II 

108TH CONGRESS 

2D SESSION S. 2770

To establish a National Commission on American Indian Trust Holdings. 

IN THE SENATE OF THE UNITED STATES 

JULY 22, 2004

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

to the Committee on Indian Affairs 

A BILL

To establish a National Commission on American Indian 

Trust Holdings.

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

3 SECTION 1. NATIONAL COMMISSION ON AMERICAN INDIAN 

4 TRUST HOLDINGS. 

5 (a) FINDINGS.—Congress finds that— 

6 (1) the United States has entered into treaties 

7 with Indian tribes under which the United States 

8 made various commitments to Indian tribes and In9 dian people; 
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1 (2) the United States functions, by treaty and 

2 statute, as a trustee for Indian tribes and individual 

3 Indians; 

4 (3) the United States has a fiduciary obligation 

5 to Indian tribes and Indian people and, in accord6 ance with that obligation, must use the highest 

7 standard of care to protect the assets of Indian 

8 tribes and individual Indians; 

9 (4) the United States has failed Indian tribes 

10 and individual Indians and abridged its treaty and 

11 other obligations relating to the handling of trust 

12 fund management and historical accounting; 

13 (5) mismanagement of Indian trust assets by 

14 the United States is a longstanding problem that 

15 spans many administrations; 

16 (6) the complexity and longevity of that mis17 management neither mitigates the injustice visited 

18 on Indian tribes and the 300,000 individual Native 

19 Americans whose accounts have been shortchanged 

20 nor absolves the United States of its responsibility 

21 to correct the situation in a timely manner; 

22 (7) in 1996 a civil action, Cobell v. Norton, Civ. 

23 No. 96–1285 (RCL), was brought in the United 

24 States District Court for the District of Columbia to 

25 attempt to obtain an order compelling the United 
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1 States to account for the trust funds managed by 

2 the United States on behalf of individual Indians 

3 and take all necessary action to bring the United 

4 States into compliance with its fiduciary duties; 

5 (8) those funds are generated from Indian trust 

6 land royalties resulting from leases of that land to 

7 oil, agricultural, timber, mining, and other interests; 

8 (9) on April 5, 2004, Mr. Alan L. Balaran, the 

9 Special Master in the Cobell case, tendered his res10 ignation to the Honorable Royce C. Lamberth; 

11 (10) in his letter of resignation, Mr. Balaran 

12 stated that— 

13 (A) there is evidence that energy compa14 nies, assisted by the Department of the Inte15 rior, routinely pay individual Indians much less 

16 than they pay non-Indians for oil and gas pipe17 line easements; 

18 (B) the Special Master had uncovered evi19 dence that the Department fails to diligently 

20 monitor oil and gas leasing activities on Indian 

21 land; and 

22 (C) there is evidence that the Department 

23 has been putting the interests of private energy 

24 companies ahead of the interests of individual 

25 Indian beneficiaries, notwithstanding their fidu-
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1 ciary obligation to Indian tribes and Indian 

2 beneficiaries; and 

3 (11) the Great Plains, Rocky Mountain, and 

4 other regions of the United States are rich in other 

5 trust assets such as timber, agriculture, mining, and 

6 other resources. 

7 (b) DEFINITIONS.—In this section: 

8 (1) BALARAN LETTER.—The term ‘‘Balaran 

9 letter’’ means the letter dated April 5, 2004, from 

10 Special Master Alan L. Balaran to the Honorable 

11 Royce C. Lamberth. 

12 (2) COMMISSION.—The term ‘‘Commission’’ 

13 means the National Commission on American Indian 

14 Trust Holdings established by subsection (c). 

15 (3) DEPARTMENT.—The term ‘‘Department’’ 

16 means the Department of the Interior. 

17 (c) ESTABLISHMENT OF COMMISSION.—There is es18 tablished the National Commission on American Indian 

19 Trust Holdings. 

20 (d) MEMBERSHIP.—

21 (1) IN GENERAL.—The Commission shall be 

22 composed of 10 members, of whom— 

23 (A) 2 shall be appointed by the President, 

24 1 of whom the President shall designate as 

25 Chairperson of the Commission; 
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1 (B) 2 shall be appointed by the majority 

2 leader of the Senate; 

3 (C) 2 shall be appointed by the minority 

4 leader of the Senate; 

5 (D) 2 shall be appointed by the Speaker of 

6 the House of Representatives; and 

7 (E) 2 shall be appointed by the minority 

8 leader of the House of Representatives. 

9 (2) QUALIFICATIONS; INITIAL MEETING.— 

10 (A) NONGOVERNMENTAL APPOINTEES.—

11 An individual appointed to the Commission may 

12 not be an officer or employee of the Federal 

13 Government or any State or local government. 

14 (B) OTHER QUALIFICATIONS.—It is the 

15 sense of Congress that individuals appointed to 

16 the Commission should be prominent United 

17 States citizens, with national recognition and 

18 significant depth of experience in such profes19 sions as land and resource management. 

