[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6786 Introduced in House (IH)]
110th CONGRESS
2d Session
H. R. 6786
To provide for the settlement of claims arising from the use and
distribution of judgment funds previously awarded and provided to the
Delaware Tribe of Indians, the Delaware Nation, the Kansas Delaware
Tribe of Indians, Incorporated, and the Delawares of Idaho,
Incorporated, to correct underpayment of certain funds, to provide for
the settlement of accounting claims arising from, and otherwise achieve
the requirements of, certain litigation, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 1, 2008
Mr. Sullivan introduced the following bill; which was referred to the
Committee on Natural Resources, and in addition to the Committee on
Ways and Means, for a period to be subsequently determined by the
Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To provide for the settlement of claims arising from the use and
distribution of judgment funds previously awarded and provided to the
Delaware Tribe of Indians, the Delaware Nation, the Kansas Delaware
Tribe of Indians, Incorporated, and the Delawares of Idaho,
Incorporated, to correct underpayment of certain funds, to provide for
the settlement of accounting claims arising from, and otherwise achieve
the requirements of, certain litigation, 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 ``Delaware Judgment Funds Distribution
Settlement Act of 2008''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Cherokee nation.--The term ``Cherokee Nation'' means
the Cherokee Nation, with its headquarters located in
Tahlequah, Oklahoma.
(2) Cherokee nation jurisdictional boundary.--The term
``Cherokee Nation Jurisdictional Boundary'' means the boundary
surrounding lands within the Indian Territory that were ceded
by the United States to the Nation pursuant to the Treaties of
May 6, 1828, February 14, 1833, and December 29, 1835, 7 Stat.
478, the Indian Removal Act of 1830, 4 Stat. 411, and the fee
patent executed by President Martin Van Buren on December 31,
1838, diminished only by sales under the Acts of February 28,
1877, 19 Stat. 265, June 2, 1886, 24 Stat. 121, March 3, 1893,
ch. 209, 27 Stat. 612, 645, and Proclamation No. 5, 20 Stat.
1222 (1893), including any interpretation of that boundary
under Federal law or by courts of competent jurisdiction, and
shall also include those specific parcels of Indian lands of
the Nation outside that boundary wherever or whenever acquired.
(3) Delaware nation.--The term ``Delaware Nation'' means
the Delaware Nation, Oklahoma (formerly known as the ``Absentee
Delaware Tribe of Western Oklahoma'' and the ``Western Delaware
Tribe'').
(4) Delaware tribe.--The term ``Delaware Tribe'' means the
Delaware Tribe of Indians, Oklahoma (formerly known as the
``Cherokee Delaware'' and the ``Eastern Delaware'').
(5) Existing authority.--The term ``existing authority''
means--
(A) the first section of Public Law 87-283 (25
U.S.C. 164);
(B) Public Law 90-508 (25 U.S.C. 1181 et seq.);
(C) Public Law 92-456 (25 U.S.C. 1291 et seq.);
(D) Public Law 93-134 (25 U.S.C. 1401 et seq.);
(E) Public Law 96-318 (94 Stat. 968);
(F) the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4001 et seq.); and
(G) any other provision of law (including
regulations).
(6) Historical areas of the delaware tribe.--The term
``historical areas of the Delaware Tribe'' means those counties
outside Oklahoma on a list submitted by the Chief of the
Delaware Tribe to the Assistant Secretary-Indian Affairs and
those areas outside Oklahoma defined by treaties between the
Delaware Nation and the United States.
(7) Idaho delaware.--The term ``Idaho Delaware'' means the
Delawares of Idaho, Incorporated.
(8) Indian country.--The term ``Indian Country'' means
``Indian Country'' as defined by Federal law.
(9) Joint delaware trust funds.--The term ``Joint Delaware
Trust Funds'' means--
(A) the trust fund accounts numbered JA9483106 and
JA9480698 (including all interest on those accounts);
and
(B) 63 percent of the trust fund account numbered
JA9480102 as of the date of enactment of this Act
(including all interest on that portion of the
account).
