[Congressional Record Volume 144, Number 31 (Thursday, March 19, 1998)]
[Senate]
[Pages S2296-S2298]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL:
  S. 1797. A bill to reduce tobacco use by Native Americans and to make 
the proposed tobacco settlement applicable to tobacco-related 
activities on Indian lands; to the Committee on Indian Affairs.


  the reduction in tobacco use and regulation of tobacco products in 
                       indian country act of 1998

  Mr. CAMPBELL. Mr. President, I am pleased today to introduce the 
``Reduction in Tobacco Use and Regulation of Tobacco Products in Indian 
Country Act of 1998''.
  After many hard months of negotiations between the states Attorneys 
General, class action plaintiffs, and the tobacco representatives, in 
June, 1997, a proposed settlement was agreed to.
  The proposed agreement tries to accomplish a number of goals: 
avoiding costly and lengthy lawsuits that will enrich the trial 
lawyers; creating a multi-billion pot of money to be used by the states 
and the tribes for tobacco-related health problems; and implementing a 
comprehensive set of advertising limits that the companies would agree 
to voluntarily.
  In reviewing the proposed settlement agreement, the objective of the 
Committee on Indian Affairs was to review the matters under its 
jurisdiction and make recommendations on how to implement that 
agreement on Indian lands.
  After two Committee hearings I am confident that as to the Indian 
issues, we have crafted a bill that addresses the concerns of both the 
tribes and the parties that seek enactment of the proposed agreement.
  In its hearings the Committee heard testimony on the use of tobacco 
products by Native Americans and how the proposed tobacco settlement 
would impact tobacco-related activities on Indian lands.
  Even though smoking is on the decline in other segments of American 
society, available statistics show that smoking and use of smokeless 
tobacco in Native American communities is at crisis levels. The 
percentage of Native American kids who use tobacco is breathtaking--in 
some parts of the country 80% of Indian high school students use 
tobacco products.
  Further, the health problems Native Americans face such as alcoholism 
and diabetes are compounded by the use of tobacco products. Vigorous 
efforts need to be made at the federal and tribal levels to prohibit 
access to tobacco and reduce youth smoking in Native communities.
  After hearing the concerns and recommendations regarding the proposed 
settlement by Indian tribal leaders, state Attorneys General, federal 
health and legal experts, and Indian legal scholars, a bill was crafted 
which addresses the major issues involved in tobacco regulation on 
Indian lands.
  The legislation I am introducing today includes legal protections for 
traditional and ceremonial uses of tobacco by tribal members; respects 
tribal sovereignty and authority to make and enforce laws on Indian 
lands; includes a commitment to provide the necessary licensing and 
enforcement funding to tribal governments that is consistent with 
allocations the states will receive; and a commitment to ensure 
sufficient funding to treat tobacco-related illnesses and reduce the 
epidemic of tobacco abuse in Indian country.
  I am hopeful that if a comprehensive agreement is enacted, the 
principles and provisions contained in this bill are included to make 
the agreement applicable to tobacco-related activities on Indian lands, 
to protect the traditional use of tobacco by Native Americans, and 
preserve tribal authority to make and enforce laws to govern 
themselves.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1797

       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 ``Reduction in Tobacco Use and 
     Regulation of Tobacco Products in Indian Country Act of 
     1998''.

     SEC. 2. FINDINGS AND PURPOSES.

       (a) Findings.--Congress finds that--
       (1) Native Americans have used tobacco products for 
     recreational, ceremonial, and traditional purposes for 
     centuries;
       (2) the sale, distribution, marketing, advertising, and use 
     of tobacco products are activities substantially affecting 
     commerce among the States and the Indian tribes and, as such, 
     have a substantial effect on the economy of the United 
     States;
       (3) the sale, distribution, marketing, advertising, and use 
     of tobacco products are activities substantially affecting 
     commerce by virtue of the health care-related and other costs 
     that Federal, State, and tribal governmental authorities have 
     incurred because of the usage of tobacco products;
       (4) the sale, distribution, marketing, advertising, and use 
     of tobacco products on Indian lands are activities which 
     materially and substantially affect the health and welfare of 
     members of Indian tribes and tribal organizations;
       (5) the use of tobacco products is a serious ad growing 
     public health problem, with impacts on the health and well-
     being of Native Americans;
       (6) the use of tobacco products in Native communities is 
     particularly serious with staggering rates of smoking in 
     Native American communities;
       (7) enhancing existing legal mechanisms for the protection 
     of public health are inadequate to deal effectively with the 
     use of tobacco products; and
       (8) enhancing prevention, research, and treatment resources 
     with respect to tobacco will allow Indian tribes to address 
     more effectively the problems associated with the use of 
     tobacco products.
       (b) Purposes.--It is the purpose of this Act to--
       (1) provide for the implementation of any national tobacco 
     legislation with respect to the regulation of tobacco 
     products and other tobacco-related activities on Indian 
     lands;

