[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 812 Introduced in House (IH)]
114th CONGRESS
1st Session
H. R. 812
To provide for Indian trust asset management reform, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 9, 2015
Mr. Simpson (for himself, Mr. Cole, and Mr. Heck of Washington)
introduced the following bill; which was referred to the Committee on
Natural Resources
_______________________________________________________________________
A BILL
To provide for Indian trust asset management reform, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Indian Trust Asset
Reform Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--RECOGNITION OF TRUST RESPONSIBILITY
Sec. 101. Congressional statement of findings.
Sec. 102. Congressional reaffirmation of policy.
TITLE II--INDIAN TRUST ASSET MANAGEMENT DEMONSTRATION PROJECT ACT
Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Establishment of demonstration project; selection of
participating Indian tribes.
Sec. 204. Indian trust asset management plan.
Sec. 205. Effect of title.
TITLE III--RESTRUCTURING OFFICE OF THE SPECIAL TRUSTEE
Sec. 301. Purpose.
Sec. 302. Definitions.
Sec. 303. Under Secretary for Indian Affairs.
Sec. 304. Office of the Special Trustee for American Indians.
Sec. 305. Appraisals and valuations.
Sec. 306. Cost savings.
TITLE I--RECOGNITION OF TRUST RESPONSIBILITY
SEC. 101. CONGRESSIONAL STATEMENT OF FINDINGS.
The Congress, after careful review of the Federal Government's
historical and special legal relationship with, and resulting
responsibilities to, American Indian people, finds that--
(1) the relationship of Indian tribes to the United States
is founded in part on the settled doctrine of the law of
nations that when a stronger sovereign assumes authority over a
weaker sovereign, the stronger one assumes a duty of protection
for the weaker one, which does not surrender its right to self-
government;
(2) the United States fiduciary responsibilities to Indians
also are founded in part on specific commitments made through
written treaties and agreements securing peace, in exchange for
which Indians have surrendered claims to vast tracts of land,
which provided legal consideration for permanent, ongoing
performance of Federal trust duties; and
(3) the foregoing historic Federal-tribal relations and
understandings have benefitted the people of the United States
as a whole for centuries and established enduring and
enforceable Federal obligations to which the national honor has
been committed.
SEC. 102. CONGRESSIONAL REAFFIRMATION OF POLICY.
Pursuant to its constitutionally vested authority over Indian
affairs, the Congress hereby reaffirms that the United States fiduciary
responsibilities to Indian tribes include and are not limited by a duty
to promote tribal self-determination regarding governmental authority
and economic development.
TITLE II--INDIAN TRUST ASSET MANAGEMENT DEMONSTRATION PROJECT ACT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Indian Trust Asset Management
Demonstration Project Act of 2015''.
SEC. 202. DEFINITIONS.
In this title:
(1) Project.--The term ``Project'' means the Indian trust
asset management demonstration project established under
section 203(a).
(2) Indian tribe.--The term ``Indian tribe'' means an
Indian tribe that--
(A) is federally recognized; and
(B) submits an application under section 203(c).
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
SEC. 203. ESTABLISHMENT OF DEMONSTRATION PROJECT; SELECTION OF
PARTICIPATING INDIAN TRIBES.
(a) In General.--The Secretary shall establish and carry out an
Indian trust asset management demonstration project, in accordance with
this title.
(b) Selection of Participating Indian Tribes.--
(1) Indian tribes.--
(A) In general.--Any Indian tribe shall be eligible
to participate in the Project if--
(i) the Indian tribe submits to the
Secretary an application under subsection (c);
and
(ii) the Secretary approves the application
of the Indian tribe.
(2) Notice.--
(A) In general.--The Secretary shall provide a
written notice to each Indian tribe approved to
participate in the Project.
(B) Contents.--A notice under subparagraph (A)
shall include--
(i) a statement that the application of the
Indian tribe has been approved by the
Secretary; and
(ii) a requirement that the Indian tribe
shall submit to the Secretary a proposed Indian
trust asset management plan in accordance with
section 204.
