[Senate Report 116-132]
[From the U.S. Government Publishing Office]


                                                     Calendar No. 252
116th Congress     }                                   {       Report
                                 SENATE
 1st Session       }                                   {      116-132

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          TO REPEAL CERTAIN OBSOLETE LAWS RELATING TO INDIANS

                                _______
                                

                October 22, 2019.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 2071]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Indian Affairs, to which was referred the 
bill, S. 2071, to repeal certain obsolete laws relating to 
Indians, having considered the same, reports favorably thereon 
without amendment and recommends the bill do pass.

                                PURPOSE

    The purpose of S. 2071 is to repeal eleven outdated federal 
laws relating to Indians, with the goal of reversing certain 
historic wrongs committed by the United States against Indians 
and Indian Tribes.

                          SUMMARY OF THE BILL

    The bill, S. 2071, would repeal eleven laws enacted between 
1862 and 1913 relating to Native Americans in the United 
States. These laws have been unenforced for decades, and 
reflect the stigma of subjugation and paternalism of bygone 
eras.
    Beginning in the mid-1800s, and continuing through the mid-
1900s, the federal government treated Native Americans with 
hostile aggression and overt racism. This period is often 
referred to as the ``removal and reservations'' and ``allotment 
and assimilation'' eras of federal Indian policy.\1\ The 
federal government attempted to assimilate Native Americans by 
disrupting traditional community structures and ways of life. 
Sadly, tribal members were oftentimes punished for engaging in 
traditional cultural ceremonies and practices.
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    \1\Hearing on S. 2796, S. 2959, and S. 3013 Before the S. Comm. on 
Indian Affairs, 114th Cong. 10 (2016) (Statement of Alletta Belin, Sr. 
Counselor to the Dep. Sec'y, U.S. Dep't of the Interior).
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    S. 2071 is in keeping with modern federal Indian policy, 
which recognizes the unique sovereign status of Tribal 
governments, and the existence of a government-to-government 
relationship between the United States and Native Americans. 
Lastly, according to the Congressional Research Service, 
repealing these obsolete laws would not affect other statutes, 
principles of Indian law established by the U.S. Supreme Court, 
treaty rights, tribal sovereignty, or other tribal rights.

                          LEGISLATIVE HISTORY

    On July 10, 2019, Senators Rounds, Lankford, and Sinema 
introduced S. 2071.\2\ The bill was referred to the Committee 
on Indian Affairs. On July 17, 2019, the Committee met at a 
duly called business meeting to consider the bill. The 
Committee ordered the bill to be reported favorably, without 
amendment.
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    \2\This bill is identical to S. 343, which was passed by the 
Committee in the 115th Congress.
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    Representatives O'Halleran, Cole, and Johnson introduced a 
companion bill, H.R. 3684, in the House of Representatives on 
July 10, 2019, and it was referred to the House Committee on 
Natural Resources. On July 25, 2019, H.R. 3684 was referred to 
the House Natural Resources Committee, Subcommittee on 
Indigenous Peoples of the United States. No further action has 
been taken at this time.
    115th Congress. On February 8, 2017, Senators Rounds and 
Lankford introduced S. 343.\3\ On March 29, 2017, the Committee 
met at a duly called business meeting to consider the bill and 
ordered it reported favorably, without amendment. On November 
29, 2017, the bill passed the Senate by Unanimous Consent. S. 
343 was received in the House of Representatives and referred 
to the House Committee on Natural Resources. No further action 
was taken on the legislation. No companion bill was introduced 
in the House of Representatives.
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    \3\This bill is identical to S. 2796, as amended, which was passed 
by the Committee in the 114th Congress.
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    114th Congress. On April 13, 2016, Senator Rounds 
introduced S. 2796. On June 29, 2016, the Committee held a 
legislative hearing on S. 2796, where the Department of the 
Interior testified in support of the bill. On September 14, 
2016, the Committee passed S. 2796, with an amendment, and 
ordered the bill to be reported favorably. No further action 
was taken on S. 2796.
    Senator Barrasso's amendment, offered on behalf of Senator 
Rounds, removed the provision striking 25 U.S.C. Sec. 276 from 
the bill. After consulting with the tribes in the Great Plains, 
it was determined that this provision, which authorizes the 
Secretary of the Army to set aside vacant military posts or 
barracks to be transferred to an Indian tribe, for the use of 
providing education to Indian students, still benefitted Indian 
tribes. One example of the current use of 25 U.S.C. Sec. 276 is 
the United Tribes Technical College, a tribal college located 
on a former military site near Bismarck, North Dakota.
    On September 14, 2016, Representative Kristi Noem 
introduced a companion bill, H.R. 6028, in the House of 
Representatives. This bill was referred to the House Committee 
on Natural Resources, Subcommittee on Indian, Insular, and 
Alaska Native Affairs. No further action was taken on H.R. 
6028.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    Section 1 sets forth the short title of this bill as the 
``Repealing Existing Substandard Provisions Encouraging 
Conciliation with Tribes Act''.

