I
105TH CONGRESS
2D SESSION
H. R. 3782
To compensate certain Indian tribes for known errors in their tribal trust
fund accounts, to establish a process for settling other disputes regarding
tribal trust fund accounts, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL 30, 1998
Mr. MILLER of California (by request) introduced the following bill; which was
referred to the Committee on Resources
A BILL
To compensate certain Indian tribes for known errors in
their tribal trust fund accounts, to establish a process
for settling other disputes regarding tribal trust fund
accounts, and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
This Act may be cited as the ‘‘Tribal Trust Fund
Settlement Act of 1998’’.
(b) TABLE OF CONTENTS.—The table of contents for
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. Definitions.
Sec. 5. Resolution of known errors; netting and forgiveness; interest.
Sec. 6. Settlement of claims; settlement proposals.
Sec. 7. Tribal response to settlement proposals.
Sec. 8. Government-to-government negotiations.
Sec. 9. Litigation of claims.
Sec. 10. Trustee’s duty to account in claims proceedings.
Sec. 11. Attorney fees.
Sec. 12. Statute of limitations.
Sec. 13. Claims settlements.
Sec. 14. Authorization of appropriations.
Sec. 15. Overdrafts and accounting discrepancies.
Sec. 16. Routine adjustments.
Sec. 17. Severability of provisions.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The Department of the Interior has com-
pleted a reconciliation of tribal trust fund accounts
as required by the American Indian Trust Fund
Management Reform Act of 1994 (25 U.S.C. 4001
et seq.) and has proposed a settlement process for
resolving claims arising therefrom.
(2) To the extent the Federal Government owes
tribes for losses resulting from deficiencies in the
management and accounting of tribal trust funds,
claims should be resolved and paid promptly.
(3) A process which relies initially on informal
dispute resolution mechanisms to settle such claims
will provide relief in a manner that is just to tribes,
and more cost effective and efficient than litigation.
SEC. 3. PURPOSES.
The purposes of this Act are—
(1) to achieve a settlement of tribal trust fund
claims which is fair to both Indian tribes and the
general public, produces certainty and finality, and
respects tribal sovereignty;
(2) to compensate tribes in a timely manner for
any errors that are currently known to have been
made in the management and accounting of tribal
trust funds that resulted in losses to tribal trust
fund accounts;
(3) to provide a means and incentives for set-
tling other claims through informal dispute resolu-
tion processes rather than litigation; and
(4) to preserve the opportunity for tribes to liti-
gate such clams in the event that informal dispute
resolution mechanisms fail to result in settlement,
and to assure that such litigation will proceed in an
efficient, fair, and cost effective manner for both
tribes and the Federal Government.
SEC. 4. DEFINITIONS.
As used in this Act:
(1) The term ‘‘compound interest’’ means inter-
est paid at the tribal benchmark rate, compounded
on an annual basis.
(2) The term ‘‘covered claims’’ means all claims
against the United States and any of its officers,
agents, and employees for the covered period which
are or could be asserted by a tribe for losses result-
ing from deficiencies in the management and ac-
counting of tribal trust funds.
(3) The term ‘‘covered period’’ means July 1,
1972, through September 30, 1992, or July 1, 1972,
through the date of settlement, as selected by each
tribe pursuant to sections 6 or 7 of this Act.
(4) The term ‘‘deficiencies in the management
and accounting of tribal trust funds’’ means all er-
rors in the management and accounting of tribal
trust funds from the point of their collection through
disbursement, including, but not limited to, collec-
tion of the appropriate amounts under lease, permit
or sale agreements or other contracts, proper record-
ing of transactions, timely collection of revenues,
proper accrual of interest, adequate yield on invest-
ments, undocumented roll forward amounts, delays
in the accrual of interest and proper disbursements.
(5) The term ‘‘delays in accrual of interest’’
means, for the purposes of this Act only, the failure
to credit interest—
(A) within 6 days after such time as the
Secretary collects funds that are to be deposited
into a tribal trust fund account; or
Management System of the Office of Trust Funds
Management of the Department used to distribute
interest and investment income to individual Indian
money accounts.
