[Senate Report 109-208]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 329
109th Congress                                                   Report
                                 SENATE
 1st Session                                                    109-208

======================================================================
 
    AMENDING A PROVISION RELATING TO EMPLOYEES OF THE UNITED STATES 
  ASSIGNED TO, OR EMPLOYED BY, AN INDIAN TRIBE, AND FOR OTHER PURPOSES

                                _______
                                

               December 15, 2005.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 1312]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 1312) to amend a provision relating to employees of 
the United States assigned to, or employed by, an Indian tribe, 
and for other purposes, having considered the same, reports 
favorably thereon without amendment and recommends that the 
bill do pass.

                                Purpose

    The Reducing Conflicts of Interests in the Representation 
of Indian Tribes Act of 2005 (S. 1312) requires individuals who 
leave federal employment for employment as outside lawyers and 
lobbyists for Indian tribes to abide by the federal conflicts 
of interest laws as do other former federal government officers 
and employees.

                               Background

    Public Law 93-638, the Indian Self-Determination and 
Education Assistance Act, [hereafter, ``the Act''] was enacted 
in 1975 in the 93rd Congress to provide for the maximum 
participation of Indian tribes in directing federal service to 
their communities. The Act permitted Indian tribes to contract 
programs or portions of programs that have been historically 
administered by the Department of the Interior for the benefit 
of Indian tribes.
    Section 450i(j) of the Act provides an exemption from the 
federal conflict of interest laws in Title 18 U.S.C. sections 
205 and 207 for all former federal officers and employees who 
``are employed by Indian tribes.'' Section 450i(j) provides the 
exemption for ``agents and attorneys who appear on behalf of 
such tribes.'' Section 205 of title 18 generally prohibits 
federal employees from representing parties against the federal 
government or benefitting from such claims while employed 
there. Section 207 bars certain communications and lobbying of 
the federal government by former federal officers or employees 
from periods of one year, two years, or for life, depending on 
the seniority of the former officer, the level of the 
employee's participation with a particular matter, and the 
specific matter being addressed.
    The House Report No. 93-1600 accompanying the Indian Self-
Determination Act explained the intent of the exemptions in 
section 450i(j). \1\ It observed that Indian tribes that took 
over the responsibility of operating programs traditionally 
fulfilled by the federal government would require the services 
of experienced individuals to administer these contracted or 
compacted programs. The exemption, therefore, helped facilitate 
federal government employees to become employees of the Indian 
tribe in order to continue the work they had previously been 
performing for the federal government on behalf of Indian 
tribes. The exception to the historic conflict of interest laws 
appears to recognize that an exemption to these laws was 
necessary to permit Indian tribes to recruit former federal 
employees to carry out the new tribal programs and functions 
that were formerly performed by the federal government.
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    \1\ H.R. Rep. No. 93-1600, at 29 (1974).
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    In addition, in 1975, when the Indian Self-Determination 
Act was enacted, but for those employees of the federal 
government who worked in Indian tribal programs, relatively few 
lawyers or lobbyists had experience in federal Indian law or 
working for Indian tribes or on Indian tribal issues. It was 
likely assumed, therefore, that tribes would hire federal 
workers, not only as employees who could carry out contracted 
services and programs, but also as lawyers and agents who would 
represent the Indian tribe and its interests before the federal 
government. Over the last twenty-five years, however, the 
Indian law and lobbying practice has grown exponentially. 
Today, an abundance of lawyers and lobbyists without former 
federal service exists to represent Indian tribes.
    The Committee believes that exempting lawyers and lobbyists 
from the federal conflict of interest laws has outlived its 
intended purpose and, in some instances, has validated the 
original concerns of the Congress when it enacted sections 205 
and 207. The potential that federal employees would put, or 
would appear to have put, the interests of future employers 
above those of the federal government was of paramount concern. 
In enacting the conflict laws, the Congress sought to curb a 
practice whereby, at the time, persons who quit the federal 
government were free to involve themselves in any type of 
proceeding, irrespective of whether they may have participated 
directly in the very same proceeding on behalf of the federal 
government.\2\
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    \2\ See H.R. Rep. No. 748 (1961); H.R. Rep. No. 2213 (1962).
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    The Committee is aware that the exemption to section 205 
and 207 has resulted in improprieties, and the appearance of 
improprieties, by former officers and employees who left 
federal service to represent Indian tribes as lawyers or 
lobbyists. The Inspector General of the Department of the 
Interior, in a report issued in February 2002, entitled 
``Allegations Involving Irregularities in the Tribal 
Recognition Process and Concerns Relating to Indian Gaming,'' 
reported finding that several former Department of Interior 
employees engaged in improper contacts with the Bureau of 
Indian Affairs. The Report documented that while they were 
federal employees, some individuals were personally and 
substantially involved, on behalf of the federal government, in 
matters directly relating to an Indian tribe that the former 
employee went on to represent. Contacts on behalf of the tribes 
were made soon after the employee left the federal government 
and were made to the federal offices in which the former 
employee had exercised substantial responsibility. The 
Inspector General stated that but for the exemption from 
theconflicts laws in section 450i(j), the contacts would have been 
illegal.
    In addition, early in the 109th Congress, in testimony 
before the Committee, the Inspector General again raised the 
issue of conflicts of interest and a ``revolving door'' effect 
that resulted from the exemption involving former Department of 
the Interior officials. The Inspector General explained that 
frequently, federal employees who handle sensitive tribal 
issues as federal employees often left to immediately represent 
the very same tribe on the same or similar issue before the 
federal government. Since the original exemption in section 
450i(j) of the Act was recommended by the Department of the 
Interior and the General Accounting Office, such abuse of the 
exemption could not have been contemplated at the time.\3\
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    \3\ H.R. Rep. No. 93-1600, at 21 (1974).
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    The Committee believes that in order for the federal 
government to function free from undue influence, and the 
appearance of undue influence, the Indian Self-Determination 
and Education Assistance Act must be amended. Therefore, S. 
1312 reinstates the conflict of interest laws for former 
federal officers and employees who are retained by Indian 
tribes as outside lawyers, lobbyists, or other agents. In doing 
so, the Committee recognizes that a distinction exists between 
former federal employees who become employees of Indian tribal 
governments to further the compacting and contracting process 
and former federal employees who are not tribal employees but 
rather are retained or hired on contract for a limited purpose.
    The distinction between a tribal government employee and 
one who is retained by a tribal government is an important one. 
A tribal government employee is under the day-to-day control of 
that government. As such, the employee is unaffected by the 
acts of an intervening agency, business or organization. The 
latter, however, in whole or in part, is controlled or 
supervised by an independent agency or contractor. That 
individual may be affected by other entities that function free 
of tribal government rule or regulation. In distinguishing 
between a tribal government employee and one who is retained by 
or under contract with a tribal government several factors may 
be considered including (1) who provides the person's liability 
insurance; (2) who pays the person's social security tax; (3) 
who pays for the person's medical or other benefits and (4) 
whether the individual is authorized to contract for others.
    The Committee believes this limited amendment will meet its 
intended purpose without unduly impeding tribes' ability to 
hire qualified personnel. Former federal employees hired by 
Indian tribes to work in contracted or compacted programs will 
continue to be free to contact and interact with the federal 
government as required to administer the tribal program so long 
as the contact is made during the course of an official 
employment duty by the tribal employee or official.
    Finally, the Committee recognizes that some Indian tribal 
governments have retained lawyers and lobbyists who have 
recently left federal employment. Therefore, the Committee 
believes that a sufficient grace period is required to permit 
former federal officers and employees to become familiar with 
the new law, to permit law and lobbying firms to redistribute 
work where feasible, and to permit Indian tribal governments to 
seek alternative representation ifnecessary. Therefore, the 
amendment will take effect one year after enactment of the law.

