[Congressional Record Volume 150, Number 134 (Friday, November 19, 2004)]
[Senate]
[Pages S11572-S11577]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     INDIAN TRIBAL DEVELOPMENT CORPORATION FEASIBILITY ACT OF 2004

  The Senate proceeded to consider the bill (S. 519) to establish a 
Native American-owned financial entity to provide financial services to 
Indian tribes, Native American organizations, and Native Americans, and 
for other purposes, which had been reported from the Committee on 
Indian Affairs, with an amendment to strike all after the enacting 
clause and insert in lieu thereof the following:
  (Strike the part shown in black brackets and insert the part shown in 
italic.)

                                 S. 519

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

     [SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       [(a) Short Title.--This Act may be cited as the ``Native 
     American Capital Formation and Economic Development Act of 
     2003''.
       [(b) Table of Contents.--The table of contents of this Act 
     is as follows:

[Sec. 1. Short title; table of contents.
[Sec. 2. Findings.
[Sec. 3. Purposes.
[Sec. 4. Definitions.

       [TITLE I--NATIVE AMERICAN CAPITAL DEVELOPMENT CORPORATION

[Sec. 101. Establishment of the Corporation.
[Sec. 102. Authorized assistance and service functions.
[Sec. 103. Native American lending services grant.
[Sec. 104. Audits.
[Sec. 105. Annual housing and economic development reports.
[Sec. 106. Advisory Council.

                [TITLE II--CAPITALIZATION OF CORPORATION

[Sec. 201. Capitalization of the Corporation.

            [TITLE III--REGULATION, EXAMINATION, AND REPORTS

[Sec. 301. Regulation, examination, and reports.
[Sec. 302. Authority of the Secretary of Housing and Urban Development.

                [TITLE IV--FORMATION OF NEW CORPORATION

[Sec. 401. Formation of new corporation.
[Sec. 402. Adoption and approval of merger plan.
[Sec. 403. Consummation of merger.
[Sec. 404. Transition.
[Sec. 405. Effect of merger.

                 [TITLE V--OTHER NATIVE AMERICAN FUNDS

[Sec. 501. Native American Economies Diagnostic Studies Fund.
[Sec. 502. Native American Economic Incubation Center Fund.

              [TITLE VI--AUTHORIZATIONS OF APPROPRIATIONS

[Sec. 601. Native American financial institutions.
[Sec. 602. Corporation.
[Sec. 603. Other Native American funds.

     [SEC. 2. FINDINGS.

       [Congress finds that--
       [(1) there is a special legal and political relationship 
     between the United States and the Indian tribes, as grounded 
     in treaties, the Constitution, Federal statutes and court 
     decisions, executive orders, and course of dealing;
       [(2) despite the availability of abundant natural resources 
     on Indian land and a rich cultural legacy that accords great 
     value to self-determination, self-reliance, and independence, 
     Native Americans suffer rates of unemployment, poverty, poor 
     health, substandard housing, and associated social ills to a 
     greater degree than any other group in the United States;
       [(3) the economic success and material well-being of Native 
     Americans depends on the combined efforts and resources of 
     the United States, Indian tribal governments, the private 
     sector, and individuals;
       [(4) the poor performance of moribund Indian economies is 
     due in part to the near-complete absence of private capital 
     and private capital institutions; and
       [(5) the goals of economic self-sufficiency and political 
     self-determination for Native Americans can best be achieved 
     by making available the resources and discipline of the 
     private market, adequate capital, and technical expertise.

     [SEC. 3. PURPOSES.

       [The purposes of this Act are--
       [(1) to establish an entity dedicated to capital 
     development and economic growth policies in Native American 
     communities;
       [(2) to provide the necessary resources of the United 
     States, Native Americans, and the private sector on endemic 
     problems such as fractionated and unproductive Indian land;
       [(3) to provide a center for economic development policy 
     and analysis with particular emphasis on diagnosing the 
     systemic weaknesses with, and inhibitors to greater levels of 
     investment in, Native American economies;
       [(4) to establish a Native-owned financial entity to 
     provide financial services to Indian tribes, Native American 
     organizations, and Native Americans; and
       [(5) to improve the material standard of living of Native 
     Americans.

     [SEC. 4. DEFINITIONS.

