[Senate Report 106-150]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 270
106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-150

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



 
ENCOURAGING INDIAN ECONOMIC DEVELOPMENT, TO PROVIDE FOR THE DISCLOSURE 
   OF INDIAN TRIBAL SOVEREIGN IMMUNITY IN CONTRACTS INVOLVING INDIAN 
                     TRIBES, AND FOR OTHER PURPOSES

                                _______
                                

               September 8, 1999.--Ordered to be printed

                                _______


   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 613]

    The Committee on Indian Affairs, to which 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, reports favorably thereon with an 
amendment in the nature of a substitute, and recommends the 
bill as amended do pass.

                                Purpose

    The purpose of S. 613, as amended, is to replace the 
provisions of the Act of May 21, 1872, Section 2103 of the 
Revised Statutes, found at 25 U.S.C. Sec. 81 (Section 81) to 
clarify which agreements with Indian tribes require federal 
approval, to specify the criteria for approval of those 
agreements, and to provide that those agreements covered by the 
Act include a provision either disclosing or addressing tribal 
immunity from suit. S. 613 also amends the Indian 
Reorganization Act of 1934 and Sec. 81 to eliminate any 
statutory requirement for federal review of tribal contracts 
with attorneys.

                               Background

    The federal government is the legal trustee for Indian 
lands. As a result, these lands may not be sold or leased 
except in a manner consistent with federal law. In addition, an 
1872 statute, Section 2103 of the Revised Statutes, found at 25 
U.S.C. Sec. 81 requires federal approval of agreements 
``relative to'' Indian lands owned by a tribe or ``Indians not 
citizens of the United States.'' Section 81 includes a list of 
technical requirements for such agreements and provides that 
any agreement that does not conform with its requirements is 
null and void and all amounts paid by a tribe or on the tribe's 
behalf are to be disgorged. Finally, the statute authorizes 
parties to bring suit to enforce the statute ``in the name of 
the United States in any court of the United States, regardless 
of the amount in controversy.''
    Enacted in 1872, Section 81 reflects Congressional concerns 
that Indians, either individually or collectively, were 
incapable of protecting themselves from fraud in the conduct of 
their economic affairs.\1\ As explained by the Supreme Court: 
``The early legislation affecting the Indians has as its 
immediate object the closest control by the government of their 
lives and property. The first and principal need then was that 
they should be shielded alike from their own improvidence and 
the spoliation of others * * *'' \2\ The Indian Reorganization 
Act of 1934 (IRA) represented a fundamental break with this 
policy. As the Supreme Court explained: ``The intent and 
purpose of the [IRA] was `to develop the initiative destroyed 
by a century of oppression and paternalism.' '' \3\ The IRA's 
sponsor in the Senate, Senator Burton K. Wheeler characterized 
the purpose of the IRA: ``[It] seeks to get away from the 
bureaucratic control of the Indian Department, and it seeks 
further to give the Indians the control of their own affairs 
and of their own property; to put it in the hands either of an 
Indian council or in the hands of a corporation organized by 
the Indians.'' \4\
---------------------------------------------------------------------------
    \1\ The legislative history reveals that Congress enacted this 
statute because of concerns about individuals retained by tribes to 
assert claims on their behalf. See In re United States ex rel. Hall, 
825 F. Supp. 1422, 1431-2 (1993), aff'd 27 F.3d 572 (8th Cir. 1994).
    \2\ Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575, 579 (1928).
    \3\ Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973), 
quoting H.R. Rep. No. 1804, 73rd Cong., 2nd Sess., 6 (1934).
    \4\ Id. at 152, quoting 78 Cong. Rec. 11125.
---------------------------------------------------------------------------
    Indian tribes, their corporate partners, courts, and the 
Bureau of Indian Affairs (BIA) have struggled for decades with 
how to apply Section 81 in an era that emphasizes tribal self-
determination, autonomy, and reservation economic development.
    Although the IRA did not explicitly amend Section 81, it 
was soon apparent that the two laws were based on fundamentally 
inconsistent principles. This left those concerned with tribal 
transactions with the difficult task of reconciling an 1872 
statute that sought to protect Indian tribes by imposing 
extensive federal oversight with a 1934 Act intended ``to 
disentangle the tribes from official bureaucracy.'' \5\
---------------------------------------------------------------------------
    \5\ Id. at 153.
---------------------------------------------------------------------------
    A 1952 Opinion by the Department of Interior's Office of 
the Solicitor represents one attempt to reconcile these two 
statutes.\6\ The opinion addresses two separate transactions by 
two different tribal entities. Although both entities were 
organized pursuant to the IRA, one entity traced its authority 
to a tribal corporation chartered under Section 17 of the IRA 
(25 U.S.C. Sec. 477), while the other was organized under an 
IRA constitution pursuant to Section 16 of the IRA (25 U.S.C. 
Sec. 476). With respect to the Section 17 corporation, the 
Solicitor pointed out that the IRA allowed the Secretary to 
grant charters that authorized Indian tribes to mortgage or 
lease tribal lands for any period up to 10 years. Thus, the 
Solicitor reasoned that the Secretary could ``grant to the 
tribe freedom to make contracts without complying with the 
requirements prescribed in [Section 81].''
---------------------------------------------------------------------------
    \6\ Contracts for the Employment of Managers of Indian Tribal 
Enterprises, Opinion of the Solicitor, February 14, 1952 (M-36119).
---------------------------------------------------------------------------
    The Solicitor reached this conclusion even though Section 
17 precluded the Secretary from granting to the tribe 
incidental corporate powers which are ``inconsistent with the 
law.'' The Solicitor interpreted this phrase very 
restrictively, to include only those ``powers which cannot 
lawfully be given to any corporation, non-Indian or Indian.'' 
This interpretation was consistent with the purpose of 
incorporation, which was characterized by the Solicitor as 
``the means for the conduct of business activities in a 
business-like way. * * *'' Having concluded that nothing in 
Section 17 prohibited the Secretary from freeing a tribal 
corporate entity from the dictates of Section 81, the Solicitor 
then concluded that a provision authorizing the tribe to enter 
into land leases of up to ten yearsand contracts of up to 
$5,000 per year, without BIA review, should be interpreted as such an 
exemption.\7\
---------------------------------------------------------------------------
    \7\ It is worth noting that the actual Section 17 corporate charter 
under consideration in the 1952 opinion was granted to the Minnesota 
Chippewa Tribe. However, the agreement which was under consideration 
(and found not to require Section 81 approval) was an agreement between 
a non-Indian and the Grand Portage Band, ``one of the constituent bands 
of the Minnesota Chippewa Tribe.'' Thus, it would seem to follow that 
any tribe with Section 17 corporation could confer similar authority on 
any of its subordinate economic entities, at least up to the extent of 
any conditions contained in its corporate charter.
---------------------------------------------------------------------------
    Nevertheless, the Solicitor opined that Section 81 was 
applicable to a farm manager's contract with an Indian tribe 
organized pursuant to Section 16. The Solicitor explained that 
in addition to the powers which were explicitly to be vested in 
the tribe under Section 16, the tribe retained ``all powers 
vested * * * by existing law.'' The Solicitor then stated: ``We 
do not find here any grant of power to make contracts without 
regard to the requirements [Section 81].'' This conclusion 
deviates from the Solicitor's long-standing practice, which 
continues to this day, of interpreting the IRA as a 
codification rather than the source of tribal authority.\8\ 
Hence, it is surprising that the Solicitor would look to the 
Section 16 for a ``grant'' of authority.
---------------------------------------------------------------------------
    \8\ Finding that Section 81 was inapplicable to the Section 17 
contract was consistent with the longstanding principle that federal 
laws, including the IRA, are not the source of tribal authority.

