[House Report 114-432]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 114-432
======================================================================
INDIAN TRUST ASSET REFORM ACT
_______
February 24, 2016.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bishop of Utah, from the Committee on Natural Resources, submitted
the following
R E P O R T
[To accompany H.R. 812]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 812) to provide for Indian trust asset
management reform, and for other purposes, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Indian Trust Asset
Reform Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--RECOGNITION OF TRUST RESPONSIBILITY
Sec. 101. Findings.
Sec. 102. Reaffirmation of policy.
TITLE II--INDIAN TRUST ASSET MANAGEMENT DEMONSTRATION PROJECT
Sec. 201. Short title.
Sec. 202. Definitions.
Sec. 203. Establishment of demonstration project; selection of
participating Indian Tribes.
Sec. 204. Indian trust asset management plan.
Sec. 205. Forest land management and surface leasing activities.
Sec. 206. Effect of title.
TITLE III--IMPROVING EFFICIENCY AND STREAMLINING PROCESSES
Sec. 301. Purpose.
Sec. 302. Definitions.
Sec. 303. Under Secretary for Indian Affairs.
Sec. 304. Office of Special Trustee for American Indians.
Sec. 305. Appraisals and valuations.
Sec. 306. Cost savings.
TITLE I--RECOGNITION OF TRUST RESPONSIBILITY
SEC. 101. FINDINGS.
Congress finds that--
(1) there exists a unique relationship between the Government
of the United States and the governments of Indian tribes;
(2) there exists a unique Federal responsibility to Indians;
(3) through treaties, statutes, and historical relations with
Indian tribes, the United States has undertaken a unique trust
responsibility to protect and support Indian tribes and
Indians;
(4) the fiduciary responsibilities of the United States to
Indians also are founded in part on specific commitments made
through written treaties and agreements securing peace, in
exchange for which Indians have surrendered claims to vast
tracts of land, which provided legal consideration for
permanent, ongoing performance of Federal trust duties; and
(5) the foregoing historic Federal-tribal relations and
understandings have benefitted the people of the United States
as a whole for centuries and have established enduring and
enforceable Federal obligations to which the national honor has
been committed.
SEC. 102. REAFFIRMATION OF POLICY.
Pursuant to the constitutionally vested authority of Congress over
Indian affairs, Congress reaffirms that the responsibility of the
United States to Indian tribes includes a duty to promote tribal self-
determination regarding governmental authority and economic
development.
TITLE II--INDIAN TRUST ASSET MANAGEMENT DEMONSTRATION PROJECT
SEC. 201. SHORT TITLE.
This title may be cited as the ``Indian Trust Asset Management
Demonstration Project Act of 2016''.
SEC. 202. DEFINITIONS.
In this title:
(1) Indian tribe.--The term ``Indian tribe'' has the meaning
given the term in the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b).
(2) Project.--The term ``Project'' means the Indian trust
asset management demonstration project established under
section 203(a).
(3) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
SEC. 203. ESTABLISHMENT OF DEMONSTRATION PROJECT; SELECTION OF
PARTICIPATING INDIAN TRIBES.
(a) In General.--The Secretary shall establish and carry out an
Indian trust asset management demonstration project, in accordance with
this title.
(b) Selection of Participating Indian Tribes.--
(1) In general.--An Indian tribe shall be eligible to
participate in the project if--
(A) the Indian tribe submits to the Secretary an
application under subsection (c); and
(B) the Secretary approves the application of the
Indian tribe.
(2) Notice.--
(A) In general.--The Secretary shall provide a
written notice to each Indian tribe approved to
participate in the project.
(B) Contents.--A notice under subparagraph (A) shall
include--
(i) a statement that the application of the
Indian tribe has been approved by the
Secretary; and
(ii) a requirement that the Indian tribe
shall submit to the Secretary a proposed Indian
trust asset management plan in accordance with
section 204.
(c) Application.--
(1) In general.--To be eligible to participate in the
project, an Indian tribe shall submit to the Secretary a
written application in accordance with paragraph (2).
(2) Requirements.--The Secretary shall consider an
application under this subsection only if the application--
(A) includes a copy of a resolution or other
appropriate action by the governing body of the Indian
tribe, as determined by the Secretary, in support of or
authorizing the application;
(B) is received by the Secretary after the date of
enactment of this Act; and
(C) states that the Indian tribe is requesting to
participate in the project.
(d) Duration.--The project--
(1) shall remain in effect for a period of 10 years after the
date of enactment of this Act; but
(2) may be extended at the discretion of the Secretary.
SEC. 204. INDIAN TRUST ASSET MANAGEMENT PLAN.