[[Page S2297]]

       (2) recognize the historic Native American traditional and 
     ceremonial use of tobacco products, and to preserve and 
     protect the cultural, religious, and ceremonial uses of 
     tobacco by members of Indian tribes;
       (3) recognize and respect Indian tribal sovereignty and 
     tribal authority to make and enforce laws regarding the 
     regulation of tobacco distributors and tobacco products on 
     Indian lands;
       (4) ensure that the necessary funding is made available to 
     tribal governments for licensing and enforcement of tobacco 
     distributors and tobacco products on Indian lands;
       (5) ensure that the necessary funding is made available to 
     tribal governments to treat tobacco-related illnesses and 
     alleviate the epidemic of tobacco abuse by Native Americans;
       (6) reduce the marketing of tobacco products to, and reduce 
     the rate of smoking by, young Native Americans; and
       (7) decrease tobacco use by Native Americans by encouraging 
     public education and smoking cessation programs.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Commerce.--The term ``commerce'' means--
       (A) commerce between any State, Indian tribe, or tribal 
     organization, the District of Columbia, the Commonwealth of 
     Puerto Rico, the Virgin Islands, American Samoa, the Mariana 
     Islands, or any territory or possession of the United States;
       (B) commerce between points in any State, Indian tribe, or 
     tribal organization, the District of Columbia, the 
     Commonwealth of Puerto Rico, the Virgin Islands, America 
     Samoa, the Mariana Islands, or any territory or possession of 
     the United States; and
       (C) commerce wholly within the District of Columbia, the 
     Commonwealth of Puerto Rico, the Virgin Islands, American 
     Samoa, the Mariana Islands, or any territory or possession of 
     the United States.
       (2) Consent decree.--The term ``consent decree'' means a 
     consent decree executed by a 1 or more participating 
     manufacturers and a State or an Indian tribe or tribal 
     organization pursuant to the provisions of any Act enacted in 
     order to give effect to the national tobacco settlement 
     agreement of June 20, 1997.
       (3) Court.--The term ``court'' means any judicial or agency 
     court, forum, or tribunal within the United States, including 
     any Federal, State, or tribal court.
       (4) Distributor.--The term ``distributor'' means any person 
     who furthers the distribution of tobacco or tobacco products, 
     whether domestic or imported, at any point from the original 
     place of manufacture to the person who sells or distributes 
     the product to individuals for second consumption. Such term 
     shall not include common carriers.
       (5) Indian lands.--The term ``Indian lands'' has the 
     meaning given the term ``Indian country'' by section 1151 of 
     title 18, United States Code, and includes lands under the 
     jurisdiction of an Indian tribe or tribal organization.
       (6) Indian tribe.--The term ``Indian tribe'' has the 
     meaning given such term in section 4(e) of the Indian Self 
     Determination and Education Assistance Act (25 U.S.C. 
     450b(e)).
       (7) Manufacturer.--
       (A) In general.--The term ``manufacturer'' means--
       (i) a person who directly (not through a subsidiary or 
     affiliate) manufactures tobacco products for sale in the 
     United States;
       (ii) a successor or assign of a person described in 
     subparagraph (A);
       (iii) an entity established by a person described in 
     subparagraph (A);
       (iv) an entity to which a person described in subparagraph 
     (A) directly or indirectly makes a fraudulent conveyance 
     after the date of enactment of this Act, or any Act to amend 
     the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321 et 
     seq.) in order to give effect to the national tobacco 
     settlement agreement of June 20, 1997, or a transfer that 
     would otherwise be voidable under chapter 7 of title 11, 
     United States Code, but only to the extent of the interest or 
     obligation transferred.
       (B) Limitation.--The term ``manufacturer'' shall not 
     include a parent or affiliate of a person who manufactures 
     tobacco products unless such parent or affiliate itself is a 
     person described in subparagraphs (A).
       (8) Person.--The term ``person'' means an individual, 
     partnership, corporation, or any other business or legal 
     entity.
       (9) Point of sale.--The term ``point of sale'' means any 
     location at which an individual can purchase or otherwise 
     obtain tobacco products for personal, non-traditional 
     consumption.
       (10) Retailer.--The term ``retailer'' means any person who 
     sells tobacco products to individuals for personal 
     consumption, or who operates a facility where vending 
     machines or self-service displays are permitted.
       (11) Sale.--The term ``sale'' includes the selling, 
     providing samples of, or otherwise making tobacco products 
     available for personal consumption in any place or location 
     as permitted under law.
       (12) Secretary.--Unless otherwise provided, the term 
     ``Secretary'' means the Secretary of Health and Human 
     Services.
       (13) State.--The term ``State'' includes the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Virgin Islands, America Samoa, the Mariana Islands, 
     or any territory or possession of the United States. Such 
     term also includes any political subdivision of any State.
       (14) Tobacco.--The term ``tobacco'' means tobacco in its 
     unmanufactured form.
       (15) Tobacco product.--The term ``tobacco product'' means 
     cigarettes, cigarette tobacco, and smokeless tobacco.
       (16) Tobacco trust fund.--The term ``tobacco trust fund'' 
     means any national tobacco settlement trust fund established 
     under any Act enacted in order to give effect to the national 
     tobacco settlement agreement of June 20, 1997.
       (17) Tribal organization.--The term ``tribal organization'' 
     has the meaning given such term in section 4(e) of the Indian 
     Self Determination and Education Assistance Act (25 U.S.C. 
     45Ob(e)).
       (18) Voluntary cooperative agreement.--The term ``voluntary 
     cooperative agreement'' means any agreement, contract, 
     compact, memorandum of understanding, or similar agreement.