        Each Indian tribe begins its relationship with the 
      Federal Government as a sovereign power, recognized as such 
      in treaty and legislation. The powers of sovereignty have 
      been limited from time to time by special treaties and laws 
      designed to take from the Indian tribes control of matters 
      which, in the judgment of Congress, these tribes could no 
      longer be safely permitted to handle. The statutes of 
      Congress, then, must be examined to determine the 
      limitations of tribal sovereignty rather than to determine 
      its sources or its positive content. What is not expressly 
      limited remains within the domain of tribal sovereignty, 
      and therefore properly falls within the statutory category, 
      ``powers vested in any Indian tribe or tribal council by 
      existing law.''--Powers of Indian Tribes, 55 Interior 
---------------------------------------------------------------------------
      Decision 14 (October 25, 1934) (emphasis supplied).

However, applying Section 81 to the farm manager's contract apparently 
disregards an equally important principle articulated in the same 1934 
opinion: ``The acts of Congress which appear to limit the powers of an 
Indian tribe are not to be unduly extended by doubtful inference.'' 
Another example where this important principle may have been 
disregarded is Yavapai-Prescott Indian Tribe v. Watt, 707 F.2d 1072 
(1983) (Secretarial approval needed to both approve and terminate 
lease).
    In fact, the Solicitor recognized that the IRA ``was 
intended to make a new point of departure in the relations 
between the tribes and the Government,'' but reasoned that a 
repeal by implication was disfavored. Certainly Section 16 did 
not explicitly exempt the contract at issue from Section 81, 
but neither did Section 17 of the IRA. In addition, the 
Solicitor pointed out that it would be ``unsafe'' to assume 
that Section 81 was inapplicable because the failure to comply 
with its requirements would subject the contracting party to a 
fine and the loss of any benefit conferred upon the party by 
the tribe. Again, the same risk applies to contracts with 
section 17 corporations and counsels in favor of assuming that 
Section 81 applies to those contracts.
    The Solicitor's decision represents an attempt to reconcile 
two statutes that derive from two fundamentally different eras 
with little guidance from Congress on how these statutes were 
to be harmonized. The opinion also freed at least some Indian 
tribes from the onerous requirement of obtaining federal 
approval for a potentially vast array of contracts.\9\ 
Nevertheless, a number of problems remain unresolved. For 
example, until 1991, Section 17 charters were only granted by 
the Secretary after a vote of a tribe's membership. Second, the 
Solicitor's 1952 opinion did not provide any guidance 
concerning the appropriate reach of Section 81's application to 
agreements ``relative to Indian lands.'' Even where there is no 
question that Section 81 applies to an agreement, it provides 
no standards for the BIA to apply when deciding whether to 
approve a proposed agreement.\10\ In addition, as the tribal 
transactions became increasingly more complex, the BIA often 
lacked the resources or expertise necessary to adequately 
review proposed contracts.
---------------------------------------------------------------------------
    \9\ Another Solicitor's Opinion recognized that an Indian tribe 
could organize its political institutions under Section 16 of the IRA 
and still obtain a Section 17 charter for purposes of conducting 
business. Separability of Tribal Organizations Organized Under Sections 
16 and 17 of the I.R.A. 65 Interior Dec. 483 (November 20, 1958).
    \10\ In one case where a private party sought judicial review of a 
decision under Section 81, the United States argued that judicial 
review should be unavailable because the Act did not contain sufficient 
standards to allow the court to determine how the Act should be applied 
to the case.