20 (3) DEADLINE FOR APPOINTMENT.—All mem21 bers of the Commission shall be appointed not later 

22 than 60 days after the date of enactment of this 

23 Act. 

24 (4) QUORUM.—Six members of the Commission 

25 shall constitute a quorum.
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1 (5) VACANCIES.—Any vacancy in the Commis2 sion shall not affect the powers of the Commission, 

3 but shall be filled in the same manner in which the 

4 original appointment was made. 

5 (e) DUTIES.—

6 (1) IN GENERAL.—The Commission shall— 

7 (A) fully examine the allegations made in 

8 the Balaran letter; 

9 (B) fully examine whether grazing, leasing, 

10 and other trust asset interests have been man11 aged equitably and in a manner consistent with 

12 Federal trust law (including regulations); 

13 (C) fully examine such other alleged 

14 breaches of the fiduciary responsibility owed by 

15 the United States to Indian tribes and indi16 vidual Indians that come to the Commission’s 

17 attention as the Commission considers appro18 priate; 

19 (D) build on the investigations of other en20 tities, and avoid unnecessary duplication, by re21 viewing the findings, conclusions, and rec22 ommendations of earlier studies of the manage23 ment by the Department of Indian trust assets 

24 and trust funds; and 
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1 (E) not later than 1 year after the date as 

2 of which all members of the Commission have 

3 been appointed, submit to the President and 

4 Congress a report that states the findings of 

5 the Commission and makes recommendations 

6 for corrective measures that can be taken to—

7 (i) recoup any losses suffered by In8 dian tribes or individual Indians as a re9 sult of breaches of fiduciary duty by the 

10 Department; or 

11 (ii) prevent any breaches of fiduciary 

12 duty in the future. 

13 (2) RELATIONSHIP TO PREVIOUS STUDIES.—

14 When investigating facts and circumstances relating 

15 to the management of Indian trust assets and trust 

16 funds, the Commission shall— 

17 (A) first review the information compiled 

18 by, and the findings, conclusions, and rec19 ommendations that resulted from, previous 

20 studies (including congressional investigations); 

21 and 

22 (B) after that review, pursue any appro23 priate area of inquiry if the Commission deter24 mines that— 
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1 (i) earlier studies had not investigated 

2 that area; 

3 (ii) the earlier investigation of that 

4 area had not been complete; or 

5 (iii) new information not reviewed in 

6 the earlier studies had become available 

7 with respect to that area. 

8 (3) FOLLOWUP REVIEW.—At least once every 2 

9 years after the date on which the Commission sub10 mits the report under paragraph (1), the Commis11 sion shall—

12 (A) reconvene to examine the effectiveness 

13 of any actions taken in response to the report 

14 in achieving the goals described in clauses (i) 

15 and (ii) of paragraph (1)(D); and 

16 (B) submit to the President and Congress 

17 a report that describes the findings of the Com18 mission and makes any further recommenda19 tions as the Commission considers appropriate. 

20 (f) POWERS OF COMMISSION.—

21 (1) IN GENERAL.— 

22 (A) HEARINGS AND EVIDENCE.—The 

23 Commission may— 

24 (i) hold such hearings and sit and act 

25 at such times and places, take such testi-
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1 mony, receive such evidence, and admin2 ister such oaths as the Commission con3 siders advisable to carry out this section; 

4 and 

5 (ii) subject to subparagraph (B)(i), 

6 require, by subpoena or otherwise, the at7 tendance and testimony of such witnesses 

8 and the production of such books, records, 

9 correspondence, memoranda, papers, and 

10 documents, as the Commission or such 

11 designated subcommittee or designated 

12 member may determine advisable. 

13 (B) SUBPOENAS.— 

14 (i) ISSUANCE.— 

15 (I) IN GENERAL.—A subpoena 

16 may be issued under this subsection 

17 only— 

18 (aa) by the agreement of the 

19 Chairperson; or 

20 (bb) by the affirmative vote 

21 of 6 members of the Commission. 

22 (II) SIGNATURE.—Subject to 

23 subclause (I), subpoenas issued under 

24 this subsection may be issued under 

25 the signature of the Chairperson or 
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1 any member designated by a majority 

2 of the Commission, and may be served 

3 by any person designated by the 

4 Chairperson or by a member des5 ignated by a majority of the Commis6 sion. 

7 (ii) ENFORCEMENT.— 

8 (I) IN GENERAL.—In the case of 

9 contumacy or failure to obey a sub10 poena issued under subparagraph (A), 

11 the United States district court for 

12 the judicial district in which the sub13 poenaed person resides, is served, or 

14 may be found, or where the subpoena 

15 is returnable, may issue an order re16 quiring such person to appear at any 

17 designated place to testify or to 

18 produce documentary or other evi19 dence. Any failure to obey the order of 

20 the court may be punished by the 

21 court as a contempt of that court. 