(c) Application.--
(1) In general.--To be eligible to participate in the
Project, an Indian tribe shall submit to the Secretary a
written application in accordance with paragraph (2).
(2) Requirements.--The Secretary shall consider an
application under this subsection only if the application--
(A) includes a copy of a resolution or other
appropriate action by the governing body of the Indian
tribe, as determined by the Secretary, in support of or
authorizing the application;
(B) is received by the Secretary after the date of
enactment of this Act; and
(C) states that the Indian tribe is requesting to
participate in the Project.
(d) Duration.--The Project shall remain in effect for a period of
10 years after the date of enactment of this Act, but may be extended
at the discretion of the Secretary.
SEC. 204. INDIAN TRUST ASSET MANAGEMENT PLAN.
(a) Proposed Plan.--
(1) Submission.--After the date on which an Indian tribe
receives a notice from the Secretary under section 203(b)(2),
the Indian tribe shall submit to the Secretary a proposed
Indian trust asset management plan in accordance with paragraph
(2).
(2) Contents.--A proposed Indian trust asset management
plan shall include provisions that--
(A) identify the trust assets that will be subject
to the plan;
(B) establish trust asset management objectives and
priorities for Indian trust assets that are located
within the reservation, or otherwise subject to the
jurisdiction, of the Indian tribe;
(C) allocate trust asset management funding that is
available for the Indian trust assets subject to the
plan in order to meet the trust asset management
objectives and priorities;
(D) if the Indian tribe has contracted or compacted
functions or activities under the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450 et seq.) relating to the management of trust
assets--
(i) identify the functions or activities
that are being performed by the Indian tribe
under the contracts or compacts; and
(ii) describe the practices and procedures
that the Indian tribe will follow;
(E) establish procedures for nonbinding mediation
or resolution of any dispute between the Indian tribe
and the United States relating to the trust asset
management plan;
(F) include a process for the Indian tribe and the
Federal agencies affected by the trust asset management
plan to conduct evaluations to ensure that trust assets
are being managed in accordance with the plan; and
(G) identify any Federal regulations that will be
superseded by the plan;
(3) Technical assistance and information.--The Secretary
shall provide to an Indian tribe any technical assistance and
information, including budgetary information, that the Indian
tribe determines to be necessary for preparation of a proposed
plan on receipt of a written request from the Indian tribe.
(b) Approval and Disapproval of Proposed Plans.--
(1) Approval.--
(A) In general.--Not later than 120 days after the
date on which an Indian tribe submits a proposed Indian
trust asset management plan under subsection (a), the
Secretary shall approve or disapprove the proposed
plan.
(B) Requirements for disapproval.--The Secretary
shall approve a proposed plan unless the Secretary
determines that--
(i) the proposed plan fails to address a
requirement under subsection (a)(2);
(ii) the proposed plan includes one or more
provisions that are inconsistent with
subsection (c); or
(iii) the cost of implementing the proposed
plan exceeds the amount of funding available
for the management of trust assets that would
be subject to the proposed plan.
(2) Action on disapproval.--
(A) Notice.--If the Secretary disapproves a
proposed plan under paragraph (1)(B), the Secretary
shall provide to the Indian tribe a written notice of
the disapproval, including any reason why the proposed
plan was disapproved.
(B) Action by tribes.--If a proposed plan is
disapproved under paragraph (1)(B), the Indian tribe
may resubmit an amended proposed plan not later than 90
days after the date on which the Indian tribe receives
the notice under subparagraph (A).
(3) Failure to approve or disapprove.--If the Secretary
fails to approve or disapprove a proposed plan in accordance
with paragraph (1), the plan shall be considered to be
approved.
(4) Judicial review.--An Indian tribe may seek judicial
review of the determination of the Secretary in accordance with
subchapter II of chapter 5, and chapter 7, of title 5, United
States Code (commonly known as the ``Administrative Procedure
Act'') if--
(A) the Secretary disapproves the proposed plan of
the Indian tribe under paragraph (1) or (3); and
(B) the Indian tribe has exhausted any other
administrative remedy available to the Indian tribe.