(10) Kansas delaware.--The term ``Kansas Delaware'' means
the Kansas Delaware Tribe of Indians, Incorporated.
(11) List.--The term ``List'' means the list of tribal
entities published in the Federal Register pursuant to section
104 of the Federally Recognized Indian Tribe List Act of 1994
(25 U.S.C. 479a-1).
(12) Restricted land.--The term ``Restricted land'' means
any land, the title to which is held in the name of an Indian
or Indian tribe subject to restrictions by the United States
against alienation.
(13) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(14) Trust land.--The term ``Trust land'' means land, the
title to which is held by the United States in trust for the
benefit of an Indian tribe or individual.
(15) Undistributed delaware tribe trust funds.--The term
``undistributed Delaware Tribe Trust Funds'' means any amounts
in the trust fund accounts numbered JA9484104, JA9484377,
JA9285105, and JA9285378 (including all interest on those
accounts).
(16) Undistributed idaho delaware trust funds.--The term
``undistributed Idaho Delaware Trust Funds'' means the trust
fund accounts numbered JA9483692, JA9483379, and JA9483015
(including all interest on those accounts).
(17) Undistributed kansas delaware trust funds.--The term
``undistributed Kansas Delaware Trust Funds'' means--
(A) the trust fund account numbered JA9480011
(including all interest on that account); and
(B) 37 percent of the trust fund account numbered
JA9480102 as of the date of enactment of this Act
(including all interest on that portion of the
account).
(18) Undistributed per capita distributions to certain
delaware tribe members.--The term ``undistributed per capita
payments to certain Delaware Tribe members'' means the trust
fund accounts numbered JA9284108 and JA9284371 (including all
interest on those accounts).
SEC. 3. DELAWARE TRIBE TRUST FUNDS MISMANAGEMENT CLAIMS SETTLEMENT.
Not later than 30 days after the date of enactment of this Act, the
United States shall offer to file with the Delaware Tribe a joint
motion for entry of judgment in the amount of $437,165 in Docket No.
02-26L in the United States Court of Federal Claims, as a full and
final judicial settlement of all trust fund claims of the Delaware
Tribe that were or could have been brought under that docket.
SEC. 4. DISTRIBUTIONS TO TRIBES, ELIGIBLE MEMBERS, AND ENROLLEES.
(a) In General.--Notwithstanding existing authority, the Secretary
shall carry out such actions as the Secretary determines to be
necessary to satisfy any remaining monetary obligations identified in
the judgment for the case styled Delawares of Idaho, Inc., et al. v.
Clark, Civ. No. 83-1192 (D. Idaho) (October 2, 1984) and subsequent
orders of that court.
(b) Requirements.--
(1) Delaware tribe.--
(A) Definition of eligible member.--In this
paragraph, the term ``eligible member'' means a member
of the Delaware Tribe identified as underpaid in the
memorandum decision and judgment of the case described
in subsection (a).
(B) Payments under certain amount.--The Secretary
shall pay to the governing body of the Delaware Tribe
for programming purposes each per capita payment of an
eligible member or heir or legatee under this paragraph
in an amount that is less than $5.
(C) Remaining amounts.--Notwithstanding existing
authority--
(i) In general.--Any amounts remaining on
the date that is 1 year after the date on which
80 percent of the initial distributions under
this paragraph have been made shall be provided
to the governing body of the Delaware Tribe for
programming purposes.
(ii) Determination.--No more than one
series of per capita payments under this
paragraph shall be required before determining
that amounts remaining are eligible for
distribution to the governing body of the
Delaware Tribe under this subparagraph.
(2) Kansas delaware and idaho delaware.--
(A) Definition of eligible enrollee.--In this
paragraph, the term ``eligible enrollee'' means an
enrollee of the Kansas Delaware or the Idaho Delaware
identified as underpaid in the memorandum decision and
judgment of the case described in subsection (a).
