S. 383 – Indian Trust Asset Reform Act

Calendar No. 364

114th CONGRESS

2d Session

S. 383

[Report No. 114–207]

IN THE SENATE OF THE UNITED STATES

February 5, 2015

Mr. Crapo (for himself, Mr. Risch, and Mrs. Murray) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

February 8, 2016

Reported by Mr. Barrasso, with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To provide for Indian trust asset management reform, and for other purposes.

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. Effect of title.

TITLE III—Restructuring the Office of the Special Trustee

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.

Recognition of trust responsibility

101.

Findings

Congress, after careful review of the historical and special legal relationship of the United States with, and resulting responsibilities to, Indians, finds that—

(1)

the relationship of Indian tribes to the United States is founded in part on the settled doctrine of the law of nations that when a stronger sovereign assumes authority over a weaker sovereign, the stronger nation assumes a duty of protection for the weaker nation, which does not surrender the right to self-government;

(2)

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

(3)

the foregoing historic Federal-tribal relations and understandings have benefitted the people of the United States as a whole for centuries and established enduring and enforceable Federal obligations to which the national honor has been committed.

102.

Reaffirmation of policy

Pursuant to the constitutionally vested authority of Congress over Indian affairs, Congress reaffirms that the fiduciary responsibilities of the United States to Indian tribes include a duty to promote tribal self-determination regarding governmental authority and economic development.

Indian trust asset management demonstration project

201.

Short title

This title may be cited as the Indian Trust Asset Management Demonstration Project Act of 2015.

202.

Definitions

In this title:

(1)

Indian tribe

The term Indian tribe means an Indian tribe that—

(A)

is federally recognized; and

(B)

submits an application under section 203(c).

(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.

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.

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 performed by the Indian tribe under the contracts or compacts; 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; standards; trust responsibility

(1)

Applicable provisions

Except as provided in subsection (e), 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 all treaties, statutes, Executive orders, and court decisions that are applicable to the trust assets, or the management of the trust assets, identified in the plan.

(2)

Standards

Subject to the treaties, statutes, Executive orders, and court decisions referred to in paragraph (1), an Indian trust asset management plan shall not be approved unless the Secretary determines that the plan will—

(A)

conform, to the maximum extent practicable, to the preferred use of each applicable trust asset by the beneficial owner, unless the use is inconsistent with a provision referred to in paragraph (1); and

(B)

protect any applicable treaty-based fishing, hunting and gathering, and similar rights relating to the use, access, or enjoyment of a trust asset.

(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).

(e)

Approval of certain agreements by Indian tribe

(1)

Definitions

In this subsection:

(A)

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)).

(B)

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.

(C)

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—

(i)

in trust by the United States for the benefit of an Indian tribe; or

(ii)

in fee by an Indian tribe, subject to restrictions against alienation under Federal law.

(2)

Approval by Secretary

Notwithstanding subsection (c)(1), 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—

(A)

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

(B)

the Indian tribe has adopted regulations expressly incorporated by reference into the Indian trust asset management plan that—

(i)

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 subclause (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

(ii)

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—

(aa)

the identification and evaluation of any significant effects of the proposed action on the environment; and

(bb)

a process for ensuring that—

(AA)

the public is informed of, and has a reasonable opportunity to comment on, any significant environmental impacts of the proposed timber resource transaction 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 timber resource transaction.

(3)

Types of transactions

(A)

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.

(B)

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 subparagraph (A).

(4)

Technical assistance

(A)

In general

The Secretary may provide technical assistance, on request of an Indian tribe, for development of a regulatory environmental review process required under paragraph (2)(B)(ii)(II).

(B)

Indian Self-Determination and Education Assistance Act

The technical assistance to be provided by the Secretary pursuant to subparagraph (A) 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.).

(5)

Federal environmental review

Notwithstanding paragraph (2), 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 subsection.