       [In this Act:
       [(1) Alaska native.--The term ``Alaska Native'' has the 
     meaning given the term ``Native'' in section 3 of the Alaska 
     Native Claims Settlement Act (43 U.S.C. 1602).
       [(2) Board.--The term ``Board'' means the Board of 
     Directors of the Corporation.
       [(3) Capital distribution.--The term ``capital 
     distribution'' has the meaning given the term in section 1303 
     of the Federal Housing Enterprise Financial Safety and 
     Soundness Act of 1992 (12 U.S.C. 4502).
       [(4) Chairperson.--The term ``Chairperson'' means the 
     chairperson of the Board.
       [(5) Corporation.--The term ``Corporation'' means the 
     Native American Capital Development Corporation established 
     by section 101(a)(1)(A).
       [(6) Council.--The term ``Council'' means the Advisory 
     Council established under section 106(a).
       [(7) Designated merger date.--The term ``designated merger 
     date'' means the specific calendar date and time of day 
     designated by the Board under this Act.
       [(8) Department of hawaiian home lands.--The term 
     ``Department of Hawaiian Home Lands'' means the agency that 
     is responsible for the administration of the Hawaiian Homes 
     Commission Act, 1920 (42 Stat. 108 et seq.).
       [(9) Fund.--The term ``Fund'' means the Community 
     Development Financial Institutions Fund established under 
     section 104 of the Riegle Community Development and 
     Regulatory Improvement Act of 1994 (12 U.S.C. 4703).
       [(10) Indian tribe.--The term ``Indian tribe'' has the 
     meaning given the term in section 4 of the Indian Self-
     Determination and Education Assistance Act (25 U.S.C. 450b).
       [(11) Merger plan.--The term ``merger plan'' means the plan 
     of merger adopted by the Board under this Act.
       [(12) Native american.--The term ``Native American'' 
     means--
       [(A) a member of an Indian tribe; or
       [(B) a Native Hawaiian.
       [(13) Native american financial institution.--The term 
     ``Native American financial institution'' means a person 
     (other than an individual) that--
       [(A) qualifies as a community development financial 
     institution under section 103 of the Riegle Community 
     Development and Regulatory Improvement Act of 1994 (12 U.S.C. 
     4702);
       [(B) satisfies--
       [(i) requirements established by subtitle A of title I of 
     the Riegle Community Development and Regulatory Improvement 
     Act of 1994 (12 U.S.C. 4701 et seq.); and
       [(ii) requirements applicable to persons seeking assistance 
     from the Fund;
       [(C) demonstrates a special interest and expertise in 
     serving the primary economic development and mortgage lending 
     needs of the Native American community; and
       [(D) demonstrates that the person has the endorsement of 
     the Native American community that the person intends to 
     serve.
       [(14) Native american lender.--The term ``Native American 
     lender'' means a Native American governing body, Native 
     American housing authority, or other Native American 
     financial institution that acts as a primary mortgage or 
     economic development lender in a Native American community.
       [(15) Native hawaiian.--The term ``Native Hawaiian'' has 
     the meaning given the term in section 201 of the Hawaiian 
     Homes Commission Act, 1920 (42 Stat. 108).
       [(16) New corporation.--The term ``new corporation'' means 
     the corporation formed in accordance with title IV.
       [(17) Secretary.--The term ``Secretary'' means the 
     Secretary of Housing and Urban Development.
       [(18) Total capital.--The term ``total capital'' has the 
     meaning given the term in section 1303 of the Federal Housing 
     Enterprise Financial Safety and Soundness Act of 1992 (12 
     U.S.C. 4502).

[[Page S11573]]

       [(19) Transition period.--The term ``transition period'' 
     means the period beginning on the date on which the merger 
     plan is approved by the Secretary and ending on the 
     designated merger date.

       [TITLE I--NATIVE AMERICAN CAPITAL DEVELOPMENT CORPORATION

     [SEC. 101. ESTABLISHMENT OF THE CORPORATION.

       [(a) Establishment; Board of Directors; Policies; Principal 
     Office; Membership; Vacancies.--
       [(1) Establishment.--
       [(A) In general.--There is established and chartered a 
     corporation, to be known as the ``Native American Capital 
     Development Corporation''.
       [(B) Period of time.--The Corporation shall be a 
     congressionally chartered body corporate until the earlier 
     of--
       [(i) the designated merger date; or
       [(ii) the date on which the charter is surrendered by the 
     Corporation.
       [(C) Changes to charter.--The right to revise, amend, or 
     modify the Corporation charter is specifically and 
     exclusively reserved to Congress.
       [(2) Board of directors; principal office.--
       [(A) Board.--The powers of the Corporation shall be vested 
     in a Board of Directors, which Board shall determine the 
     policies that govern the operations and management of the 
     Corporation.
       [(B) Principal office; residency.--
       [(i) Principal office.--The principal office of the 
     Corporation shall be in the District of Columbia.
       [(ii) Venue.--For purposes of venue, the Corporation shall 
     be considered to be a resident of the District of Columbia.
       [(3) Membership.--
       [(A) In general.--
       [(i) Nine members.--Except as provided in clause (ii), the 
     Board shall consist of 9 members, of which--

       [(I) 3 members shall be appointed by the President; and
       [(II) 6 members shall be elected by the class A 
     stockholders, in accordance with the bylaws of the 
     Corporation.

       [(ii) Thirteen members.--If class B stock is issued under 
     section 201(b), the Board shall consist of 13 members, of 
     which--

       [(I) 9 members shall be appointed and elected in accordance 
     with clause (i); and
       [(II) 4 members shall be elected by the class B 
     stockholders, in accordance with the bylaws of the 
     Corporation.

       [(B) Terms.--Each member of the Board shall be elected or 
     appointed for a 4-year term, except that the members of the 
     initial Board shall be elected or appointed for the following 
     terms:
       [(i) Of the 3 members appointed by the President--

       [(I) 1 member shall be appointed for a 2-year term;
       [(II) 1 member shall be appointed for a 3-year term; and
       [(III) 1 member shall be appointed for a 4-year term;

     as designated by the President at the time of the 
     appointments.
       [(ii) Of the 6 members elected by the class A 
     stockholders--

       [(I) 2 members shall each be elected for a 2-year term;
       [(II) 2 members shall each be elected for a 3-year term; 
     and
       [(III) 2 members shall each be elected for a 4-year term.

       [(iii) If class B stock is issued and 4 additional members 
     are elected by the class B stockholders--

       [(I) 1 member shall be elected for a 2-year term;
       [(II) 1 member shall be elected for a 3-year term; and
       [(III) 2 members shall each be elected for a 4-year term.