22 (II) ADDITIONAL ENFORCE23 MENT.—In the case of any failure of 

24 any witness to comply with any sub25 poena or to testify when summoned
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1 under authority of this section, the 

2 Commission may, by majority vote, 

3 certify a statement of fact consti4 tuting such failure to the appropriate 

5 United States attorney, who may 

6 bring the matter before the grand 

7 jury for its action, under the same 

8 statutory authority and procedures as 

9 if the United States attorney had re10 ceived a certification under sections 

11 102 through 104 of the Revised Stat12 utes (2 U.S.C. 192 through 194). 

13 (2) CONTRACTING.—The Commission may, to 

14 such extent and in such amounts as are provided in 

15 Acts of appropriation, enter into contracts to enable 

16 the Commission to discharge the duties of the Com17 mission. 

18 (3) INFORMATION FROM FEDERAL AGENCIES.— 

19 (A) IN GENERAL.—The Commission may 

20 secure directly from a Federal agency such in21 formation as the Commission considers nec22 essary to carry out this section. 

23 (B) PROVISION OF INFORMATION.—On re24 quest of the Chairperson of the Commission, 
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1 the head of the agency shall provide the infor2 mation to the Commission. 

3 (4) ASSISTANCE FROM THE SECRETARY OF THE

4 INTERIOR.—The Secretary of the Interior shall pro5 vide to the Commission on a reimbursable basis ad6 ministrative support and other services for the per7 formance of the functions of the Commission. 

8 (5) POSTAL SERVICES.—The Commission may 

9 use the United States mails in the same manner and 

10 under the same conditions as other agencies of the 

11 United States. 

12 (g) PERSONNEL MATTERS.—

13 (1) COMPENSATION OF MEMBERS.—A member 

14 of the Commission who is not an officer or employee 

15 of the Federal Government shall be compensated at 

16 a rate equal to the daily equivalent of the annual 

17 rate of basic pay prescribed for level IV of the Exec18 utive Schedule under section 5315 of title 5, United 

19 States Code, for each day (including travel time) 

20 during which the member is engaged in the perform21 ance of the duties of the Commission. 

22 (2) TRAVEL EXPENSES.—A member of the 

23 Commission shall be allowed travel expenses, includ24 ing per diem in lieu of subsistence, at rates author25 ized for an employee of an agency under subchapter 
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1 I of chapter 57 of title 5, United States Code, while 

2 away from the home or regular place of business of 

3 the member in the performance of the duties of the 

4 Commission. 

5 (3) STAFF.— 

6 (A) IN GENERAL.—The Chairperson of the 

7 Commission may, without regard to the civil 

8 service laws (including regulations), appoint 

9 and terminate an executive director and such 

10 other additional personnel as are necessary to 

11 enable the Commission to perform the duties of 

12 the Commission. 

13 (B) CONFIRMATION OF EXECUTIVE DIREC14 TOR.—The employment of an executive director 

15 shall be subject to confirmation by the Commis16 sion. 

17 (C) COMPENSATION.— 

18 (i) IN GENERAL.—Except as provided 

19 in clause (ii), the Chairperson of the Com20 mission may fix the compensation of the 

21 executive director and other personnel 

22 without regard to the provisions of chapter 

23 51 and subchapter III of chapter 53 of 

24 title 5, United States Code, relating to 
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1 classification of positions and General 

2 Schedule pay rates. 

3 (ii) MAXIMUM RATE OF PAY.—The 

4 rate of pay for the executive director and 

5 other personnel shall not exceed the rate 

6 payable for level V of the Executive Sched7 ule under section 5316 of title 5, United 

8 States Code. 

9 (4) DETAIL OF FEDERAL GOVERNMENT EM10 PLOYEES.— 

11 (A) IN GENERAL.—An employee of the 

12 Federal Government may be detailed to the 

13 Commission without reimbursement. 

14 (B) CIVIL SERVICE STATUS.—The detail of 

15 the employee shall be without interruption or 

16 loss of civil service status or privilege. 

17 (5) PROCUREMENT OF TEMPORARY AND INTER18 MITTENT SERVICES.—The Chairperson of the Com19 mission may procure temporary and intermittent 

20 services in accordance with section 3109(b) of title 

21 5, United States Code, at rates for individuals that 

22 do not exceed the daily equivalent of the annual rate 

23 of basic pay prescribed for level V of the Executive 

24 Schedule under section 5316 of that title. 
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1 (h) NO EFFECT ON COBELL CASE.—Nothing in this 

2 section limits the findings, remedies, jurisdiction, author3 ity, or discretion of the court in the civil action Cobell v. 

4 Norton, Civ. No. 96–1285 (RCL) (D.D.C.). 

5 (i) AUTHORIZATION OF APPROPRIATIONS.—There 

6 are authorized to be appropriated such sums as are nec7 essary to carry out this section. 

8 (j) TERMINATION OF COMMISSION.—The Commis9 sion shall terminate on the date that is 10 years after the 

10 date on which the Commission submits the report of the 

11 Commission under subsection (e)(1)(D).

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