[Senate Report 114-207]
[From the U.S. Government Publishing Office]
Calendar No. 364
114th Congress } { Report
SENATE
2d Session } { 114-207
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TO PROVIDE FOR INDIAN TRUST ASSET MANAGEMENT REFORM, AND FOR OTHER
PURPOSES
_______
February 8, 2016.--Ordered to be printed
_______
Mr. Barrasso, from the Senate Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 383]
The Senate Committee on Indian Affairs, to which was
referred the bill (S. 383) to provide for Indian trust asset
management reform, and for other purposes, having considered
the same, reports favorably thereon with an amendment (in the
nature of a substitute) and recommends that the bill, as
amended, do pass.
PURPOSE
The purpose of S. 383, as amended, is to reaffirm the
Federal government's fiduciary trust responsibilities to Indian
tribes. S. 383, as amended, will establish a demonstration
project to give Indian tribes, on a voluntary basis, the
opportunity to manage their trust assets. These Indian trust
assets are currently held in trust and managed by the Federal
government. This bill will also authorize the Secretary of the
Department of the Interior to transition the functions of the
Office of the Special Trustee for American Indians to one or
more appropriate agencies, offices, or bureaus within the
Department of the Interior.
BACKGROUND
There exists a Federal trust responsibility through
treaties, statutes, and historical relations, to protect and
support Indian tribes and individual Indians. The United States
holds in trust over 55 million surface acres and 57 million
acres of subsurface minerals for American Indians and Alaska
Natives.\1\ The Department of the Interior (DOI or Department)
manages more than 124,300 leases and approximately $4.9 billion
in trust funds for Indian tribes through the Office of the
Special Trustee for American Indians.\2\ According to the
Department, there is nothing comparable to this in the
commercial trust sector.\3\
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\1\U.S. Department of the Interior, Office of the Special Trustee
for American Indians, About OST, Statistics and Facts, available at
http://www.doi.gov/ost/about_us/statistics-and-facts.cfm.
\2\Id.
\3\Id.
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Creation of the Office of the Special Trustee for American Indians
The Indian trust was developed from a series of
Congressional actions, beginning with the General Allotment Act
of 1887 (Dawes Act).\4\ Due to policy changes related to the
Indian trust, significant confusion developed over time. The
American Indian Trust Fund Management Reform Act of 1994 (1994
Act) was enacted in an attempt to address the confusion.\5\
While the 1994 Act did provide some clarity, ``issues of
whether the Indian trust is governed by the Administrative
Procedures Act or by the common law of trusts'' continue to be
litigated, and Indian trust issues still remain unresolved.\6\
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\4\General Allotment (Dawes) Act, Act of Feb. 8, 1887, ch. 119, 24
Stat. 388 (codified as 25 U.S.C. Sec. 331 (1887)) (repealed 1934).
\5\See generally, U.S. Department of the Interior, Office of the
Special Trustee for American Indians, About OST, available at http://
www.doi.gov/ost/about_us/index.cfm.
\6\Id.
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The 1994 Act created the Office of the Special Trustee for
American Indians (OST) within the Department, and was the first
major step taken by Congress to reform the Federal government's
management of Indian trust funds.\7\ Under the 1994 Act,
``[t]he OST generally oversees the reform of the [DOI]
management of Indian trust assets, the direct management of
Indian trust funds, establishment of an adequate trust fund
management system, and support of [D]epartment claims
settlement activities related to the trust funds.''\8\ The OST
was intended to improve the accountability and management of
Indian trust funds and Individual Indian Money (IIM) accounts
held in trust by the Federal government.\9\
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\7\American Indian Trust Fund Reform Act of 1994, Pub. L. No. 103-
412, 108 Stat. 4239, 25 U.S.C. 4001 et seq. (1994).
\8\Carol Hardy Vincent et al., Interior, Environment, and Related
Agencies: FY 2007 Appropriations, Congressional Research Service, Mar.
7, 2007 (RL33399).
\9\See, U.S. Department of the Interior, Office of the Special
Trustee for American Indians, About OST, available at http://doi.gov/
ost/about_us/index.cfm.
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Reforming the management of Indian trust assets
In past Congressional hearings, the issue of whether the
OST has failed in its efforts to oversee the implementation of
Indian trust asset management reforms has been raised.\10\
There is concern that there is insufficient oversight over the
OST and that, contrary to Congressional intent, the OST's
involvement may have caused greater confusion, burdens, and
delays in the processing of trust asset transactions for Indian
tribes.\11\
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\10\See, e.g., U.S. Senate Committee on Indian Affairs, Hearing on
Backlogs at the Department of the Interior: Land into Trust
Acquisitions; Environmental Impact Statements; Probate; Appraisals and
Lease Approvals Before the S. Comm. on Indian Affairs, 110th Cong.
