compelling the United States to account for the trust funds 
        managed by the United States on behalf of individual Indians 
        and take all necessary action to bring the United States into 
        compliance with its fiduciary duties;
            (8) those funds are generated from Indian trust land 
        royalties resulting from leases of that land to oil, 
        agricultural, timber, mining, and other interests;
            (9) on April 5, 2004, Mr. Alan L. Balaran, the Special 
        Master in the Cobell case, tendered his resignation to the 
        Honorable Royce C. Lamberth;
            (10) in his letter of resignation, Mr. Balaran stated 
        that--
                    (A) there is evidence that energy companies, 
                assisted by the Department of the Interior, routinely 
                pay individual Indians much less than they pay non-
                Indians for oil and gas pipeline easements;
                    (B) the Special Master had uncovered evidence that 
                the Department fails to diligently monitor oil and gas 
                leasing activities on Indian land; and
                    (C) there is evidence that the Department has been 
                putting the interests of private energy companies ahead 
                of the interests of individual Indian beneficiaries, 
                notwithstanding their fiduciary obligation to Indian 
                tribes and Indian beneficiaries; and
            (11) the Great Plains, Rocky Mountain, and other regions of 
        the United States are rich in other trust assets such as 
        timber, agriculture, mining, and other resources.
    (b) Definitions.--In this section:
            (1) Balaran letter.--The term ``Balaran letter'' means the 
        letter dated April 5, 2004, from Special Master Alan L. Balaran 
        to the Honorable Royce C. Lamberth.
            (2) Commission.--The term ``Commission'' means the National 
        Commission on American Indian Trust Holdings established by 
        subsection (c).
            (3) Department.--The term ``Department'' means the 
        Department of the Interior.
    (c) Establishment of Commission.--There is established the National 
Commission on American Indian Trust Holdings.
    (d) Membership.--
            (1) In general.--The Commission shall be composed of 10 
        members, of whom--
                    (A) 2 shall be appointed by the President, 1 of 
                whom the President shall designate as Chairperson of 
                the Commission;
                    (B) 2 shall be appointed by the majority leader of 
                the Senate;
                    (C) 2 shall be appointed by the minority leader of 
                the Senate;
                    (D) 2 shall be appointed by the Speaker of the 
                House of Representatives; and
                    (E) 2 shall be appointed by the minority leader of 
                the House of Representatives.
            (2) Qualifications; initial meeting.--
                    (A) Nongovernmental appointees.--An individual 
                appointed to the Commission may not be an officer or 
                employee of the Federal Government or any State or 
                local government.
                    (B) Other qualifications.--It is the sense of 
                Congress that individuals appointed to the Commission 
                should be prominent United States citizens, with 
                national recognition and significant depth of 
                experience in such professions as land and resource 
                management.
            (3) Deadline for appointment.--All members of the 
        Commission shall be appointed not later than 60 days after the 
        date of enactment of this Act.
            (4) Quorum.--Six members of the Commission shall constitute 
        a quorum.
            (5) Vacancies.--Any vacancy in the Commission shall not 
        affect the powers of the Commission, but shall be filled in the 
        same manner in which the original appointment was made.
    (e) Duties.--
            (1) In general.--The Commission shall--
                    (A) fully examine the allegations made in the 
                Balaran letter;
                    (B) fully examine whether grazing, leasing, and 
                other trust asset interests have been managed equitably 
                and in a manner consistent with Federal trust law 
                (including regulations);
                    (C) fully examine such other alleged breaches of 
                the fiduciary responsibility owed by the United States 
                to Indian tribes and individual Indians that come to 
                the Commission's attention as the Commission considers 
                appropriate;
                    (D) build on the investigations of other entities, 
                and avoid unnecessary duplication, by reviewing the 
                findings, conclusions, and recommendations of earlier 
                studies of the management by the Department of Indian 
                trust assets and trust funds; and
                    (E) not later than 1 year after the date as of 
                which all members of the Commission have been 
                appointed, submit to the President and Congress a 
                report that states the findings of the Commission and 
                makes recommendations for corrective measures that can 
                be taken to--
                            (i) recoup any losses suffered by Indian 
                        tribes or individual Indians as a result of 
                        breaches of fiduciary duty by the Department; 
                        or
                            (ii) prevent any breaches of fiduciary duty 
                        in the future.
            (2) Relationship to previous studies.--When investigating 
        facts and circumstances relating to the management of Indian 
        trust assets and trust funds, the Commission shall--
                    (A) first review the information compiled by, and 
                the findings, conclusions, and recommendations that 
                resulted from, previous studies (including 
                congressional investigations); and
                    (B) after that review, pursue any appropriate area 
                of inquiry if the Commission determines that--
                            (i) earlier studies had not investigated 
                        that area;
                            (ii) the earlier investigation of that area 
                        had not been complete; or
                            (iii) new information not reviewed in the 
                        earlier studies had become available with 
                        respect to that area.
