II

105TH CONGRESS

2D SESSION S. 1797

To reduce tobacco use by Native Americans and to make the proposed

tobacco settlement applicable to tobacco-related activities on Indian lands.

IN THE SENATE OF THE UNITED STATES

MARCH 19, 1998

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

referred to the Committee on Indian Affairs

A BILL

To reduce tobacco use by Native Americans and to make

the proposed tobacco settlement applicable to tobaccorelated activities on Indian lands.

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 ‘‘Reduction in Tobacco

5 Use and Regulation of Tobacco Products in Indian Coun6 try Act of 1998’’.

7 SEC. 2. FINDINGS AND PURPOSES.

8 (a) FINDINGS.—Congress finds that—
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1 (1) Native Americans have used tobacco prod2 ucts for recreational, ceremonial, and traditional

3 purposes for centuries;

4 (2) the sale, distribution, marketing, advertis5 ing, and use of tobacco products are activities sub6 stantially affecting commerce among the States and

7 the Indian tribes and, as such, have a substantial ef8 fect on the economy of the United States;

9 (3) the sale, distribution, marketing, advertis10 ing, and use of tobacco products are activities sub11 stantially affecting commerce by virtue of the health

12 care-related and other costs that Federal, State, and

13 tribal governmental authorities have incurred be14 cause of the usage of tobacco products;

15 (4) the sale, distribution, marketing, advertis16 ing, and use of tobacco products on Indian lands are

17 activities which materially and substantially affect

18 the health and welfare of members of Indian tribes

19 and tribal organizations;

20 (5) the use of tobacco products is a serious and

21 growing public health problem, with impacts on the

22 health and well-being of Native Americans;

23 (6) the use of tobacco products in Native com24 munities is particularly serious with staggering rates

25 of smoking in Native American communities;
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1 (7) enhancing existing legal mechanisms for the

2 protection of public health are inadequate to deal ef3 fectively with the use of tobacco products; and

4 (8) enhancing prevention, research, and treat5 ment resources with respect to tobacco will allow In6 dian tribes to address more effectively the problems

7 associated with the use of tobacco products.

8 (b) PURPOSES.—It is the purpose of this Act to—

9 (1) provide for the implementation of any na10 tional tobacco legislation with respect to the regula11 tion of tobacco products and other tobacco-related

12 activities on Indian lands;

13 (2) recognize the historic Native American tra14 ditional and ceremonial use of tobacco products, and

15 to preserve and protect the cultural, religious, and

16 ceremonial uses of tobacco by members of Indian

17 tribes;

18 (3) recognize and respect Indian tribal sov19 ereignty and tribal authority to make and enforce

20 laws regarding the regulation of tobacco distributors

21 and tobacco products on Indian lands;

22 (4) ensure that the necessary funding is made

23 available to tribal governments for licensing and en24 forcement of tobacco distributors and tobacco prod25 ucts on Indian lands;
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1 (5) ensure that the necessary funding is made

2 available to tribal governments to treat tobacco-re3 lated illnesses and alleviate the epidemic of tobacco

4 abuse by Native Americans;

5 (6) reduce the marketing of tobacco products

6 to, and reduce the rate of smoking by, young Native

7 Americans; and

8 (7) decrease tobacco use by Native Americans

9 by encouraging public education and smoking ces10 sation programs.

11 SEC. 3. DEFINITIONS.

12 In this Act:

13 (1) COMMERCE.—The term ‘‘commerce’’

14 means—

15 (A) commerce between any State, Indian

16 tribe, or tribal organization, the District of Co17 lumbia, the Commonwealth of Puerto Rico, the

18 Virgin Islands, American Samoa, the Mariana

19 Islands, or any territory or possession of the

20 United States;

21 (B) commerce between points in any State,

22 Indian tribe, or tribal organization, the District

23 of Columbia, the Commonwealth of Puerto

24 Rico, the Virgin Islands, America Samoa, the
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1 Mariana Islands, or any territory or possession

2 of the United States; and

3 (C) commerce wholly within the District of

4 Columbia, the Commonwealth of Puerto Rico,

5 the Virgin Islands, American Samoa, the Mari6 ana Islands, or any territory or possession of

7 the United States.