(2007); Senate Committee on Indian Affairs, Hearing on Where's the
Trustee? U.S. Department of the Interior Backlogs Prevents Tribes From
Using Their Lands Before the S. Comm. on Indian Affairs, 111th Cong.
(2009).
\11\Id.
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Another concern has also been raised that the OST has
outlived its statutory purpose and is performing functions
outside the scope of its authority.\12\ When Congress
established the OST, they acknowledged that the office would be
temporary in order for the Department to reform its management
system of Indian trust assets. The major reforms that the OST
was tasked with were completed years ago.\13\ The Government
Accountability Office (GAO) stated that the ``OST estimates
that almost all key reforms needed to develop an integrated
trust management system and to provide improved trust services
will be completed by November 2007.''\14\
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\12\Id.
\13\See, The Office of the Special Trustee Has Implemented Several
Key Trust Reforms Required by the 1994 Act, but Important Decisions
about its Future Remain, Government Accountability Office, GAO-07-104
(Dec. 2006).
\14\Id.
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The Office of Trust Services--a separate office within the
DOI under the Bureau of Indian Affairs--also has trust-related
responsibilities to Indian tribes and individual Indians.\15\
There are six divisions within the Office of Trust Services
that provide assistance to Indian trust owners. The Office of
Trust Services oversees the management, development, and
protection of trust and restricted lands, natural resources,
and real estate services for Indian tribes.\16\ There is
concern that functions of the Office of Trust Services overlap
with those of the OST, creating confusion and unnecessary
redundancies within the Department.\17\ The OST manages Indian
trust funds while the Office of Trust Services manages Indian
trust land and non-monetary trust resources. Although both
offices are within the Department, there is little to no
communication or coordination between the OST and the Office of
Trust Services.
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\15\See, U.S. Department of the Interior, Bureau of Indian Affairs,
Who We Are, available at http://bia/gov/WhoWeAre/BIA/OTS.
\16\The six divisions are: Real Estate Services, Land Titles and
Records, Probate, Natural Resources, Forestry and Wildland Fire
Management, and Water and Power.
\17\See, e.g., House Committee on Natural Resources, Subcommittee
on Indian, Insular, and Alaska Native Affairs, Legislative Hearing on
H.R. 329, H.R. 521, H.R. 812, 114th Cong. (2015).
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NEED FOR LEGISLATION
The Federal government has mismanaged Indian trust assets
continually over the last 40 years. This bill, S. 383, as
amended, would streamline the Federal government's role in the
management of Indian trust assets to allow for Indian tribes to
have greater involvement. Indian tribes would become more self-
determining in the handling of their trust assets and continue
to strengthen tribal sovereignty. The OST was not meant to be a
permanent office. Directing the Secretary to submit a report to
Congress that includes a transition plan will inform Congress
to decide whether the functions of the OST should be
transitioned to other agencies or bureaus within the
Department, and will reduce costs, redundancy, and bureaucracy
once the OST is reformed.
LEGISLATIVE HISTORY
114th Congress
S. 383 was introduced on February 5, 2015, by Senator Mike
Crapo (R-ID), along with Senator James Risch (R-ID) as an
original cosponsor. Senator Patty Murray (D-WA) was added as a
co-sponsor on January 20, 2016. The bill was referred to the
Senate Committee on Indian Affairs (Committee). The Committee
held an oversight hearing, ``A Path Forward: Trust
Modernization and Reform for Indian Lands,'' where the
substance of S. 383 was discussed. On July 29, 2015, the
Committee met at a business meeting to consider the bill. One
amendment was offered and adopted, and the bill, as amended,
was ordered to be favorably reported to the Senate by voice
vote.
The House companion bill, H.R. 812, the Indian Trust Asset
Reform Act was introduced by Representative Michael K. Simpson
(R-ID) on February 9, 2015. The original cosponsors are
Representatives Tom Cole (R-OK) and Denny Heck (D-WA).
Representatives Suzan K. DelBene (D-WA), Paul A. Gosar (R-AZ),
Walter B. Jones, Jr. (R-NC), Derek Kilmer (D-WA), Raul R.