            (3) Followup review.--At least once every 2 years after the 
        date on which the Commission submits the report under paragraph 
        (1), the Commission shall--
                    (A) reconvene to examine the effectiveness of any 
                actions taken in response to the report in achieving 
                the goals described in clauses (i) and (ii) of 
                paragraph (1)(D); and
                    (B) submit to the President and Congress a report 
                that describes the findings of the Commission and makes 
                any further recommendations as the Commission considers 
                appropriate.
    (f) Powers of Commission.--
            (1) In general.--
                    (A) Hearings and evidence.--The Commission may--
                            (i) hold such hearings and sit and act at 
                        such times and places, take such testimony, 
                        receive such evidence, and administer such 
                        oaths as the Commission considers advisable to 
                        carry out this section; and
                            (ii) subject to subparagraph (B)(i), 
                        require, by subpoena or otherwise, the 
                        attendance and testimony of such witnesses and 
                        the production of such books, records, 
                        correspondence, memoranda, papers, and 
                        documents, as the Commission or such designated 
                        subcommittee or designated member may determine 
                        advisable.
                    (B) Subpoenas.--
                            (i) Issuance.--
                                    (I) In general.--A subpoena may be 
                                issued under this subsection only--
                                            (aa) by the agreement of 
                                        the Chairperson; or
                                            (bb) by the affirmative 
                                        vote of 6 members of the 
                                        Commission.
                                    (II) Signature.--Subject to 
                                subclause (I), subpoenas issued under 
                                this subsection may be issued under the 
                                signature of the Chairperson or any 
                                member designated by a majority of the 
                                Commission, and may be served by any 
                                person designated by the Chairperson or 
                                by a member designated by a majority of 
                                the Commission.
                            (ii) Enforcement.--
                                    (I) In general.--In the case of 
                                contumacy or failure to obey a subpoena 
                                issued under subparagraph (A), the 
                                United States district court for the 
                                judicial district in which the 
                                subpoenaed person resides, is served, 
                                or may be found, or where the subpoena 
                                is returnable, may issue an order 
                                requiring such person to appear at any 
                                designated place to testify or to 
                                produce documentary or other evidence. 
                                Any failure to obey the order of the 
                                court may be punished by the court as a 
                                contempt of that court.
                                    (II) Additional enforcement.--In 
                                the case of any failure of any witness 
                                to comply with any subpoena or to 
                                testify when summoned under authority 
of this section, the Commission may, by majority vote, certify a 
statement of fact constituting such failure to the appropriate United 
States attorney, who may bring the matter before the grand jury for its 
action, under the same statutory authority and procedures as if the 
United States attorney had received a certification under sections 102 
through 104 of the Revised Statutes (2 U.S.C. 192 through 194).
            (2) Contracting.--The Commission may, to such extent and in 
        such amounts as are provided in Acts of appropriation, enter 
        into contracts to enable the Commission to discharge the duties 
        of the Commission.
            (3) 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.
            (4) Assistance from the secretary of the interior.--The 
        Secretary of the Interior shall provide to the Commission on a 
        reimbursable basis administrative support and other services 
        for the performance of the functions of the Commission.
            (5) Postal services.--The Commission may use the United 
        States mails in the same manner and under the same conditions 
        as other agencies of the United States.
    (g) Personnel Matters.--
            (1) Compensation of members.--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.
            (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.
            (4) Detail of federal government employees.--
                    (A) In general.--An employee of the Federal 
                Government may be detailed to the Commission without 
                reimbursement.
                    (B) Civil service status.--The detail of the 
                employee shall be without interruption or loss of civil 
                service status or privilege.
            (5) Procurement of temporary and intermittent services.--
        The Chairperson of the Commission may procure temporary and 
        intermittent services in accordance with section 3109(b) of 
        title 5, United States Code, at rates for individuals that do 
        not exceed the daily equivalent of the annual rate of basic pay 
        prescribed for level V of the Executive Schedule under section 
        5316 of that title.
    (h) No Effect on Cobell Case.--Nothing in this section limits the 
findings, remedies, jurisdiction, authority, or discretion of the court 
in the civil action Cobell v. Norton, Civ. No. 96-1285 (RCL) (D.D.C.).
    (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 shall terminate on 
the date that is 10 years after the date on which the Commission 
submits the report of the Commission under subsection (e)(1)(D).
                                 <all>