II 

108TH CONGRESS 

2D SESSION S. 2831 

To amend the Internal Revenue Code of 1986 and the Employee Retirement 

Income Security Act of 1974 to clarify that federally recognized Indian 

tribal governments are to be regulated under the same government employer rules and procedures that apply to Federal, State, and other 

local government employers with regard to the establishment and maintenance of employee benefit plans. 

IN THE SENATE OF THE UNITED STATES 

Mr. SMITH (for himself, Mr. BINGAMAN, Mr. CONRAD, Mr. DASCHLE, Mr. 

HATCH, and Mr. THOMAS) introduced the following bill; which was read 

twice and referred to the Committee on Finance 

A BILL 

To amend the Internal Revenue Code of 1986 and the Employee Retirement Income Security Act of 1974 to clarify 

that federally recognized Indian tribal governments are 

to be regulated under the same government employer 

rules and procedures that apply to Federal, State, and 

other local government employers with regard to the 

establishment and maintenance of employee benefit 

plans. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
2 

•S 2831 IS

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Governmental Pension 

3 Plan Equalization Act of 2004’’. 

4 SEC. 2. CLARIFICATION OF ‘‘GOVERNMENTAL PLAN’’ DEFI5 NITIONS. 

6 (a) AMENDMENT TO INTERNAL REVENUE CODE OF

7 1986.—Section 414(d) of the Internal Revenue Code of 

8 1986 (definition of governmental plan) is amended by add9 ing at the end thereof the following new sentence: ‘‘The 

10 term ‘governmental plan’ also includes a plan established 

11 or maintained for its employees by an Indian tribal gov12 ernment (as defined in section 7701(a)(40)), a subdivision 

13 of an Indian tribal government (determined in accordance 

14 with section 7871(d)), an agency or instrumentality of an 

15 Indian tribal government or a subdivision thereof, or an 

16 entity established under tribal, Federal, or State law 

17 which is wholly owned or controlled by any of the fore18 going.’’. 

19 (b) AMENDMENT TO EMPLOYEE RETIREMENT IN20 COME SECURITY ACT OF 1974.—Section 3(32) of the Em21 ployee Retirement Income Security Act of 1974 (29 

22 U.S.C. 1002(32)) is amended by adding at the end the 

23 following new sentence: ‘‘The term ‘governmental plan’ 

24 also includes a plan established or maintained for its em25 ployees by an Indian tribal government (as defined in sec26 tion 7701(a)(40) of the Internal Revenue Code of 1986), 
3 

•S 2831 IS

1 a subdivision of an Indian tribal government (determined 

2 in accordance with section 7871(d) of such Code), an 

3 agency or instrumentality of an Indian tribal government 

4 or subdivision thereof, or an entity established under trib5 al, Federal, or State law which is wholly owned or con6 trolled by any of the foregoing.’’. 

7 SEC. 3. EXTENSION TO ALL GOVERNMENTAL PLANS OF 

8 CURRENT MORATORIUM ON APPLICATION OF 

9 CERTAIN NONDISCRIMINATION RULES APPLI10 CABLE TO STATE AND LOCAL PLANS. 

11 (a) IN GENERAL.— 

12 (1) Subparagraph (G) of section 401(a)(5) and 

13 subparagraph (H) of section 401(a)(26) of the In14 ternal Revenue Code of 1986 are each amended by 

15 striking ‘‘section 414(d))’’ and all that follows and 

16 inserting ‘‘section 414(d)).’’. 

17 (2) Subparagraph (G) of section 401(k)(3) of 

18 such Code and paragraph (2) of section 1505(d) of 

19 the Taxpayer Relief Act of 1997 are each amended 

20 by striking ‘‘maintained by a State or local govern21 ment or political subdivision thereof (or agency or 

22 instrumentality thereof)’’. 

23 (b) CONFORMING AMENDMENTS.— 

24 (1) The heading for section 401(a)(5)(G) of 

25 such Code is amended to read as follows: 
4 

•S 2831 IS

1 ‘‘(G) GOVERNMENTAL PLANS.—’’. 

2 (2) The heading for section 401(a)(26)(H) of 

3 such Code is amended to read as follows: 

4 ‘‘(H) EXCEPTION FOR GOVERNMENTAL

5 PLANS.—’’. 

6 (3) Section 401(k)(3)(G) of such Code is 

7 amended by inserting ‘‘GOVERNMENTAL PLAN.—’’ 

8 after ‘‘(G)’’. 

9 SEC. 4. CLARIFICATION THAT TRIBAL GOVERNMENTS ARE 

10 SUBJECT TO THE SAME DEFINED BENEFIT 

11 PLAN RULES AND REGULATIONS APPLIED TO 

12 STATE AND OTHER LOCAL GOVERNMENTS, 

13 THEIR POLICE AND FIREFIGHTERS. 

14 (a) AMENDMENTS TO INTERNAL REVENUE CODE OF

15 1986.— 

16 (1) POLICE AND FIREFIGHTERS.—Subpara17 graph (H) section 415(b)(2) of the Internal Revenue 

18 Code of 1986 (defining participant) is amended— 

19 (A) in clause (i) by inserting ‘‘, Indian 

20 tribal government (as defined in section 

21 7701(a)(40)),’’ after ‘‘State’’, and 

22 (B) in clause (ii)(I) by inserting ‘‘, Indian 

23 tribal government,’’ after ‘‘State’’ both places it 

24 appears. 

25 (2) STATE AND LOCAL GOVERNMENT PLANS.— 
5 

•S 2831 IS

1 (A) IN GENERAL.—Subparagraph (A) of 

2 section 415(b)(10) of such Code (relating to 

3 limitation to equal accrued benefit) is amended 

4 by inserting ‘‘, Indian tribal government (as de5 fined in section 7701(a)(40)),’’ after ‘‘State’’. 

6 (B) CONFORMING AMENDMENT.—The 

7 heading for section 415(b)(10) of such Code is 

8 amended to read as follows: 

9 ‘‘(10) SPECIAL RULE FOR STATE, INDIAN TRIB10 AL, AND LOCAL GOVERNMENT PLANS.—’’. 

11 (3) GOVERNMENT PICK UP CONTRIBUTIONS.— 

12 Paragraph (2) of section 414(h) of such Code (relat13 ing to designation by units of government) is amend14 ed by inserting ‘‘, Indian tribal government (as de15 fined in section 7701(a)(40)),’’ after ‘‘State’’. 

16 (b) AMENDMENTS TO EMPLOYEE RETIREMENT IN17 COME SECURITY ACT OF 1974.—Section 4021(b) of the 

18 Employee Retirement Income Security Act of 1974 (29 

19 U.S.C. 1321(b)) is amended— 

20 (1) in paragraph (12), by striking ‘‘or’’ at the 

21 end; 

22 (2) in paragraph (13), by striking ‘‘plan.’’ and 

23 inserting ‘‘plan; or’’; and 

24 (3) by adding at the end the following new 

25 paragraph: 
6 

•S 2831 IS

1 ‘‘(14) established and maintained for its em2 ployees by an Indian tribal government (as defined 

3 in section 7701(a)(40) of the Internal Revenue Code 

4 of 1986), a subdivision of an Indian tribal govern5 ment (determined in accordance with section 

6 7871(d) of such Code), an agency or instrumentality 

7 of an Indian tribal government or subdivision there8 of, or an entity established under tribal, Federal, or 

9 State law which is wholly owned or controlled by any 

10 of the foregoing.’’. 

11 SEC. 5. EFFECTIVE DATE. 

12 The amendments made by this Act shall apply to 

13 years beginning before, on, or after the date of the enact14 ment of this Act. 

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