Labrador (R-ID), Cathy McMorris Rodgers (R-WA), Mark Pocan (D-
WI), and David G. Reichert (R-WA) were added as cosponsors. The
bill was referred to the House Subcommittee on Indian, Insular
and Alaska Native Affairs (Subcommittee). On April 14, 2015,
the Subcommittee held a hearing on the bill. The House
Committee on Natural Resources met at a business meeting to
consider H.R. 812 on February 3, 2016. One amendment in the
nature of a substitute was offered and adopted, and the bill,
as amended, was ordered to be favorably reported to the House
by unanimous consent.
Previous Congresses
Since the 107th Congress, there have been numerous bills
concerning Indian trust asset reform and management introduced
in the Senate and the House of Representatives beginning with
S. 2212, the Indian Trust Asset and Trust Fund Management and
Reform Act of 2002. S. 2212 was introduced by Senator John
McCain (R-AZ), along with Senators Thomas S. Daschle (D-SD) and
Tim Johnson (D-SD) as cosponsors. The bill was referred to the
Committee where a hearing was held on the bill. No further
action was taken on S. 2212.
In the 108th Congress, Senator John McCain (R-AZ), along
with Senators Thomas A. Daschle (D-SD) and Tim Johnson (D-SD)
introduced S. 175, the Indian Trust Asset and Trust Fund
Management and Reform Act of 2003. The bill was referred to the
Committee but no further action took place. During the same
Congress, Senator John McCain (R-AZ), along with Senators
Thomas A. Daschle (D-SD), Daniel K. Inouye (D-HI), and Tim
Johnson (D-SD), introduced S. 1459, the American Indian Trust
Fund Management Reform Act Amendments Act of 2003. The bill was
referred to the Committee but no further action took place. The
House companion bill was H.R. 2981, the American Indian Trust
Fund Management Reform Act Amendments Act of 2003, introduced
by Representative Mark Udall (D-CO) and original cosponsor
Representative Nick J. Rahall, II (D-WV). H.R. 2981 was
referred to the House Committee on Natural Resources where no
further action was taken.
The Indian Trust Reform Act of 2005, S. 1439, was
introduced by Senator John McCain (R-AZ) with Senator Byron L.
Dorgan (D-ND) as an original cosponsor in the 109th Congress.
The bill was referred to the Committee on Indian Affairs where
three hearings were held on the bill. No further action was
taken on S. 1439. The House companion bill was H.R 4322,
introduced by Representative Richard W. Pombo (R-CA), with
Representative Nick J. Rahall, II (D-WV) as an original
cosponsor. The bill was referred to the House Committee on
Resources where no further action was taken on the bill.
In the 111th Congress, H.R. 4783, the Claims Resolution Act
of 2010, was enacted and became Public Law 111-291. One of the
purposes of H.R. 4783 was to settle the 14 year class action
lawsuit, Elouise Cobell et al. v. Ken Salazar et al.,\18\ by
resolving claims that the Federal government violated its trust
duties to individual Indian trust beneficiaries. ``The IIM
[(Individual Indian Money)] accounts primarily contain money
collected by the [F]ederal government from farming and grazing
leases, timber sales, mining, oil and gas production, and other
activities on trust land, as well as certain per capita
distributions. The funds in IIM accounts are held in trust by
the [F]ederal government for the benefit of individual
Indians.''\19\
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\18\Elouise Cobell, et al. v. Ken Lee Salazar, et al., 573 F.3d 808
(2009); 387 U.S. App. D.C. 339 (2009).
\19\FAQs, Indian Trust Settlement (2015), available at http://
www.indiantrust.com/faq.
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During the 112th Congress, Senator Mike Crapo (R-ID), along
with Senator James E. Risch (R-ID), introduced S. 3679, the
Indian Trust Asset Reform Act. The bill was referred to the
Committee where no further action was taken. The House
companion bill was H.R. 6617, the Indian Trust Asset Reform
Act, introduced by Representative Michael K. Simpson (R-ID).
H.R. 6617 was referred to the House Subcommittee on Indian and
Alaska Native Affairs where no further action was taken. These
bills, and subsequent related legislation, were based on two
titles of S. 1439/H.R. 4322 as introduced in the 109th
Congress: the Indian Trust Asset Demonstration Project and the
restructuring of the Office of the Special Trustee for American
Indians. Both are incorporated in S. 383 (114th).
Senators Mike Crapo (R-ID) and James E. Risch (R-ID)
introduced S. 165, the Indian Trust Asset Reform Act, in the
113th Congress. The bill was referred to the Committee and the
Committee held an oversight hearing, ``Improving the Trust
System: Continuing Oversight of the Department of the
Interior's Buy-Back Program,'' where testimony was heard on S.