     SEC. 4. APPLICATION OF TOBACCO-RELATED PROVISIONS TO NATIVE 
                   AMERICANS.

       (a) In General.--The provisions of any Act enacted in order 
     to give effect to the national tobacco settlement agreement 
     of June 20, 1997 shall apply to the manufacture, 
     distribution, or sale of tobacco or tobacco products within 
     the exterior boundaries of Indian reservations or on lands 
     within the jurisdiction of an Indian tribe or tribal 
     organization.
       (b) Traditional Use Exception.--
       (1) In general.--In recognition of the religious, 
     ceremonial, and traditional uses of tobacco and tobacco 
     products by Indian tribes and the members of such tribes, 
     nothing in this Act (or any Act enacted to give effect to the 
     national tobacco settlement agreement of June 20, 1997) shall 
     be construed to infringe upon the right of such tribes or 
     members of such tribes to acquire, possess, use, or transfer 
     any tobacco or tobacco products for such purposes.
       (2) Application of provisions.--Paragraph (1) shall apply 
     only to those quantities of tobacco or tobacco products 
     necessary to fulfill the religious, ceremonial, or 
     traditional purposes of an Indian tribe or the members of 
     such tribe, and shall not be construed to permit the general 
     marketing of tobacco or tobacco products in a manner that is 
     not in compliance with chapter IX of the Federal Food, Drug, 
     and Cosmetic Act.
       (3) Limitation.--Nothing in this Act (or any Act enacted to 
     give effect to the national tobacco settlement agreement of 
     June 20, 1997) shall be construed to permit an Indian tribe 
     or member of such a tribe to acquire, possess, use, or 
     transfer any tobacco or tobacco product in violation of 
     section 2341 of title 18, United States Code, with respect to 
     the transportation of contraband cigarettes.
       (c) Payments to Tobacco Trust Fund.--Any Indian tribe or 
     tribal organization that engages in the manufacture of 
     tobacco products shall be subject to liability for any fee 
     payments that are levied on other manufacturers for purposes 
     of any tobacco trust fund. Any Indian tribe or tribal 
     organization that does not pay such fees shall be considered 
     a nonparticipating manufacturer and shall be subject to 
     surcharges made applicable to such nonparticipating 
     manufacturers under any Act enacted to give effect to the 
     national tobacco settlement agreement of June 20, 1997).
       (d) Application of Federal Food, Drug, and Cosmetic Act 
     Requirements.--
       (1) In general.--The Secretary, in consultation with the 
     Secretary of Interior, shall promulgate regulations to 
     provide for the waiver of any requirement of the Food, Drug, 
     and Cosmetic Act (21 U.S.C. 321 et seq.) with respect to 
     tobacco products manufactured, distributed, or sold within 
     the exterior boundaries of Indian reservations or on lands 
     within the jurisdiction of an Indian tribe as appropriate to 
     comply with this section.
       (2) Jurisdiction.--With respect to tobacco-related 
     activities that take place within the exterior boundaries of 
     Indian reservations or on lands within the jurisdiction of an 
     Indian tribe, the responsibility for enforcing the 
     regulations promulgated pursuant to paragraph (1) shall be 
     vested in--
       (A) the Indian tribe or the tribal organization involved;
       (B) the State within which the lands of the Indian tribe or 
     tribal organization are located, pursuant to a voluntary 
     cooperative agreement entered into by the State and the 
     Indian tribe or tribal organization; or
       (C) the Secretary.
       (3) Eligibility for assistance.--Under the regulations 
     promulgated under paragraph (1), the Secretary, in 
     consultation with the Secretary of the Interior, shall 
     provide assistance to an Indian tribe or tribal organization 
     in meeting and enforcing the requirements under such 
     regulations if--
       (A) the tribe or tribal organization has a governing body 
     that has powers and carries out duties that are similar to 
     the powers and duties of State or local governments;
       (B) the functions to be exercised through the use of such 
     assistance relate to activities conducted within the exterior 
     boundaries of Indian reservations or on lands within the 
     jurisdiction of the tribe or tribal organization involved; 
     and
       (C) the tribe or tribal organization is reasonably expected 
     to be capable of carrying out the functions required by the 
     Secretary.
       (4) Determinations.--Not later than 60 days after the date 
     on which an Indian tribe or tribal organization submits an 
     application for assistance under paragraph (3), the Secretary 
     shall make a determination concerning the eligibility of such 
     tribe or organization for such assistance.