       [(C) Qualifications.--Each member appointed by the 
     President shall have expertise in 1 or more of the following 
     areas:
       [(i) Native American housing and economic development 
     matters.
       [(ii) Financing in Native American communities.
       [(iii) Native American governing bodies, legal 
     infrastructure, and judicial systems.
       [(iv) Restricted and trust land issues, economic 
     development, and small consumer loans.
       [(D) Members of indian tribes.--Not less than 2 of the 
     members appointed by the President shall be members of 
     different, federally-recognized Indian tribes enrolled in 
     accordance with the applicable requirements of the Indian 
     tribes.
       [(E) Chairperson.--The Board shall select a Chairperson 
     from among the members of the Board, except that the initial 
     Chairperson shall be selected from among the members of the 
     initial Board who have been appointed or elected to serve for 
     a 4-year term.
       [(F) Vacancies.--
       [(i) Appointed members.--Any vacancy in the appointed 
     membership of the Board shall be filled by appointment by the 
     President, but only for the unexpired portion of the term.
       [(ii) Elected members.--Any vacancy in the elected 
     membership of the Board shall be filled by appointment by the 
     Board, but only for the unexpired portion of the term.
       [(G) Transitions.--Any member of the Board may continue to 
     serve after the expiration of the term for which the member 
     was appointed or elected until a qualified successor has been 
     appointed or elected.
       [(b) Powers of the Corporation.--The Corporation--
       [(1) shall adopt bylaws, consistent with this Act, 
     regulating, among other things, the manner in which--
       [(A) the business of the Corporation shall be conducted;
       [(B) the elected members of the Board shall be elected;
       [(C) the stock of the Corporation shall be issued, held, 
     and disposed of;
       [(D) the property of the Corporation shall be disposed of; 
     and
       [(E) the powers and privileges granted to the Corporation 
     by this Act and other law shall be exercised;
       [(2) may make and execute contracts, agreements, and 
     commitments, including entering into a cooperative agreement 
     with the Secretary;
       [(3) may prescribe and impose fees and charges for services 
     provided by the Corporation;
       [(4) may, if a settlement, adjustment, compromise, release, 
     or waiver of a claim, demand, or right of, by, or against the 
     Corporation, is not adverse to the interests of the United 
     States--
       [(A) settle, adjust, and compromise on the claim, demand, 
     or right; and
       [(B) with or without consideration or benefit to the 
     Corporation, release or waive, in whole or in part, in 
     advance or otherwise, the claim, demand, or right;
       [(5) may sue and be sued, complain and defend, in any 
     Federal, State, tribal, or other court;
       [(6) may acquire, take, hold, and own, manage, and dispose 
     of any property;
       [(7) may--
       [(A) determine the necessary expenditures of the 
     Corporation and the manner in which those expenditures shall 
     be incurred, allowed, and paid; and
       [(B) appoint, employ, and fix and provide for the 
     compensation and benefits of such officers, employees, 
     attorneys, and agents as the Board determines reasonable and 
     not inconsistent with this section;
       [(8) may incorporate a new corporation under State, 
     District of Columbia, or tribal law, as provided in this Act;
       [(9) may adopt a plan of merger, as provided in this Act;
       [(10) may consummate the merger of the Corporation into the 
     new corporation, as provided in this Act; and
       [(11) may have succession until the designated merger date 
     or any earlier date on which the Corporation surrenders the 
     Federal charter of the Corporation.
       [(c) Investment of Funds; Designation as Depositary, 
     Custodian, or Agent.--
       [(1) Investment of funds.--Funds of the Corporation that 
     are not required to meet current operating expenses shall be 
     invested in--
       [(A) obligations of, or obligations guaranteed by, the 
     United States (or any agency of the United States); or
       [(B) in obligations, participations, or other instruments 
     that are lawful investments for fiduciary, trust, or public 
     funds.
       [(2) Designation as depositary, custodian, or agent.--Any 
     Federal Reserve bank or Federal home loan bank, or any bank 
     as to which at the time of its designation by the Corporation 
     there is outstanding a designation by the Secretary of the 
     Treasury as a general or other depositary of public money, 
     may--
       [(A) be designated by the Corporation as a depositary or 
     custodian or as a fiscal or other agent of the Corporation; 
     and
       [(B) act as such a depositary, custodian, or agent.
       [(d) Actions By and Against the Corporation.--
     Notwithstanding section 1349 of title 28, United States Code, 
     or any other provision of law--
       [(1) the Corporation shall be deemed to be an agency 
     covered under sections 1345 and 1442 of title 28, United 
     States Code;
       [(2) any civil action to which the Corporation is a party 
     shall be deemed to arise under the laws of the United States, 
     and the appropriate district court of the United States shall 
     have original jurisdiction over any such action, without 
     regard to amount or value; and
       [(3) in any case in which all remedies have been exhausted 
     in accordance with the applicable ordinances of an Indian 
     tribe, in any civil or other action, case, or controversy in 
     a tribal court, State court, or in any court other than a 
     district court of the United States, to which the Corporation 
     is a party, may at any time before the commencement of the 
     civil action be removed by the Corporation, without the 
     giving of any bond or security and by following any procedure 
     for removal of causes in effect at the time of the removal--
       [(A) to the district court of the United States for the 
     district and division in which the action is pending; or
       [(B) if there is no such district court, to the United 
     States District Court for the District of Columbia.

     [SEC. 102. AUTHORIZED ASSISTANCE AND SERVICE FUNCTIONS.

