[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 175 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 175
To establish a direct line of authority for the Office of Trust Reform
Implementation and Oversight to oversee the management and reform of
Indian trust funds and assets under the jurisdiction of the Department
of the Interior, and to advance tribal management of such funds and
assets, pursuant to the Indian Self-Determination Act and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 15, 2003
Mr. McCain (for himself, Mr. Daschle, and Mr. Johnson) introduced the
following bill; which was read twice and referred to the Committee on
Indian Affairs
_______________________________________________________________________
A BILL
To establish a direct line of authority for the Office of Trust Reform
Implementation and Oversight to oversee the management and reform of
Indian trust funds and assets under the jurisdiction of the Department
of the Interior, and to advance tribal management of such funds and
assets, pursuant to the Indian Self-Determination Act and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Indian Trust Asset and Trust Fund
Management and Reform Act of 2003''.
SEC. 2. FINDINGS.
Congress finds and affirms that the proper discharge of trust
responsibility of the United States requires, without limitation, that
the trustee, using a high degree of care, skill, and loyalty--
(1) protect and preserve Indian trust assets from loss,
damage, unlawful alienation, waste, and depletion;
(2) ensure that any management of Indian trust assets
required to be carried out by the Secretary--
(A) promotes the interest of the beneficial owner;
and
(B) supports, to the maximum extent practicable in
accordance with the trust responsibility of the
Secretary, the beneficial owner's intended use of the
assets;
(3)(A) enforce the terms of all leases or other agreements
that provide for the use of trust assets; and
(B) take appropriate steps to remedy trespass on trust or
restricted land;
(4) promote tribal control and self-determination over
tribal trust land and resources;
(5) select and oversee persons that manage Indian trust
assets;
(6) confirm that Indian tribes that manage Indian trust
assets pursuant to contracts and compacts authorized by the
Indian Self-Determination and Education Assistance Act (25
U.S.C. 450 et seq.) protect and prudently manage those Indian
trust assets;
(7) provide oversight and review of the performance of the
trust responsibility of the Secretary, including Indian trust
asset and investment management programs, operational systems,
and information systems;
(8) account for and identify, collect, deposit, invest, and
distribute, in a timely manner, income due or held on behalf of
tribal and individual Indian account holders;
(9) maintain a verifiable system of records that, at a
minimum, is capable of identifying, with respect to a trust
asset--
(A) the location of the trust asset;
(B) the beneficial owners of the trust asset;
(C) any legal encumbrances (such as leases or
permits) applicable to the trust asset;
(D) the user of the trust asset;
(E) any rent or other payments made;
(F) the value of trust or restricted land and
resources associated with the trust asset;
(G) dates of--
(i) collections;
(ii) deposits;
(iii) transfers;
(iv) disbursements;
(v) imposition of third-party obligations
(such as court-ordered child support or
judgments);
(vi) statements of earnings;
(vii) investment instruments; and
(viii) closure of all trust fund accounts
relating to the trust fund asset;
(H) documents pertaining to actions taken to
prevent or compensate for any diminishment of the
Indian trust asset; and
(I) documents that evidence the actions of the
Secretary regarding the management and disposition of
the Indian trust asset;
(10) establish and maintain a system of records that--
(A) permits beneficial owners to obtain information
regarding Indian trust assets in a timely manner; and
(B) protects the privacy of that information;
(11) invest tribal and individual Indian trust funds to
ensure that the trust account remains reasonably productive for
the beneficial owner consistent with market conditions existing
at the time at which investment is made;
(12) communicate with beneficial owners regarding the
management and administration of Indian trust assets; and
(13) protect treaty-based fishing, hunting, gathering, and
similar rights-of-access and resource use on traditional tribal
land.
SEC. 3. DEFINITIONS.