8 (2) CONSENT DECREE.—The term ‘‘consent de9 cree’’ means a consent decree executed by 1 or more

10 participating manufacturers and a State or an In11 dian tribe or tribal organization pursuant to the pro12 visions of any Act enacted in order to give effect to

13 the national tobacco settlement agreement of June

14 20, 1997.

15 (3) COURT.—The term ‘‘court’’ means any judi16 cial or agency court, forum, or tribunal within the

17 United States, including any Federal, State, or trib18 al court.

19 (4) DISTRIBUTOR.—The term ‘‘distributor’’

20 means any person who furthers the distribution of

21 tobacco or tobacco products, whether domestic or

22 imported, at any point from the original place of

23 manufacture to the person who sells or distributes

24 the product to individuals for second consumption.

25 Such term shall not include common carriers.
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1 (5) INDIAN LANDS.—The term ‘‘Indian lands’’

2 has the meaning given the term ‘‘Indian country’’ by

3 section 1151 of title 18, United States Code, and in4 cludes lands under the jurisdiction of an Indian tribe

5 or tribal organization.

6 (6) INDIAN TRIBE.—The term ‘‘Indian tribe’’

7 has the meaning given such term in section 4(e) of

8 the Indian Self Determination and Education Assist9 ance Act (25 U.S.C. 450b(e)).

10 (7) MANUFACTURER.—

11 (A) IN GENERAL.—The term ‘‘manufac12 turer’’ means—

13 (i) a person who directly (not through

14 a subsidiary or affiliate) manufactures to15 bacco products for sale in the United

16 States;

17 (ii) a successor or assign of a person

18 described in subparagraph (A);

19 (iii) an entity established by a person

20 described in subparagraph (A);

21 (iv) an entity to which a person de22 scribed in subparagraph (A) directly or in23 directly makes a fraudulent conveyance

24 after the date of enactment of this Act, or

25 any Act to amend the Federal Food, Drug,
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1 and Cosmetic Act (21 U.S.C. 321 et seq.)

2 in order to give effect to the national to3 bacco settlement agreement of June 20,

4 1997, or a transfer that would otherwise

5 be voidable under chapter 7 of title 11,

6 United States Code, but only to the extent

7 of the interest or obligation transferred.

8 (B) LIMITATION.—The term ‘‘manufac9 turer’’ shall not include a parent or affiliate of

10 a person who manufactures tobacco products

11 unless such parent or affiliate itself is a person

12 described in subparagraphs (A).

13 (8) PERSON.—The term ‘‘person’’ means an in14 dividual, partnership, corporation, or any other busi15 ness or legal entity.

16 (9) POINT OF SALE.—The term ‘‘point of sale’’

17 means any location at which an individual can pur18 chase or otherwise obtain tobacco products for per19 sonal, non-traditional consumption.

20 (10) RETAILER.—The term ‘‘retailer’’ means

21 any person who sells tobacco products to individuals

22 for personal consumption, or who operates a facility

23 where vending machines or self-service displays are

24 permitted.
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1 (11) SALE.—The term ‘‘sale’’ includes the sell2 ing, providing samples of, or otherwise making to3 bacco products available for personal consumption in

4 any place or location as permitted under law.

5 (12) SECRETARY.—Unless otherwise provided,

6 the term ‘‘Secretary’’ means the Secretary of Health

7 and Human Services.

8 (13) STATE.—The term ‘‘State’’ includes the

9 several States, the District of Columbia, the Com10 monwealth of Puerto Rico, the Virgin Islands, Amer11 ica Samoa, the Mariana Islands, or any territory or

12 possession of the United States. Such term also in13 cludes any political subdivision of any State.

14 (14) TOBACCO.—The term ‘‘tobacco’’ means to15 bacco in its unmanufactured form.

16 (15) TOBACCO PRODUCT.—The term ‘‘tobacco

17 product’’ means cigarettes, cigarette tobacco, and

18 smokeless tobacco.

19 (16) TOBACCO TRUST FUND.—The term ‘‘to20 bacco trust fund’’ means any national tobacco settle21 ment trust fund established under any Act enacted

22 in order to give effect to the national tobacco settle23 ment agreement of June 20, 1997.

24 (17) TRIBAL ORGANIZATION.—The term ‘‘tribal

25 organization’’ has the meaning given such term in
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1 section 4(e) of the Indian Self Determination and

2 Education Assistance Act (25 U.S.C. 45Ob(e)).

3 (18) VOLUNTARY COOPERATIVE AGREEMENT.—

4 The term ‘‘voluntary cooperative agreement’’ means

5 any agreement, contract, compact, memorandum of

6 understanding, or similar agreement.