(22) The term ‘‘overdraft’’ means an account
that has a negative balance in an individual Indian
money account, but excludes negative balances in in-
terest clearing accounts.
(23) The term ‘‘United States Treasury sus-
pense accounts’’ means the following accounts held
by the United States Treasury: 14F3875.21,
14F3878.21, 14F3879.21, and 14F3880.21.
SEC. 5. RESOLUTION OF KNOWN ERRORS; NETTING AND
FORGIVENESS; INTEREST.
(a) AUTHORITY TO COMPENSATE FOR KNOWN ER-
RORS.—The Secretary shall adjust the balance of a tribal
trust fund account to compensate for known errors pursu-
ant to the requirements of this section.
(b) KNOWN ERRORS NETTED.—In determining the
amount of adjustments to the balances of tribal trust fund
accounts under this section, the Secretary shall net known
errors in the accounts of each tribe as follows:
(1) With respect to a tribe’s nonjudgment ac-
counts, the aggregate of all amounts overpaid to a
tribe in all such accounts shall be subtracted from
the aggregate of all amounts that were underpaid
in all such accounts. To the extent that the resulting
net amount reflects an underpayment to the tribe
in all nonjudgment accounts, the Secretary shall ad-
just the balances of any of the tribe’s accounts, as
the tribe in its sole discretion may direct, in an
amount equal to the net amount of the under-
payment, with interest as calculated pursuant to
subsection (c) of this section. To the extent that the
amount reflects an overpayment in all nonjudgment
accounts of the tribe, any obligation that the tribe
owning such accounts may have to reimburse the
United States shall be forgiven.
(2) With respect to a tribe’s judgment accounts
for which the underlying statute or judicial decree
does not direct that a specified portion thereof be al-
located for specified purposes, all amounts overpaid
to a tribe in each such account shall be subtracted
from amounts that were underpaid in each such ac-
count. To the extent that the resulting net amount
reflects an underpayment to that account, the Sec-
retary shall adjust the balances of any of the sub-
accounts of such account, as the tribe in its sole dis-
cretion may direct, in an amount equal to the net
amount of the underpayment, with interest as cal-
culated pursuant to subsection (c) of this section. To
the extent that the amount reflects an overpayment
to that account, any obligation that the tribe owning
such account may have to reimburse the United
States shall be forgiven.
(3) With respect to those judgment accounts for
which the underlying statute or judicial decree di-
rects that a specific portion thereof be allocated for
specified purposes, all amounts overpaid to a tribe
with respect to each such purpose shall, to the ex-
tent practicable, to subtracted from amounts that
were underpaid with respect to each such purpose.
To the extent that the resulting net amount reflects
an underpayment for each such purpose, the Sec-
retary shall adjust the balance of the subaccount for
such purpose in such amount, with interest cal-
culated pursuant to subsection (c) of this section. To
the extent that the amount reflects an overpayment
with respect to each such purpose, any obligation
that the tribe may have to reimburse the United
States shall be forgiven. Errors in per capita pay-
ments shall be netted in the aggregate and the Sec-
retary shall allocate any net underpayment to any
other subaccount balances within the judgment ac-
count as directed by the tribe.
(c) CALCULATION OF INTEREST.—Any account bal-
ance adjustments required by this section shall include in-
terest from the date of the error to the date of the adjust-
ment. For the period July 1, 1972, through September
30, 1994, interest shall be calculated at the tribal bench-
mark rate. For the period October 1, 1994, through the
date of adjustment, the rate of interest shall be the aver-
age Treasury rate. Interest shall be compounded on an
annual basis.
(d) EFFECT OF ACCEPTANCE OF CLAIMS.—A tribe’s
acceptance of compensation under this section shall be
without prejudice to any claims the tribe may elect to set-
tle under sections 6 and 7 of this Act or to raise under
sections 8 and 9 of this Act. Any claims that a tribe may
have with respect to the Secretary’s determination of and
payment for errors which the Department has determined
to exist pursuant to this section shall first be raised in
the government-to-government negotiations as required by
section 8 of this Act.
SEC. 
6. 
SETTLEMENT 
OF 
CLAIMS; 
SETTLEMENT
PROPOSALS.