[[Page S2298]]

       (5) Implementation by the secretary.--If the Secretary 
     determines that the Indian tribe or tribal organization is 
     not willing or not qualified to administer the requirements 
     of the regulations promulgated under this subsection, the 
     Secretary, in consultation with the Secretary of the 
     Interior, shall implement and enforce such regulations on 
     behalf of the tribe or tribal organization.
       (6) Deficient applications; opportunity to cure.--If the 
     Secretary determines under paragraph (4) that a tribe is not 
     eligible for assistance under this subsection, the Secretary 
     shall--
       (A) submit to such tribe or organization, in writing, a 
     statement of the reasons for such determination; and
       (B) shall assist such tribe in overcoming any deficiencies 
     that resulted in the determination of ineligibility.

     After an opportunity to review and cure such deficiencies, 
     the tribe or organization may re-apply to the Secretary for 
     assistance under this subsection.
       (e) Retail Licensing Requirements.--
       (1) In general.--The requirements of the Federal Food, 
     Drug, and Cosmetic Act (21 U.S.C. 321 et seq.), or any Act 
     enacted in order to give effect to the national tobacco 
     settlement agreement of June 20, 1997, with respect to the 
     licensing of tobacco retailers shall apply to retailers that 
     sell tobacco or tobacco products within the exterior 
     boundaries of Indian reservations or on lands within the 
     jurisdiction of an Indian tribe or tribal organization.
       (2) Minimum federal standards.--
       (A) In general.--Not later than 180 days after the date of 
     enactment of this Act, the Secretary shall promulgate 
     regulations to authorize an Indian tribe or tribal 
     organization to implement a tribal tobacco product licensing 
     program within Indian reservations or on lands within the 
     jurisdiction of an Indian tribe or tribal organization.
       (B) Model state law.--The terms, conditions, and standards 
     contained in the model State law contained in any Act enacted 
     to give effect to the national tobacco settlement agreement 
     of June 20, 1997 shall constitute the minimum Federal 
     regulations that an Indian tribe or tribal organization must 
     enact in order to assume responsibility for the licensing and 
     regulation or tobacco-related activities conducted within the 
     exterior boundaries of Indian reservations or on lands within 
     the jurisdiction of an Indian tribe or tribal organization.
       (C) Waiver.--An Indian tribe or tribal organization shall 
     have the same right to apply for waiver and modification of 
     the law described in subparagraph (B) as a State pursuant to 
     the Act involved.
       (3) Implementation by the secretary.--If the Secretary, in 
     consultation with the Secretary of the Interior, determines 
     that the Indian tribe or tribal organization is not qualified 
     to administer the relevant requirements of the Federal Food, 
     Drug, and Cosmetic Act (21 U.S.C. 321 et seq.) or any Act 
     enacted in order to give effect to the national tobacco 
     settlement agreement of June 20, 1997, the Secretary, in 
     consultation with the Secretary of the Interior, shall 
     implement such requirements on behalf of the Indian tribe or 
     tribal organization.
       (f) Eligibility for Public Health Payments.--
       (1) Grant.--
       (A) In general.--For each fiscal year the Secretary shall 
     award a grant to each Indian tribe or tribal organization 
     that has an approved anti-smoking plan for the fiscal year 
     involved under paragraph (2) in an amount equal to the amount 
     determined under paragraph (3).
       (B) Reduction in state amounts.--With respect to any State 
     in which the service area or areas of an Indian tribe or 
     tribal organization that receives a grant under subparagraph 
     (A) are located, the Secretary shall reduce the amount 
     otherwise payable to such State, under any Act enacted in 
     order to give effect to the national tobacco settlement 
     agreement of June 20, 1997, by the amount of such grant.
       (2) Tribal plans.--To be eligible to receive a grant under 
     paragraph (1), an Indian tribe or tribal organization shall 