(a) Proposed Plan.--
(1) Submission.--After the date on which an Indian tribe
receives a notice from the Secretary under section 203(b)(2),
the Indian tribe shall submit to the Secretary a proposed
Indian trust asset management plan in accordance with paragraph
(2).
(2) Contents.--A proposed Indian trust asset management plan
shall include provisions that--
(A) identify the trust assets that will be subject to
the plan;
(B) establish trust asset management objectives and
priorities for Indian trust assets that are located
within the reservation, or otherwise subject to the
jurisdiction, of the Indian tribe;
(C) allocate trust asset management funding that is
available for the Indian trust assets subject to the
plan in order to meet the trust asset management
objectives and priorities;
(D) if the Indian tribe has contracted or compacted
functions or activities under the Indian Self-
Determination and Education Assistance Act (25 U.S.C.
450 et seq.) relating to the management of trust
assets--
(i) identify the functions or activities that
are being or will be performed by the Indian
tribe under the contracts, compacts, or other
agreements under that Act, which may include
any of the surface leasing or forest land
management activities authorized by the
proposed plan pursuant to section 205(b); and
(ii) describe the practices and procedures
that the Indian tribe will follow;
(E) establish procedures for nonbinding mediation or
resolution of any dispute between the Indian tribe and
the United States relating to the trust asset
management plan;
(F) include a process for the Indian tribe and the
Federal agencies affected by the trust asset management
plan to conduct evaluations to ensure that trust assets
are being managed in accordance with the plan; and
(G) identify any Federal regulations that will be
superseded by the plan.
(3) Technical assistance and information.--On receipt of a
written request from an Indian tribe, the Secretary shall
provide to the Indian tribe any technical assistance and
information, including budgetary information, that the Indian
tribe determines to be necessary for preparation of a proposed
plan.
(b) Approval and Disapproval of Proposed Plans.--
(1) Approval.--
(A) In general.--Not later than 120 days after the
date on which an Indian tribe submits a proposed Indian
trust asset management plan under subsection (a), the
Secretary shall approve or disapprove the proposed
plan.
(B) Requirements for disapproval.--The Secretary
shall approve a proposed plan unless the Secretary
determines that--
(i) the proposed plan fails to address a
requirement under subsection (a)(2);
(ii) the proposed plan includes 1 or more
provisions that are inconsistent with
subsection (c); or
(iii) the cost of implementing the proposed
plan exceeds the amount of funding available
for the management of trust assets that would
be subject to the proposed plan.
(2) Action on disapproval.--
(A) Notice.--If the Secretary disapproves a proposed
plan under paragraph (1)(B), the Secretary shall
provide to the Indian tribe a written notice of the
disapproval, including any reason why the proposed plan
was disapproved.
(B) Action by tribes.--If a proposed plan is
disapproved under paragraph (1)(B), the Indian tribe
may resubmit an amended proposed plan by not later than
90 days after the date on which the Indian tribe
receives the notice under subparagraph (A).
(3) Failure to approve or disapprove.--If the Secretary fails
to approve or disapprove a proposed plan in accordance with
paragraph (1), the plan shall be considered to be approved.
(4) Judicial review.--An Indian tribe may seek judicial
review of a determination of the Secretary under this
subsection in accordance with subchapter II of chapter 5, and
chapter 7, of title 5, United States Code (commonly known as
the ``Administrative Procedure Act''), if--
(A) the Secretary disapproves the proposed plan of
the Indian tribe under paragraph (1); and
(B) the Indian tribe has exhausted all other
administrative remedies available to the Indian tribe.
(c) Applicable Laws.--Subject to section 205, an Indian trust asset
management plan, and any activity carried out under the plan, shall not
be approved unless the proposed plan is consistent with any treaties,
statutes, and Executive orders that are applicable to the trust assets,
or the management of the trust assets, identified in the plan.
(d) Termination of Plan.--
(1) In general.--An Indian tribe may terminate an Indian
trust asset management plan on any date after the date on which
a proposed Indian trust asset management plan is approved by
providing to the Secretary--
(A) a notice of the intent of the Indian tribe to
terminate the plan; and
(B) a resolution of the governing body of the Indian
tribe authorizing the termination of the plan.
(2) Effective date.--A termination of an Indian trust asset
management plan under paragraph (1) takes effect on October 1
of the first fiscal year following the date on which a notice
is provided to the Secretary under paragraph (1)(A).
SEC. 205. FOREST LAND MANAGEMENT AND SURFACE LEASING ACTIVITIES.
(a) Definitions.--In this section:
(1) Forest land management activity.--The term ``forest land
management activity'' means any activity described in section
304(4) of the National Indian Forest Resources Management Act
(25 U.S.C. 3103(4)).
(2) Interested party.--The term ``interested party'' means an
Indian or non-Indian individual, entity, or government the
interests of which could be adversely affected by a tribal
trust land leasing decision made by an applicable Indian tribe.
