[Congressional Record Volume 145, Number 40 (Monday, March 15, 1999)]
[Senate]
[Pages S2666-S2667]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL:
  S. 613. A bill to encourage Indian economic development, to provide 
for the disclosure of Indian tribal sovereign immunity in contracts 
involving Indian tribes, and for other purposes; to the Committee on 
Indian Affairs.


 INDIAN TRIBAL ECONOMIC DEVELOPMENT AND CONTRACT ENCOURAGEMENT ACT OF 
                                  1999

  Mr. CAMPBELL. Mr. President, today I am pleased to introduce the 
Indian Tribal Economic Development and Contract Encouragement Act of 
1999 to encourage tribal economic development, provide for disclosures 
regarding tribal sovereign immunity, and eliminate excessive and 
unproductive bureaucratic oversight of tribal decisions.
  As many of my colleagues are aware, most Indian tribes are not in the 
position to fund all, or even most of their governmental operations 
through taxes imposed on reservation-based activities or assets. Often 
a tribe's own land and other natural resources are the only means a 
tribe has to fund its activities or to promote economic development 
within its reservation boundaries.
  Since land is the basic trust resource, the United States has the 
authority and the responsibility to oversee the lease of tribal lands. 
Where tribes propose to enter leases of their lands, a federal statute 
provides that the lease is only valid if it is approved by the Interior 
Department. My proposed bill does not affect the federal government's 
authority to approve leases. My bill addresses non-lease agreements 
between Indian tribes and those that provide services that relate to 
the tribe's lands.
  Not that long ago, tribes had to rely on federal bureaucrats to 
devise ways to develop their lands, to negotiate leases, and to then 
approve those leases. In many instances, tribes are now developing 
their own proposals. To assist in the development of a private sector, 
I want to encourage this entrepreneurial spirit.
  There are strong indications, however, that an ancient federal 
statute is impeding every Indian tribe's ability to enter into 
agreements with those who might be hired by the tribe to assist it in 
developing its lands. Like most laws, this statute was enacted with the 
best intentions. I speak of a law enacted over 125 years ago; a law 
enacted when many Indians had to rely on translators to read the 
treaties between the United States and their tribal government. The 
statute I propose to amend was enacted in 1871, and it survives in much 
the same form today as it did then--64 Congresses ago.
  Section 81, as it is known, provides that a contract ``relating to 
Indian lands'' is not valid unless it is approved by the Secretary. 
Section 81 imposes no limits on how long the BIA may take to review the 
agreement or even what standards apply to decide whether the contract 
should be approved or denied.
  The bill I introduce today addresses these issues and others.
  First, the bill gives the Secretary 90 days to review a proposed 
contract. This is the same amount of time the Secretary has to review 
contracts relating to the management of gaming facilities. My bill 
provides that if the government takes no action for 90

[[Page S2667]]

days, then the tribe can proceed with the project unhindered by the 
lack of approval.
  All other federal laws will still apply to the agreement.
  Second, the Secretary must identify the types of contracts that are 
not covered by this statute. A tribe can submit such contracts and the 
BIA has 45 days to determine whether they are covered by the law. The 
Secretary is still authorized to reject any contract that violates 
federal law.
  Finally, the bill incorporates a suggestion made in 1988 by then-
Assistant Secretary Ross Swimmer to ``eliminate the current statutory 
requirements that the Secretary approve the tribal selection of 
attorneys and attorney fees.'' To allow the selection of counsel, 
without the Secretary's oversight, is fundamental to Indian self-
determination.
  My bill addresses one other key matter. Like other sovereign 
governments, Indian tribes are free to negotiate with potential 
business partners whether, in what form, and to what extent the parties 
can sue and be sued under a contract they enter. My bill recognizes a 
tribe's discretion in this area and it leaves it in place.
  After numerous hearings conducted in the 105th Congress and in 
previous congresses, I believe the record is clear: Indian tribes have 
been increasingly responsible in their consideration of immunity 
decisions.
  I am concerned, however, about those who may enter into agreements 
with Indian tribes knowing that the tribe retains immunity but at a 
later time insist that they have been treated unfairly by the tribe 
raising the immunity defense.
  Under my bill, the Secretary must deny approval of contracts if the 
agreement in question fails to state that the parties recognize that 
the tribe is immune from suit unless immunity is expressly waived.
  Excessive federal regulation, especially if it impedes business and 
economic development in Indian Country, needs to be eliminated. Whether 
we put this belief in terms of the Contract with America, or the 
initiative to reinvent government, our objective is the same.
  There is no group of people who have experienced more federal 
regulation of every aspect of their lives than Indians. This bill 
represents a commitment to reduce unnecessary and anachronistic federal 
bureaucratic requirements.
  I ask unanimous consent that a copy of the bill be printed in the 
Record, and I urge my colleagues to join me in supporting this critical 
measure.
  There being no objection, this bill was ordered to be printed in the 
Record, as follows:

                                 S. 613

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Indian Tribal Economic 
     Development and Contract Encouragement Act of 1999''.