(B) Payments under certain amount.--Of each per
capita payment of an eligible enrollee or heir or
legatee under this paragraph in an amount that is less
than $5, the Secretary shall pay, for programming
purposes--
(i) 19 percent of the amount to the
Delaware Nation; and
(ii) 81 percent of the amount to the
Delaware Tribe.
(C) Remaining amounts.--Notwithstanding existing
authority--
(i) In general.--Any amounts remaining on
the date that is 1 year after the date on which
80 percent of the initial distributions under
this paragraph have been made shall be provided
for programming purposes--
(I) 17 percent to the Delaware
Nation; and
(II) 83 percent to the Delaware
Tribe.
(ii) Determination.--No more than one
series of per capita payments under this
paragraph shall be required before determining
that amounts remaining are eligible for
distribution to the governing bodies of those
tribes under this subparagraph.
(c) Construction.--If any order of the court in the case described
in subsection (a) issued prior to the date of enactment of this Act is
inconsistent with a provision of subsection (c), the order of the court
shall govern unless amended by the court.
SEC. 5. DISTRIBUTION OF TRUST FUNDS.
(a) In General.--Notwithstanding existing authority, not later than
60 days after the date on which the motion filed under section 3 is
granted, of amounts in the Joint Delaware Trust Funds, the Secretary
shall--
(1) distribute to the Delaware Nation 17 percent for
programming purposes;
(2) implement a process to use 72 percent to make per
capita distributions to members of the Delaware Tribe, in
accordance with subsection (c); and
(3) implement a process to distribute to the Kansas
Delaware and the Idaho Delaware 11 percent, in accordance with
subsection (e).
(b) Definition.--In this section, ``update the roll'' means using
reasonable efforts to obtain current addresses for persons listed on
the specified roll, to identify such persons who are deceased, and to
ascertain the heirs and legatees of such deceased persons. Where this
section permits the Secretary to contract the updating of a roll, some
or all of these functions may be contracted.
(c) Per Capita Distributions.--
(1) Updating roll.--
(A) In general.--The Secretary shall implement a
process to update, or offer to enter into a contract
with the Delaware Tribe under which the Delaware Tribe
shall update, the roll of members prepared by the
Secretary under section 5(a)(2) of Public Law 96-318
(94 Stat. 968).
(B) Contract requirement.--Notwithstanding section
552a of title 5, United States Code (commonly known as
the ``Privacy Act of 1974''), or any other provision of
law, if the Secretary enters into a contract with the
Delaware Tribe under subparagraph (A), the Secretary
may provide to the Delaware Tribe--
(i) the roll prepared by the Secretary
under section 5(a)(2) of Public Law 96-318 (94
Stat. 968); and
(ii) any other information the Secretary
determines to be necessary to carry out the
contract.
(2) Distributions.--
(A) Definition of eligible member.--In this
paragraph, the term ``eligible member'' means a member
of the Delaware Tribe who is listed on the roll
prepared under section 5(a)(2) of Public Law 96-318 (94
Stat. 968).
(B) Adult members.--The Secretary shall make per
capita payments to eligible members aged 18 or older
directly to the eligible members.
(C) Disabled members.--The Secretary shall make per
capita payments to legally disabled eligible members in
accordance with such procedures (including the
establishment of trusts) as the Secretary determines to
be appropriate to protect the best interests of those
eligible members.
(D) Deceased eligible members.--The Secretary shall
make any per capita payment owed to a deceased eligible
member that is $100 or more to the appropriate living
heirs and legatees in accordance with a summary
distribution prepared by the Superintendent, Bureau of
Indian Affairs, Muskogee, Oklahoma, that identifies
those heirs or legatees who are living and located, and
pay to the governing body of the Delaware Tribe for
programming purposes (i) any portion owed to a deceased
heir or legatee, and (ii) any per capita payment owed
to a deceased eligible member that is less than $100.
If the Secretary contracts the determination of heirs
and legatees under paragraph (1)(B), the Superintendent
may rely on the results under that contract.