(c) Applicable Laws; Standards; Trust Responsibility.--
(1) Applicable laws.--Except as provided in subsection (e),
an Indian trust asset management plan, and any activity carried
out under the plan, shall not be approved unless the proposed
plan is consistent with all treaties, statutes, Executive
orders, and court decisions that are applicable to the trust
assets, or the management of the trust assets, identified in
the plan.
(2) Standards.--Subject to the laws referred to in
paragraph (1)(A), an Indian trust asset management plan shall
not be approved unless the Secretary determines that the plan
will--
(A) conform, to the maximum extent practicable, to
the preferred use of the trust asset by the beneficial
owner, unless the use is inconsistent with a treaty,
statute, Executive order, or court decision referred to
in paragraph (1)(A); and
(B) protect any applicable treaty-based fishing,
hunting and gathering, and similar rights relating to
the use, access, or enjoyment of a trust asset.
(d) Termination of Plan.--
(1) In general.--An Indian tribe may terminate an Indian
trust asset management plan on any date after the date on which
a proposed Indian trust asset management plan is approved by
providing to the Secretary--
(A) a notice of the intent of the Indian tribe to
terminate the plan; and
(B) a resolution of the governing body of the
Indian tribe authorizing the termination of the plan.
(2) Effective date.--A termination of an Indian trust asset
management plan under paragraph (1) takes effect on October 1
of the first fiscal year following the date on which a notice
is provided to the Secretary under paragraph (1)(A).
(e) Approval of Certain Agreements by Indian Tribe.--
(1) In general.--Notwithstanding subsection (c)(1), the
Secretary may approve an Indian trust asset management plan
that includes a provision authorizing the Indian tribe to enter
into, approve and carry out a surface leasing transaction or
forest land management activity without approval of the
Secretary, even though the surface leasing transaction or
forest land management activity would require such approval
under otherwise applicable law (including regulations), if--
(A) the resolution of other action of the governing
body of the Indian tribe referred to in section
203(c)(2)(B) expressly authorizes the inclusion of such
provision in the Indian trust asset management plan;
(B) the Indian tribe has adopted regulations
expressly incorporated by reference into the Indian
trust asset management plan that--
(i) with respect to a surface leasing
transaction--
(I) have been approved by the
Secretary pursuant to subsection (h)(4)
of the first section of the Act of
August 9, 1955 (25 U.S.C. 415(h)(4)
titled ``An Act to authorizes the
leasing of restricted Indian lands for
public, religious, educational,
recreational, residential, business,
and other purposes requiring the grant
of long-term leases'' 415(h)(4)), or
(II) have not been approved yet by
the Secretary in accordance with
subclause (I) but that the Secretary
determines at or prior to the time of
approval under this paragraph meet the
requirements of subsection (h)(3) of
the first section of that Act (25
U.S.C. 415(h)(3); or
(ii) with respect to forest land management
activities, the Secretary determines--
(I) are consistent with the
regulations of the Secretary adopted
under the National Indian Forest
Resources Management Act (25 U.S.C.
3101 et seq.); and
(II) provide for an environmental
review process that includes--
(aa) the identification and
evaluation of any significant
effects of the proposed action
on the environment; and
(bb) a process for ensuring
that--
(AA) the public is
informed of, and has a
reasonable opportunity
to comment on, any
significant
environmental impacts
of the proposed forest
land management
activity identified by
the Indian tribe; and
(BB) the Indian
tribe provides
responses to relevant
and substantive public
comments on any such
impacts before the
Indian tribe approves
the timber resource
transaction.
(2) Kinds of transactions.--
(A) In general.--At the discretion of the Indian
tribe, an Indian trust asset management plan may
authorize the Indian tribe to carry out either a
surface leasing transaction or a forest land management
activity, or both of those kinds of transactions and
activities.