       [The Corporation may--
       [(1) assist in the planning, establishment, and 
     organization of Native American financial institutions;
       [(2) develop and provide financial expertise and technical 
     assistance to Native American financial institutions, 
     including methods of underwriting, securing, servicing, 
     packaging, and selling mortgage and small commercial and 
     consumer loans;

[[Page S11574]]

       [(3) develop and provide specialized technical assistance 
     on overcoming barriers to primary mortgage lending on Native 
     American land, including issues relating to--
       [(A) trust land;
       [(B) discrimination;
       [(C) high operating costs; and
       [(D) inapplicability of standard underwriting criteria;
       [(4) provide mortgage underwriting assistance (but not in 
     originating loans) under contract to Native American 
     financial institutions;
       [(5) work with the Federal National Mortgage Association, 
     the Federal Home Loan Mortgage Corporation, and other 
     participants in the secondary market for home mortgage 
     instruments in identifying and eliminating barriers to the 
     purchase of Native American mortgage loans originated by 
     Native American financial institutions and other lenders in 
     Native American communities;
       [(6) obtain capital investments in the Corporation from 
     Indian tribes, Native American organizations, and other 
     entities;
       [(7) act as an information clearinghouse by providing 
     information on financial practices to Native American 
     financial institutions;
       [(8) monitor and report to Congress on the performance of 
     Native American financial institutions in meeting the 
     economic development and housing credit needs of Native 
     Americans; and
       [(9) provide any of the services described in this 
     section--
       [(A) directly; or
       [(B) under a contract authorizing another national or 
     regional Native American financial services provider to 
     assist the Corporation in carrying out the purposes of this 
     Act.

     [SEC. 103. NATIVE AMERICAN LENDING SERVICES GRANT.

       [(a) Initial Grant Payment.--If the Secretary and the 
     Corporation enter into a cooperative agreement for the 
     Corporation to provide technical assistance and other 
     services to Native American financial institutions, the 
     agreement shall, to the extent that funds are available as 
     provided in this Act, provide that the initial grant payment, 
     anticipated to be $5,000,000, shall be made at the time at 
     which all members of the initial Board have been appointed 
     under this Act.
       [(b) Payment of Grant Balance.--The payment of the 
     remainder of the grant shall be made to the Corporation not 
     later than 1 year after the date on which the initial grant 
     payment is made under subsection (a).

     [SEC. 104. AUDITS.

       [(a) Independent Audits.--
       [(1) In general.--The Corporation shall have an annual 
     independent audit made of the financial statements of the 
     Corporation by an independent public accountant in accordance 
     with generally accepted auditing standards.
       [(2) Determinations.--In conducting an audit under this 
     subsection, the independent public accountant shall determine 
     and submit to the Secretary a report on whether the financial 
     statements of the Corporation--
       [(A) are presented fairly in accordance with generally 
     accepted accounting principles; and
       [(B) to the extent determined necessary by the Secretary, 
     comply with any disclosure requirements imposed under section 
     301.
       [(b) GAO Audits.--
       [(1) In general.--Beginning on the date that is 2 years 
     after the date of commencement of operation of the 
     Corporation, unless an earlier date is required by any other 
     law, grant, or agreement, the programs, activities, receipts, 
     expenditures, and financial transactions of the Corporation 
     shall be subject to audit by the Comptroller General of the 
     United States under such rules and regulations as may be 
     prescribed by the Comptroller General.
       [(2) Access.--To carry out this subsection, the 
     representatives of the General Accounting Office shall--
       [(A) have access to all books, accounts, financial records, 
     reports, files, and all other papers, things, or property 
     belonging to or in use by the Corporation that are necessary 
     to facilitate the audit;
       [(B) be afforded full facilities for verifying transactions 
     with the balances or securities held by depositaries, fiscal 
     agents, and custodians; and
       [(C) have access, on request to the Corporation or any 
     auditor for an audit of the Corporation under subsection (a), 
     to any books, accounts, financial records, reports, files, or 
     other papers, or property belonging to or in use by the 
     Corporation and used in any such audit and to any papers, 
     records, files, and reports of the auditor used in such an 
     audit.
       [(3) Reports.--The Comptroller General of the United States 
     shall submit to Congress a report on each audit conducted 
     under this subsection.
       [(4) Reimbursement.--The Corporation shall reimburse the 
     General Accounting Office for the full cost of any audit 
     conducted under this subsection.

     [SEC. 105. ANNUAL HOUSING AND ECONOMIC DEVELOPMENT REPORTS.

       [Not later than 1 year after the date of enactment of this 
     Act, and annually thereafter, the Corporation shall collect, 
     maintain, and provide to the Secretary, in a form determined 
     by the Secretary, such data as the Secretary determines to be 
     appropriate with respect to the activities of the Corporation 
     relating to economic development.

     [SEC. 106. ADVISORY COUNCIL.

       [(a) Establishment.--The Board shall establish an Advisory 
     Council in accordance with this section.
       [(b) Membership.--
       [(1) In general.--The Council shall consist of 13 members, 
     who shall be appointed by the Board, including--
       [(A) 1 representative from each of the 12 districts 
     established by the Bureau of Indian Affairs; and
       [(B) 1 representative from the State of Hawaii.
       [(2) Qualifications.--Of the members of the Council--
       [(A) not less than 6 members shall have expertise in 
     financial matters; and
       [(B) not less than 9 members shall be Native Americans.
       [(3) Terms.--Each member of the Council shall be appointed 
     for a 4-year term, except that the initial Council shall be 
     appointed, as designated by the Board at the time of 
     appointment, as follows:
       [(A) Each of 4 members shall be appointed for a 2-year 
     term.
       [(B) Each of 4 members shall be appointed for a 3-year 
     term.
       [(C) Each of 5 members shall be appointed for a 4-year 
     term.
       [(c) Duties.--The Council shall--
       [(1) advise the Board on all policy matters of the 
     Corporation; and
       [(2) through the regional representation of members of the 
     Council, provide information to the Board from all sectors of 
     the Native American community.

                [TITLE II--CAPITALIZATION OF CORPORATION

     [SEC. 201. CAPITALIZATION OF THE CORPORATION.