(a) CRITERIA
AND DEADLINE
FOR SETTLEMENT
PROPOSAL DEVELOPMENT.—Within 180 days of the date
of enactment, the Secretary shall develop and provide to
each tribe 2 proposals for the comprehensive settlement
of such tribe’s covered claims. The first settlement pro-
posal shall cover the period July 1, 1972 through Septem-
ber 30, 1992, and shall be based on information developed
in the Reconciliation Report. The second settlement pro-
posal shall cover the period July 1, 1972, through a date
as close to the date of settlement as practicable. The sec-
ond settlement proposal shall be based on information de-
veloped in the Reconciliation Report and such other credi-
ble data which the Secretary determines, in his sole discre-
tion, exists on which to develop a good faith proposal. The
settlement proposals shall be in writing and shall be sent
to each tribe by registered mail, return receipt requested
(or the equivalent thereof).
(b) FACTORS USED IN SETTLEMENT PROPOSAL.—
Each settlement proposal shall reflect the likelihood that
the account balance of a tribe is understated as a result
of deficiencies in the management and accounting of tribal
trust funds, the resource savings to the United States in
settling the covered clams without the costs associated
with the government-to-government negotiations provided
for in section 8 of this Act, and such other factors that
the Secretary determines are appropriate in providing in-
centives to a tribe to accept a settlement proposal. Each
such proposal shall assume application of the netting and
forgiveness policies and rely on the rates of interest pro-
vided in section 5 of this Act. In determining the likelihood
that an account balance is understated, the Secretary shall
consider—
(1) the dollar value of the unreconciled receipt,
disbursement, and transfer transactions in the
tribe’s accounts;
(2) the generic likelihood that a loss may have
occurred for each category of transaction in the
tribe’s accounts;
(3) the actual rate of error for each category of
transactions for the tribe’s accounts as determined
by the Secretary in the Reconciliation Report;
(4) the level of activity in the tribe’s accounts;
and
(5) such other factors as justice may require.
(c) NOTIFICATION OF ELECTION.—Each settlement
proposal shall also contain notification of the tribe’s op-
portunity to make the election in writing to the Secretary
as provided in section 7(a) of this Act.
(d) TRIBAL MEETINGS.—The Secretary shall offer to
meet with each tribe, either individually or in groups, to
explain the basis of the settlement proposals and to de-
scribe the options available to the tribe. The Secretary
shall use his best efforts to complete such meetings within
of the United States and all of its officers, agents, and
employees from liability with respect to all covered claims.
(c) ACCEPTANCE
PERIOD; NOTICE
OF
EXPIRA-
TION.—All settlement proposals shall be deemed to have
been withdrawn 210 days after the date the settlement
proposals are initially made. A tribe which fails within the
210-day period to either—
(1) accept 1 of the 2 settlement proposals, or
(2) reject both settlement proposals shall be
deemed to have rejected the settlement proposals.
At least 30, but no more than 60 days before the expira-
tion of the 210-day period, the Secretary shall notify in
writing, by registered mail, return receipt requested (or
the equivalent thereof), each tribe which has neither ac-
cepted nor rejected the settlement proposals, of the tribe’s
opportunity to make the election provided for by sub-
section (a) of this section.
SEC. 8. GOVERNMENT-TO-GOVERNMENT NEGOTIATIONS.
(a) REQUEST FOR NEGOTIATIONS.—(1) Each Tribe
that rejects both settlement proposals by the Secretary
under sections 6 and 7 of this Act or fails to respond to
such proposals may request the Secretary to enter into
government-to-government negotiations with the Tribe to
settle the Tribe’s covered claims. At the time the settle-
ment proposals are withdrawn pursuant to section 7(c) of
this Act, the Secretary shall advise each Tribe of its oppor-
tunity to request government-to-government negotiations.
Any such request shall be made in writing to the Secretary
within 150 days of the date on which the Secretary’s set-
tlement proposals are withdrawn. A Tribe must make a
timely request for, and participate in, government-to-gov-
ernment negotiations pursuant to this section before a
claim may be filed under section 9 of this Act.