Section 2. Repeal of certain obsolete laws relating to Indians

    Section 2 repeals:
           25 U.S.C. Sec. 72, which authorizes the 
        President to abrogate treaties with tribes who are 
        hostile towards the United States.
           25 U.S.C. Sec. 127, which authorizes the 
        withholding of treaty-stipulated payments if the tribe 
        acts in hostility to the United States.
           25 U.S.C. Sec. 128, which mandates the 
        withholding of goods or payments while an Indian tribe 
        is at war with the United States.
           25 U.S.C. Sec. 129, which authorizes the 
        Secretary of the Interior to withhold payments to 
        tribes who hold non-Indians as captives.
           25 U.S.C. Sec. 130, which authorizes the 
        withholding of payments or goods while Indians are 
        under the influence of or have access to alcohol.
           25 U.S.C. Sec. 137, which authorizes the 
        requirement that Indian males work before receiving 
        their treaty payments.
           25 U.S.C. Sec. 138, which mandates that no 
        treaty payments be made if the chief has violated any 
        terms of the treaty.
           25 U.S.C. Sec. 273, which authorizes the 
        Secretary of the Army to assign an army officer with 
        special duties related to Indian education.
           25 U.S.C. Sec. 283, which authorizes the 
        Secretary of the Interior to withhold rations or 
        payments to any Indian family whose child failed to 
        attend school in the preceding year.
           25 U.S.C. Sec. 285, which authorizes the 
        Secretary of the Interior to withhold payments owed to 
        Osage children who failed to attend school in the 
        preceding year.
           25 U.S.C. Sec. 302, which authorizes the 
        Secretary to the Interior to place Indian children in 
        school without parental consent.

                   COST AND BUDGETARY CONSIDERATIONS

    The following cost estimate, as provided by the 
Congressional Budget Office, dated July 25, 2019, was prepared 
for S. 2071:

              [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    S. 2071 would repeal several laws relating to Native 
Americans that were enacted in the late 19th century and early 
20th century and that, according to the Department of the 
Interior, are no longer enforced. Based on that information, 
CBO estimates that enacting S. 2071 would have no effect on the 
federal budget.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was reviewed by Theresa A. Gullo, Assistant Director 
for Budget Analysis.

               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. 2071 will 
have minimal impact on regulatory or paperwork requirements.

                        EXECUTIVE COMMUNICATIONS

    Except as otherwise noted, the Committee has received no 
communications from the Executive Branch regarding S. 2071.

                        CHANGES IN EXISTING LAW

    In accordance with Committee Rules, subsection 12 of rule 
XXVI of the Standing Rules of the Senate is waived. In the 
opinion of the Committee, it is necessary to dispense with 
subsection 12 of rule XXVI of the Standing Rules of the Senate 
to expedite the business of the Senate.

                                  [all]