     prepare and submit to the Secretary an anti-smoking plan and 
     shall otherwise meet the requirements of subsection (e). The 
     Secretary shall promulgate regulations providing for the form 
     and content of anti-smoking plans to be submitted under this 
     paragraph.
       (3) Amount determined.--Except as provided in this 
     subsection, the amount of any grant for which an Indian tribe 
     or tribal organization is eligible under paragraph (1) shall 
     be determined by the Secretary based on the product of--
       (A) the ratio of the total number of individual residing on 
     or in such tribe's or tribal organization's reservation, 
     jurisdictional lands, or the active user population, relative 
     to the total population of the State involved; and
       (B) the amount allocated to the State for such public 
     health purposes.
       (4) Use.--Amounts provided to a tribe or tribal 
     organization under this subsection shall be used to reimburse 
     the tribe for smoking-related health expenditures, to further 
     the purposes of this Act or any Act enacted in order to give 
     effect to the national tobacco settlement agreement of June 
     20, 1997, and in accordance with a tribal anti-smoking plan 
     approved by the Secretary. Indian tribes and tribal 
     organizations shall have the flexibility to utilize such 
     amounts to meet the unique health care needs of persons 
     within their service populations within the context of tribal 
     health programs if such programs meet the fundamental Federal 
     goals and purposes of Federal Indian health care law and 
     policy.
       (5) Reallotment.--Amounts set aside and not expended under 
     this subsection shall be reallotted among other eligible 
     Indian tribes and tribal organizations.
       (g) Obligations of Manufacturers.--Manufacturers 
     participating in, or covered under this Act or any Act 
     enacted in order to give effect to the national tobacco 
     settlement agreement of June 20, 1997 shall not engage in any 
     activity on lands within the jurisdiction of an Indian tribe 
     or tribal organization that is prohibited by this Act or such 
     other Act.
       (h) Use of Trust Fund Payments.--Amounts made available 
     from the tobacco trust fund pursuant to any Indian health 
     provisions of any Act enacted in order to give effect to the 
     national tobacco settlement agreement of June 20, 1997 shall 
     be provided to the Indian Health Service and, through the 
     provisions of the Indian Self Determination and Education 
     Assistance Act (25 U.S.C. 450b et seq.) to Indian tribes or 
     tribal organizations to be used to reduce tobacco 
     consumption, promote smoking cessation, and to fund related 
     activities including--
       (1) clinic and facility design, construction, repair, 
     renovation, maintenance, and improvement;
       (2) health care provider services and equipment;
       (3) domestic and community sanitation associated with 
     clinic and facility construction and improvement;
       (4) inpatient and outpatient services; and
       (5) other programs and services which have as their goal 
     raising the health status of Indians.
       (i) Preemption.--
       (1) In general.--Except as otherwise provided in this 
     section, nothing in this Act of any Act enacted in order to 
     give effect to the national tobacco settlement agreement of 
     June 20, 1997, shall be construed to prohibit an Indian tribe 
     or tribal organization from imposing requirements, 
     prohibitions, penalties, or other measures to further the 
     purposes of this Act that are in addition to the 
     requirements, prohibitions, or penalties required by this Act 
     or such other Act.
       (2) Public exposure to smoke.--Nothing in this Act shall be 
     construed to preempt or otherwise affect any Indian tribe or 
     tribal organization rule or practice that provides greater 
     protections from the health hazards of environmental tobacco 
     smoke.
       (3) Native americans.--A State may not impose obligations 
     or requirements relating to the application of this Act or 
     any other Act enacted in order to give effect to the national 
     tobacco settlement agreement of June 20, 1997, to Indian 
     tribes and tribal organizations.
                                 ______