(B) Selection of specific transactions and
activities.--At the discretion of the Indian tribe, the
Indian tribe may include in the Integrated Resource
Management Plan any one, several or all of the kinds of
transactions and activities authorized to be included
in such plan under subparagraph (A).
(3) Technical assistance.--The Secretary may provide
technical assistance, upon request of the Indian tribe, for
development of a regulatory environmental review process
required under paragraph (1).
(4) Indian self-determination act.--The technical
assistance to be provided by the Secretary pursuant to
paragraph (2) may be made available through contracts, grants,
or agreements entered into in accordance with, and made
available to entities eligible for, such contracts, grants, or
agreements under the Indian Self-Determination Act (25 U.S.C.
450 et seq.).
(5) Federal environmental review.--Notwithstanding
paragraph (1), if an Indian tribe carries out a project or
activity funded by a Federal agency, the Indian tribe shall
have the authority to rely on the environmental review process
of the applicable Federal agency rather than any tribal
environmental review process under this subsection.
(6) Documentation.--If an Indian tribe executes a surface
leasing transaction or forest land management activity,
pursuant to tribal regulations under paragraph (1), the Indian
tribe shall provide the Secretary with--
(A) a copy of the surface leasing transaction or
forest land management activity documents, including
any amendments to or renewals of the applicable
transaction; and
(B) in the case of tribal regulations, a surface
leasing transaction, or forest land management
activities that allow payments to be made directly to
the Indian tribe, documentation of the payments that is
sufficient to enable the Secretary to discharge the
trust responsibility of the United States under
paragraph (7).
(7) Trust responsibility.--
(A) In general.--The United States shall not be
liable for losses sustained by any party to a lease
executed pursuant to tribal regulations under paragraph
(1).
(B) Authority of secretary.--Pursuant to the
authority of the Secretary to fulfill the trust
obligation of the United States to the applicable
Indian tribe under Federal law (including regulations),
the Secretary may, upon reasonable notice from the
applicable Indian tribe and at the discretion of the
Secretary, enforce the provisions of, or cancel, any
lease executed by the Indian tribe under paragraph (1).
(8) Compliance.--
(A) In general.--An interested party, after
exhausting of any applicable tribal remedies, may
submit a petition to the Secretary, at such time and in
such form as the Secretary determines to be
appropriate, to review the compliance of the applicable
Indian tribe with any tribal regulations approved by
the Secretary under this subsection.
(B) Violations.--If, after carrying out a review
under subparagraph (A), the Secretary determines that
the tribal regulations were violated, the Secretary may
take any action the Secretary determines to be
necessary to remedy the violation, including rescinding
the approval of the tribal regulations and reassuming
responsibility for the approval of leases of tribal
trust lands.
(C) Documentation.--If the Secretary determines
that a violation of the tribal regulations has occurred
and a remedy is necessary, the Secretary shall--
(i) make a written determination with
respect to the regulations that have been
violated;
(ii) provide the applicable Indian tribe
with a written notice of the alleged violation
together with such written determination; and
(iii) prior to the exercise of any remedy,
the rescission of the approval of the
regulation involved, or the reassumption of the
trust asset transaction approval
responsibilities, provide the applicable Indian
tribe with--
(I) a hearing that is on the
record; and
(II) a reasonable opportunity to
cure the alleged violation.
(9) Defined terms.--As used in this subsection, the term--
(A) ``interested party'' means an Indian or non-
Indian individual or corporation, or tribal or non-
tribal government whose interests could be adversely
affected by a tribal trust land leasing decision made
by an applicable Indian tribe;
(B) ``surface leasing transaction'' means a
residential, business, agricultural, or wind and solar
resource lease of tribal land;
(C) ``forest land management activity'' means any
one or more of the activities set forth in section
304(4) of the National Indian Forest Resources
Management Act (25 U.S.C. 3101 et seq.); and
(D) ``tribal land'' means land, the title to which
is held in trust by the United States for the benefit
of an Indian tribe or held in fee by an Indian tribe
subject to restrictions against alienation under
Federal law.