                      Summary of Major Provisions

    The Reducing Conflicts of Interests in the Representation 
of Indian Tribes Act of 2005 removes from the exemption of 
conflict of interest laws former federal employees who work for 
Indian tribes in the capacity of outside counsel, lobbyists, or 
other agents.

                          Legislative History

    S. 1312 was introduced on June 27, 2005, by Senator McCain, 
and was referred to the Committee on Indian Affairs. On June 
29, 2005, S. 1312 was unanimously passed out of the Committee 
on Indian Affairs and ordered reported without amendment.

                      Section-by-Section Analysis


Section 1. Short title; table of contents

    This Act may be cited as the ``Reducing Conflicts of 
Interest in the Representation of Indian Tribes Act of 2005.

Section 2. Additional employment rights

    This section amends 25 U.S.C. Sec. 450(j) by limiting the 
exemption from 18 U.S.C. Sec. Sec. 205 and 207 to federal 
government employees who leave such employment to become 
employees of Indian tribal governments for the purpose of 
performing compacting or contracting services on behalf of the 
tribe. The section subject to the conflicts of interest those 
former federal workers who are employed by Indian tribes as 
outside counsel, lobbyists, or other agents.

Section 3. Effective date

    This section provides a one year moratorium prior to the 
Act's provisions taking effect.

