[House Report 106-501]
[From the U.S. Government Publishing Office]






106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     106-501

=======================================================================



 
 INDIAN TRIBAL ECONOMIC DEVELOPMENT AND CONTRACT ENCOURAGEMENT ACT OF 
                                  1999
                                _______
                                

 February 29, 2000.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 613]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Resources, to whom was referred the 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, 
having considered the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of S. 613 is to encourage Indian economic 
development, to provide for the disclosure of Indian tribal 
sovereignty immunity in contracts involving Indian tribes, and 
for other purposes.

                  Background and Need for Legislation

    S. 613, the proposed Indian Tribal Economic Development and 
Contract Encouragement Act of 1999, would amend existing law to 
provide that no agreement or contract with an Indian tribe that 
encumbers Indian lands for a period of seven or more years 
shall be valid unless that agreement or contract is approved by 
the Secretary of the Interior. The bill also provides that the 
Secretary shall issue regulations for identifying the types of 
agreements or contracts not covered by the aforementioned 
requirement.
    Section 81 of Title 25 of the United States Code, enacted 
in 1872, is intended to protect Indians from improvident 
contracts and is concerned primarily with federal control over 
contracts between Indians tribes or individual Indians and non-
Indians. Over the decades many provisions of this law have come 
to be antiquated and unnecessary. In 1958 Congress amended 
Section 81 to remove the requirement that all such contracts be 
executed in the presence of a judge. In 1982 Congress amended 
Section 81 as it related to management agreements. In 1990 
Congress amended Section 81 as it related to reservation-wide 
plebiscites and exempted Self-Governance tribes from Section 
81.
    S. 613 eliminates a major portion of federal control 
exercised pursuant to Section 81 by making federal approval 
only applicable to certain contracts having a life of seven or 
more years. In addition, S. 613 amends Section 16 of the Indian 
Reorganization Act of 1934 (25 U.S.C. 476) by removing the 
requirement that the choice of counsel and the fixing of fees 
by a Tribe shall be subject to the approval of the Secretary of 
the Interior.

                            Committee Action

    S. 613 was introduced on March 15, 1999, by Senator Ben 
Nighthorse Campbell (R-CO). The bill, as amended, was passed by 
the Senate on September 15, 1999, by unanimous consent, and 
referred to the Committee on Resources. On February 16, 2000, 
the Resources Committee met to consider the bill. No amendments 
were offered and the bill was ordered favorably reported to the 
House of Representatives by voice vote.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that Rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. Government Reform Oversight Findings. Under clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives, the Committee has received no report of 
oversight findings and recommendations from the Committee on 
Government Reform on this bill.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 29, 2000.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 613, the Indian 
Tribal Economic Development and Contract Encouragement Act of 
1999.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette 
Keith (for federal costs), and Marjorie Miller (for the state, 
local, and tribal impact).
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