7 SEC. 4. APPLICATION OF TOBACCO-RELATED PROVISIONS

8 TO NATIVE AMERICANS.

9 (a) IN GENERAL.—The provisions of any Act enacted

10 in order to give effect to the national tobacco settlement

11 agreement of June 20, 1997 shall apply to the manufac12 ture, distribution, or sale of tobacco or tobacco products

13 within the exterior boundaries of Indian reservations or

14 on lands within the jurisdiction of an Indian tribe or tribal

15 organization.

16 (b) TRADITIONAL USE EXCEPTION.—

17 (1) IN GENERAL.—In recognition of the reli18 gious, ceremonial, and traditional uses of tobacco

19 and tobacco products by Indian tribes and the mem20 bers of such tribes, nothing in this Act (or any Act

21 enacted to give effect to the national tobacco settle22 ment agreement of June 20, 1997) shall be con23 strued to infringe upon the right of such tribes or

24 members of such tribes to acquire, possess, use, or
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1 transfer any tobacco or tobacco products for such

2 purposes.

3 (2) APPLICATION OF PROVISIONS.—Paragraph

4 (1) shall apply only to those quantities of tobacco or

5 tobacco products necessary to fulfill the religious,

6 ceremonial, or traditional purposes of an Indian

7 tribe or the members of such tribe, and shall not be

8 construed to permit the general marketing of to9 bacco or tobacco products in a manner that is not

10 in compliance with chapter IX of the Federal Food,

11 Drug, and Cosmetic Act.

12 (3) LIMITATION.—Nothing in this Act (or any

13 Act enacted to give effect to the national tobacco

14 settlement agreement of June 20, 1997) shall be

15 construed to permit an Indian tribe or member of

16 such a tribe to acquire, possess, use, or transfer any

17 tobacco or tobacco product in violation of section

18 2341 of title 18, United States Code, with respect

19 to the transportation of contraband cigarettes.

20 (c) PAYMENTS TO TOBACCO TRUST FUND.—Any In21 dian tribe or tribal organization that engages in the manu22 facture of tobacco products shall be subject to liability for

23 any fee payments that are levied on other manufacturers

24 for purposes of any tobacco trust fund. Any Indian tribe

25 or tribal organization that does not pay such fees shall
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1 be considered a nonparticipating manufacturer and shall

2 be subject to surcharges made applicable to such non3 participating manufacturers under any Act enacted to give

4 effect to the national tobacco settlement agreement of

5 June 20, 1997.

6 (d) APPLICATION OF FEDERAL FOOD, DRUG, AND

7 COSMETIC ACT REQUIREMENTS.—

8 (1) IN GENERAL.—The Secretary, in consulta9 tion with the Secretary of Interior, shall promulgate

10 regulations to provide for the waiver of any require11 ment of the Food, Drug, and Cosmetic Act (21

12 U.S.C. 321 et seq.) with respect to tobacco products

13 manufactured, distributed, or sold within the exte14 rior boundaries of Indian reservations or on lands

15 within the jurisdiction of an Indian tribe as appro16 priate to comply with this section.

17 (2) JURISDICTION.—With respect to tobacco-re18 lated activities that take place within the exterior

19 boundaries of Indian reservations or on lands within

20 the jurisdiction of an Indian tribe, the responsibility

21 for enforcing the regulations promulgated pursuant

22 to paragraph (1) shall be vested in—

23 (A) the Indian tribe or the tribal organiza24 tion involved;
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1 (B) the State within which the lands of the

2 Indian tribe or tribal organization are located,

3 pursuant to a voluntary cooperative agreement

4 entered into by the State and the Indian tribe

5 or tribal organization; or

6 (C) the Secretary.