     SEC. 2. CONTRACTS AND AGREEMENTS WITH INDIAN TRIBES.

       Section 2103 of the Revised Statutes (25 U.S.C. 81) is 
     amended--
       (1) by inserting ``(a)'' before ``No agreement'';
       (2) in subsection (a), as designated by paragraph (1) of 
     this section--
       (A) by striking ``, or individual Indians not citizens of 
     the United States,'';
       (B) by striking ``First. Such agreement'' and inserting the 
     following:
       ``(1) Such contract or agreement'';
       (C) by striking ``Second. It shall bear the approval of the 
     Secretary of the Interior and the Commissioner of Indian 
     Affairs endorsed up on it.'' and inserting the following:
       ``(2) Except as provided in subsection (b), it shall bear 
     the approval of the Secretary of the Interior (referred to in 
     this section as the `Secretary') or a designee of the 
     Secretary of the Interior endorsed upon it.'';
       (D) by striking ``Third. It'' and inserting the following:
       ``(3) It'';
       (E) by striking ``Fourth. It'' and inserting the following:
       ``(4) It''; and
       (F) by striking ``Fifth. It'' and inserting the following:
       ``(5) It'';
       (3) by inserting ``(d)'' before ``All contracts'';
       (4) by inserting after subsection (a) the following:
       ``(b) Subsection (a)(2) shall not apply to a contract or 
     agreement in any case in which--
       ``(1) the Secretary (or a designee of the Secretary) fails 
     to approve or disapprove the contract or agreement by the 
     date that is 90 days after the date on which the contract or 
     agreement is filed with the Secretary under this section; or
       ``(2)(A) the tribe notifies the Secretary in a manner 
     prescribed by the Secretary under subsection (c)(3) that a 
     contract or agreement is not covered under subsection (a); 
     and
       ``(B) the Secretary (or a designee of the Secretary) fails 
     to inform the tribe in writing, by the date that is 45 days 
     after receipt of the notification under subparagraph (A), 
     that the Secretary (or designee) intends to review the 
     contract agreement by the date specified in paragraph (1).
       ``(c)(1) The Secretary (or a designee of the Secretary) 
     shall refuse to approve a contract or agreement that is filed 
     with the Secretary under this section if the Secretary (or 
     designee) determines that the contract or agreement--
       ``(A) violates Federal law; or
       ``(B)(i) is covered under subsection (a); and
       ``(ii) does not include a provision that--
       ``(I) provides for remedies in the case of a breach of the 
     contract or agreement;
       ``(II) references a tribal code, ordinance, or ruling of a 
     court of competent jurisdiction that discloses the right of 
     the tribe to assert sovereign immunity as a defense in an 
     action brought against the tribe; or
       ``(III) includes an express waiver of the right of the 
     tribe to assert sovereign immunity as a defense in an action 
     brought against the tribe (including a waiver that limits the 
     nature of relief that may be provided or the jurisdiction of 
     a court with respect to such an action).
       ``(2)(A) The Secretary (or a designee of the Secretary) 
     shall not approve any contract or agreement that is submitted 
     to the Secretary for approval under this section if the 
     Secretary (or designee) determines that the contract or 
     agreement is not covered under subsection (a).
       ``(B) If the Secretary determines that a contract or 
     agreement is not covered under subsection (a), the Secretary 
     shall notify the tribe of that determination.
       ``(3) To assist tribes in providing notice under subsection 
     (b)(2), the Secretary shall--
       ``(A) issue guidelines for identifying types of contracts 
     or agreements that are not covered under subsection (a); and
       ``(B) establish procedures for providing that notice.
       ``(4) The failure of the Secretary to approve a contract or 
     agreement under this subsection or to provide notice under 
     paragraph (2)(B) shall not affect the applicability of a 
     requirement under any other provision of Federal law.'';
       (5) in subsection (d), as redesignated by paragraph (3) of 
     this section, by striking ``paid to any person by any Indian 
     tribe'' and all that follows through the end of the 
     subsection and inserting ``paid to any person by any tribe or 
     any other person on behalf of the tribe on account of such 
     services in excess of the amount approved by the Secretary of 
     the Interior, may be recovered in an action brought by the 
     tribe or the United States. Such an action may be brought in 
     any district court of the United States, without regard to 
     the amount in controversy. Any amount recovered under this 
     subsection shall be paid to the Treasury of the United States 
     for use by the tribe for whom it was recovered.''; and
       (6) by adding at the end the following:
       ``(e) Nothing in this section shall be construed to require 
     the Secretary of the Interior to approve a contract for legal 
     services by an attorney.''.

     SEC. 3. CHOICE OF COUNSEL.

       Section 16(e) of the Act of June 18, 1934 (commonly 
     referred to as the ``Indian Reorganization Act'') (48 Stat. 
     987, chapter 576; 25 U.S.C. 476(e)) is amended by striking 
     ``, the choice of counsel and fixing of fees to be subject to 
     the approval of the Secretary''.
                                 ______