       [(a) Class A Stock.--The class A stock of the Corporation 
     shall--
       [(1) be issued only to Indian tribes and the Department of 
     Hawaiian Home Lands;
       [(2) be allocated--
       [(A) with respect to Indian tribes, on the basis of Indian 
     tribe population, as determined by the Secretary in 
     consultation with the Secretary of the Interior, in such 
     manner as to issue 1 share for each member of an Indian 
     tribe; and
       [(B) with respect to the Department of Hawaiian Home Lands, 
     on the basis of the number of current leases at the time of 
     allocation;
       [(3) have such par value and other characteristics as the 
     Corporation shall provide;
       [(4) be issued in such a manner as to ensure that voting 
     rights may be vested only on purchase of those rights from 
     the Corporation by an Indian tribe or the Department of 
     Hawaiian Home Lands, with each share being entitled to 1 
     vote; and
       [(5) be nontransferable.
       [(b) Class B Stock.--
       [(1) In general.--The Corporation may issue class B stock 
     evidencing capital contributions in the manner and amount, 
     and subject to any limitations on concentration of ownership, 
     as may be established by the Corporation.
       [(2) Characteristics.--Any class B stock issued under 
     paragraph (1) shall--
       [(A) be available for purchase by investors;
       [(B) be entitled to such dividends as may be declared by 
     the Board in accordance with subsection (c);
       [(C) have such par value and other characteristics as the 
     Corporation shall provide;
       [(D) be vested with voting rights, with each share being 
     entitled to 1 vote; and
       [(E) be transferable only on the books of the Corporation.
       [(c) Charges and Fees; Earnings.--
       [(1) Charges and fees.--The Corporation may impose charges 
     or fees, which may be regarded as elements of pricing, with 
     the objectives that--
       [(A) all costs and expenses of the operations of the 
     Corporation should be within the income of the Corporation 
     derived from such operations; and
       [(B) those operations would be fully self-supporting.
       [(2) Earnings.--
       [(A) In general.--All earnings from the operations of the 
     Corporation shall be annually transferred to the general 
     surplus account of the Corporation.
       [(B) Transfer of general surplus funds.--At any time, funds 
     in the general surplus account may, in the discretion of the 
     Board, be transferred to the reserves of the Corporation.
       [(d) Capital Distributions.--
       [(1) Distributions.--
       [(A) In general.--Except as provided in paragraph (2), the 
     Corporation may make such capital distributions as may be 
     declared by the Board.
       [(B) Charging of distributions.--All capital distributions 
     under subparagraph (A) shall be charged against the general 
     surplus account of the Corporation.
       [(2) Restriction.--The Corporation may not make any capital 
     distribution that would decrease the total capital of the 
     Corporation to an amount less than the capital level for the 
     Corporation established under section 301, without prior 
     written approval of the distribution by the Secretary.

            [TITLE III--REGULATION, EXAMINATION, AND REPORTS

     [SEC. 301. REGULATION, EXAMINATION, AND REPORTS.

       [(a) In General.--The Corporation shall be subject to the 
     regulatory authority of the Department of Housing and Urban 
     Development with respect to all matters relating to the 
     financial safety and soundness of the Corporation.

[[Page S11575]]

       [(b) Duty of Secretary.--The Secretary shall ensure that 
     the Corporation is adequately capitalized and operating 
     safely as a congressionally chartered body corporate.
       [(c) Reports to Secretary.--
       [(1) Annual reports.--On such date as the Secretary shall 
     require, but not later than 1 year after the date of 
     enactment of this Act, and annually thereafter, the 
     Corporation shall submit to the Secretary a report in such 
     form and containing such information with respect to the 
     financial condition and operations of the Corporation as the 
     Secretary shall require.
       [(2) Contents of reports.--Each report submitted under this 
     subsection shall contain a declaration by the president, vice 
     president, treasurer, or any other officer of the Corporation 
     designated by the Board to make the declaration, that the 
     report is true and correct to the best of the knowledge 
     and belief of that officer.

     [SEC. 302. AUTHORITY OF THE SECRETARY OF HOUSING AND URBAN 
                   DEVELOPMENT.

       [The Secretary shall--
       [(1) have general regulatory power over the Corporation; 
     and
       [(2) promulgate such rules and regulations applicable to 
     the Corporation as the Secretary determines to be appropriate 
     to ensure that the purposes specified in section 3 are 
     accomplished.

                [TITLE IV--FORMATION OF NEW CORPORATION

     [SEC. 401. FORMATION OF NEW CORPORATION.

       [(a) In General.--In order to continue the accomplishment 
     of the purposes specified in section 3 beyond the terms of 
     the charter of the Corporation, the Board shall, not later 
     than 10 years after the date of enactment of this Act, cause 
     the formation of a new corporation under the laws of any 
     tribe, any State, or the District of Columbia.
       [(b) Powers of New Corporation Not Prescribed.--Except as 
     provided in this section, the new corporation may have such 
     corporate powers and attributes permitted under the laws of 
     the jurisdiction of in which the new corporation is 
     incorporated as the Board determines to be appropriate.
       [(c) Use of Name Prohibited.--The new corporation may not 
     use in any manner the names ``Native American Capital 
     Development Corporation'' or ``NACDCO'', or any variation of 
     those names.

     [SEC. 402. ADOPTION AND APPROVAL OF MERGER PLAN.