165. The Committee took no further action on S. 165. The House
companion bill, H.R. 409, the Indian Trust Asset Reform Act was
introduced by Representative Michael K. Simpson (R-ID), with
Representatives Tom Cole (R-OK) and Raul R. Labrador (R-ID) as
cosponsors. H.R. 409 was referred to the House Subcommittee on
Indian and Alaska Native Affairs where a hearing was held on
the bill but no further action was taken.
SUMMARY OF SUBSTITUTE AMENDMENT
At a Committee business meeting held on July 8, 2015,
Senator Crapo (R-ID) offered an amendment in the nature of a
substitute. The amendment was agreed to.
In addition to technical corrections, the substitute
amendment clarifies and amends the Findings and Definitions
sections, and the Titles of the Act. Section 204, Indian Trust
Asset Management Plan (Plan), is amended to expand what
functions or activities performed by an Indian tribe can be
included in the contents of the Plan.
The substitute amendment removes the Standards and Trust
Responsibility provisions from the Applicable Laws in section
204(c) and incorporates the removed subsection into sections
205 and 206.
Section 204(e), Approval of Certain Agreements by Indian
Tribe, shifted to its own section in the substitute amendment,
section 205, Forest Land Management and Surface Leasing
Activities. Trust Responsibility in section 205(g) was amended
to state the United States is not liable for losses sustained
by an Indian tribe as a result of executing a forest land
management activity, or by any party to a lease, both pursuant
to tribal regulations under section 205(b).
In section 206, Effect of Title, an additional subsection
(c) is added to further clarify the future liability of the
Federal government for losses resulting from an Indian tribe
directing that a transaction or activity be terminated, or
managed by a lesser standard than the Federal standards in a
Plan.
S. 383, as amended, authorizes the contracting and
compacting of trust asset management for Indian tribes under
the Indian Self-Determination and Education Assistance Act
(ISDEAA) (25 U.S.C. 450 et seq.). To further clarify, the
ISDEAA or its related regulations shall not be affected by this
Act.
In section 206(e), Separate Approval, clarifies that an
Indian tribe may submit tribal regulations that provide for the
HEARTH Act\20\ treatment of forest management activities for
review and approval without needing to submit in a Plan.
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\20\Helping Expedite and Advance Responsible Tribal Home Ownership
Act of 2012 (HEARTH ACT), Pub. L. No. 112-151 (2012).
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As amended, a new Section 304(c) is added to clarify that
the transition plan and report required by Section 304 does
not, by itself, cause the termination of OST. Additional
revisions are made to sections 301, 305, and 306 for clarity
and consistency.
SECTION-BY-SECTION ANALYSIS OF S. 383, AS ORDERED REPORTED
Section 1--Short title; Table of contents
This section states that the Act may be cited as the
``Indian Trust Asset Reform Act.''
TITLE I--RECOGNITION OF TRUST RESPONSIBILITY
Section 101. Findings
This section sets forth the findings of Congress that--
There exists a unique relationship between the Federal
government and the governments of Indian tribes;
There exists a unique Federal responsibility to Indians;
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;
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 considerations for
permanent, ongoing performance of Federal trust duties; and
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.
Section 102. Reaffirmation of policy
This section reaffirms the fiduciary responsibilities of
the United States to Indian tribes, including a duty to promote
tribal self-determination regarding governmental authority and
economic development.
TITLE II--INDIAN TRUST ASSET MANAGEMENT DEMONSTRATION PROJECT
Section 201. Short title
This section states that this title may be cited as the
``Indian Trust Asset Management Demonstration Project Act of
2015.''
Section 202. Definitions
This section sets forth definitions--
``Indian tribe'' has the meaning given the term in the
Indian Self Determination and Education Assistance Act (25
U.S.C. 450b);
``Project'' means the Indian trust asset demonstration
project established under section 203(a); and
``Secretary'' means the Secretary of the Interior.
Section 203. Establishment of demonstration project; Selection of
participating Indian tribes
Section 203(a) states that the Secretary shall establish
and carry out the Indian trust asset management demonstration
project, in accordance with this title.
Section 203(b) provides that an Indian tribe shall be
eligible to participate in the Project if the Indian tribe
submits to the Secretary an application under subsection (c);
and if the Secretary approves the application of the Indian
tribe. This section also provides notice requirements for the
Secretary to provide each approved Indian tribe to participate
in the Project.