(E) Payments under certain amount.--The Secretary
shall pay to the governing body of the Delaware Tribe
for programming purposes each per capita payment of an
eligible member under this paragraph in an amount that
is less than $20.
(F) Remaining amounts.--Notwithstanding existing
authority--
(i) In general.--The Secretary shall
provide to the governing body of the Delaware
Tribe for programming purposes any amounts
remaining on the date that is 1 year after the
date on which the Secretary completes the
initial distributions and transfers under this
paragraph.
(ii) Determination.--The Secretary shall
not be required to make more than one series of
per capita payments under this paragraph before
determining that amounts remaining are eligible
for distribution to the governing body of the
Delaware Tribe under this subparagraph.
(d) Undistributed Delaware Tribe Trust Funds.--Notwithstanding
existing authority, not later than 60 days after the date on which the
motion filed under section 3 is granted, the Secretary shall distribute
to the governing body of the Delaware Tribe for programming purposes
all amounts in the undistributed Delaware Tribe Trust Funds.
(e) Undistributed Per Capita Distributions to Certain Delaware
Tribe Members.--
(1) Distributions.--
(A) In general.--Notwithstanding existing
authority, not later than 60 days after the date on
which the motion filed under section 3 is granted, the
Secretary shall implement a process under which the
Secretary shall--
(i) determine, based on available
information, which members of the Delaware
Tribe listed on the roll prepared under Public
Law 92-456 (25 U.S.C. 1291 et seq.) did not
receive a distribution; and
(ii) make the required per capita payments
to those members in accordance with subsection
(b)(2)(B)(E).
(B) Remaining amounts.--Notwithstanding existing
authority--
(i) In general.--The Secretary shall
provide to the governing body of the Delaware
Tribe for programming purposes any amounts
remaining on the date that is 1 year after the
date on which the Secretary completes the
initial distributions and transfers under this
paragraph.
(ii) Determination.--The Secretary shall
not be required to make more than one series of
per capita payments under this paragraph before
determining that amounts remaining are eligible
for distribution to the governing body of the
Delaware Tribe under this subparagraph.
(2) Updating roll.--
(A) In general.--To the extent the Secretary
determines to be necessary to carry out paragraph (1),
the Secretary shall update, or offer to enter into a
contract with the Delaware Tribe under which the
Delaware Tribe shall update, the roll prepared by the
Secretary under Public Law 92-456 (25 U.S.C. 1291 et
seq.).
(B) Contract requirement.--Notwithstanding section
552a of title 5, United States Code (commonly known as
the ``Privacy Act of 1974''), or any other provision of
law, if the Secretary enters into a contract with the
Delaware Tribe under subparagraph (A), the Secretary
may provide to the Delaware Tribe--
(i) the roll prepared by the Secretary
under Public Law 92-456 (25 U.S.C. 1291 et
seq.); and
(ii) any other information the Secretary
determines to be necessary to carry out the
contract.
(f) Undistributed Kansas Delaware Trust Funds and Undistributed
Idaho Delaware Trust Funds.--
(1) Updating roll.--
(A) In general.--To the extent necessary to fulfill
the purposes of this Act, the Secretary shall implement
a process to update the rolls, or offer to enter into
contracts with the Idaho Delaware and the Kansas
Delaware under which the Idaho Delaware and Kansas
Delaware shall update their respective roll, prepared
by the Secretary under paragraphs (1) and (3) of
section 5(a) of Public Law 96-318 (94 Stat. 968).
(B) Contract requirement.--Notwithstanding section
552a of title 5, United States Code (commonly known as
the ``Privacy Act of 1974''), or any other provision of
law, if the Secretary enters into a contract with the
Idaho Delaware or the Kansas Delaware under
subparagraph (A), the Secretary may provide to the
Idaho Delaware, the Kansas Delaware, or both--
(i) their respective roll prepared by the
Secretary under paragraphs (1) and (3) of
section 5(a) of Public Law 96-318 (94 Stat.