       [(a) In General.--Not later than 10 years after the date of 
     enactment of this Act, after consultation with the Indian 
     tribes that are stockholders of class A stock referred to in 
     section 201(a), the Board shall prepare, adopt, and submit to 
     the Secretary for approval, a plan for merging the 
     Corporation into the new corporation.
       [(b) Designated Merger Date.--
       [(1) In general.--The Board shall establish the designated 
     merger date in the merger plan as a specific calendar date on 
     which, and time of day at which, the merger of the 
     Corporation into the new corporation shall take effect.
       [(2) Changes.--The Board may change the designated merger 
     date in the merger plan by adopting an amended plan of 
     merger.
       [(3) Restriction.--Except as provided in paragraph (4), the 
     designated merger date in the merger plan or any amended 
     merger plan shall not be later than 11 years after the date 
     of enactment of this Act.
       [(4) Exception.--Subject to the restriction contained in 
     paragraph (5), the Board may adopt an amended plan of merger 
     that designates a date under paragraph (3) that is later than 
     11 years after the date of enactment of this Act if the Board 
     submits to the Secretary a report--
       [(A) stating that an orderly merger of the Corporation into 
     the new corporation is not feasible before the latest date 
     designated by the Board;
       [(B) explaining why an orderly merger of the Corporation 
     into the new corporation is not feasible before the latest 
     date designated by the Board;
       [(C) describing the steps that have been taken to 
     consummate an orderly merger of the Corporation into the new 
     corporation not later than 11 years after the date of 
     enactment of this Act; and
       [(D) describing the steps that will be taken to consummate 
     an orderly and timely merger of the Corporation into the new 
     corporation.
       [(5) Limitation.--The date designated by the Board in an 
     amended merger plan shall not be later than 12 years after 
     the date of enactment of this Act.
       [(6) Consummation of merger.--The consummation of an 
     orderly and timely merger of the Corporation into the new 
     corporation shall not occur later than 13 years after the 
     date of enactment of this Act.
       [(c) Governmental Approvals of Merger Plan Required.--The 
     merger plan or any amended merger plan shall take effect on 
     the date on which the plan is approved by the Secretary.
       [(d) Revision of Disapproved Merger Plan Required.--If the 
     Secretary disapproves the merger plan or any amended merger 
     plan--
       [(1) the Secretary shall--
       [(A) notify the Corporation of the disapproval; and
       [(B) indicate the reasons for the disapproval; and
       [(2) not later than 30 days after the date of notification 
     of disapproval under paragraph (1), the Corporation shall 
     submit to the Secretary for approval, an amended merger plan 
     that responds to the reasons for the disapproval indicated in 
     that notification.
       [(e) No Stockholder Approval of Merger Plan Required.--The 
     approval or consent of the stockholders of the Corporation 
     shall not be required to accomplish the merger of the 
     Corporation into the new corporation.

     [SEC. 403. CONSUMMATION OF MERGER.

       [The Board shall ensure that the merger of the Corporation 
     into the new corporation is accomplished in accordance with--
       [(1) a merger plan approved by the Secretary under section 
     402; and
       [(2) all applicable laws of the jurisdiction in which the 
     new corporation is incorporated.

     [SEC. 404. TRANSITION.

       [Except as provided in this section, the Corporation shall, 
     during the transition period, continue to have all of the 
     rights, privileges, duties, and obligations, and shall be 
     subject to all of the limitations and restrictions, set forth 
     in this Act.

     [SEC. 405. EFFECT OF MERGER.

       [(a) Transfer of Assets and Liabilities.--On the designated 
     merger date--
       [(1) all real, personal, and mixed property, all debts due 
     on any account, and any other interest, of or belonging to or 
     due to the Corporation, shall be transferred to and vested 
     in the new corporation without further act or deed; and
       [(2) no title to any real, personal, or mixed property 
     shall be impaired in any way by reason of the merger.
       [(b) Termination of the Corporation and Federal Charter.--
     On the designated merger date--
       [(1) the surviving corporation of the merger shall be the 
     new corporation;
       [(2) the Federal charter of the Corporation shall 
     terminate; and
       [(3) the separate existence of the Corporation shall 
     terminate.
       [(c) References to the Corporation in Law.--After the 
     designated merger date, any reference to the Corporation in 
     any law or regulation shall be deemed to refer to the new 
     corporation.
       [(d) Savings Clause.--
       [(1) Proceedings.--The merger of the Corporation into the 
     new corporation shall not abate any proceeding commenced by 
     or against the Corporation before the designated merger date, 
     except that the new corporation shall be substituted for the 
     Corporation as a party to any such proceeding as of the 
     designated merger date.
       [(2) Contracts and agreements.--All contracts and 
     agreements to which the Corporation is a party and which are 
     in effect on the day before the designated merger date shall 
     continue in effect according to their terms, except that the 
     new corporation shall be substituted for the Corporation as a 
     party to those contracts and agreements as of the designated 
     merger date.

                 [TITLE V--OTHER NATIVE AMERICAN FUNDS

     [SEC. 501. NATIVE AMERICAN ECONOMIES DIAGNOSTIC STUDIES FUND.