Section 2 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4001) is amended--
(1) by striking paragraph (1);
(2) in paragraph (2), by striking ``(2) The term'' and
inserting the following:
``(5) Indian tribe.--The term'';
(3) in paragraph (3), by striking ``(3) The term'' and
inserting the following:
``(8) Secretary.--The term'';
(4) in paragraph (4), by striking ``(4) The term'' and
inserting the following:
``(6) Office.--The term'';
(5) in paragraph (5), by striking ``(5) The term'' and
inserting the following:
``(2) Bureau.--The term'';
(6) in paragraph (6), by striking ``(6) The term'' and
inserting the following:
``(3) Department.--The term'';
(7) by moving paragraphs (2), (3), (5), (6), and (8) (as
redesignated by this subsection) so as to appear in numerical
order;
(8) by inserting before paragraph (2) (as redesignated by
paragraph (5)) the following:
``(1) Beneficial owner.--The term `beneficial owner' means
an Indian tribe or member of an Indian tribe that is the
beneficial owner of Indian trust assets.'';
(9) by inserting after paragraph (3) (as redesignated by
paragraph (6)) the following:
``(4) Deputy secretary.--The term `Deputy Secretary' means
the Deputy Secretary for Trust Management and Reform appointed
under section 307(a)(2).'';
(10) by inserting after paragraph (6) (as redesignated by
paragraph (4)) the following:
``(7) Reform office.--The term `Reform Office' means the
Office of Trust Reform Implementation and Oversight established
by section 307(e).''; and
(11) by adding at the end the following:
``(9) Task force.--The term `Task Force' means the Tribal
Task Force for Trust Reform established under section 307(a).
``(10) Trust assets.--The term `trust assets' means all
tangible property including land, minerals, coal, oil and gas,
forest resources, agricultural resources, water and water
sources, and fish and wildlife held by the Secretary for the
benefit of an Indian tribe or an individual member of an Indian
tribe pursuant to Federal law.
``(11) Trust funds.--The term `trust funds' means all funds
held by the Secretary for the benefit of an Indian tribe or and
individual member of an Indian tribe pursuant to Federal law.
``(12) Trustee.--The term `trustee' means the Secretary or
any other person that is authorized to act as a trustee for
Indian trust assets and trust funds.''.
SEC. 4. RESPONSIBILITIES OF SECRETARY.
Section 102 of the American Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4011) is amended to read as follows:
``SEC. 4011. RESPONSIBILITIES OF SECRETARY.
``(a) Accounting for Daily and Annual Balances of Indian Trust
Funds.--
``(1) In general.--The Secretary shall account for the
daily and annual balances of all trust funds that are deposited
or invested pursuant to the Act of June 24, 1938 (25 U.S.C.
162a).
``(2) Periodic statement of performance.--
``(A) In general.--Not later than 20 business days
after the close of a calendar quarter, the Secretary
shall provide a statement of performance to each Indian
tribe and member of Indian tribe with respect to which
funds are deposited or invested pursuant to the Act of
June 24, 1938 (25 U.S.C. 162a).
``(B) Requirements.--Each statement under
subparagraph (A) shall identify, with respect to the
period covered by the statement--
``(i) the source, type, and status of the
funds;
``(ii) the beginning balance of the funds;
``(iii) the gains and losses of the funds;
``(iv) receipts and disbursements of the
funds; and
``(v) the ending balance of the funds.
``(3) Annual audit.--With respect to each account
containing trust funds in an amount in excess of $1,000, the
Secretary shall--
``(A) conduct, for each fiscal year, an audit of
all trust funds described in paragraph (1); and
``(B) include, in the first statement of
performance completed under paragraph (2) after
completion of the audit, a letter describing the
results of the audit.
``(b) Additional Responsibilities.--In addition to the
responsibilities described in subsection (a), subject to the
availability of appropriations, the Secretary, in carrying out the
trust responsibility of the United States, shall, at a minimum--
``(1) provide for adequate systems for accounting for and
reporting trust fund balances;
``(2) provide for adequate controls over receipts and
disbursements;
``(3) provide for periodic, timely reconciliations of
financial records to ensure the accuracy of account
information;
``(4) determine accurate cash balances;
``(5) prepare and supply to account holders periodic
account statements;
``(6) establish and publish in the Federal Register
consistent policies and procedures for trust fund management
and accounting;
``(7) provide adequate staffing, supervision, and training
for trust fund management and accounting; and
``(8) manage natural resources located within the
boundaries of Indian reservations and trust land.''.
SEC. 5. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.
Title II of the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4021 et seq.) is amended--
(1) by striking sections 202 and 203; and
(2) by inserting after section 201 the following:
``SEC. 202. PARTICIPATION IN TRUST FUND AND TRUST ASSET MANAGEMENT
ACTIVITIES BY INDIAN TRIBES.
``(a) Planning Program.--To meet the purposes of this title, an
Indian Trust Fund and Trust Asset Management and Monitoring Plan (in
this section referred to as the `Plan') shall be developed and
implemented as follows:
``(1) Pursuant to a self-determination contract or compact
under section 102 of the Indian Self-Determination Act (25
U.S.C. 450f) or section 403 of the Indian Self Determination
and Education Assistance Act (25 U.S.C. 458cc), an Indian tribe
may develop or implement a Plan to provide for management of
the trust funds and assets (or portions of trust funds or
assets) of which the Indian tribe is the beneficial owner.