               congressional budget office cost estimate

S. 613--Indian Tribal Economic Development and Contract Encouragement 
        Act of 1999

    Summary: Based on information from the Department of the 
Interior (DOI) and the Bureau of Indian Affairs (BIA), CBO 
estimates that implementing S. 613 would reduce discretionary 
costs for BIA by a total of about $2 million over the 2001-2005 
period. The act would not affect direct spending or receipts; 
therefore, pay-as-you-go procedures would apply. S. 613 
contains an intergovernmental mandate as defined in the 
Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
this mandate would not impose minimal costs that would be far 
below the threshold established by that act ($55 million in 
2000). Further, S. 613 would reduce the costs of an existing 
mandate, more than offsetting any new mandate costs. This 
legislation contains no new private-sector mandates as defined 
in UMRA.
    S. 613 would amend current law (25 U.S.C. 81) to remove 
certain restrictions on contracts between Indian tribes and 
other parties. This provision, known as section 81, requires 
DOI's approval of all contracts involving payments between non-
Indians and Indians for services relative to Indian lands. 
Under current law, any contract that is subject to this 
provision and which is not approved by DOI can be declared null 
and void. As amended by S. 613, section 81 would only require 
approval of contracts that encumber Indian lands for a period 
of at least seven years. S. 613 would prohibit DOI from 
approving contracts that neither provide for remedies in the 
case of a breach of contract nor explicitly disclose or waive 
an Indian tribe's right to assert sovereign immunity as a 
defense in an action brought against it. In addition, the act 
would amend the Indian Reorganization Act to remove a 
requirement that a tribe's choice of legal counsel and the fees 
to be paid to such counsel be subject to DOI approval.
    Estimated cost to the Federal Government: Based on 
information from DOI and BIA, CBO expects that S. 613 would 
reduce the number of contracts the department has to review 
each year. CBO estimates that implementing this legislation 
would reduce costs for BIA by between $300,000 and $400,000 in 
each of fiscal years 2001 through 2005. Any reduction in total 
BIA spending would be subject to appropriate action.
    Pay-as-you-go considerations: None.
    Estimated impact on state, local, and tribal governments: 
Section 81 currently imposes a mandate on tribes to submit 
certain contracts for approval by the Secretary of the 
Interior. S. 613 would greatly reduce the number of contracts 
requiring approval, thus reducing the cost to tribes of the 
existing mandate. But under this legislation, a tribe entering 
into a covered contract would have to include a specific 
statement regarding its sovereign immunity. This is an 
additional enforceable duty imposed on tribes, and so would 
constitute an intergovernmental mandate under UMRA. The cost of 
this mandate would be minimal, however. It would not affect the 
rights of either party under such contracts, but would only 
require that these rights be explicitly stated.
    Estimated impact on the private sector: S. 613 contains no 
new private-sector mandates as defined in UMRA.
    Previous CBO estimate: On July 9, 1999, CBO prepared a cost 
estimate for S. 613 as ordered reported by the Senate Committee 
on Indian Affairs on June 16, 1999. Our cost estimates for 
these two versions of the legislation are the same.
    Estimate prepared by: Federal Costs: Lanette Keith; Impact 
on State, Local, and Tribal Governments: Marjorie Miller.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                  SECTION 2103 OF THE REVISED STATUTES

  [Sec. 2103. No agreement shall be made by any person with any 
tribe of Indians, or individual Indians not citizens of the 
United States, for the payment or delivery of any money or 
other thing of value, in present or in prospective, or for the 
granting or procuring any privilege to him, or any other person 
in consideration of services for said Indians relative to their 
lands, or to any claims growing out of, or in reference to, 
annuities, installments, or other moneys, claims, demands, or 
thing, under laws or treaties with the United States, or 
official acts of any officers thereof, or in any way connected 
with or due from the United States, unless such contract or 
agreement be executed and approved as follows:
  [First. Such agreement shall be in writing, and a duplicate 
of it delivered to each party.
  [Second. It shall bear the approval of the Secretary of the 
Interior and the Commissioner of Indian Affairs indorsed upon 
it.
  [Third. It shall contain the names of all parties in 
interest, their residence and occupation; and if made with a 
tribe, by their tribal authorities, the scope of authority and 
the reason for exercising that authority, shall be given 
specifically.
  [Fourth. It shall state the time when and place where made, 
the particular purpose for which made, the special thing or 
things to be done under it, and, if for the collection of 
money, the basis of the claim, the source from which it is to 
be collected, the disposition to be made of it when collected, 
the amount or rate per centum of the fee in all cases; and if 
any contingent matter or condition constitutes a part of the 
contract or agreement, it shall be specifically set forth.
  [Fifth. It shall have a fixed limited time to run, which 
shall be distinctly stated.
  [All contracts or agreements made in violation of this 
section shall be null and void, and all money or other thing of 
value paid to any person by any Indian or tribe, or any one 
else, for or on his or their behalf, on account of such 
services, in excess of the amount approved by the Commissioner 
and Secretary for such services, may be recovered by suit in 
the name of the United States in any court of the United 
States, regardless of the amount in controversy; and one-half 
thereof shall be paid to the person suing for the same, and the 
other half shall be paid into the Treasury for the use of the 
Indian or tribe by or for whom it was so paid.]
  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 2000, 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.

                 SECTION 16 OF THE ACT OF JUNE 19, 1934

  Sec. 16. (a)  * * *

           *       *       *       *       *       *       *

  (e) In addition to all powers vested in any Indian tribe or 
tribal council by existing law, the constitution adopted by 
said tribe shall also vest in such tribe or its tribal council 
the following rights and powers: To employ legal counsel[, the 
choice of counsel and fixing of fees to be subject to the 
approval of the Secretary]; to prevent the sale, disposition, 
lease, or encumbrance of tribal lands, interests in lands, or 
other tribal assets without the consent of the tribe; and to 
negotiate with the Federal, State, and local governments. The 
Secretary shall advise such tribe or its tribal council of all 
appropriation estimates or Federal projects for the benefit of 
the tribe prior to the submission of such estimates to the 
Office of Management and Budget and the Congress.

           *       *       *       *       *       *       *


                                

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