       [(a) Establishment.--There is established within the 
     Corporation a fund to be known as the ``Native American 
     Economies Diagnostic Studies Fund'' (referred to in this 
     section as the ``Diagnostic Fund''), to be used to strengthen 
     Indian tribal economies by supporting investment policy 
     reforms and technical assistance to eligible Indian tribes, 
     consisting of--
       [(1) any interest earned on investment of amounts in the 
     Fund under subsection (d); and
       [(2) such amounts as are appropriated to the Diagnostic 
     Fund under subsection (f).
       [(b) Use of Amounts From Diagnostic Fund.--
       [(1) In general.--The Corporation shall use amounts in the 
     Diagnostic Fund to establish an interdisciplinary mechanism 
     by which the Corporation and interested Indian tribes may 
     jointly--
       [(A) conduct diagnostic studies of Native economic 
     conditions; and
       [(B) provide recommendations for reforms in the policy, 
     legal, regulatory, and investment areas and general economic 
     environment of the interested Indian tribes.
       [(2) Conditions for studies.--A diagnostic study conducted 
     jointly by the Corporation and an Indian tribe under 
     paragraph (1)--
       [(A) shall be conducted in accordance with an agreement 
     between the Corporation and the Indian tribe; and
       [(B) at a minimum, shall identify inhibitors to greater 
     levels of private sector investment and job creation with 
     respect to the Indian tribe.
       [(c) Expenditures From Diagnostic Fund.--
       [(1) In general.--Subject to paragraph (2), on request by 
     the Corporation, the Secretary of the Treasury shall transfer 
     from the Diagnostic Fund to the Corporation such amounts as 
     the Corporation determines are necessary to carry out this 
     section.
       [(2) Administrative expenses.--An amount not exceeding 12 
     percent of the amounts in the Diagnostic Fund shall be 
     available in each fiscal year to pay the administrative 
     expenses necessary to carry out this section.
       [(d) Investment of Amounts.--
       [(1) In general.--The Secretary of the Treasury shall 
     invest such portion of the Diagnostic Fund as is not, in the 
     judgment of the Secretary of the Treasury, required to meet 
     current withdrawals. Investments may be made only in 
     interest-bearing obligations of the United States.

[[Page S11576]]

       [(2) Acquisition of obligations.--For the purpose of 
     investments under paragraph (1), obligations may be 
     acquired--
       [(A) on original issue at the issue price; or
       [(B) by purchase of outstanding obligations at the market 
     price.
       [(3) Sale of obligations.--Any obligation acquired by the 
     Diagnostic Fund may be sold by the Secretary of the Treasury 
     at the market price.
       [(4) Credits to fund.--The interest on, and the proceeds 
     from the sale or redemption of, any obligations held in the 
     Diagnostic Fund shall be credited to and form a part of the 
     Diagnostic Fund.
       [(e) Transfers of Amounts.--
       [(1) In general.--The amounts required to be transferred to 
     the Diagnostic Fund under this section shall be transferred 
     at least monthly from the general fund of the Treasury to the 
     Diagnostic Fund on the basis of estimates made by the 
     Secretary of the Treasury.
       [(2) Adjustments.--Proper adjustment shall be made in 
     amounts subsequently transferred to the extent prior 
     estimates were in excess of or less than the amounts required 
     to be transferred.
       [(f) Transfers to Diagnostic Fund.--There are appropriated 
     to the Diagnostic Fund, out of funds made available under 
     section 603, such sums as are necessary to carry out this 
     section.

     [SEC. 502. NATIVE AMERICAN ECONOMIC INCUBATION CENTER FUND.

       [(a) Establishment.--There is established within the 
     Corporation a fund to be known as the ``Native American 
     Economic Incubation Center Fund'' (referred to in this 
     section as the ``Economic Fund''), consisting of--
       [(1) any interest earned on investment of amounts in the 
     Economic Fund under subsection (d); and
       [(2) such amounts as are appropriated to the Economic Fund 
     under subsection (f).
       [(b) Use of Amounts From Economic Fund.--
       [(1) In general.--The Corporation shall use amounts in the 
     Economic Fund to ensure that Federal development assistance 
     and other resources dedicated to Native American economic 
     development are provided only to Native American communities 
     with demonstrated commitments to--
       [(A) sound economic and political policies;
       [(B) good governance; and
       [(C) practices that promote increased levels of economic 
     growth and job creation.
       [(c) Expenditures From Economic Fund.--
       [(1) In general.--Subject to paragraph (2), on request by 
     the Corporation, the Secretary of the Treasury shall transfer 
     from the Economic Fund to the Corporation such amounts as the 
     Corporation determines are necessary to carry out this 
     section.
       [(2) Administrative expenses.--An amount not exceeding 12 
     percent of the amounts in the Economic Fund shall be 
     available in each fiscal year to pay the administrative 
     expenses necessary to carry out this section.
       [(d) Investment of Amounts.--
       [(1) In general.--The Secretary of the Treasury shall 
     invest such portion of the Economic Fund as is not, in the 
     judgment of the Secretary of the Treasury, required to meet 
     current withdrawals. Investments may be made only in 
     interest-bearing obligations of the United States.
       [(2) Acquisition of obligations.--For the purpose of 
     investments under paragraph (1), obligations may be 
     acquired--
       [(A) on original issue at the issue price; or
       [(B) by purchase of outstanding obligations at the market 
     price.
       [(3) Sale of obligations.--Any obligation acquired by the 
     Economic Fund may be sold by the Secretary of the Treasury at 
     the market price.
       [(4) Credits to fund.--The interest on, and the proceeds 
     from the sale or redemption of, any obligations held in the 
     Economic Fund shall be credited to and form a part of the 
     Economic Fund.
       [(e) Transfers of Amounts.--
       [(1) In general.--The amounts required to be transferred to 
     the Economic Fund under this section shall be transferred at 
     least monthly from the general fund of the Treasury to the 
     Economic Fund on the basis of estimates made by the Secretary 
     of the Treasury.
       [(2) Adjustments.--Proper adjustment shall be made in 
     amounts subsequently transferred to the extent prior 
     estimates were in excess of or less than the amounts required 
     to be transferred.
       [(f) Transfers to Economic Fund.--There are appropriated to 
     the Economic Fund, out of funds made available under section 
     603, such sums as are necessary to carry out this section.

              [TITLE VI--AUTHORIZATIONS OF APPROPRIATIONS

     [SEC. 601. NATIVE AMERICAN FINANCIAL INSTITUTIONS.