Subject to the provisions of paragraphs (3) and (4), the tribe
shall have broad discretion in designing and carrying out the
planning process.
``(2) To include in a Plan particular trust funds or assets
held by multiple individuals, an Indian tribe shall obtain the
approval of a majority of the individuals who hold an interest
in any such trust funds or assets.
``(3) The Plan shall be submitted to the Secretary for
approval pursuant to the Indian Self-Determination Act (25
U.S.C. 450f et seq.).
``(4) If an Indian tribe chooses not to develop or
implement a Plan, the Secretary shall, at the request of the
Indian tribe, develop or implement, as appropriate, a Plan in
close consultation with the affected Indian tribe.
``(5) Whether developed directly by the Indian tribe or by
the Secretary, the Plan shall--
``(A) determine the amount and source of funds held
in trust;
``(B) identify and include an inventory of trust
assets based on the information available to the Indian
tribe and the Secretary;
``(C) identify specific tribal goals and
objectives;
``(D) establish management objectives for the funds
and assets held in trust;
``(E) define critical values of the Indian tribe
and its members and provide identified management
objectives;
``(F) identify actions to be taken to reach
established objectives;
``(G) use existing survey documents, reports and
other research from Federal agencies, tribal community
colleges, and land grant universities; and
``(H)(i) be completed not later than 3 years after
the date of initiation of activity to establish the
Plan; and
``(ii) be revised periodically thereafter as
necessary to accomplish the purposes of this Act.
``(b) Management and Administration.--Plans developed and approved
under subsection (a) shall govern the management and administration of
funds and assets (or portions of funds and assets) held in trust by the
Bureau and the Indian tribal government.
``(c) Plan Does Not Terminate Trust.--Developing or implementing a
Plan shall not be construed or deemed to constitute a termination of
the trust status of the assets or funds that are included in, or
subject to, the Plan.
``(d) Liability.--An Indian tribe managing and administering trust
funds and trust assets in a manner that is consistent with an approved
Plan shall not be liable for waste or loss of an asset or funds that
are included in such Plan.
``(e) Indian Participation in Management Activities.--
``(1) Tribal recognition.--The Secretary shall conduct all
management activities of funds and assets held in trust in
accordance with goals and objectives set forth in a Plan
approved pursuant to and in accordance with all tribal laws and
ordinances, except in specific instances where such compliance
would be contrary to the trust responsibility of the United
States.
``(2) Tribal laws.--
``(A) In general.--Unless otherwise prohibited by
Federal law, the Secretary shall comply with tribal law
pertaining to the management of funds and assets held
in trust.
``(B) Duties.--The Secretary shall--
``(i) provide assistance in the enforcement
of tribal laws described in subparagraph (A);
``(ii) provide notice of such tribal laws
to persons or entities dealing with tribal
funds and assets held in trust; and
``(iii) upon the request of an Indian
tribe, require appropriate Federal officials to
appear in tribal forums.
``(3) Waiver of regulations.--In any case in which a
regulation or administrative policy of the Department of the
Interior conflicts with the objectives of the Plan, or with a
tribal law, the Secretary shall waive the application of such
regulation or administrative policy unless such waiver would
constitute a violation of a Federal statute or judicial
decision or would conflict with the Secretary's trust
responsibility under Federal law.
``(4) Sovereign immunity.--This section does not constitute
a waiver of the sovereign immunity of the United States, nor
does it authorize tribal justice systems to review actions of
the Secretary.
``(5) Trust responsibility.--Nothing in this section shall
be construed to diminish or expand the trust responsibility of
the United States toward Indian funds and assets held in trust,
or any legal obligation or remedy resulting from such funds and
assets.
``(f) Report.--
``(1) In general.--Not later than 180 days after the
enactment of this section, and annually thereafter, the
Secretary shall submit a report to the Committee on Indian
Affairs of the Senate and the Committee on Resources of the
House of Representatives.
``(2) Contents.--The report required under paragraph (1)
shall detail the following:
``(A) The efforts of the Department to implement
this section.
``(B) The nature and extent of consultation between
the Department, Tribes, and individual Indians with
respect to implementation of this section.