(3) Surface leasing transaction.--The term ``surface leasing
transaction'' means a residential, business, agricultural, or
wind or solar resource lease of land the title to which is
held--
(A) in trust by the United States for the benefit of
an Indian tribe; or
(B) in fee by an Indian tribe, subject to
restrictions against alienation under Federal law.
(b) Approval by Secretary.--The Secretary may approve an Indian trust
asset management plan that includes a provision authorizing the Indian
tribe to enter into, approve, and carry out a surface leasing
transaction or forest land management activity without approval of the
Secretary, regardless of whether the surface leasing transaction or
forest land management activity would require such an approval under
otherwise applicable law (including regulations), if--
(1) the resolution or other action of the governing body of
the Indian tribe referred to in section 203(c)(2)(A) expressly
authorizes the inclusion of the provision in the Indian trust
asset management plan; and
(2) the Indian tribe has adopted regulations expressly
incorporated by reference into the Indian trust asset
management plan that--
(A) with respect to a surface leasing transaction--
(i) have been approved by the Secretary
pursuant to subsection (h)(4) of the first
section of the Act of August 9, 1955 (25 U.S.C.
415(h)(4)); or
(ii) have not yet been approved by the
Secretary in accordance with clause (i), but
that the Secretary determines at or prior to
the time of approval under this paragraph meet
the requirements of subsection (h)(3) of the
first section of that Act (25 U.S.C.
415(h)(3)); or
(B) with respect to forest land management
activities, the Secretary determines--
(i) are consistent with the regulations of
the Secretary adopted under the National Indian
Forest Resources Management Act (25 U.S.C. 3101
et seq.); and
(ii) provide for an environmental review
process that includes--
(I) the identification and evaluation
of any significant effects of the
proposed action on the environment; and
(II) a process consistent with the
regulations referred to in clause (i)
for ensuring that--
(aa) the public is informed
of, and has a reasonable
opportunity to comment on, any
significant environmental
impacts of the proposed forest
land management activity
identified by the Indian tribe;
and
(bb) the Indian tribe
provides responses to relevant
and substantive public comments
on any such impacts before the
Indian tribe approves the
forest land management
activity.
(c) Types of Transactions.--
(1) In general.--At the discretion of the Indian tribe, an
Indian trust asset management plan may authorize the Indian
tribe to carry out a surface leasing transaction, a forest land
management activity, or both.
(2) Selection of specific transactions and activities.--At
the discretion of the Indian tribe, the Indian tribe may
include in the integrated resource management plan any 1 or
more of the transactions and activities authorized to be
included in the plan under subsection (b).
(d) Technical Assistance.--
(1) In general.--The Secretary may provide technical
assistance, on request of an Indian tribe, for development of a
regulatory environmental review process required under
subsection (b)(2)(B)(ii).
(2) Indian self-determination and education assistance act.--
The technical assistance to be provided by the Secretary
pursuant to paragraph (1) may be made available through
contracts, grants, or agreements entered into in accordance
with, and made available to entities eligible for, contracts,
grants, or agreements under the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.).
(e) Federal Environmental Review.--Notwithstanding subsection (b), if
an Indian tribe carries out a project or activity funded by a Federal
agency, the Indian tribe shall have the authority to rely on the
environmental review process of the applicable Federal agency, rather
than any tribal environmental review process under this section.
(f) Documentation.--If an Indian tribe executes a surface leasing
transaction or forest land management activity, pursuant to tribal
regulations under subsection (b)(2), the Indian tribe shall provide to
the Secretary
(1) a copy of the surface leasing transaction or forest land
management activity documents, including any amendments to, or
renewals of, the applicable transaction; and
(2) in the case of tribal regulations, a surface leasing
transaction, or forest land management activities that allow
payments to be made directly to the Indian tribe, documentation
of the payments that is sufficient to enable the Secretary to
discharge the trust responsibility of the United States under
subsection (g).
(g) Trust Responsibility.--
(1) In general.--The United States shall not be liable for
losses sustained--
(A) by an Indian tribe as a result of the execution
of any forest land management activity pursuant to
tribal regulations under subsection (b); or
(B) by any party to a lease executed pursuant to
tribal regulations under subsection (b).
(2) Authority of secretary.--Pursuant to the authority of the
Secretary to fulfill the trust obligation of the United States
to Indian tribes under Federal law (including regulations), the
Secretary may, on reasonable notice from the applicable Indian
tribe and at the discretion of the Secretary, enforce the
provisions of, or cancel, any lease executed by the Indian
tribe under this section.
