[Congressional Record Volume 146, Number 97 (Monday, July 24, 2000)]
[Senate]
[Page S7482]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FITZGERALD:
  S. 2909. A bill to permit landowners to assert otherwise-available 
state law defenses against property claims by Indian tribes; to the 
Committee on Indian Affairs.


     landowners defenses against property claims by Indian tribes 
                              legislation

  Mr. FITZGERALD. 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. 2909

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,
       Subchapter 1 of Chapter 6 of Title 25 is amended by 
     inserting as Sec. 210 the following:

     SECTION 1. DEFENSES TO INDIAN CLAIMS.

       Except as provided in Section 2, in any action, or claim by 
     or on behalf of an Indian tribe to enforce a real-property 
     right, or otherwise asserting a claim of Indian title or 
     right, the defendant may assert any affirmative defense that 
     would be available under state law to a defendant opposing an 
     analogous action or claim that does not involve an Indian 
     tribe.

     SEC. 2. EXCEPTION FOR GOVERNMENTAL DEFENDANTS.

       Section 1 shall not apply to any action or claim against a 
     governmental entity with respect to land that is located 
     within sovereign Indian country.

     SEC. 3. RULES OF CONSTRUCTION.

       (a) Excepts as provided in subsection (b), this Act shall 
     be construed and applied without regard to the interpretive 
     judicial canon that remaining ambiguities should be resolved 
     in favor of the Indians when standard tools of statutory 
     construction leave no indication as to the meaning of an 
     Indian treaty or statute.
       (b) Exception.--Subsection (a) shall not apply to judicial 
     interpretation of an Indian treaty with respect to a 
     determination of whether land was reserved or set aside by 
     the federal government for the use of an Indian tribe as 
     Indian land.

     SEC. 4. DEFINITIONS.

       (1) The term ``Indian tribe,'' as used in this Act, means 
     any tribe, band, nation, pueblo, village, or community that 
     is recognized by the Secretary of the Interior pursuant to 
     section 102 of the Federally Recognized Indian Tribe List Act 
     of 1994 (25 U.S.C. Sec. 479a).
       (2) The term ``sovereign Indian country'' means land--
       (A) that is rightfully owned by, or is held in trust by the 
     federal government for, an Indian tribe;
       (B) that was reserved or set aside for the use of the 
     Indian tribe as Indian land by the federal government, and is 
     either--
       (i) outside the exterior geographical limits of any State; 
     or
       (ii) within the exterior geographical limits of a State 
     that subsequently either--
       (A) acknowledged Indian title to the land involved when the 
     land was made a part of the State, if that State be one of 
     the original 13 States to form the United States; or
       (B) provided, either in the Act providing for the State's 
     admission to the United States or in the State's first 
     constitution, that all lands held by Indians within the State 
     shall remain under the jurisdiction and control of the United 
     States, in accordance with Article I, Section 8, clause 17 of 
     the Constitution of the United States, if that State were 
     admitted to the United States after 1790; and
       (C) for which the Indian title has not been extinguished or 
     the jurisdiction reservation revoked.

     SEC. 5. ATTORNEYS FEES.

       (a) Except as provided in subsection (b), in any action or 
     proceeding that is subject to this Act, the court shall allow 
     the prevailing party a reasonable attorney's fee with respect 
     to a claim presented by the opposing party that was 
     frivolous, unreasonable, or without foundation, or that the 
     opposing party continued to litigate after it clearly became 
     so.
       (1) A claim shall be deemed legally frivolous, 
     unreasonable, or without foundation only if it rests upon a 
     legal theory that was clearly unavailable under existing case 
     law.
       (2) A claim shall be deemed factually frivolous, 
     unreasonable, or without foundation only if its proponent 
     knew or should have know of those facts that would require 
     judgment for the opposing party as a matter of law.
       (b) Exception.--No attorney's fee shall be assessed under 
     subsection (a) against an Indian tribe seeking to enforce a 
     right to an interest in land if the court determines that the 
     land involved is located within sovereign Indian country.

     SEC. 6. TIMING OF APPLICATION.

       This Act shall apply to any action, claim, or right 
     described in Section 1 that is pending, filed, or continuing 
     on or after the date of the enactment of this Act, other than 
     a final money-damages judgment to which no one has a right to 
     raise a challenge by any available procedure.

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