7 (3) ELIGIBILITY FOR ASSISTANCE.—Under the

8 regulations promulgated under paragraph (1), the

9 Secretary, in consultation with the Secretary of the

10 Interior, shall provide assistance to an Indian tribe

11 or tribal organization in meeting and enforcing the

12 requirements under such regulations if—

13 (A) the tribe or tribal organization has a

14 governing body that has powers and carries out

15 duties that are similar to the powers and duties

16 of State or local governments;

17 (B) the functions to be exercised through

18 the use of such assistance relate to activities

19 conducted within the exterior boundaries of In20 dian reservations or on lands within the juris21 diction of the tribe or tribal organization in22 volved; and

23 (C) the tribe or tribal organization is rea24 sonably expected to be capable of carrying out

25 the functions required by the Secretary.
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1 (4) DETERMINATIONS.—Not later than 60 days

2 after the date on which an Indian tribe or tribal or3 ganization submits an application for assistance

4 under paragraph (3), the Secretary shall make a de5 termination concerning the eligibility of such tribe or

6 organization for such assistance.

7 (5) IMPLEMENTATION BY THE SECRETARY.—If

8 the Secretary determines that the Indian tribe or

9 tribal organization is not willing or not qualified to

10 administer the requirements of the regulations pro11 mulgated under this subsection, the Secretary, in

12 consultation with the Secretary of the Interior, shall

13 implement and enforce such regulations on behalf of

14 the tribe or tribal organization.

15 (6) DEFICIENT APPLICATIONS; OPPORTUNITY

16 TO CURE.—If the Secretary determines under para17 graph (4) that a tribe is not eligible for assistance

18 under this subsection, the Secretary shall—

19 (A) submit to such tribe or organization,

20 in writing, a statement of the reasons for such

21 determination; and

22 (B) shall assist such tribe in overcoming

23 any deficiencies that resulted in the determina24 tion of ineligibility.
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1 After an opportunity to review and cure such defi2 ciencies, the tribe or organization may re-apply to

3 the Secretary for assistance under this subsection.

4 (e) RETAIL LICENSING REQUIREMENTS.—

5 (1) IN GENERAL.—The requirements of the

6 Federal Food, Drug, and Cosmetic Act (21 U.S.C.

7 321 et seq.), or any Act enacted in order to give ef8 fect to the national tobacco settlement agreement of

9 June 20, 1997, with respect to the licensing of to10 bacco retailers shall apply to retailers that sell to11 bacco or tobacco products within the exterior bound12 aries of Indian reservations or on lands within the

13 jurisdiction of an Indian tribe or tribal organization.

14 (2) MINIMUM FEDERAL STANDARDS.—

15 (A) IN GENERAL.—Not later than 180

16 days after the date of enactment of this Act,

17 the Secretary shall promulgate regulations to

18 authorize an Indian tribe or tribal organization

19 to implement a tribal tobacco product licensing

20 program within Indian reservations or on lands

21 within the jurisdiction of an Indian tribe or

22 tribal organization.

23 (B) MODEL STATE LAW.—The terms, con24 ditions, and standards contained in the model

25 State law contained in any Act enacted to give
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1 effect to the national tobacco settlement agree2 ment of June 20, 1997 shall constitute the min3 imum Federal regulations that an Indian tribe

4 or tribal organization must enact in order to as5 sume responsibility for the licensing and regula6 tion or tobacco-related activities conducted

7 within the exterior boundaries of Indian res8 ervations or on lands within the jurisdiction of

9 an Indian tribe or tribal organization.

10 (C) WAIVER.—An Indian tribe or tribal or11 ganization shall have the same right to apply

12 for waiver and modification of the law described

13 in subparagraph (B) as a State pursuant to the

14 Act involved.

15 (3) IMPLEMENTATION BY THE SECRETARY.—If

16 the Secretary, in consultation with the Secretary of

17 the Interior, determines that the Indian tribe or

18 tribal organization is not qualified to administer the

19 relevant requirements of the Federal Food, Drug,

20 and Cosmetic Act (21 U.S.C. 321 et seq.) or any

21 Act enacted in order to give effect to the national to22 bacco settlement agreement of June 20, 1997, the

23 Secretary, in consultation with the Secretary of the

24 Interior, shall implement such requirements on be25 half of the Indian tribe or tribal organization.
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1 (f) ELIGIBILITY FOR PUBLIC HEALTH PAYMENTS.—

2 (1) GRANT.—

3 (A) IN GENERAL.—For each fiscal year the

4 Secretary shall award a grant to each Indian

5 tribe or tribal organization that has an ap6 proved anti-smoking plan for the fiscal year in7 volved under paragraph (2) in an amount equal

8 to the amount determined under paragraph (3).