968); and
(ii) any other information the Secretary
determines to be necessary to carry out the
contract.
(2) Definition of enrollee.--In this subsection, the term
``enrollee'' means a person who is listed on the rolls prepared
under paragraph (1) or (3) of section 5(a) of Public Law 96-318
(94 Stat. 968).
(3) Apportionment.--Notwithstanding existing authority, of
amounts in the undistributed Idaho Delaware Trust Funds and the
undistributed Kansas Delaware Trust Funds, the Secretary shall
distribute--
(A) to the Delaware Tribe for programming purposes
not later than 60 days after the date on which the
motion filed under section 3 is granted, 37 percent of
amounts in the trust fund account numbered JA9480102 as
of the date of enactment of this Act (including
interest accruing on that account after that date) to
correct payments erroneously made from an account of
the Delaware Tribe to enrollees of the Kansas Delaware;
(B) to any appropriate attorney who makes a claim
within 60 days to the Secretary, amounts set aside
pursuant to Public Law 96-318 (94 Stat. 968) that are
held in trust for attorney's fees as of the date of
enactment of this Act and are determined to be owing by
the Secretary;
(C) to enrollees of the Kansas Delaware, in
accordance with paragraph (4)--
(i) 9.2 percent of the Joint Delaware Trust
Funds; and
(ii) amounts remaining in the undistributed
Kansas Delaware Trust Funds after making the
distributions under subparagraphs (A) and (B);
and
(D) to enrollees of the Idaho Delaware, in
accordance with paragraph (4)--
(i) 1.8 percent of the Joint Delaware Trust
Funds; and
(ii) amounts remaining in the undistributed
Idaho Delaware Trust Funds after making any
distributions under subparagraph (B).
(4) Payments to enrollees.--
(A) Adult enrollees.--The Secretary shall make per
capita payments under subparagraphs (C) and (D) of
paragraph (3) to enrollees aged 18 or older directly to
the enrollees.
(B) Disabled enrollees.--The Secretary shall make
per capita payments under subparagraphs (C) and (D) of
paragraph (3) to legally disabled enrollees in
accordance with such procedures (including the
establishment of trusts) as the Secretary determines to
be appropriate to protect the best interests of those
enrollees.
(C) Deceased enrollees.--The Secretary shall make
any per capita payment owed to a deceased eligible
enrollee under subparagraphs (C) and (D) of paragraph
(3) that is $100 or more to the appropriate living
heirs and legatees in accordance with a summary
distribution prepared by the appropriate
Superintendent, Bureau of Indian Affairs, that
identifies those heirs or legatees who are living and
located, and pay to the tribal governing bodies
pursuant to subparagraph (E)(i) for programming
purposes, (i) any portion owed to a deceased heir or
legatee, and, (ii) any per capita payment owed to a
deceased eligible enrollee that is less than $100. If
the Secretary contracts the determination of heirs and
legatees under paragraph (1)(B), the Superintendent may
rely on the results under that contract.
(D) Payments under certain amount.--Of each per
capita payment of an enrollee or heir or legatee under
this paragraph in an amount that is less than $20, the
Secretary shall pay, for programming purposes--
(i) 19 percent of the amount to the
Delaware Nation; and
(ii) 81 percent of the amount to the
Delaware Tribe.
(E) Remaining amounts.--Notwithstanding existing
authority--
(i) In general.--Of any amounts remaining
on the date that is 1 year after the date on
which the Secretary completes the initial
distributions and transfers under this
paragraph, the Secretary shall pay, for
programming purposes--
(I) 17 percent to the Delaware
Nation; and
(II) 83 percent to the Delaware
Tribe.
(ii) Determination.--The Secretary shall
not be required to make more than one series of
per capita payments under this paragraph before
determining that amounts remaining are eligible
for distribution to the governing bodies of
those tribes under this subparagraph.
(5) Idaho delaware action.--
(A) The Idaho Delaware filed on May 25, 2007 an
action in the United States District Court for the
District of Idaho styled Delawares of Idaho, Inc. v.