       [(a) In General.--There are authorized to be appropriated 
     to the Fund, without fiscal year limitation, such sums as are 
     necessary to provide financial assistance to Native American 
     financial institutions.
       [(b) No Consideration as Matching Funds.--To the extent 
     that a Native American financial institution receives funds 
     under subsection (a), the funds shall not be considered to be 
     matching funds required under section 108(e) of the Riegle 
     Community Development and Regulatory Improvement Act of 1994 
     (12 U.S.C. 4707(e)).

     [SEC. 602. CORPORATION.

       [There are authorized to be appropriated to the Secretary, 
     for transfer to the Corporation, such sums as are necessary 
     to carry out activities of the Corporation.

     [SEC. 603. OTHER NATIVE AMERICAN FUNDS.

       [There are authorized to be appropriated such sums as are 
     necessary to carry out sections 501 and 502.]

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Indian Tribal Development 
     Corporation Feasibility Study Act of 2004''.

     SEC. 2. FEASIBILITY STUDY.

       Section 4(b) of the Native American Business Development, 
     Trade Promotion, and Tourism Act of 2000 (25 U.S.C. 4303(b)) 
     is amended--
       (1) by redesignating paragraph (6) as paragraph (7); and
       (2) by inserting after paragraph (5) the following:
       ``(6) Tribal development corporation feasibility study.--
       ``(A) In general.--The Secretary shall establish the Tribal 
     Development Corporation Feasibility Study Group (referred to 
     in this paragraph as the `Group').
       ``(B) Members.--The Group shall be comprised of 12 members, 
     as follows:
       ``(i) Representatives of indian tribes.--Five members of 
     the Group shall be representatives of federally recognized 
     Indian tribes.
       ``(ii) Representatives of the alaska native community.--
     Three members of the Group shall be representatives of the 
     Alaska Native Community.
       ``(iii) Representative of the native hawaiian community.--
     One member of the Group shall be a representative of the 
     Native Hawaiian Community.
       ``(iv) Representative of the private sector.--Two members 
     of the Group shall be representatives of nongovernmental 
     economic activities carried out by private enterprises in the 
     private sector.
       ``(v) Federal officials.--One member of the Group shall be 
     a representative of the Department of the Treasury with 
     demonstrated experience in international economic development 
     and international financial institutions.
       ``(C) Chairperson.--The members of the Group shall select a 
     Chairperson.
       ``(D) Personnel and services.--
       ``(i) In general.--The Chairperson of the Group may appoint 
     and terminate such personnel as are necessary to enable the 
     Group to perform its duties.
       ``(ii) Procurement of services.--The Chairperson may 
     procure such services as are necessary to enable the Group to 
     perform the duties of the Group.
       ``(E) Study.--
       ``(i) In general.--Not later than 270 days after the date 
     of enactment of this subparagraph, the Group shall--

       ``(I) conduct a study to determine the feasibility of 
     establishing an Indian Tribal Development Corporation 
     (referred to in this subparagraph as the `Corporation'); and
       ``(II) submit to the Committee on Indian Affairs and the 
     Committee on Appropriations of the Senate and the Committee 
     on Resources and the Committee on Appropriations of the House 
     of Representatives a report that describes the results of the 
     study and any recommendations of the Group for further 
     legislative action.

       ``(ii) Contents.--The report shall contain--

       ``(I) a discussion and determination of the financial 
     feasibility of the Corporation, including whether the 
     Corporation can be, over the long term, financially self-
     sustainable;
       ``(II) a discussion and determination of the probable 
     economic impact of the Corporation, including a demonstration 
     of the quantitative and qualitative economic impact on Native 
     American communities;

       ``(III) a discussion and determination of the best 
     alternatives in the structure, organization, and lending 
     terms and conditions of the Corportation, including the most 
     appropriate structure of capital contributions to best serve, 
     and be acceptable to, Native interests;
       ``(IV) a discussion and determination of the basic terms 
     and conditions under which funding would be provided to 
     member Indian tribes;
       ``(V) a discussion of nonfinancial and advisory activities 
     to be undertaken by the Corporation, including the use of 
     diagnostic studies by the Corporation to--

       ``(aa) identify tribal, Federal, or State policies and 
     legal and regulatory conditions and infrastructure 
     deficiencies that impede investment, both private and public, 
     needed to promote economic development;
       ``(bb) provide specific recommendations for remedial 
     actions that can be undertaken by an Indian tribe to overcome 
     such inhibitors of investment; and
       ``(cc) identify and establish the terms for pre-appraisal 
     studies of investment opportunities, both private and public, 
     that can be developed and promoted by an Indian tribe; and

       ``(VI) a discussion and determination of--

       ``(aa) the capital structure of the Corporation, including 
     the optimal level of initial capital contributions by both 
     Indian tribes and the United States Government; and
       ``(bb) the financial instruments that will be required by 
     the Corporation to ensure its success.
       ``(F) Termination of study group.--The Group shall 
     terminate 120 days after the date on which the Group submits 
     the report under subparagraph (E).
       ``(G) Authorization of appropriations.--There are 
     authorized to be appropriated to carry out this paragraph--
       ``(i) $3,000,000 for fiscal year 2005; and
       ``(ii) $2,000,000 for fiscal year 2006.''.
       Amend the title so as to read: ``A bill to determine the 
     feasibility of establishing an Indian Tribal Development 
     Corporation.''.

  The committee amendment in the nature of a substitute was agreed to.

[[Page S11577]]

  The bill (S. 519), as amended, was read the third time and passed.
  The title was amended so as to read: ``A bill to determine the 
feasibility of establishing an Indian Tribal Development Corporation.''

                          ____________________