II

Calendar No. 270

106TH CONGRESS

1ST SESSION S. 613

[Report No. 106–150]

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 (for himself and Mr. HATCH) introduced the following bill;

which was read twice and referred to the Committee on Indian Affairs

SEPTEMBER 8, 1999

Reported by Mr. CAMPBELL, with an amendment

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

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,
2

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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Indian Tribal Eco3 nomic Development and Contract Encouragement Act of

4 1999’’.

5 SEC. 2. CONTRACTS AND AGREEMENTS WITH INDIAN

6 TRIBES.

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

8 is amended—

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

10 (2) in subsection (a), as designated by para11 graph (1) of this section—

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

13 citizens of the United States,’’;

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

15 and inserting the following:

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

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

18 approval of the Secretary of the Interior and

19 the Commissioner of Indian Affairs endorsed up

20 on it.’’ and inserting the following:

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

22 shall bear the approval of the Secretary of the Inte23 rior (referred to in this section as the ‘Secretary’) or

24 a designee of the Secretary of the Interior endorsed

25 upon it.’’;
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1 (D) by striking ‘‘Third. It’’ and inserting

2 the following:

3 ‘‘(3) It’’;

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

5 the following:

6 ‘‘(4) It’’; and

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

8 the following:

9 ‘‘(5) It’’;

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

11 (4) by inserting after subsection (a) the fol12 lowing:

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

14 or agreement in any case in which—

15 ‘‘(1) the Secretary (or a designee of the Sec16 retary) fails to approve or disapprove the contract or

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

18 on which the contract or agreement is filed with the

19 Secretary under this section; or

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

21 manner prescribed by the Secretary under sub22 section (c)(3) that a contract or agreement is not

23 covered under subsection (a); and

24 ‘‘(B) the Secretary (or a designee of the Sec25 retary) fails to inform the tribe in writing, by the
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1 date that is 45 days after receipt of the notification

2 under subparagraph (A), that the Secretary (or des3 ignee) intends to review the contract agreement by

4 the date specified in paragraph (1).

5 ‘‘(c)(1) The Secretary (or a designee of the Sec6 retary) shall refuse to approve a contract or agreement

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

8 Secretary (or designee) determines that the contract or

9 agreement—

10 ‘‘(A) violates Federal law; or

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

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

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

14 breach of the contract or agreement;

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

16 ruling of a court of competent jurisdiction that

17 discloses the right of the tribe to assert sov18 ereign immunity as a defense in an action

19 brought against the tribe; or

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

21 right of the tribe to assert sovereign immunity

22 as a defense in an action brought against the

23 tribe (including a waiver that limits the nature

24 of relief that may be provided or the jurisdic25 tion of a court with respect to such an action).
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1 ‘‘(2)(A) The Secretary (or a designee of the Sec2 retary) shall not approve any contract or agreement that

3 is submitted to the Secretary for approval under this sec4 tion if the Secretary (or designee) determines that the con5 tract or agreement is not covered under subsection (a).

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

7 agreement is not covered under subsection (a), the Sec8 retary shall notify the tribe of that determination.

9 ‘‘(3) To assist tribes in providing notice under sub10 section (b)(2), the Secretary shall—

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

12 contracts or agreements that are not covered under

13 subsection (a); and

14 ‘‘(B) establish procedures for providing that no15 tice.

16 ‘‘(4) The failure of the Secretary to approve a con17 tract or agreement under this subsection or to provide no18 tice under paragraph (2)(B) shall not affect the applica19 bility of a requirement under any other provision of Fed20 eral law.’’;

21 (5) in subsection (d), as redesignated by para22 graph (3) of this section, by striking ‘‘paid to any

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

24 through the end of the subsection and inserting

25 ‘‘paid to any person by any tribe or any other person
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1 on behalf of the tribe on account of such services in

2 excess of the amount approved by the Secretary of

3 the Interior, may be recovered in an action brought

4 by the tribe or the United States. Such an action

5 may be brought in any district court of the United

6 States, without regard to the amount in controversy.

7 Any amount recovered under this subsection shall be

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

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

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

11 ‘‘(e) Nothing in this section shall be construed to re12 quire the Secretary of the Interior to approve a contract

13 for legal services by an attorney.’’.