9 (B) REDUCTION IN STATE AMOUNTS.—

10 With respect to any State in which the service

11 area or areas of an Indian tribe or tribal orga12 nization that receives a grant under subpara13 graph (A) are located, the Secretary shall re14 duce the amount otherwise payable to such

15 State, under any Act enacted in order to give

16 effect to the national tobacco settlement agree17 ment of June 20, 1997, by the amount of such

18 grant.

19 (2) TRIBAL PLANS.—To be eligible to receive a

20 grant under paragraph (1), an Indian tribe or tribal

21 organization shall prepare and submit to the Sec22 retary an anti-smoking plan and shall otherwise

23 meet the requirements of subsection (e). The Sec24 retary shall promulgate regulations providing for the
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1 form and content of anti-smoking plans to be sub2 mitted under this paragraph.

3 (3) AMOUNT DETERMINED.—Except as pro4 vided in this subsection, the amount of any grant for

5 which an Indian tribe or tribal organization is eligi6 ble under paragraph (1) shall be determined by the

7 Secretary based on the product of—

8 (A) the ratio of the total number of indi9 vidual residing on or in such tribe’s or tribal or10 ganization’s reservation, jurisdictional lands, or

11 the active user population, relative to the total

12 population of the State involved; and

13 (B) the amount allocated to the State for

14 such public health purposes.

15 (4) USE.—Amounts provided to a tribe or tribal

16 organization under this subsection shall be used to

17 reimburse the tribe for smoking-related health ex18 penditures, to further the purposes of this Act or

19 any Act enacted in order to give effect to the na20 tional tobacco settlement agreement of June 20,

21 1997, and in accordance with a tribal anti-smoking

22 plan approved by the Secretary. Indian tribes and

23 tribal organizations shall have the flexibility to uti24 lize such amounts to meet the unique health care

25 needs of persons within their service populations
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1 within the context of tribal health programs if such

2 programs meet the fundamental Federal goals and

3 purposes of Federal Indian health care law and pol4 icy.

5 (5) REALLOTMENT.—Amounts set aside and

6 not expended under this subsection shall be reallot7 ted among other eligible Indian tribes and tribal or8 ganizations.

9 (g) OBLIGATIONS OF MANUFACTURERS.—Manufac10 turers participating in, or covered under this Act or any

11 Act enacted in order to give effect to the national tobacco

12 settlement agreement of June 20, 1997 shall not engage

13 in any activity on lands within the jurisdiction of an In14 dian tribe or tribal organization that is prohibited by this

15 Act or such other Act.

16 (h) USE OF TRUST FUND PAYMENTS.—Amounts

17 made available from the tobacco trust fund pursuant to

18 any Indian health provisions of any Act enacted in order

19 to give effect to the national tobacco settlement agreement

20 of June 20, 1997 shall be provided to the Indian Health

21 Service and, through the provisions of the Indian Self De22 termination and Education Assistance Act (25 U.S.C.

23 450b et seq.) to Indian tribes or tribal organizations to

24 be used to reduce tobacco consumption, promote smoking

25 cessation, and to fund related activities including—
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1 (1) clinic and facility design, construction, re2 pair, renovation, maintenance, and improvement;

3 (2) health care provider services and equipment;

4 (3) domestic and community sanitation associ5 ated with clinic and facility construction and im6 provement;

7 (4) inpatient and outpatient services; and

8 (5) other programs and services which have as

9 their goal raising the health status of Indians.

10 (i) PREEMPTION.—

11 (1) IN GENERAL.—Except as otherwise pro12 vided in this section, nothing in this Act of any Act

13 enacted in order to give effect to the national to14 bacco settlement agreement of June 20, 1997, shall

15 be construed to prohibit an Indian tribe or tribal or16 ganization from imposing requirements, prohibitions,

17 penalties, or other measures to further the purposes

18 of this Act that are in addition to the requirements,

19 prohibitions, or penalties required by this Act or

20 such other Act.

21 (2) PUBLIC EXPOSURE TO SMOKE.—Nothing in

22 this Act shall be construed to preempt or otherwise

23 affect any Indian tribe or tribal organization rule or

24 practice that provides greater protections from the

25 health hazards of environmental tobacco smoke.
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1 (3) NATIVE AMERICANS.—A State may not im2 pose obligations or requirements relating to the ap3 plication of this Act or any other Act enacted in

4 order to give effect to the national tobacco settle5 ment agreement of June 20, 1997, to Indian tribes

6 and tribal organizations.

Æ