        As an alternate basis on which to affirm the district 
      court['s decision to dismiss], the government asserts that 
      ``review [of Interior Department decisions under 25 U.S.C. 
      Sec. 81] is not to be had [because] the statute is drawn so 
      that a court would have no meaningful standard against 
      which to judge the agency's exercise of discretion.'' Stock 
      West Corporation v. Lujan, 982 F.2d 1389, 1399-1400 (1993) 
      (Emphasis supplied, internal quotation to Heckler v. 
---------------------------------------------------------------------------
      Chaney, 470 U.S. 821, 830 (1985)).

Obviously, if the government takes the position that Section 81 
provides courts with no discernible standards for applying the statute, 
tribes and their (potential) partners are similarly at a loss to 
determine how and whether the Act will be applied. Such uncertainty is 
anathema to reservation development.
    As federal policy increasingly emphasized tribal-self-
determination by reducing or eliminating federal review of 
tribal decisions, Congress has both directly and indirectly 
addressed concerns about Section 81. For example, in 1958, 
Congress removed a provision from Section 81 which required the 
execution of these agreements in the presence of a judge.\11\
---------------------------------------------------------------------------
    \11\ Public Law 85-770.
---------------------------------------------------------------------------
    More recently, Congress explicitly cited problems with 
Section 81 review ofmanagement agreements as a justification 
for enacting the Indian Mineral Development Act of 1982, P.L. 97-382:

          [T]he approval procedure for non-lease ventures under 
        Section 81 requires a rather cumbersome case-by-case 
        analysis to determine whether the document submitted 
        for approval is a service agreement within the purview 
        of the 1938 act, or an interest in land within the 
        purview of the Indian Non-Intercourse Act (R.S. 2116; 
        25 U.S.C. 177). [In addition], with the proliferation 
        and hybridization of non-lease ventures, it is 
        increasingly difficult to make the determination 
        described. Without clarification of the Secretary's 
        authority for approval of existing ventures, because of 
        the confusion concerning the Secretary's authority to 
        approve non-lease ventures, the Department is reluctant 
        to approve a number of proposed agreements which are 
        pending.\12\
---------------------------------------------------------------------------
    \12\ H.R. Rep. No. 746, 97th Cong., 2nd. Sess. 1982.

