[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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