``(C) Any recommendations of the Department for
further changes to this Act, accompanied by a record of
consultation with Tribes and individual Indians
regarding such recommendations.''.
SEC. 6. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
(a) In General.--Section 302 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4042) is amended to read as
follows:
``SEC. 302. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.
``(a) Establishment.--
``(1) In general.--There is established within the
Department the position of Deputy Secretary for Trust
Management and Reform.
``(2) Appointment and removal.--
``(A) Appointment.--The Deputy Secretary shall be
appointed by the President, by and with the advice and
consent of the Senate.
``(B) Term.--The Deputy Secretary shall be
appointed for a term of 6 years.
``(C) Removal.--The Deputy Secretary may be removed
only for good cause.
``(3) Administrative authority.--The Deputy Secretary shall
report directly to the Secretary.
``(4) Compensation.--The Deputy Secretary shall be paid at
a rate determined by the Secretary to be appropriate for the
position, but not less than the rate of basic pay prescribed
for Level II of the Executive Schedule under section 5313 of
title 5, United States Code.
``(b) Duties.--The Deputy Secretary shall--
``(1) oversee all trust fund and trust asset matters of the
Department, including--
``(A) administration and management of the Reform
Office;
``(B) financial and human resource matters of the
Reform Office; and
``(C) all duties relating to trust fund and trust
asset matters; and
``(2) engage in appropriate government-to-government
relations and consultations with Indian tribes and individual
trust asset and trust fund account holders on matters involving
trust asset and trust fund management and reform within the
Department.
``(c) Staff.--In carrying out this section, the Deputy Secretary
may hire such staff having expertise in trust asset and trust fund
management, financial organization and management, and tribal policy as
the Deputy Secretary determines is necessary to carry out this title.
``(d) Effect on Duties of Other Officials.--
``(1) In general.--Except as provided in paragraph (2),
nothing in this section shall be construed to diminish any
responsibility or duty of the Assistant Secretary of the
Interior for Indian Affairs, or any other Federal official,
relating to any duty of the Assistant Secretary or official
established under this Act or any other provision of law.
``(2) Trust asset and trust fund management and reform.--
Notwithstanding any other provision of law, the Deputy
Secretary shall have overall management and oversight authority
on matters of the Department relating to trust asset and trust
fund management and reform (including matters that, as of the
day before the date of enactment of the Indian Trust Asset and
Trust Fund Management and Reform Act of 2003, were carried out
by the Commissioner of Indian Affairs).
``(e) Office of Trust Reform Implementation and Oversight.--
``(1) Establishment.--There is established within the
Office of the Secretary the Office of Trust Reform
Implementation and Oversight.
``(2) Reform office head.--The Reform Office shall be
headed by the Deputy Secretary.
``(3) Duties.--The Reform Office shall--
``(A) supervise and direct the day-to-day
activities of the Assistant Secretary of the Interior
for Indian Affairs, the Commissioner of Reclamation,
the Director of the Bureau of Land Management, and the
Director of the Minerals Management Service, to the
extent they administer or manage any Indian trust
assets or funds;
``(B) administer, in accordance with title II, all
trust properties, funds, and other assets held by the
United States for the benefit of Indian tribes and
individual members of Indian tribes;
``(C) require the development and maintenance of an
accurate inventory of all trust funds and trust assets;
``(D) ensure the prompt posting of revenue derived
from a trust fund or trust asset for the benefit of
each Indian tribe (or individual member of each Indian
tribe) that owns a beneficial interest in the trust
fund or trust asset;
``(E) ensure that all trust fund accounts are
audited at least annually, and more frequently as
determined to be necessary by the Deputy Secretary;
``(F) ensure that the Assistant Secretary of the
Interior for Indian Affairs, the Director of the Bureau
of Land Management, the Commissioner of Reclamation,
and the Director of the Minerals Management Service
provide to the Secretary current and accurate
information relating to the administration and
management of trust funds and trust assets;
``(G) provide for regular consultation with trust
fund account holders on the administration of trust
funds and trust assets to ensure, to the maximum extent
practicable in accordance with applicable law and a
Plan approved under section 202, the greatest return on
those funds and assets for the trust fund account
holders; and
``(H) enter into contracts and compacts under
section 102 of the Indian Self-Determination Act (25
U.S.C. 450f) or section 403 of the Indian Self
Determination and Education Assistance Act (25 U.S.C.
458cc) to provide for the management of trust assets
and trust funds by Indian tribes pursuant to a Trust
Fund and Trust Asset Management and Monitoring Plan
developed under section 202 of this Act.