    More general relief was provided by Congress in 1990 when 
it made several changes to Section 17 of the IRA. Public Law 
101-301 amended the IRA by eliminating the requirement for a 
reservation-wide plebiscite before the Secretary of Interior 
could confer a corporate charter pursuant to Section 17. In 
addition, it authorized section 17 tribal corporations to lease 
Indian lands without Secretarial approval for up to 25 
years.\13\ As enacted the IRA limited such leases to 10 years.
---------------------------------------------------------------------------
    \13\ As passed by the Committee, S. 613 would eliminate the basis 
in federal law for Secretarial review or approval of a number of 
contracts and agreements. As a question of tribal law, however, Section 
17 charters, tribal constitutions, or tribal by-laws may include terms 
that require Secretarial approval of agreements. In addition, some of 
these documents may require Secretarial approval of any amendments to 
those organic documents. There is no reason to assume that the 
Secretary does not possess the authority to approve duly authorized 
amendments to such documents. Certainly S. 613, P.L. 101-301, and the 
IRA demonstrate a clear Congressional policy in favor of reducing 
federal review of tribal decisions and agreements.
---------------------------------------------------------------------------
    In addition, the Tribal Self-Governance Act, established as 
a component of the Indian Self-Determination and Education 
Assistance Act,\14\ makes Section 81 inapplicable to 
participating Indian tribes during the terms of their 
participation in Self-Governance.\15\ These Indian tribes are 
also exempt from any requirements under either 25 U.S.C. 
Sec. 81 or Sec. 476 to submit attorney contracts for federal 
approval.
---------------------------------------------------------------------------
    \14\ P.L. 93-638, 25 U.S.C. 450 et seq.
    \15\ 25 U.S.C. Sec. 458cc(h)(2) and Sec. 4501(b)(15).
---------------------------------------------------------------------------
    While these laws have allowed some Indian tribes to engage 
in business transactions without needing to conform with 
requirements that were intended to shield them from ``their own 
improvidence and the spoliation of others,'' it left Section 
81's core provisions intact. As a result, neither tribes, their 
partners, nor the BIA could predict with any certainty whether 
a court might ultimately conclude that a transaction was void 
because it was not approved pursuant to Section 81. The risk 
that a court might make such a conclusion was exacerbated by 
severity of the penalty for noncompliance borne by the party 
contracting with the tribe.
    For example, in 1985, in Wisconsin Winnebago Business 
Committee v. Koberstein, 726 F.2d 613 (7th Cir. 1985) the 
United States Court of Appeals for the 7th Circuit ruled on the 
applicability of Section 81 to a five-year agreement with a 
corporation ``to assist the [tribal business committee] in 
obtaining financing, construct, improve, [develop], manage, 
operate and maintain [specified tribal lands] as a facility for 
the conduct of bingo games. * * *'' The proposed agreement was 
submitted to the BIA Area Office and the Department of Interior 
Field Solicitor. The Solicitor determined that Section 81 did 
not apply to the agreement. Nevertheless, the Court of Appeals 
ruled that it did.\16\
---------------------------------------------------------------------------
    \16\ Since the contracting party in this case was unaware of the 
BIA's determination that Section 81 was inapplicable, the court of 
appeals did not address whether principles of estoppel and/or 
detrimental reliance precluded its application after BIA found that an 
agreement was not covered by Section 81.
---------------------------------------------------------------------------
    The Koberstein case concerned an Indian tribe's attempt to 
prevent the operation of a bingo facility run by an individual 
who failed ``to disclose the potential conflict of interest 
between his duties as tribal attorney and his position as 
president of the [bingo management company].'' Thus, it is not 
surprising that the court ruled that the agreement was void. In 
its defense, the company sought to argue that Section 81 should 
be interpreted in light of subsequent Congressional enactments 
that limit federal review of tribal decisions and encourage 
tribal economic development. For example, the Supreme Court 
wrote in 1976: ``[W]e previously have construed the effect of 
legislation affecting reservation Indians in light of 
``intervening'' legislative enactments.\17\ The Koberstein 
court brushed these arguments aside, relying instead on the 
Supreme Court's analysis in cases addressing the preemption of 
state law in matters affecting Indian tribes and their members. 
In these cases, the Court has refused to be swayed by ``modern 
conditions'' that arguably counsel in favor of state regulation 
or taxation of the activities of Indian tribes or their 
members.\18\ In cases involving preemption, the Court has 
indicated that statutes are ``given a sweep as broad as their 
language.'' Applying this principle to the relationship between 
tribes and the federal government, the court determined that 
section 81 should be interpreted broadly: ``[S]ection 81 
governs transactions relative to Indian lands for which 
Congress has not passed a specific statute.'' This approach is 
inconsistent with the principle that ``The acts of Congress 
which appear to limit the powers of Indian tribes are not to be 
unduly extended by doubtful inference.'' \19\ In fact, the 
court conceded: ``No federal cases have been presented to us * 
* * that comprehensively analyze the scope of coverage of 
section 81.''
---------------------------------------------------------------------------
    \17\ Bryant v. Itasca County, 426 U.S. 373, 386, quoting Moe v. 
Salish & Kootenai Tribes, 425 U.S., at 472-5 (1976).
    \18\ Central Machinery Co. v. Arizona, 448 U.S. 160, 166 (1980).
    \19\ 55 Interior Dec. 14 (October 25, 1934). See footnote 8.
---------------------------------------------------------------------------
    Soon after Koberstein was decided, the 9th Circuit Court of 
Appeals adopted its reasoning and conclusion in a suit where a 
gaming management company sued to enforce an agreement that was 
not approved by the BIA pursuant to section 81. In this case a 
company sought to argue that section 81 was not applicable to 
the agreement, even though its agreement with the tribe 
recognized that section 81 approval was a prerequisite to the 
contract. A.K. Management Company v. The San Manuel Band of 
Mission Indians, 789 F.2d 785 (9th Cir. 1986).