            Committee Recommendation and Tabulation of Vote

    On June 29, 2005, the Committee, in an open business 
session, considered S. 312 and unanimously voted to have the 
amendment favorably reported to the full Senate with a 
recommendation that the amendment do pass.

                   Cost and Budgetary Considerations

    The Congressional Budget Office has calculated the attached 
cost estimate for S. 312:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 21, 2005.
Hon. John McCain,
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. 1312, the Reducing 
Conflicts of Interests in the Representation of Indian Tribes 
Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 1312--Reducing Conflicts of Interests in the Representation of 
        Indian Tribes Act of 2005

    S. 1312 would amend the Indian Self-Determination and 
Education Assistant Act which currently provides an exemption 
from federal conflict-of-interest laws for former employees 
when they are acting on behalf an Indian tribe, as long as 
proper notification is provided to the agency. S. 1312 would 
limit the exemption to former federal employees who work for 
tribes pursuant to self-government contracts or compacts that 
they formerly performed for the federal government.
    CBO estimates that implementing this legislation would have 
no significant cost and would not affect direct spending or 
revenues. S. 1312 contains no intergovernmental mandates as 
defined in the Unfunded Mandates Reform Act (UMRA) and would 
impose no costs on state, local, or tribal governments.
    S. 1312 would impose a private-sector mandate, as defined 
in UMRA, but CBO estimates that the direct cost of the mandate 
would be minimal and fall well below the annual threshold 
established by UMRA ($123 millon in 2005, adjusted annually for 
inflation).
    S. 1312 would impose a private-sector mandate because some 
former federal employees would be prohibited from working on 
certain matters regarding Indian tribes. Former federal 
employees may continue to be employed by Indian tribes to 
perform services related to self-governance contracts or 
compacts. According to information from government sources, the 
number of persons affected by this prohibition is small, and 
the direct cost of complying with the mandate would be minimal.
    The CBO staff contacts for this estimate are Matthew 
Pickford (for federal costs) and Paige Piper/Bach (for the 
private-sector impact). This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

               Regulatory and Paperwork Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill to 
evaluate the regulatory and paperwork impact that would be 
incurred in carrying out the bill. The Committee concludes that 
S. 1312 will reduce regulatory or paperwork requirements and 
impacts.

                        Executive Communications

    The Senate Committee on Indian Affairs has not received 
official views or comments from the Department of the Interior 
as of the filing of this Report.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 1312, as ordered 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):

Public Law 100-47

           *       *       *       *       *       *       *



       SECTION 450i OF CHAPTER 14 OF TITLE 5, UNITED STATES CODE


                             25 U.S.C. 450i

    [(j) Additional employee employment rights. Anything in 
sections 205 and 207 of Title 18 to the contrary 
notwithstanding, officers and employees of the United States 
assigned to an Indian tribe as authorized under section 3372 of 
Title 5, or section 48 of this title and former officers and 
employees of the United States employed by Indian tribes may 
act as agents or attorneys for or appear on behalf of such 
tribes in connection with any matter pending before any 
department, agency, court, or commission including any matter 
in which the United States is a party or has a direct and 
substantial interest: Provided, That each such officer or 
employee or former officer or employee must advise in writing 
the head of the department, agency, court, or commission with 
which he is dealing or appearing on behalf of the tribe of any 
personal and substantial involvement he may have had as an 
officer or employee of the United States in connection with the 
matter involved.]

SEC. 2. ADDITIONAL EMPLOYMENT RIGHTS.

    (a) In General.--Notwithstanding sections 205 and 207 of 
title 18, United States Code, an officer or employee of the 
United States assigned to an Indian tribe under section 3372 of 
title 5, United States Code, or section 2072 of the Revised 
Statutes (25 U.S.C. Sec. 48), or an individual that was 
formerly an officer or employee of the United States and who is 
an employee of an Indian tribe employed to perform services 
pursuant to self-governance contracts or compacts under this 
Act that the individual formerly performed for the United 
States, may communicate with and appear before any department, 
agency, court, or commission on behalf of the Indian tribe with 
respect to any matter relating to the contract or compact, 
including any matter in which the United States is a party or 
has a direct and substantial interest.
    (b) Notification of Involvement in Pending Matter.--An 
officer, employee, or former officer or employee described in 
paragraph (1) shall submit to the head of each appropriate 
department, agency, court, or commission, in writing, a 
notification of any personal and substantial involvement the 
officer, employee, or former officer or employee had as an 
officer or employee of the United States with respect to the 
pending matter.''

SEC. 3. EFFECTIVE DATE.

    The effective date of the amendment made by this Act shall 
be the date that is 1 year after the date of enactment of this 
Act.

                                  
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