(h) Compliance.--
(1) In general.--An interested party, after exhausting any
applicable tribal remedies, may submit to the Secretary a
petition, at such time and in such form as the Secretary
determines to be appropriate, to review the compliance of an
applicable Indian tribe with any tribal regulations approved by
the Secretary under this subsection.
(2) Violations.--If the Secretary determines under paragraph
(1) that a violation of tribal regulations has occurred, the
Secretary may take any action the Secretary determines to be
necessary to remedy the violation, including rescinding the
approval of the tribal regulations and reassuming
responsibility for the approval of leases of tribal trust land.
(3) Documentation.--If the Secretary determines under
paragraph (1) that a violation of tribal regulations has
occurred and a remedy is necessary, the Secretary shall--
(A) make a written determination with respect to the
regulations that have been violated;
(B) provide to the applicable Indian tribe a written
notice of the alleged violation, together with the
written determination; and
(C) prior to the exercise of any remedy, the
rescission of the approval of the regulation involved,
or the reassumption of the trust asset transaction
approval responsibilities, provide to the applicable
Indian tribe--
(i) a hearing on the record; and
(ii) a reasonable opportunity to cure the
alleged violation.
SEC. 206. EFFECT OF TITLE.
(a) Liability.--Subject to section 205 and this section, nothing in
this title or an Indian trust asset management plan approved under
section 204 shall independently diminish, increase, create, or
otherwise affect the liability of the United States or an Indian tribe
participating in the project for any loss resulting from the management
of an Indian trust asset under an Indian trust asset management plan.
(b) Deviation From Standard Practices.--The United States shall not
be liable to any party (including any Indian tribe) for any term of, or
any loss resulting from the terms of, an Indian trust asset management
plan that provides for management of a trust asset at a less-stringent
standard than the Secretary would otherwise require or adhere to in
absence of an Indian trust asset management plan.
(c) Effect of Termination of Plan.--Subsection (b) applies to losses
resulting from a transaction or activity described in that subsection
even if the Indian trust asset management plan is terminated under
section 204(d) or rescinded under section 205(h).
(d) Effect on Other Laws.--
(1) In general.--Except as provided in sections 204 and 205
and subsection (e), nothing in this title amends or otherwise
affects the application of any treaty, statute, regulation, or
Executive order that is applicable to Indian trust assets or
the management or administration of Indian trust assets.
(2) Indian self-determination act.--Nothing in this title
limits or otherwise affects the authority of an Indian tribe,
including an Indian tribe participating in the project, to
enter into and carry out a contract, compact, or other
agreement under the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.) (including regulations).
(e) Separate Approval.--An Indian tribe may submit to the Secretary
tribal regulations described in section 205(b) governing forest land
management activities for review and approval under this title if the
Indian tribe does not submit or intend to submit an Indian trust asset
management plan.
(f) Trust Responsibility.--Nothing in this title enhances,
diminishes, or otherwise affects the trust responsibility of the United
States to Indian tribes or individual Indians.
TITLE III--IMPROVING EFFICIENCY AND STREAMLINING PROCESSES
SEC. 301. PURPOSE.
The purpose of this title is to ensure a more efficient and
streamlined administration of duties of the Secretary of the Interior
with respect to providing services and programs to Indians and Indian
tribes, including the management of Indian trust resources.
SEC. 302. DEFINITIONS.
In this title:
(1) BIA.--The term ``BIA'' means the Bureau of Indian
Affairs.
(2) Department.--The term ``Department'' means the Department
of the Interior.
(3) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(4) Under secretary.--The term ``Under Secretary'' means the
Under Secretary for Indian Affairs established under section
303(a).
SEC. 303. UNDER SECRETARY FOR INDIAN AFFAIRS.
(a) Establishment of Position.--Notwithstanding any other provision
of law, the Secretary may establish in the Department the position of
Under Secretary for Indian Affairs, who shall report directly to the
Secretary.
(b) Appointment.--
(1) In general.--Except as provided in paragraph (2), the
Under Secretary shall be appointed by the President, by and
with the advice and consent of the Senate.
(2) Exception.--The individual serving as the Assistant
Secretary for Indian Affairs on the date of enactment of this
Act may assume the position of Under Secretary without
appointment under paragraph (1), if--
(A) that individual was appointed as Assistant
Secretary for Indian Affairs by the President, by and
with the advice and consent of the Senate; and
(B) not later than 180 days after the date of
enactment of this Act, the Secretary approves the
assumption.
(c) Duties.--In addition to any other duties directed by the
Secretary, the Under Secretary shall--
(1) coordinate with the Special Trustee for American Indians
to ensure an orderly transition of the functions of the Special
Trustee to one or more appropriate agencies, offices, or
bureaus within the Department, as determined by the Secretary;
(2) to the maximum extent practicable, supervise and
coordinate activities and policies of the BIA with activities
and policies of--
(A) the Bureau of Reclamation;
(B) the Bureau of Land Management;
(C) the Office of Natural Resources Revenue;
(D) the National Park Service; and
(E) the United States Fish and Wildlife Service; and
(3) provide for regular consultation with Indians and Indian
tribes that own interests in trust resources and trust fund
accounts.