    In response to federal court cases finding Section 81 
applicable to gaming management contracts and as part of the 
federal policy that encourages Indian tribes to engage in 
gaming activities comparable to those offered within a state, 
the Department published guidelines for the approval of these 
agreements.\20\ Federal courts cited these guidelines as 
evidence of a reversal of the Department's previous position 
that Section 81 did not apply to these agreements, even though 
the BIA was seeking legislative clarification of the statute in 
response to these decisions. As a result, the application of 
Section 81 to gaming management agreements was well established 
as a question of law, even though some federal courts 
characterized ``the draconian remedy of the statute [as] 
distasteful.'' One federal court argued that the statute might 
cause more harm than good: ``[Section 81] imposes a penalty out 
of proportion to the purely technical violations if proscribes. 
It seems likely that tribes may be hurt rather than protected 
by the disruption of their successful business relationships.'' 
\21\
---------------------------------------------------------------------------
    \20\ ``[T]he Department of the Interior, which has the primary 
responsibility for carrying out the Federal Government's trust 
obligations to Indian tribes, has sought to implement these policies by 
promoting tribal bingo enterprises. Under the Indian Financing Act of 
1974, 25 U.S.C. Sec. 1451 et seq. (1982 ed. and Supp. III), the 
Secretary of the Interior has made grants and has guaranteed loans for 
the purpose of constructing bingo facilities * * * [T]he Secretary of 
the Interior has approved tribal ordinances establishing and regulating 
the gaming activities involved. The Secretary has also exercised his 
authority to review tribal bingo management contracts under 25 U.S.C. 
Sec. 81, and has issued detailed guidelines governing that review.'' 
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 217-8 
(1987) (emphasis supplied and citations omitted).
    \21\ U.S. v. D & J Enterprises, 1993 WL 76789 (W.D. Wis. 1993) 
(finding that Section 81 voided the agreement even though the tribe was 
represented by competent legal counsel and there was no evidence of 
fraud or duress).
---------------------------------------------------------------------------
    At its May 19, 1999 hearing, the Commission heard testimony 
that tribes and their partners are unable to eliminate the 
uncertainty created by Section 81. In this respect, Section 81 
differs from the doctrine of tribal sovereign immunity. Any 
uncertainty about whether tribal immunity will prevent the 
enforcement of an agreement with an Indian tribe can be 
addressed and eliminated through the terms of an agreement with 
the tribe or by some other means. Courts have ruled, however, 
that parties may not waive the application of Section 81 in the 
same manner. In fact, it appears that Section 81 prevents a 
tribe from binding itself to an agreement that it will not 
raise its provisions as a defense if litigation ensues.\22\ In 
addition, some courts have interpreted the last paragraph of 
Section 81 as allowing qui tam suits against the party 
contracting with the tribe. In some cases, such suits can be 
brought by parties other than the tribe or the United 
States.\23\ Thus, even if the parties decide that Section 81 is 
inapplicable and agree that they will not subsequently employ 
it as a defense to the contract's enforcement, third parties 
can bring suit and at least disrupt the contract's performance 
through costly and lengthy litigation. In addition, even where 
the BIA determines that a contract does not fall within the 
purview of Section 81, courts are not bound by this conclusion. 
Thus, Section 81 produces uncertainty and leaves Indian tribes, 
their business partners, and the BIA powerless to eliminate 
this uncertainty.
---------------------------------------------------------------------------
    \22\ For example, courts have ruled that an agreement that is void 
pursuant to Section 81 ``[the agreement] cannot be relied upon to give 
rise to any obligation by [the tribe], including an obligation of good 
faith and fair dealing.'' A.K. Management Co. v. The San Manuel Band of 
Mission Indians, 789 F.2d 785, 789 (1986).
    \23\ Based on this interpretation, non-parties to the contract can 
sue a party contracting with the tribe if the agreement was not 
approved under Section 81. This result was soundly criticized by one 
court as ``bestowing a windfall'' for litigants, even where there is no 
evidence of fraud or duress. U.S. v. D & J Enterprises, 1993 WL 767689 
(W.D. Wis. 1993). Subsequently, the 7th Circuit Court of Appeals ruled 
muted the effect such suits by ruling that the tribe is an 
indispensable party under F.R.C.P. Rule 19 United States ex rel. Hall 
v. Tribal Development Corp., 100 F.3d 476 (7th Cir. 1996).
---------------------------------------------------------------------------
    Another concern relates to the increasing complexity of 
tribal transactions. Quoting from Congressional proceedings, 
one U.S. District Court noted: ``Section 81 was enacted to 
protect the Indian tribes at a time when Congressmen believed 
that `[t]here are no Indians, as a tribe or as individuals, 
that are competent to protect themselves against the enterprise 
and the fraud of the white man.' '' \24\ There is no 
justification for such an assumption to provide the basis for 
federal policy in this era of tribal self-determination.\25\
---------------------------------------------------------------------------
    \24\ U.S. v. D & J Enterprises, 1993 WL 76789 (W.D. Wis. 1993), 
quoting Senator Davis, Cong. Globe 1484.
    \25\ In fact, there is some evidence that the Seventh Circuit 
recognizes the difficulty of applying its Koberstein rule in a manner 
that makes Section 81 applicable to ``nearly all transactions relating 
to Indian lands.'' Altheimer & Gray v. Sioux Manufacturing Corp,. 983 
F.2d 803 (1993) (reversing district court ruling that applied Section 
81 to an agreement with an entity that was more than a consultant, but 
which lacked exclusive control over a non-gaming facility owned by a 
tribe.)
---------------------------------------------------------------------------
    Similarly, there is no basis to require, as a matter of 
federal law, that tribes must submit their attorney contracts 
to the federal government for approval. For example, during the 
100th Congress, the Interior Department's Assistant Secretary 
for Indian Affairs Ross O. Swimmer suggested that a bill 
amending the IRA should include a provision eliminating this 
requirement.