SEC. 205. EFFECT OF TITLE.
(a) Liability.--Subject to subparagraph (b), nothing in this title,
or a trust asset management plan approved under section 204, shall
independently diminish, increase, create, or otherwise affect the
liability of the United States or an Indian tribe participating in the
Project for any loss resulting from the management of an Indian trust
asset under an Indian trust asset management plan.
(b) Deviation From Standard Practices.--The United States shall not
be liable to any party (including any Indian tribe) for any term of, or
any loss resulting from the terms of, an Indian trust asset management
plan that provides for management of trust assets at a less stringent
standard than the Secretary would otherwise require or adhere to in
absence of an Indian trust asset management plan.
(c) Effect on Other Laws.--Except for any regulation superseded by
a trust asset management plan approved under section 204(b), or any
tribal regulations included in or incorporated by reference in such a
plan under section 204(e), nothing in this title amends or otherwise
affects the application of any treaty, statute, regulation, Executive
order, or court decision that is applicable to Indian trust assets or
the management or administration of Indian trust assets.
(d) Trust Responsibility.--Nothing in this title enhances,
diminishes or otherwise affects the trust responsibility of the United
States to Indian tribes and individual Indians.
TITLE III--RESTRUCTURING OFFICE OF THE SPECIAL TRUSTEE
SEC. 301. PURPOSE.
The purpose of this title is to ensure a more efficient and
accountable administration of duties of the Secretary of the Interior
with respect to providing services and programs to Indians and Indian
tribes, including the management of Indian trust resources.
SEC. 302. DEFINITIONS.
In this title:
(1) BIA.--The term ``BIA'' means the Bureau of Indian
Affairs.
(2) Department.--The term ``Department'' means the
Department of the Interior.
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(4) Under secretary.--The term ``Under Secretary'' means
the individual appointed to the position of Under Secretary for
Indian Affairs, established by section 303(a).
SEC. 303. UNDER SECRETARY FOR INDIAN AFFAIRS.
(a) Authorization of Position.--Notwithstanding any other provision
of law, the Secretary may establish in the Department the position of
Under Secretary for Indian Affairs, who shall report directly to the
Secretary.
(b) Appointment.--
(1) In general.--Except as provided in paragraph (2), the
Under Secretary shall be appointed by the President, by and
with the advice and consent of the Senate.
(2) Exception.--The officer serving as the Assistant
Secretary for Indian Affairs on the date of enactment of this
Act may assume the position of Under Secretary without
appointment under paragraph (1) if--
(A) the officer was appointed as Assistant
Secretary for Indian Affairs by the President by and
with the advice and consent of the Senate; and
(B) not later than 180 days after the date of
enactment of this Act, the Secretary approves the
assumption.
(c) Duties.--In addition to any other duties directed by the
Secretary, the Under Secretary shall--
(1) coordinate with the Special Trustee for American
Indians to ensure an orderly transition of any or all functions
of the Special Trustee to the BIA or to any other agency or
bureau within the Department;
(2) to the maximum extent practicable, supervise and
coordinate activities and policies of the BIA with activities
and policies of--
(A) the Bureau of Reclamation;
(B) the Bureau of Land Management;
(C) the Office of Natural Resources Revenue;
(D) the National Park Service; and
(E) the U.S. Fish and Wildlife Service; and
(3) provide for regular consultation with Indians and
Indian tribes that own interests in trust resources and trust
fund accounts.
(d) Personnel Provisions.--
(1) Appointments.--The Under Secretary may appoint and fix
the compensation of such officers and employees as the Under
Secretary determines to be necessary to carry out any function
transferred under this section.
(2) Requirements.--Except as otherwise provided by law--
(A) any officer or employee described in paragraph
(1) shall be appointed in accordance with the civil
service laws;
(B) the compensation of such an officer or employee
shall be fixed in accordance with title 5, United
States Code; and
(C) in appointing or otherwise hiring any employee,
the Under Secretary shall give preference to Indians in
accordance with section 12 of the Act of June 8, 1934
(25 U.S.C. 472).