``(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.''.
(b) Conforming Amendments.--
(1) Title III of the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4041 et seq.) is amended by
striking the title heading and inserting the following:
``TITLE III--REFORMS RELATING TO TRUST RESPONSIBILITY''.
(2) Section 301(1) of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4041(1)) is amended by
striking ``by establishing in the Department of this Interior
an Office of Special Trustee for American Indians'' and
inserting ``by directing the Deputy Secretary''.
(3) Section 303 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4043) is amended--
(A) by striking the section heading and inserting
the following:
``SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF THE DEPUTY
SECRETARY.'';
(B) in subsection (a)(1), by striking ``section
302(b) of this title'' and inserting ``section
302(a)(2)'';
(C) in subsection (e)--
(i) by striking the subsection heading and
inserting the following:
``(e) Access of Deputy Secretary.--''; and
(ii) by striking ``and his staff'' and
inserting ``and staff of the Deputy
Secretary''; and
(D) by striking ``Special Trustee'' each place it
appears and inserting ``Deputy Secretary''.
(4) Sections 304 and 305 of the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4044, 4045) are
amended by striking ``Special Trustee'' each place it appears
and inserting ``Deputy Secretary''.
SEC. 7. ADVISORY BOARD AND TRIBAL TASK FORCE.
The American Indian Trust Fund Management Reform Act of 1994 is
amended by striking section 306 (25 U.S.C. 4046) and inserting the
following:
``SEC. 306. TRIBAL TASK FORCE ON TRUST REFORM.
``(a) Establishment.--As soon as practicable after the date of
enactment of this section, the Deputy Secretary shall establish a
Tribal Task Force on Trust Reform.
``(b) Composition.--
``(1) In general.--The Task Force shall be composed of 18
members and 12 alternates, of which--
``(A) 6 members shall--
``(i) serve as primary members; and
``(ii) be selected by the Deputy Secretary;
``(B) 12 members shall--
``(i) serve as primary members; and
``(ii) be selected by members of federally-
recognized Indian tribes located within the
regions of the Bureau represented by the
members; and
``(C) the 12 alternates shall--
``(i) serve as alternate members for the
members described in subparagraph (B); and
``(ii) be selected by members of federally-
recognized Indian tribes located within the
regions of the Bureau represented by the
members.
``(2) Regional representation.--Each region of the Bureau
shall be represented by a primary member and alternate member
on the Task Force.
``(3) Term.--A member of the Task Force shall serve for a
term of 2 years.
``(c) Duties.--The Task Force, in cooperation with the Deputy
Secretary, shall--
``(1) not later than 1 year after the date of enactment of
this section, conduct and submit to Congress a report on a
study of appropriate standards and procedures for inventorying
and management of trust assets; and
``(2) not later than 2 years after the date of enactment of
this section, identify, and submit to Congress a report that
includes recommendations relating to, modifications to existing
law relating to trust reform, including recommendations on
matters such as--
``(A) the need for an independent commission to
oversee the administration of trust funds and assets;
and
``(B) the most beneficial administrative structure
and procedures.
``(d) FACA.--The Task Force shall not be subject to the Federal
Advisory Committee Act (5 U.S.C. App.).
``(e) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section.
``(f) Termination of Authority.--The Task Force and authority of
the Task Force under this section terminate on the date that is 3 years
after the date of enactment of the Indian Trust Asset and Trust Fund
Management and Reform Act of 2003.''.
SEC. 8. REGULATIONS.
(a) In General.--Not later than 1 year after the date of enactment
of this Act, the Secretary of the Interior shall promulgate regulations
to carry out the amendments made by this Act.
(b) Active Participation.--
(1) In general.--All regulations promulgated under
subsection (a) shall be developed through a negotiated
rulemaking in accordance with subchapter II of chapter 5, and
chapter 7, of title 5, United States Code (commonly known as
the ``Administrative Procedures Act'').
(2) Participants.--With the exception of the Secretary of
the Interior, each participant in the negotiated rulemaking
under paragraph (1) shall be a federally-recognized Indian
tribe.
SEC. 9. NO EFFECT ON CERTAIN JUDICIAL DECISION.
Nothing in this Act or any amendment made by this Act limits or
otherwise affects any finding, remedy, jurisdiction, authority, or
discretion of any court with respect to Cobell v. Norton, Civ. No. 96-
1285 (RCL).
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