(d) Personnel Provisions.--
(1) Appointments.--The Under Secretary may appoint and fix
the compensation of such officers and employees as the Under
Secretary determines to be necessary to carry out any function
transferred under this section.
(2) Requirements.--Except as otherwise provided by law--
(A) any officer or employee described in paragraph
(1) shall be appointed in accordance with the civil
service laws;
(B) the compensation of such an officer or employee
shall be fixed in accordance with title 5, United
States Code; and
(C) in appointing or otherwise hiring any employee,
the Under Secretary shall give preference to Indians in
accordance with section 12 of the Act of June 18, 1934
(25 U.S.C. 472).
SEC. 304. OFFICE OF SPECIAL TRUSTEE FOR AMERICAN INDIANS.
(a) Report to Congress.--Notwithstanding sections 302 and 303 of the
American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C.
4042 and 4043), not later than 1 year after the date of enactment of
this Act, the Secretary shall prepare and, after consultation with
Indian tribes and appropriate Indian organizations, submit to the
Committee on Natural Resources of the House of Representatives, the
Committee on Indian Affairs of the Senate, and the Committees on
Appropriations of the House of Representatives and the Senate a report
that includes--
(1) an identification of all functions, other than the
collection, management, and investment of Indian trust funds,
that the Office of the Special Trustee performs independently
or in concert with the BIA or other Federal agencies,
specifically those functions that affect or relate to
management of nonmonetary trust resources;
(2) a description of any functions of the Office of the
Special Trustee that will be transitioned to other bureaus or
agencies within the Department prior to the termination date of
the Office, as described in paragraph (3), together with the
timeframes for those transfers; and
(3) a transition plan and timetable for the termination of
the Office of the Special Trustee, to occur not later than 2
years after the date of submission of the report, unless the
Secretary determines than an orderly transition cannot be
accomplished within 2 years, in which case the report shall
include--
(A) a statement of all reasons why the transition
cannot be effected within that time; and
(B) an alternative date for completing the
transition.
(b) Fiduciary Trust Officers.--Subject to applicable law and
regulations, the Secretary, at the request of an Indian tribe or a
consortium of Indian tribes, shall include fiduciary trust officers in
a contract, compact, or other agreement under the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et seq.).
(c) Effect of Section.--Nothing in this section or the report
required by this section--
(1) shall cause the Office of the Special Trustee to
terminate; or
(2) affect the application of sections 302 and 303 of the
American Indian Trust Fund Management Reform Act of 1994 (25
U.S.C. 4042 and 4043).
SEC. 305. APPRAISALS AND VALUATIONS.
(a) In General.--Notwithstanding section 304, not later than 18
months after the date of enactment of this Act, the Secretary, in
consultation with Indian tribes and tribal organizations, shall ensure
that appraisals and valuations of Indian trust property are
administered by a single bureau, agency, or other administrative entity
within the Department.
(b) Minimum Qualifications.--Not later than 1 year after the date of
enactment of this Act, the Secretary shall establish and publish in the
Federal Register minimum qualifications for individuals to prepare
appraisals and valuations of Indian trust property.
(c) Secretarial Approval.--In any case in which an Indian tribe or
Indian beneficiary submits to the Secretary an appraisal or valuation
that satisfies the minimum qualifications described in subsection (b),
and that submission acknowledges the intent of the Indian tribe or
beneficiary to have the appraisal or valuation considered under this
section, the appraisal or valuation--
(1) shall not require any additional review or approval by
the Secretary; and
(2) shall be considered to be final for purposes of
effectuating the transaction for which the appraisal or
valuation is required.
SEC. 306. COST SAVINGS.
(a) In General.--For any program, function, service, or activity (or
any portion of a program, function, service, or activity) of the Office
of the Special Trustee that will not be operated or carried out as a
result of a transfer of functions and personnel following enactment of
this Act, the Secretary shall--
(1) identify the amounts that the Secretary would otherwise
have expended to operate or carry out each program, function,
service, and activity (or portion of a program, function,
service, or activity); and
(2) provide to the tribal representatives of the Tribal-
Interior Budget Council or the representative of any other
appropriate entity that advises the Secretary on Indian program
budget or funding issues a list that describes--
(A) the programs, functions, services, and activities
(or any portion of a program, function, service, or
activity) identified under paragraph (1); and
(B) the amounts associated with each program,
function, service, and activity (or portion of a
program, function, service, or activity).