14 SEC. 3. CHOICE OF COUNSEL.

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

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

17 987, chapter 576; 25 U.S.C. 476(e)) is amended by strik18 ing ‘‘, the choice of counsel and fixing of fees to be subject

19 to the approval of the Secretary’’.

20 SECTION 1. SHORT TITLE.

21 This Act may be cited as the ‘‘Indian Tribal Economic

22 Development and Contract Encouragement Act of 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 to read as follows:

5 ‘‘SEC. 2103. (a) In this section:

6 ‘‘(1) The term ‘Indian lands’ means lands the

7 title to which is held by the United States in trust for

8 an Indian tribe or lands the title to which is held by

9 an Indian tribe subject to a restriction by the United

10 States against alienation.

11 ‘‘(2) The term ‘Indian tribe’ has the meaning

12 given that term in section 4(e) of the Indian Self-De13 termination and Education Assistance Act (25 U.S.C.

14 450b(e)).

15 ‘‘(3) The term ‘Secretary’ means the Secretary of

16 the Interior.

17 ‘‘(b) No agreement or contract with an Indian tribe

18 that encumbers Indian lands for a period of 7 or more years

19 shall be valid unless that agreement or contract bears the

20 approval of the Secretary of the Interior or a designee of

21 the Secretary.

22 ‘‘(c) Subsection (b) shall not apply to any agreement

23 or contract that the Secretary (or a designee of the Sec24 retary) determines is not covered under that subsection.

25 ‘‘(d) The Secretary (or a designee of the Secretary)

26 shall refuse to approve an agreement or contract that is cov-
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1 ered under subsection (b) if the Secretary (or a designee

2 of the Secretary) determines that the agreement or

3 contract—

4 ‘‘(1) violates Federal law; or

5 ‘‘(2) does not include a provision that—

6 ‘‘(A) provides for remedies in the case of a

7 breach of the agreement or contract;

8 ‘‘(B) references a tribal code, ordinance, or

9 ruling of a court of competent jurisdiction that

10 discloses the right of the Indian tribe to assert

11 sovereign immunity as a defense in an action

12 brought against the Indian tribe; or

13 ‘‘(C) includes an express waiver of the right

14 of the Indian tribe to assert sovereign immunity

15 as a defense in an action brought against the In16 dian tribe (including a waiver that limits the

17 nature of relief that may be provided or the ju18 risdiction of a court with respect to such an ac19 tion).

20 ‘‘(e) Not later than 180 days after the date of enact21 ment of the Indian Tribal Economic Development and Con22 tract Encouragement Act of 1999, the Secretary shall issue

23 regulations for identifying types of agreements or contracts

24 that are not covered under subsection (b).

25 ‘‘(f) Nothing in this section shall be construed to—
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1 ‘‘(1) require the Secretary to approve a contract

2 for legal services by an attorney;

3 ‘‘(2) amend or repeal the authority of the Na4 tional Indian Gaming Commission under the Indian

5 Gaming Regulatory Act (25 U.S.C. 2701 et seq.); or

6 ‘‘(3) alter or amend any ordinance, resolution,

7 or charter of an Indian tribe that requires approval

8 by the Secretary of any action by that Indian tribe.’’.

9 SEC. 3. CHOICE OF COUNSEL.

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

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

12 987, chapter 576; 25 U.S.C. 476(e)) is amended by striking

13 ‘‘, the choice of counsel and fixing of fees to be subject to

14 the approval of the Secretary’’.
Calendar No. 270

106TH CONGRESS

1ST SESSION S. 613

[Report No. 106–150]

A BILL

To encourage Indian economic development, to proand for other purposes. immunity in contracts involving Indian tribes, vide for the disclosure of Indian tribal sovereign

SEPTEMBER 8, 1999

Reported with an amendment