[Congressional Record Volume 146, Number 20 (Tuesday, February 29, 2000)]
[House]
[Pages H520-H521]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
INDIAN TRIBAL ECONOMIC DEVELOPMENT AND CONTRACT ENCOURAGEMENT ACT OF
1999
Mr. SHERWOOD. Madam Speaker, I move to suspend the rules and pass the
Senate bill (S. 613) to encourage Indian economic development, to
provide for the disclosure of Indian tribal sovereign immunity in
contracts involving Indian tribes, and for other purposes.
The Clerk read 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 to read as follows:
``Sec. 2103. (a) In this section:
``(1) The term `Indian lands' means lands the title to
which is held by the United States in trust for an Indian
tribe or lands the title to which is held by an Indian tribe
subject to a restriction by the United States against
alienation.
``(2) The term `Indian tribe' has the meaning given that
term in section 4(e) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450b(e)).
``(3) The term `Secretary' means the Secretary of the
Interior.
``(b) No agreement or contract with an Indian tribe that
encumbers Indian lands for a period of 7 or more years shall
be valid unless that agreement or contract bears the approval
of the Secretary of the Interior or a designee of the
Secretary.
``(c) Subsection (b) shall not apply to any agreement or
contract that the Secretary (or a designee of the Secretary)
determines is not covered under that subsection.
``(d) The Secretary (or a designee of the Secretary) shall
refuse to approve an agreement or contract that is covered
under subsection (b) if the Secretary (or a designee of the
Secretary) determines that the agreement or contract--
``(1) violates Federal law; or
``(2) does not include a provision that--
``(A) provides for remedies in the case of a breach of the
agreement or contract;
``(B) references a tribal code, ordinance, or ruling of a
court of competent jurisdiction that discloses the right of
the Indian tribe to assert sovereign immunity as a defense in
an action brought against the Indian tribe; or
``(C) includes an express waiver of the right of the Indian
tribe to assert sovereign immunity as a defense in an action
brought against the Indian 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).
``(e) Not later than 180 days after the date of enactment
of the Indian Tribal Economic Development and Contract
Encouragement Act of 1999, the Secretary shall issue
regulations for identifying types of agreements or contracts
that are not covered under subsection (b).
``(f) Nothing in this section shall be construed to--
``(1) require the Secretary to approve a contract for legal
services by an attorney;
``(2) amend or repeal the authority of the National Indian
Gaming Commission under the Indian Gaming Regulatory Act (25
U.S.C. 2701 et seq.); or
``(3) alter or amend any ordinance, resolution, or charter
of an Indian tribe that requires approval by the Secretary of
any action by that Indian tribe.''.
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''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Pennsylvania (Mr. Sherwood) and the gentleman from American Samoa (Mr.
Faleomavaega) each will control 20 minutes.
The Chair recognizes the gentleman from Pennsylvania (Mr. Sherwood).
Mr. SHERWOOD. Madam Speaker, I yield myself such time as I may
consume.
Madam Speaker, Senate 613, authored by Senator Campbell of Colorado,
would amend existing law to provide that the Secretary of Interior
approve only those Indian land contracts which encumber Indian lands
for a period of 7 or more years. Senate 613 would update Federal laws
enacted in 1872 by removing antiquated and unnecessary Indian land
contract approval requirements which apply to ``all'' contracts,
irrespective of their brevity or insignificance.
We must maintain some Federal control over contracts which encumber
Indian lands for 7 or more years because of the trust responsibility
incurred by the Federal Government when the land was initially taken
into trust.
Madam Speaker, this bill was passed unanimously in the Senate and is
long overdue. I urge my fellow Members to support it and thus forward
it to the President for his signature.
Madam Speaker, I reserve the balance of my time.
Mr. FALEOMAVAEGA. Madam Speaker, I yield myself such time as I may
consume.
(Mr. FALEOMAVAEGA asked and was given permission to revise and extend
his remarks.)
Mr. FALEOMAVAEGA. Madam Speaker, Senate bill 613 would amend
provisions of law requiring certain contracts made with Indian tribes
to be approved by the Secretary of the Interior. The current law,
commonly referred to as Section 81, was enacted in 1872 in response to
concerns that Indian tribes were being taken advantage of by non-Indian
attorneys in bringing claims against the United States for treaty
violations.
Numerous contracts were signed between attorneys and Indian tribes
which provided for exorbitant attorneys' fees. For decades, the Bureau
of Indian Affairs interpreted Section 81 as applying solely to such
tribe-attorney contracts.
During the 1980's, several Federal Court cases ruled the Secretary of
the Interior was required to approve any contract that was found to be,
and I quote, ``relative to Indian lands.'' End of quote. Because of the
ambiguity of this phrase, more and more contracts were submitted for
Secretarial approval. Today, the Secretary of the Interior is asked to
approve contracts for everything from construction of a new building to
the purchase of tribal office supplies. The Bureau of Indian Affairs is
overwhelmed by these unnecessary requests and the process severely
hinders economic development on Indian lands.
Madam Speaker, Senate bill 613 would eliminate the current
requirement that tribes seek approval for contracts between Indian
tribes and attorneys, unless the tribe's constitution requires such
approval. The bill instead provides that only contracts that encumber
Indian lands for 7 or more years be approved by the Secretary of the
Interior. Additionally, this bill explicitly leaves in place the
National Indian Gaming Commission's authority to review and approve
Indian gaming agreements.
Madam Speaker, I am concerned about one provision of the bill which
affects the sovereign immunity of Indian tribes. This bill requires
that contracts which continue to be approved include remedies for
breach of contract, disclosure of tribe sovereign immunity, or express
waiver of the right to assert immunity as a defense.
Recent Supreme Court cases have strongly affirmed that notions of
sovereignty that existed when the Constitution was formed have lost
none of their relevance in the subsequent two centuries. A most basic
component of sovereignty is the right to decide for itself when and
under what circumstances a sovereign will be sued. These provisions
would force Indian tribes to address, disclose, or waive their
sovereign immunity in basic contracts, where a State or the Federal
[[Page H521]]
Government would not be required to do so.
Madam Speaker, I also note that this bill defines the term ``Indian
tribes'' using the definition from the Indian Self-Determination and
Education Assistance Act. That definition of the tribe includes, and I
quote, ``any Alaska native village or regional or village corporation
as defined in or established pursuant to the Alaska Native Claims
Act.'' End of quote.
Senate bill 613 has no application on Alaska, and the Alaska
Corporation does not possess ``Indian lands'' as such lands are defined
in this bill. It is unfortunate that the Senate has not been more
careful in the drafting of Senate bill 613. There is no reason to
confuse the matters by references to tribes and the corporations in
Alaska, especially since the bill has no impact or application to the
State of Alaska and the treatment of the Native Alaskans.
However, Madam Speaker, since this bill does have the support of the
administration and the National Congress of the American Indians, I
urge support of this legislation.
Madam Speaker, I reserve the balance of my time.
Mr. SHERWOOD. Madam Speaker, I yield back the balance of my time.
Mr. FALEOMAVAEGA. Madam Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Pennsylvania (Mr. Sherwood) that the House suspend the
rules and pass the Senate bill, S. 613.
The question was taken.
Mr. SHERWOOD. Madam Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX and the
Chair's prior announcement, further proceedings on this motion will be
postponed.
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