(b) Tribal Recommendations.--Not later than 90 days after the date of
receipt of a list under subsection (a)(2), the tribal representatives
of the Tribal-Interior Budget Council and the representatives of any
other appropriate entities that advise the Secretary on Indian program
budget or funding issues may provide recommendations regarding how any
amounts or cost savings should be reallocated, incorporated into future
budget requests, or appropriated to--
(1) the Secretary;
(2) the Office of Management and Budget;
(3) the Committee on Appropriations of the House of
Representatives;
(4) the Committee on Natural Resources of the House of
Representatives;
(5) the Committee on Appropriations of the Senate; and
(6) the Committee on Indian Affairs of the Senate.
PURPOSE OF THE BILL
The purpose of H.R. 812 is to provide for Indian trust fund
management reform.
BACKGROUND AND NEED FOR LEGISLATION
The term ``federal trust responsibility to Indians'' is
frequently referenced to characterize the federal government's
obligation to carry out terms of treaties and statutes in a
just manner for the benefit of Indians. There is, however, no
general statutory definition of ``trust responsibility.'' The
term developed from early 19th century Supreme Court decisions
holding that recognized Indian tribes are ``domestic dependent
nations''\1\ over which Congress exercises exclusive and
plenary power. Accordingly, tribes' lands and affairs were
managed by the United States (first by the War Department and
then by the Interior Department) ``under a highly paternalistic
system where the presumptively knowledgeable Secretary protects
incompetent wards.''\2\ The record of this historic system of
comprehensive federal supervision over tribal affairs is one of
exceptionally high rates of poverty, joblessness, health
problems, and suicide across large segments of Indian Country.
As a former Assistant Secretary for Indian Affairs has stated:
---------------------------------------------------------------------------
\1\See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
\2\Statement of David A. Mullon, Chief Counsel, NCAI, Prepared
Statement on H.R. 409, the Indian Trust Asset Reform Act, before the
Sub. Cmte. On Indian and Alaska Native Affairs, May 2014.
---------------------------------------------------------------------------
With these ideas as the foundation of the trust, it
grew into a stifling, paternalistic, and ultimately
ineffective system of managing Indian property. While
virtually all other areas of federal Indian policy have
undergone dramatic change, with a radical shifting of
authority from the Bureau of Indian Affairs to tribal
governments, the trust remains largely ineffective,
unenforceable, and immune from fundamental change.\3\
---------------------------------------------------------------------------
\3\Kevin Gover, ``An Indian Trust for the Twenty-First Century,''
Natural Resources Journal, Spring 2006, 46 Nat. Resources J. 317, p. 1.
---------------------------------------------------------------------------
The modern era of promoting tribal self-determination was
launched by President Richard M. Nixon. In his Special Message
on Indian Affairs (July 8, 1970), President Nixon argued, ``It
is long past time that the Indian policies of the Federal
government began to recognize and build upon the capacities and
insights of the Indian people.'' He would later add, ``In place
of policies which oscillate between the deadly extremes of
forced termination and constant paternalism, we suggest a
policy in which the Federal government and the Indian community
play complementary roles.''
Congress subsequently enacted the Indian Self-Determination
and Education Assistance Act (ISDEAA, 25 U.S.C. 450 et seq.),
which authorizes tribes to deliver federal services and
benefits to their members under negotiated contracts, compacts,
or annual funding agreements with the government. In addition
to authorizing these ``638 contracts,'' Congress in
consultation with tribes has enacted a number of laws designed
to increase the opportunity for tribes to assume greater
degrees of administration over their assets.
While tribes over the last 40 years have increased their
capacity to administer federal funds and services, most of
their lands and tribal funds continue to be held in trust by
the Secretary of the Interior, an arrangement that is often a
hindrance to Indian prosperity. Some statutes require the
Secretary to perform comprehensive control over an Indian asset
in a manner that exposes taxpayers to enormous liabilities if
the Secretary mismanages trust assets. In these cases, the
Secretary's primary concern is risk avoidance, which may
benefit the taxpayer but not the tribe. Other statutes
authorize the Secretary to perform merely basic administrative
duties for Indians with no enforceable fiduciary standards.
Accordingly, an Indian trust asset could be underutilized or
even mismanaged with no meaningful remedy available to the
beneficial owner of that asset.
Need for Legislation
Because the current paradigm of the trust responsibility as
conceived and implemented by the government has, in the view of
at least one prominent Indian critic, ``wreak[ed] all manner of
harm on tribal communities,''\4\ H.R. 812 sets forth a process
by which a tribe may opt to assume direct control over its
trust assets, providing the United States taxpayer is not held
financially liable by any party for losses incurred as a
result. Title I sets forth Congressional findings and a
reaffirmation of policy concerning the United States' trust
responsibilities to Indians. Title II authorizes a
demonstration project in which an Indian tribe may be
authorized to negotiate to assume management and control of its
non-mineral trust assets under a plan approved by the Secretary
of the Interior. Title III elevates the status of Indian
Affairs responsibilities by granting the Secretary of the
Interior the option to create a new Under Secretary for Indian
Affairs, who would work directly with the Special Trustee for
American Indians to ensure an orderly transition of Office of
the Special Trustee functions.