(6)

Documentation

If an Indian tribe executes a surface leasing transaction or timber resource transaction pursuant to tribal regulations under paragraph (2), the Indian tribe shall provide to the Secretary—

(A)

a copy of the surface leasing transaction or timber resource transaction documents, including any amendments to, or renewals of, the applicable transaction; and

(B)

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 paragraph (7).

(7)

Trust responsibility

(A)

In general

The United States shall not be liable for losses sustained by any party to a lease executed pursuant to tribal regulations under paragraph (2).

(B)

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 paragraph (2).

(8)

Compliance

(A)

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.

(B)

Violations

If the Secretary determines under subparagraph (A) 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.

(C)

Documentation

If the Secretary determines under subparagraph (A) that a violation of tribal regulations has occurred and a remedy is necessary, the Secretary shall—

(i)

make a written determination with respect to the regulations that have been violated;

(ii)

provide to the applicable Indian tribe a written notice of the alleged violation, together with the written determination; and

(iii)

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.

205.

Effect of title

(a)

Liability

Subject to subsection (b), nothing in this title or a 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 on other laws

Except with respect to any regulation superseded by a trust asset management plan approved under section 204(b), or any tribal regulation included or incorporated by reference in such a plan under section 204(e), nothing in this title amends or otherwise affects the application of any treaty, statute, regulation, Executive order, or court decision that is applicable to Indian trust assets or the management or administration of Indian trust assets.

(d)

Trust responsibility

Nothing in this title enhances, diminishes, or otherwise affects the trust responsibility of the United States to Indian tribes or individual Indians.

III

Restructuring the Office of the Special Trustee

301.

Purpose

The purpose of this title is to ensure a more efficient and accountable 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.

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 individual appointed to the position of Under Secretary for Indian Affairs established under section 303(a).

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 the BIA, or to any other agency or bureau within the Department;

(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).

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, 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 the BIA or other bureaus or agencies within the Department, 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.

(b)

Fiduciary trust officers

Subject to applicable law and regulations, the Secretary, at the request of an Indian tribe or consortia of Indian tribes, shall include fiduciary trust officers in a contract, compact, or cooperative agreement under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.).

305.

Appraisals and valuations

(a)

In general

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.

306.

Cost savings

(a)

In general

Not later than 60 days after the date of enactment of this Act, 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 under this title, 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.

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.

Recognition of trust responsibility

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)

(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.

102.

Reaffirmation of policy

Indian trust asset management demonstration project

201.

Short title

This title may be cited as the Indian Trust Asset Management Demonstration Project Act of 2015.

202.

Definitions

In this title:

(1)

Indian tribe

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.

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.

204.

Indian trust asset management plan

(a)

Proposed plan

(1)

Submission

(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)

(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)

(G)

identify any Federal regulations that will be superseded by the plan.

(3)

Technical assistance and information

(b)

Approval and disapproval of proposed plans

(1)

Approval

(A)

In general

(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

(B)

Action by tribes

(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

(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

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

(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)

(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 described 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

(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 subsection.

(f)

Documentation

If an Indian tribe executes a surface leasing transaction or forest land management activity pursuant to tribal regulations under paragraph (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)

(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

(h)

Compliance

(1)

In general

(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)

(i)

a hearing on the record; and

(ii)

a reasonable opportunity to cure the alleged violation.

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

(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 subsection (e) and sections 204 and 205, 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.

III

Improving efficiency and streamlining processes

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.

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 individual appointed to the position of Under Secretary for Indian Affairs established under section 303(a).

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 1 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).

304.

Office of Special Trustee for American Indians

(a)

Report to Congress

(1)

(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 that an orderly transition cannot be accomplished during that time period, in which case the report shall include—

(A)

a statement of all reasons why the transition cannot be effected within that time period; 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 consortia 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 under this section—

(1)

terminates the Office of the Special Trustee; or

(2)

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).

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

(c)

Secretarial approval

(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.

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 after the date of enactment of this Act as a result of a transfer of functions and personnel, the Secretary shall—

(1)

(2)

(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

(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.

February 8, 2016

Reported with an amendment

Indian Trust Asset Reform Act

Legislative Activity

Bill Text