II

106TH CONGRESS

1ST SESSION S. 613

To encourage Indian economic development, to provide for the disclosure

of Indian tribal sovereign immunity in contracts involving Indian tribes,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 15, 1999

Mr. CAMPBELL introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To encourage Indian economic development, to provide for

the disclosure of Indian tribal sovereign immunity in

contracts involving Indian tribes, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Indian Tribal Eco5 nomic Development and Contract Encouragement Act of

6 1999’’.
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1 SEC. 2. CONTRACTS AND AGREEMENTS WITH INDIAN

2 TRIBES.

3 Section 2103 of the Revised Statutes (25 U.S.C. 81)

4 is amended—

5 (1) by inserting ‘‘(a)’’ before ‘‘No agreement’’;

6 (2) in subsection (a), as designated by para7 graph (1) of this section—

8 (A) by striking ‘‘, or individual Indians not

9 citizens of the United States,’’;

10 (B) by striking ‘‘First. Such agreement’’

11 and inserting the following:

12 ‘‘(1) Such contract or agreement’’;

13 (C) by striking ‘‘Second. It shall bear the

14 approval of the Secretary of the Interior and

15 the Commissioner of Indian Affairs endorsed up

16 on it.’’ and inserting the following:

17 ‘‘(2) Except as provided in subsection (b), it

18 shall bear the approval of the Secretary of the Inte19 rior (referred to in this section as the ‘Secretary’) or

20 a designee of the Secretary of the Interior endorsed

21 upon it.’’;

22 (D) by striking ‘‘Third. It’’ and inserting

23 the following:

24 ‘‘(3) It’’;

25 (E) by striking ‘‘Fourth. It’’ and inserting

26 the following:
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1 ‘‘(4) It’’; and

2 (F) by striking ‘‘Fifth. It’’ and inserting

3 the following:

4 ‘‘(5) It’’;

5 (3) by inserting ‘‘(d)’’ before ‘‘All contracts’’;

6 (4) by inserting after subsection (a) the fol7 lowing:

8 ‘‘(b) Subsection (a)(2) shall not apply to a contract

9 or agreement in any case in which—

10 ‘‘(1) the Secretary (or a designee of the Sec11 retary) fails to approve or disapprove the contract or

12 agreement by the date that is 90 days after the date

13 on which the contract or agreement is filed with the

14 Secretary under this section; or

15 ‘‘(2)(A) the tribe notifies the Secretary in a

16 manner prescribed by the Secretary under sub17 section (c)(3) that a contract or agreement is not

18 covered under subsection (a); and

19 ‘‘(B) the Secretary (or a designee of the Sec20 retary) fails to inform the tribe in writing, by the

21 date that is 45 days after receipt of the notification

22 under subparagraph (A), that the Secretary (or des23 ignee) intends to review the contract agreement by

24 the date specified in paragraph (1).
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1 ‘‘(c)(1) The Secretary (or a designee of the Sec2 retary) shall refuse to approve a contract or agreement

3 that is filed with the Secretary under this section if the

4 Secretary (or designee) determines that the contract or

5 agreement—

6 ‘‘(A) violates Federal law; or

7 ‘‘(B)(i) is covered under subsection (a); and

8 ‘‘(ii) does not include a provision that—

9 ‘‘(I) provides for remedies in the case of a

10 breach of the contract or agreement;

11 ‘‘(II) references a tribal code, ordinance, or

12 ruling of a court of competent jurisdiction that

13 discloses the right of the tribe to assert sov14 ereign immunity as a defense in an action

15 brought against the tribe; or

16 ‘‘(III) includes an express waiver of the

17 right of the tribe to assert sovereign immunity

18 as a defense in an action brought against the

19 tribe (including a waiver that limits the nature

20 of relief that may be provided or the jurisdic21 tion of a court with respect to such an action).

22 ‘‘(2)(A) The Secretary (or a designee of the Sec23 retary) shall not approve any contract or agreement that

24 is submitted to the Secretary for approval under this sec-
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1 tion if the Secretary (or designee) determines that the con2 tract or agreement is not covered under subsection (a).

3 ‘‘(B) If the Secretary determines that a contract or

4 agreement is not covered under subsection (a), the Sec5 retary shall notify the tribe of that determination.

6 ‘‘(3) To assist tribes in providing notice under sub7 section (b)(2), the Secretary shall—

8 ‘‘(A) issue guidelines for identifying types of

9 contracts or agreements that are not covered under

10 subsection (a); and

11 ‘‘(B) establish procedures for providing that no12 tice.

13 ‘‘(4) The failure of the Secretary to approve a con14 tract or agreement under this subsection or to provide no15 tice under paragraph (2)(B) shall not affect the applica16 bility of a requirement under any other provision of Fed17 eral law.’’;

18 (5) in subsection (d), as redesignated by para19 graph (3) of this section, by striking ‘‘paid to any

20 person by any Indian tribe’’ and all that follows

21 through the end of the subsection and inserting

22 ‘‘paid to any person by any tribe or any other person

23 on behalf of the tribe on account of such services in

24 excess of the amount approved by the Secretary of

25 the Interior, may be recovered in an action brought
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1 by the tribe or the United States. Such an action

2 may be brought in any district court of the United

3 States, without regard to the amount in controversy.

4 Any amount recovered under this subsection shall be

5 paid to the Treasury of the United States for use by

6 the tribe for whom it was recovered.’’; and

7 (6) by adding at the end the following:

8 ‘‘(e) Nothing in this section shall be construed to re9 quire the Secretary of the Interior to approve a contract

10 for legal services by an attorney.’’.

11 SEC. 3. CHOICE OF COUNSEL.

12 Section 16(e) of the Act of June 18, 1934 (commonly

13 referred to as the ‘‘Indian Reorganization Act’’) (48 Stat.

14 987, chapter 576; 25 U.S.C. 476(e)) is amended by strik15 ing ‘‘, the choice of counsel and fixing of fees to be subject

16 to the approval of the Secretary’’.

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