          [W]e recommend that [the bill] as passed by the House 
        by amended to eliminate the current statutory 
        requirements that the Secretary approve the tribal 
        selection of tribal attorneys and attorney fees (25 
        U.S.C. section 81 and 476). It would be consistent with 
        the goals of Indian self-determination to allow the 
        tribes to choose their own attorneys and set the rate 
        of compensation without the Secretary's oversight.\26\
---------------------------------------------------------------------------
    \26\ Sen. Rep. 100-577, 100th Cong. 2nd Sess. (1988), letter from 
Assistant Secretary Ross O. Swimmer to then-Chairman of the Committee 
on Indian Affairs, Senator Daniel K. Inouye, dated September 7, 1988.

    The current Administration has also indicated its support 
for such a provision and S. 613 incorporates this proposal.

         Summary of the Amendment in the Nature of a Substitute


Section 1. Short title

    Section 1 cites the short title of the bill as the Indian 
Tribal Economic Development and Contract Encouragement Act of 
1999.

Section 2. Contracts and agreements with Indian tribes

    Section 2 of the bill replaces the text of 25 U.S.C. 
Sec. 81 with six subsections.
    Subsection (a) provides definitions for the terms ``Indian 
lands,'' ``Indian tribe,'' and ``Secretary.'' Perhaps a 
definition for Indian lands is intended to circumscribe the 
scope of this statute to those lands where title is held in 
trust for a tribe or a restraint onalienation exists as a 
result of the principle, dating from the Revolutionary War Era, that 
the federal government must hold title to Indian lands in furtherance 
of the federal-tribal trust relationship.
    Subsection (b) provides that agreements or contracts with 
Indian tribes that encumber Indian lands for a period of seven 
or more years are not valid unless they bear the approval of 
the Secretary of Interior or a designee of the Secretary. Under 
present law, Section 81 is susceptible to the interpretation 
that any contract that ``touches or concerns'' Indian lands 
must be approved. In addition, because of the ``draconian'' 
nature of the penalty for non-compliance, parties frequently 
``erred on the side of caution'' by submitting any contract 
with a tribe to the BIA for approval. Deputy Commissioner for 
Indian Affairs Michael J. Anderson testified: ``Contracts for 
the sale of vehicles to tribes, maintenance of buildings, 
construction of tribal government facilities, and even the 
purchase of office supplies are now routinely presented to the 
BIA for review and approval.'' As reported by the Committee, 
subsection (b) will allow tribes and their contracting Partners 
to determine whether Section 81 applies when they form an 
agreement. First, by limiting the provision's applicability to 
those agreements with a duration of seven of more years, 
parties can look to an objective measure to determine whether 
an agreement falls within the scope of the statute. Also, by 
replacing the phrase ``relative to Indian lands,'' with 
``encumbering Indian lands,'' the bill will ensure that Indian 
tribes will be able to engage in a wide array of commercial 
transactions without having to submit those agreements to the 
BIA as a precaution. Two other provisions also advance this 
objective. First, subsection (e) directs the Secretary to issue 
regulations identifying the types of agreements not covered by 
the Act. Second, by eliminating the qui tam provisions in the 
statute, the bill eliminates the possibility that third parties 
will bring suits without the consent of any of the parties to 
the agreement.
    At the Committee's May 19, 1999 hearing, the Administration 
proposed simply eliminating Section 81 entirely. Although the 
amendment in the nature of a substitute reported by the 
Committee addresses many of the Department's concerns, it 
leaves the provision in place to address a limited number of 
transactions that could place tribal lands beyond the tribe's 
ability to control the lands in its role as proprietor.
    The amendment eliminates the overly-broad scope of the Act 
by replacing the phrase ``relative to Indian lands'' with the 
phrase ``encumbering Indian lands.'' By making this change, 
Section 81 will no longer apply to a broad range of commercial 
transactions. Instead, it will only apply to those transactions 
where the contract between the tribe and a third party could 
allow that party to exercise exclusive or nearly exclusive 
proprietary control over the Indian lands. For example, a 
lender may finance a transaction on an Indian reservation and 
receive an interest in tribal lands as part of that 
transaction, If, for example, one of the remedies for default 
would allow this interest to ripen into authority to operate 
the facility, this would constitute an adequate encumbrance to 
bring the contract within Section 81. By contrast, if the 
transaction concerned ``limited recourse financing'' and the 
lender merely acquired the first right to all of the revenue 
derived from specified lands for a period of years, this would 
not constitute a sufficient encumbrance to bring the 
transaction within Section 81. A more difficult case would 
involve a situation where a designated third-party would 
operate the facility in the case of default. In essence, with 
the exception of those tribes exempted pursuant to the Self-
Governance program, Section 81 will apply to those transactions 
that are not leases, per se, but which could result in the loss 
of tribal proprietary control.
    The bill also proscribes the Act's application to those 
agreements that take more than 7 years to complete. Just as the 
statute of frauds looks at transactions when they are entered 
into, this provision is concerned with the reasonable 
expectations of the parties when they enter an agreement.
    Subsection (c). In addition to the provisions that allow 
Indian tribes and their partners to determine with a much 
greater level of certainty whether Section 81 applies, 
subsection (c) provides that a BIA determination that an 
agreement is not covered by Section 81 has the effect of making 
the section inapplicable. It would contradict the bill's intent 
if parties made a practice of submitting agreements where 
Section 81 is patently inapplicable, simply to obtain an 
official endorsement of this conclusion. To be sure, such 
official determination may be necessary, especially when tribal 
obligations are to be sold in the secondary market. This 
subsection may help eliminate uncertainty and increase the 
marketability of transactions involving tribal obligations. If 
a practice develops where agreements are submitted even where 
it is patently obvious that Section 81, as amended, does not 
apply, the BIA may find it necessary to simply return these 
agreements without making any determination, even the 
determination authorized by subsection (c). Such action may not 
be necessary, but might be needed to preclude the waste of 
limited BIA staff resources.
    Finally, this subsection is intended to work in conjunction 
with subsection (e), which directs the Secretary to enact 