Section 203(c) provides the application content
requirements for the Secretary to consider an Indian tribe's
application to be eligible to participate in the Project.
Section 203(d) provides that the Project shall be in effect
for 10 years after the date of enactment of this Act; and may
be extended at the discretion of the Secretary.
Section 204. Indian trust asset management plan
Section 204(a) provides the proposed Indian trust asset
management plan requirements for an Indian tribe to follow once
they receive a notice from the Secretary under section
203(b)(2). This subsection also provides the content
requirements and provisions that must be included in the
proposed Indian trust asset management plan. On receipt of a
written request from the 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.
Section 204(b) sets forth that 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. This
subsection also describes the requirements for disapproval of a
proposed plan submitted by an Indian tribe. The Secretary shall
provide written notice to an Indian tribe if their proposed
plan is disapproved. The Indian tribe may resubmit an amended
plan not later than 90 days after the date on which the Indian
tribe receives the written notice of disapproval. If the
Secretary fails to approve or disapprove a proposed plan in
accordance with paragraph (1), the plan shall be considered to
be approved. An Indian tribe may seek judicial review of a
determination of the Secretary, in accordance with the
Administrative Procedure Act, if the Secretary disapproves the
proposed plan of an Indian tribe; and the Indian tribe has
exhausted all administrative remedies.
Section 204(c) states that 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 trust assets, or the management
of the trust assets, identified in the plan.
Section 204(d) provides an Indian tribe the requirements to
follow if they want to terminate an approved Indian trust asset
management plan. This subsection also sets forth the effective
date for when the terminated plan takes effect.
Section 205. Forest land management and surface leasing activities
Section 205(a) sets forth definitions--
``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)).
``Interested Party'' means an Indian or non-Indian
individual, entity, or government the interests of which could
be adversely affected by a tribal trust leasing decision made
by an applicable Indian tribe.
``Surface Leasing Transaction'' means a residential,
business, agricultural, or wind or solar resource lease of land
the title to which is held--in trust by the United States for
the benefit of an Indian tribe; or in fee by an Indian tribe,
subject to restrictions against alienation under Federal law.
Section 205(b) states that 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 certain
conditions are met.
Section 205(c) provides for which types of transactions an
Indian tribe can authorize to carry out. This subsection also
allows for an Indian tribe to be able to select which
transactions and activities are authorized to be carried out by
the Indian tribe.
Section 205(d) allows for an Indian tribe to request
technical assistance from the Secretary for development of a
regulatory environmental review process required under
subsection (b)(2)(B)(ii) of this section. This subsection also
provides technical assistance by the Secretary to an Indian
tribe 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.).
Section 205(e) states that an Indian tribe shall have the
authority to rely on the Federal environmental review process,
rather than any Tribal environmental review process, if an
Indian tribe carries out a project or activity funded by a
Federal agency.
Section 205(f) provides for documentation requirements
Indian tribes must follow if they execute a surface leasing
transaction or forest land management activity.
Section 205(g) states that the United States shall not be
liable for losses sustained by an Indian tribe as a result of
the execution of any forest land management activity pursuant
to tribal regulations under subsection (b) of this section, or
by any party to a lease executed pursuant to tribal regulations
under subsection (b) of this section. This subsection allows
for the Secretary to fulfill the trust obligation of the United
States to Indian tribes by enforcing the provisions of, or
canceling, any lease executed by the Indian tribe under this
section.
Section 205(h) provides an interested party, after
exhausting any available tribal remedies, the option to submit
a petition to the Secretary to determine whether an Indian
tribe is complying with their tribal regulations. If the
Secretary determines a violation has occurred, the Secretary
may take any action determined to be necessary to remedy the
violation, including rescinding the approval of the tribal
regulations and reassuming Federal responsibility for the
approval of leases of tribal trust land. Documentation of the
violation of tribal regulations will be necessary and the
Secretary shall issue a written determination of the violation;
provide written notice to the violating Indian tribe; and 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 the Indian
tribe a hearing on the record and a reasonable opportunity to
cure the alleged violation.
Section 206. Effect of title
Section 206(a) states that subject to section 205 and this
section, nothing in this title or an approved Indian trust
asset management plan 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.
Section 206(b) sets forth 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.
Section 206(c) states that 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).
Section 206(d) provides that 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, except as provided in subsection (e) and sections
204 and 205. This subsection also provides that nothing in this
title limits or otherwise affects the authority of an Indian
tribe, including one 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).