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\4\Gover, supra, at 1.
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SECTION-BY-SECTION ANALYSIS OF H.R. 812, AS ORDERED REPORTED
TITLE I--RECOGNITION OF TRUST RESPONSIBILITY
Sec. 101. Findings. Sets forth Congressional findings
regarding the United States' unique relationship with Indian
tribes and the United States' responsibility to protect and
support Indian tribes and Indians.
Sec. 102. Reaffirmation of Policy. Sets forth that Congress
reaffirms the United States' duty to promote tribal self-
determination regarding governmental authority and economic
development.
TITLE II--INDIAN TRUST ASSET MANAGEMENT DEMONSTRATION PROJECT
Sec. 201. Short Title. Provides that this title may be
cited as the ``Indian Trust Asset Management Demonstration
Project Act of 2016.''
Sec. 202. Definitions. Provides definitions for this title.
Sec. 203. Establishment of Demonstration Project; Selection
of Participating Indian Tribes. Directs the Secretary of the
Interior to establish and carry out an Indian trust asset
management demonstration project. Provides that Indian tribes
desiring to participate in the project must submit, and the
Secretary approve, a written application. The demonstration
project shall remain in effect for ten (10) years after
enactment but may be extended at the discretion of the
Secretary.
Sec. 204. Indian Trust Asset Management Plan. Provides that
an Indian tribe shall, after receiving notice from the
Secretary that it is eligible to participate in the
demonstration project, submit to the Secretary a proposed
Indian trust asset management plan. The Secretary may not
approve a proposed plan unless it is consistent with federal
treaties, statutes, and executive orders applicable to the
trust assets or the management of the trust assets. After a
tribe submits a proposed plan, the Secretary shall approve or
disapprove it within 120 days.
Sec. 205. Forest Land Management and Surface Leasing
Activities. Under this section, the Secretary may approve an
Indian trust asset management plan that authorizes the Indian
tribe to enter into, approve, and carry out a surface leasing
transaction or forest land management activity without approval
of the Secretary, regardless of whether the surface leasing
transaction or forest land management activity would require
such an approval under otherwise applicable law, including
regulations. Most of this section is adopted verbatim from the
Helping Expedite and Advance Responsible Tribal Home Ownership
of 2012 (HEARTH Act, Public Law 112-151).
Sec. 206. Effect of Title. Provides that nothing in this
title or in a trust asset management plan shall affect the
liability of the United States or an Indian tribe participating
in the project. Provides that nothing in this title shall
affect application of any treaty, statute, executive order
applicable to the trust assets or the management of the trust
assets subject to the plan. Provides that nothing in this title
diminishes or affects the trust responsibility of the United
States to Indian tribes or individual Indians. Subsection
206(d) clarifies that title II does not preclude Indian tribes
from performing activities in a trust asset management plan
under the ISDEAA. Section 206(e) clarifies that an Indian tribe
may submit tribal regulations that provide for HEARTH Act
treatment for forest management activities for review and
approval without submitting them as part of a trust asset
management plan.
TITLE III--IMPROVING EFFICIENCY AND STREAMLINING PROCESSES
Sec. 301. Purpose. Provides that the purpose of this title
is to ensure efficient and streamlined administration of duties
of the Secretary with respect to providing services and
programs to Indian tribes and Indians, including the management
of Indian trust resources.
Sec. 302. Definitions. Provides definitions for this title.
Sec. 303. Under Secretary for Indian Affairs. Authorizes
the Secretary, at the Secretary's discretion, to establish the
position of Under Secretary for Indian Affairs, who would
report directly to the Secretary. In addition to other
enumerated duties, the Under Secretary would coordinate the
Office of the Special Trustee to ensure an orderly transition
of the functions of the Special Trustee to the appropriate
agencies, offices, or bureaus with the Department. This
subsection also allows for the Under Secretary to provide
regular consultation with Indian tribes and Indians that own
interests in trust resources and trust fund accounts. Lastly,
Section 303(b) provides that the Assistant Secretary for Indian
Affairs within the Department of the Interior may assume the
position of Under Secretary without appointment if the
Secretary was appointed by the President and confirmed by the
Senate, and the assumption shall not occur later than 180 days
after enactment of the Act.
Sec. 304. Office of Special Trustee for American Indians.