SEC. 304. OFFICE OF THE SPECIAL TRUSTEE FOR AMERICAN INDIANS.
(a) Report to Congress.--Notwithstanding sections 302 and 303 of
the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C.
4042; 4043), the Secretary shall prepare and, after consultation with
Indian tribes and appropriate Indian organizations, submit to the
Secretary and the Committee on Natural Resources of the House of
Representatives, Committee on Indian Affairs of the Senate, and the
House and Senate Committees on Appropriations, within one year after
enactment of this Act, a report that includes the following:
(1) Identification of all functions, other than the
collection, management, and investment of Indian trust funds,
that the Office of the Special Trustee performs, either
independently or in concert with the BIA or other federal
agencies, specifically those functions that affect or relate to
management of non-monetary trust resources;
(2) A description of any functions of the Office of the
Special Trustee that will be transitioned to the BIA or other
bureaus or agencies within the Department, together with
applicable timeframes; and
(3) A transition plan and timetable for the termination of
the Office of the Special Trustee to occur not later than 2
years after the date of the report.
(b) Fiduciary Trust Officers.--Subject to applicable law and
regulations, the Secretary shall, at the request of an Indian tribe or
consortia of Indian tribes, include fiduciary trust officers in a
contract, compact, or cooperative agreement under the Indian Self-
Determination and Education Assistance Act (Public Law 93-638), as
amended.
SEC. 305. APPRAISALS AND VALUATIONS.
(a) In General.--Within 18 months of enactment of this Act, the
Secretary shall, in consultation with Indian tribes and tribal
organizations, ensure that appraisals and valuations of Indian trust
property are administered by a single bureau, agency or other
administrative entity within the Department.
(b) Minimum Qualifications.--Within one year of enactment of this
Act, the Secretary shall establish and publish in the Federal Register
minimum qualifications for persons to prepare appraisals and valuations
of Indian trust property.
(c) Secretarial Approval.--When an Indian tribe or Indian
beneficiary submits an appraisal or valuation to the Secretary that
satisfies the minimum qualifications in paragraph (2) and such
submission acknowledges the tribe or beneficiary's intent to have the
appraisal or valuation considered under this subsection, the appraisal
or valuation--
(1) shall not require any further Secretarial review or
approval; and
(2) shall be considered final for purposes of effectuating
the transaction for which the appraisal or valuation is
required.
SEC. 306. COST SAVINGS.
(a) In General.--For any program, function, service, or activity
(or any portions of programs, functions, services, or activities) of
the Office of the Special Trustee that will not have to operate or
carry out as a result of any transfer of functions and personnel under
this title, the Secretary shall, within 60 days--
(1) identify the amounts that the Secretary would have
otherwise expended to operate or carry out each program,
function, service, and activity (or any portion of a program,
function, service, or activity); and
(2) provide to the Secretary and the tribal representatives
of the Tribal/Interior Budget Council, or the representatives
of any other appropriate entity that advises the Secretary on
Indian program budget or funding issues, the list of the
programs, functions, services, and activities (or any portions
of programs, functions, services, or activities) identified
pursuant paragraph (1) and the amounts associated with each
program, function, service, and activity (or any portion of a
program, function, service, or activity).
(b) Tribal Recommendations.--Within 90 days of receipt of the
information in subsection (a)(2), the tribal representatives of the
Tribal/Interior Budget Council, or the representatives of any other
appropriate entity that advises the Secretary on Indian program budget
or funding issues, may provide recommendations on how any amounts or
cost savings should be reallocated, incorporated into future budget
requests, or appropriated, to the--
(1) Secretary;
(2) Office of Management and Budget;
(3) Committee on Appropriations of the House of
Representatives;
(4) Committee on Natural Resources of the House
Representatives;
(5) Committee on Appropriations of the Senate; and
(6) Committee on Indian Affairs of the Senate.
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