Kempthorne, No. 1:07-cv-00237, seeking a writ of
mandamus compelling distributions of the amounts due
the Idaho Delaware enrollees under this section.
(B) This section shall not obligate the Secretary
to make any distribution or take any other action that
would be duplicative of any distribution or action
taken by the Secretary in that case voluntarily or
pursuant to the Judgment and Order of June 26, 2008 or
any other order of the court issued prior to the date
of enactment of this Act.
SEC. 6. DELAWARE TRIBE RELATIONSHIP WITH THE UNITED STATES.
(a) Finding.--A December 3, 1940, letter of the Assistant
Commissioner of Indian Affairs, approved by Assistant Secretary Oscar
Chapman for the Department of the Interior on January 23, 1941,
determined that the Delaware Tribe was eligible to organize as a
distinct and separate tribe under the Oklahoma Indian Welfare Act.
(b) Reorganization of the Delaware Tribe by the Department of the
Interior.--If the Delaware Tribe elects to and is reorganized by the
Secretary under section 3 of the Act of June 26, 1936 (25 U.S.C. 503)
(commonly known as the ``Oklahoma Indian Welfare Act''), thereby
restoring its direct government-to-government relationship with the
United States and being restored to the List, or is restored to the
List by any other means, such restoration shall be subject to the
following provisions:
(1) Any agreement (including future amendments thereto)
made after January 1, 2007, between the Delaware Tribe and the
Cherokee Nation addressing common issues of jurisdiction,
Federal funding, or land within the Cherokee Nation
Jurisdictional Boundary shall be binding upon Federal agencies
unless otherwise prohibited by law. If waived in such an
agreement, the sovereign immunity of the Delaware Tribe, as
reorganized, shall not prevent the enforcement of such an
agreement by the Cherokee Nation in any United States district
court. Disputes regarding enforcement of such agreements arise
under Federal Indian law for purposes of Federal court
jurisdiction.
(2) The Secretary shall process a request to have land
acquired in trust for general purposes within the historical
areas of the Delaware Tribe as an on-reservation acquisition
under 25 CFR part 151 or its equivalent under any successor
regulation, if such consideration is expressly requested by the
Delaware Tribe within 25 years of a reorganization of the
Delaware Tribe by the Secretary under the Oklahoma Indian
Welfare Act.
(3) No land within the Cherokee Nation Jurisdictional
Boundary may be taken into trust or restricted status under any
provision of law for the benefit of the Delaware Tribe without
the written consent of the Cherokee Nation.
(4) Unless the Cherokee Nation and the Delaware Tribe agree
otherwise in writing, the Delaware Tribe shall have no tribal
jurisdiction over any Indian Country within the Cherokee Nation
Jurisdictional Boundary.
(5) The Delaware Tribe is entitled to participate in the
Small Business Administration's 8(a) program with a new
graduation period and without any penalty or negative
consequences that might otherwise flow from its prior
participation in the program.
SEC. 7. CONSTRUCTION.
(a) No Recognition of Certain Delaware Entities.--Nothing contained
in this Act shall be construed as recognizing the Kansas Delaware, the
Kansas Delaware Tribe of Indians, Incorporated, the Idaho Delaware, or
the Delawares of Idaho, Incorporated, as federally recognized tribes.
(b) No Other Tribal Interest in Delaware Funds.--Nothing in this
Act shall be construed as providing any other tribe or the members of
any other tribe who are not otherwise eligible members of the Delaware
Tribe, or heirs or legatees of such members, with any interest in, or
authority or jurisdiction over, any funds that are subject to sections
1 through 5 of this Act.
SEC. 8. NO TAXATION OF DISTRIBUTIONS.
None of the funds distributed per capita or made available for
programming purposes under this Act shall be subject to Federal or
State income taxes or be considered income or resources in determining
eligibility for assistance under Federal, State, or local programs.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as are necessary
to carry out this Act.
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