Directs the Secretary to submit to Congress within one year of
enactment, among other things, information on a transition plan
for the Office of the Special Trustee (OST) to terminate within
two years of the date of the submission. Directs the Secretary
to consult with Indian tribes and tribal organizations on the
information to be submitted to Congressional authorizing and
appropriations committees. The Act does not require the
Secretary to implement or execute the transition plan. Section
304(b) authorizes Indian tribes or a consortium of Indian
tribes to include certain OST employees known as fiduciary
trust officers in contracts, compacts, or cooperative
agreements under the ISDEAA.
Sec. 305. Appraisals and Valuations. Section 305(a)
requires the Secretary, within 18 months of enactment, in
consultation with Indian tribes and tribal organizations, to
ensure that appraisals and valuations of Indian trust property
are administered by a single bureau, agency or other
administrative entity within the Department. Sections 305(b)
and (c) establish a process whereby the Secretary establishes
minimum qualifications for persons to prepare appraisals and
valuations of Indian trust property. When an Indian tribe or
Indian beneficiary submits an appraisal or valuation to the
Secretary that satisfies those minimum qualifications--and the
submission acknowledges the tribe or beneficiary's intent to
have the appraisal or valuation considered under this new
subsection--the appraisal or valuation will not require any
further Secretarial review or approval and will be considered
final for purposes of effectuating the applicable transaction,
regardless of the length of time required to obtain other
approvals that may be necessary to complete the underlying
transaction.
Sec. 306. Cost Savings. Provides that for any function or
activity of OST which will not be carried out as a result of
any transfer of functions or personnel under this title, the
Secretary shall identify any resulting cost savings and provide
this information to the Tribal-Interior Budget Council (TBIC)
within 60 days, or other appropriate advisory committee. Within
90 days of receiving this information, the tribal
representatives of the TBIC or other advisory committee may
provide recommendations to the Secretary on how any cost
savings should be reallocated, incorporated into future budget
requests or appropriated.
COMMITTEE ACTION
H.R. 812 was introduced on February 9, 2015, by Congressman
Michael K. Simpson (R-ID). The bill was referred to the
Committee on Natural Resources, and within the Committee to the
Subcommittee on Indian, Insular and Alaska Native Affairs. On
April 14, 2015, the Subcommittee held a hearing on the bill. On
February 2, 2016, the Natural Resources Committee met to
consider the bill. The Subcommittee was discharged by unanimous
consent. Chairman Rob Bishop (R-UT) offered an amendment in the
nature of a substitute. The amendment was adopted by unanimous
consent. The bill, as amended, was ordered favorably reported
to the House of Representatives by unanimous consent on
February 3, 2016.
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 Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(1) 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)(2)(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. 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:
Under current law, the Department of the Interior (DOI) is
responsible for managing financial assets held in trust by the
federal government for the benefit of Indian tribes. H.R. 812
would amend current law to give tribes more authority to manage
their own assets. The bill also would expand tribes' authority
to enter into leases for certain services and activities on
tribal land--particularly related to management of tribally
owned natural resources--without DOI's approval.
CBO does not expect that implementing H.R. 812 would affect
the federal government's overall costs to provide services and
other assistance to tribes. Under current law, some of those
costs are incurred directly by DOI; in other cases, the
department provides financial support for tribes to perform
such work. In the latter case, DOI typically retains a role in
approving and overseeing contracts and other agreements entered
into by the tribe for such activities.
Under the bill, to the extent that tribes shift toward
hiring nonfederal contractors to manage financial assets, DOI
might face increased costs to review and approve such
contracts. At the same time, CBO expects that expanding tribes'
authority to use certain leases to procure services related to
natural resources owned by the tribe would reduce the
department's administrative workload Taken as a whole, CBO
estimates that any net change in federal costs--which would be
subject to appropriation--would be insignificant in any given
year.
Because enacting H.R. 812 would not affect direct spending
or revenues, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 812 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2027.
H.R. 812 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act. Any
costs incurred by tribes as a result of using additional
authority granted by the bill would be incurred voluntarily.
On January 29, 2016, CBO transmitted a cost estimate for S.
383, the Indian Trust Asset Reform Act, as ordered reported by
the Senate Committee on Indian Affairs on July 29, 2015. H.R.
812 is similar to S. 383 and CBO's estimates of the budgetary
effects are the same.
The CBO staff contact for this estimate is Megan Carroll.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
2. Section 308(a) of 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. The Congressional
Budget Office estimates that implementing this bill would not
``affect the federal government's overall costs to provide
services and other assistance to tribes'' and ``that any net
change in federal costs--which would be subject to
appropriation--would be insignificant in any given year.''
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to provide for Indian trust fund
management reform.
EARMARK STATEMENT
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
COMPLIANCE WITH H. RES. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.
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