Section 206(e) provides that if an Indian tribe does not
submit or intend to submit an Indian trust asset management
plan, an Indian tribe may submit tribal regulations governing
forest land management activities to the Secretary for review
and approval.
Section 206(f) states that 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
Section 301. Purpose
Section 301 provides the purpose of Title III is to ensure
a more 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.
Section 302. Definitions
Section 302 sets forth definitions--
``BIA'' means the Bureau of Indian Affairs.
``Department'' means the Department of the Interior.
``Secretary'' means the Secretary of the Interior.
``Under Secretary'' means the individual appointed to the
position of Under Secretary for Indian Affairs established
under section 303(a).
Section 303. Under Secretary for Indian Affairs
Section 303(a) provides that the Secretary may establish in
the Department the position of Under Secretary for Indian
Affairs, who shall report directly to the Secretary.
Section 303(b) sets forth that the President shall appoint
the Under Secretary with the advice and consent of the Senate.
This subsection also provides when this Act is enacted, the
Secretary may assume the position of Under Secretary without
appointment if the Secretary was appointed by the President,
with the advice and consent of the Senate, and no later than
180 days after this Act is enacted, the Secretary approves the
assumption of the position of Under Secretary.
Section 303(c) provides the duties of the Under Secretary,
as directed by the Secretary, shall be to coordinate with the
Special Trustee for American Indians to ensure an orderly
transition of the functions of the Special Trustee to the
appropriate agencies, offices, or bureaus within 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.
Section 303(d) provides that the Under Secretary may
appoint and fix the compensation for their personnel determined
to be necessary in carrying out the functions transferred
within this section. This subsection provides other personnel
requirements of the officers or employees appointed by the
Under Secretary.
Section 304. Office of Special Trustee for American Indians
Section 304(a) provides that no later than one year after
enactment of this Act the Secretary shall prepare and, after
consultation with Indian tribes and appropriate tribal
organizations, submit a report to Congress.
Section 304(b) states the Secretary, at the request of an
Indian tribe or consortia of Indian tribes, shall include
fiduciary trust offices in a contract, compact, or other
agreement under the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450 et seq.).
Section 304(c) states that nothing in this section or the
report terminates the Office of the Special Trustee; or affects
the application of sections 302 and 303 of the American Indian
Trust Fund Management Reform Act of 1994 (25 U.S.C. 4042,
4043).
Section 305. Appraisals and valuations
Section 305(a) provides that no later than 18 months after
the 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.
Section 305(b) provides that the Secretary shall establish
and publish in the Federal Register the minimum qualifications
for individuals to prepare appraisals and valuations of Indian
trust property, no later than one year after enactment of this
Act.
Section 305(c) states that when an Indian tribe or Indian
beneficiary submits to the Secretary an appraisal or valuation
that satisfies the minimum qualifications described in
subsection (b), and the submission acknowledges the intent of
the Indian tribe or Indian beneficiary to have the appraisal or
valuation considered under this subsection, the appraisal or
valuation shall not require any additional review or
Secretarial approval; and shall be considered final for
purposes of effectuating the transaction for which the
appraisal or valuation is required.
Section 306. Cost savings
Section 306(a) provides that for any program, function,
service, or activity of the Office of Special Trustee that will
not be operated or carried out after the date of enactment of
this Act as a result of a transfer of functions and personnel,
the Secretary shall identify the amounts the Secretary would
have expended to carry out the program, function, service, and
activity; and provide to the Tribal/Interior Budget Council a
list that describes the programs, functions, services, and
activities identified in paragraph (1); and the amounts
associated with each program, function, service, and activity.
Section 306(b) states that 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 budget or funding issues may provide
recommendations to the Secretary, the Office of Management and
Budget, and four Committees in the House of Representatives and
Senate.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated January 29, 2016, was
prepared for S. 383:
January 29, 2016.
Hon. John Barrasso,
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. 383, the Indian
Trust Asset Reform Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Keith Hall.
Enclosure.
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. S. 383
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 S. 383 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 S. 383 would not affect direct spending or
revenues, pay-as-you-go procedures do not apply. CBO estimates
that enacting S. 383 would not increase net direct spending or
on-budget deficits in any of the four consecutive 10-year
periods beginning in 2026.
S. 383 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.
The CBO staff contact for this estimate is Megan Carroll.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 383, as amended.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 383, as
amended, will have a minimal impact on regulatory or paperwork
requirements.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 383, as amended, will not make any changes in
existing law.
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