regulations establishing which agreements are not covered by 
Section 81.
    Subsection (d). Under subsection (d), the Secretary is to 
refuse to approve any agreement otherwisecovered by the Act, if 
it is in violation of federal law or if it fails to address sovereign 
immunity in one or more of the three ways specified.
            Violation of Federal law
    Consistent with the principles of tribal self-
determination, this bill does not direct the BIA to substitute 
its business judgment over that of a tribal government. This is 
not to say that the Department may not offer and tribes may not 
seek advice or assistance in negotiating, preparing, or 
submitting agreements covered by Section 81, as amended. Since 
the enactment of the IRA, at least those tribes with corporate 
charters conferred pursuant to Section 17 of that Act have been 
authorized to enter agreements without Section 81 approval.\27\ 
In addition, those tribes participating in Self-Governance are 
also free from the requirements of Section 81. The Committee 
has not been informed that this has resulted in any widespread 
problems. In fact, the Department's May 19, 1999 testimony in 
favor of striking all of Section 81 clearly demonstrates that 
it does not believe that federal review of such agreements is 
necessary. For that reason, in place of more intrusive review, 
the bill will limit the Secretary's determination to whether 
the agreement would violate federal law. Since these agreements 
will bear the imprimatur of federal approval, it is appropriate 
for the Secretary to be satisfied that the agreement does not 
contravene any specific statutory prohibitions.
---------------------------------------------------------------------------
    \27\ See the discussion of the February 14, 1952 Solicitor's 
Opinion accompanying footnote 6.
---------------------------------------------------------------------------
            Tribal sovereign immunity
    Over the last several years, the Committee has held 
extensive hearings on tribal sovereign immunity.\28\ Over the 
course of these hearings, Committee members have expressed 
divergent views about the value, effect, and even the purpose 
and justification for the doctrine. One view closely parallels 
that of Supreme Court Justice Stevens, who has written: ``there 
is no justification for permanently enshrining the judge-made 
law of sovereign immunity.'' This view questions the 
philosophical justification for the doctrine with respect to 
the federal government, states, or Indian tribes. With respect 
to Indian tribes, Justice Steven's dissent in Kiowa Tribe of 
Oklahoma v. Manufacturing Technologies, 523 U.S. 761 (1998) 
criticizes tribal immunity by arguing that ``Indian tribes[s] 
enjoy broader immunity than the States, the Federal government, 
and foreign nations[].'' In his Kiowa dissent, Justice Stevens 
pointed out that his opinion for the Court in Nevada v. Hall, 
440 U.S. 410 (1979) precludes states from asserting immunity in 
the courts of another state because one state's ability to 
plead immunity is a question of comity rather than a 
constitutional command. By contrast, he pointed out that the 
Court's ruling in Kiowa makes the result in Nevada v. Hall 
inapplicable to Indian tribes appearing in state courts, 
probably based on the principle urged by the United States that 
tribal immunity is a matter of national, rather than state, 
policy.\29\
---------------------------------------------------------------------------
    \28\ These hearings include S. Hrng. 104-694 (September 24, 1996) 
and S. Hrng. 105-303, Parts I, II, and III (March 11, April 7, and May 
6, 1998 respectively).
    \29\ See Amicus Brief of the United States in Kiowa Tribe v. 
Manufacturing Technologies (96-1037) at pp. 22-25. This brief also 
notes that with respect to the immunity of foreign governments, ``the 
courts did not take it upon themselves to abrogate the sovereign 
immunity of foreign governments in certain circumstances. That step was 
left to the political Branches, as the Constitution required.''
---------------------------------------------------------------------------
    Another perspective articulated by members of the Committee 
begins with the premise that Indian tribes, are one of the 
three domestic sovereign entities recognized by the United 
States Constitution. 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.\30\ One of the fundamental 
components of that sovereignty is the right to decide for 
itself when or under what circumstances a sovereign will be 
sued, especially in its own courts. Based on the long-standing 
principles enunciated in Williams v. Lee, 358 U.S. 217 (1959) 
tribal courts almost always possess exclusive jurisdiction over 
agreements with Indian tribes.
---------------------------------------------------------------------------
    \30\ Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) 
(Congress lacks power to abrogate state sovereign immunity from suits 
commenced or prosecuted in the federal courts), Alden v. Maine, 67 USLW 
3683 (U.S. 1999) (``[T]he States' immunity from suit is a fundamental 
aspect of the sovereignty which the States enjoyed before the 
ratification of the Constitution, and which they retain today. * * *'' 
Florida Prepaid Postsecondary Educ. Expense Bd. v. College Savings 
Bank, 67 USLW 3682 (U.S. 1999).
---------------------------------------------------------------------------
    Rather than trying to reconcile these divergent views 
concerning tribal sovereign immunity, the approach taken in S. 
613 builds upon an apparent agreement that Indian tribes and 
their contracting partners are generally best served if 
questions of immunity are addressed, resolved, or at least 
disclosed when a contract is executed. As discussed above, this 
view is also shared by Indian tribes that have entered into 
increasingly complex commercial transactions by addressing 
immunity directly. Such arrangements are especially relevant 
where parties are seeking to utilize or create a secondary 
market for tribal obligations. To be sure, all tribal 
obligations may face disparagement in such secondary markets if 
a perception exists that tribal immunity will preclude 
enforcement of these agreements. Such perceptions may develop 
even in instances where a party contracting with a tribe was 
fully informed about the tribe's immunity. As Chairman Campbell 
indicated upon introducing S. 613: ``I am concerned, however, 
about those who may enter into agreements with Indian tribes 
knowing that the tribe retains immunity but at a latter time 
insist that they have been treated unfairly by the tribe 
raisingthe immunity defense.'' \31\ Under terms of S. 613, 
there will not be any question that a party entering into a contract 
that requires federal approval pursuant to Section 81, as amended, was 
at least informed of tribal immunity. In practice, there appears to be 
a consensus that this requirement will not violate any core tribal 
interests. As one member of the Committee explained:
---------------------------------------------------------------------------
    \31\ Cong. Rec. March 15, 1999, p. S.2666.

          [E]arlier hearings discussed contracts in which 
        sovereign immunity is sometimes imposed. It's probably 
        the field, listening to all of the testimony, in which 
        there's been the most extensive abandonment of 
        sovereign immunity on a case by case basis by tribes 
        themselves because at least in connection with large 
        contracts, unless there is some kind of remedy, no 
        outside organization is anxious to make a significant 
        investment, but [I believe] it is still a problem with 
        small day-to-day contracts.\32\
---------------------------------------------------------------------------
    \32\ Hrng. 105-303, pt. 3, Hearing Before the U.S. Senate Committee 
on Indian Affairs, Sovereign Immunity, p. 35.

    The Committee has reached a consensus that Section 81 
should not (or perhaps was never intended to) apply to such 
``routine'' contracts. With respect to those contracts and 
agreements that fall within the scope of Section 81, as 
amended, the overwhelming practice is to address immunity, and 
often to provide some form of arbitration, a full or partial 
waiver of immunity, or some other recourse. For example, 
irrevocable letters of credit are sometimes employed. While 
some form of waiver is often a practical necessity, S. 613 does 
not make such waivers a legal necessity. At a minimum, however, 
S. 613 directs the Secretary not to approve an agreement or 
contract covered by Section 81 if immunity is not, at least, 
disclosed.
    Subsection (e). This provision requires the Secretary of 
Interior to promulgate regulations that identify those types of 
agreements or contracts that are not covered by subsection (b), 
for example because they do not sufficiently encumber Indian 
lands.
    Subsection (f). This section removes the statutory 
requirement that attorney contracts must be approved by the 
Secretary. It also makes clear that S. 613 is not intended to 
make any changes to provision of the Indian Gaming Regulatory 
Act of 1988, P.L. 100-497, which require federal approval. 
Finally, consistent with the long-standing principle that the 
federal trust obligation may not be unilaterally terminated, S. 
613 does not alter those tribal constitutions that require 
federal approvals.

Section 3

    This section amends the Indian Reorganization Act to 
eliminate the requirement that attorney contacts must be 
submitted to the Secretary.

                          Legislative History

    S. 613 was introduced on March 15, 1999 by the Chairman of 
the Senate Indian Affairs Committee, Senator Ben Nighhorse 
Campbell, and referred to the Committee on Indian Affairs. On 
May 19, 1999 the Committee held a legislative hearing on the 
bill. At an open business meeting on June 16, 1999, Senator 
Campbell proposed an amendment to S. 613 in the nature of a 
substitute. Senator Orrin G. Hatch was joined as a co-sponsor 
of the proposed amendment.

            Committee Recommendation and Tabulation of Vote

    In an open business session on July 19, 1999, the Committee 
on Indian Affairs, by a voice vote, adopted the amendment in 
the nature of a substitute offered by Senator Campbell and 
ordered the bill reported to the Senate, with the 
recommendation that the Senate do pass S. 613 as reported.

   Section-by-Section Analysis of S. 613 as Reported by the Committee


Section 1. Short title

    Section 1 cites the short title of the bill as the Indian 
Tribal Economic Development and Contract Encouragement Act of 
1999.

Section 2. Contracts and agreements with Indian tribes

    Section 2 replaces the provisions of Section 2103 of the 
Revised Statutes, 25 U.S.C. Sec. 81.
    Section 2(a) provides three definitions: ``Indian lands,'' 
``Indian tribe,'' and ``Secretary'';
    (b) Establishes that agreements or contracts that encumber 
Indian lands for a period of seven or more years are not valid 
unless they are approved by the Secretary of Interior or his 
designee;
    (c) Makes subsection (b) inapplicable if an appropriate 
official determines that a contract or agreement is not covered 
by that subsection;
    (d) Directs the Secretary to refuse to approve an agreement 
if that agreement either violates federal law or it fails to 
include a provision that either: provides remedies to address a 
breach of the agreement; provides a reference to applicable law 
(found in either tribal code, ordinance, or competent court 
ruling) that discloses the tribe's right to assert immunity; or 
waives immunity in some manner;
    (e) Provides the Secretary for 180 days to issues 
regulations for identifying the types of agreements or 
contracts that are not covered under subsection (b);
    (f) Establishes that this section is not to be construed to 
require Secretarial approval of contracts for legal services; 
or limit, amend, or repeal the authority of the National Indian 
Gaming Commission, or any tribal organic documents that require 
Secretarial approval.

Section 3. Choice of counsel

    Section 3 amends the Indian Reorganization Act to strike 
the requirement for Secretarial review and approval of attorney 
contracts.

                    Cost and Budgetary Consideration

    The cost estimate for S. 613, as amended, as calculated by 
the Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, July 9, 1999.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, 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 Megan 
Carroll (for federal costs), and Marjorie Miller (for the 
impact on state, local, and tribal governments).
        Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

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 2000-2004 
period. The bill would not affect direct spending or receipts; 
therefore, pay-as-you-go procedures would not apply. S. 613 
contains an intergovernmental mandate as defined in the 
Unfunded Mandates Reform Act (UMRA), but CBO estimates that 
this mandate would impose minimal costs that would be far below 
the threshold established by that act ($50 million in 1996, 
adjusted annually for inflation). Further, the bill would 
reduce the costs of an existing mandate, more than offsetting 
any new mandate costs. S. 613 contains no new private-sector 
mandates as defined in UMRA.
    S. 613 would amend a provision of 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 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 bill 
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 form 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 year 2000 through 2004. Any change in overall 
BIA spending would be subject to appropriation 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. The bill would greatly reduce the number of contracts 
requiring approval, thus reducing the cost to tribes of the 
existing mandate. But under this bill, a tribe entering into a 
covered contract would have to include a specific statement 
regarding its sovereign immunity. This in 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: This bill contains 
no new private-sector mandates as defined in UMRA.
    Estimate prepared by: Federal Costs: Megan Carroll. Impact 
on State, Local, and Tribal Governments: Marjorie Miller.
    Estimate approved by: Robert A. Sunshine, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

    Paragraph 11(b) of XXVI of the Standing Rules of the Senate 
requires that each report accompanying a bill to evaluate the 
regulatory paperwork impact that would be incurred in carrying 
out the bill. The Committee believes that S. 613 will have a 
minimal regulatory or paperwork impact.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXXVI of the 
Standing Rules of the Senate, the Committee notes the following 
changes in existing law (existing law proposed to be omitted is 
enclosed in black brackets, new matter printed in italic):

                              25 U.S.C. 81

    [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 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 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 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.

           *       *       *       *       *       *       *


                            25 U.S.C. 476(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.

                                  