(2) In the event the Secretary has not received a re-
quest from a Tribe pursuant to paragraph (1) of this sub-
section after 120 days of the date on which the Secretary’s
settlement proposals are withdrawn, the Secretary shall,
within 5 days thereafter, send a notice by registered mail,
return receipt request (or the equivalent thereof), advising
the Tribe of the date on which such request is due, and
that government-to-government negotiations pursuant to
this section are a condition precedent to filing an action
pursuant to section 9 of this Act.
(b) NATURE
OF
NEGOTIATIONS.—The Secretary
shall enter into negotiations with any Tribe that makes
a timely request under subsection (a) of this section. Such
negotiations shall be nonbinding in nature and shall be
facilitated by a mediator. The Tribe shall select a mediator
from a list of 3 or more mediators designated by the Sec-
retary from the Federal Mediation and Conciliation Serv-
ice. The expenses and fees of the mediator shall be paid
by the Secretary.
(c) PROCEDURES AND LIMITATIONS.—Negotiations
under this section shall be subject to the following proce-
dures and limitations:
(1) Negotiations under this section shall com-
mence as soon as practicable, as determined by the
Secretary and the Tribe: Provided, however, That the
Secretary, in his discretion, may delay the com-
mencement of any such negotiation with a Tribe if
insufficient resources or personnel so require.
(2) The Tribe and the Secretary may agree to
undertake limited additional research or analysis to
facilitate a negotiated settlement. The cost of such
additional research or analysis shall be paid by the
Secretary.
(3) The Tribe and the Secretary shall exchange
any records each may have with regard to trans-
actions within the scope of the covered claims which
may be relevant to resolving such claims and which
have not already been provided in the reconciliation
report.
(4) Neither the settlement offers of the Sec-
retary made pursuant to section 6 of this Act nor
the netting and forgiveness policies and rates of in-
terest specified in section 5 of this Act shall be pre-
sumed to apply to, or be a starting point for, a nego-
tiated settlement under this section.
(5) Negotiations under this section shall termi-
nate 12 months after the date of the first meeting
of the Tribe and the Secretary unless the Tribe and
the Secretary agree that there is a reasonable likeli-
hood that an extension of time for further negotia-
tion may result in a settlement. At any time during
the negotiations, the Tribe and the Secretary may
mutually agree to terminate the government-to-gov-
ernment negotiations for purposes of subsection
(a)(1) of this section where such negotiations have
been terminated by mutual agreement of the Tribe
and the Secretary.
(d) ADMISSIBILITY OF EVIDENCE.—The provisions of
Rule 408 of the Federal Rules of Evidence shall be appli-
cable to any settlement proposal made by the Secretary
under section 6 of this Act and to the government-to-gov-
ernment negotiations under this section.
(e) SETTLEMENT.—The Secretary shall adjust the
trust fund accounts of a Tribe pursuant to any settlement
reached in government-to-government negotiations under
this section. Any such settlement shall constitute the final,
complete, and conclusive resolution of all covered claims,
and shall further constitute a full discharge and release
of the United States and all of its officers, agents, and
employees from liability with respect to all covered claims.
SEC. 9. LITIGATION OF CLAIMS.
(a) JURISDICTION.—Notwithstanding any other pro-
vision of law, the United States Court of Federal Claims
shall have exclusive jurisdiction to adjudicate covered
claims not otherwise settled pursuant to this Act for the
period July 1, 1972, through September 30, 1992. The
Court of Federal Claims shall have jurisdiction to adju-
dicate covered claims filed after November 12, 1997, only
upon a showing that the Tribe participated in government-
to-government negotiations pursuant to section 8 of this
Act and has not reached a settlement of such claims. Any
Tribe that fails to make a showing is barred from bringing
any covered claims under this section or in any other
forum.
(b) DEADLINE
FOR FILING CLAIMS.—Any claims
under this section shall be filed within 180 days after the
termination, without a settlement, of government-to-gov-
ernment negotiations under section 8 of this Act. All cov-
ered claims not filed within the prescribed 180-day time
period are thereafter barred.
(c) RECONCILIATION RECORD.—Within 90 days of
the filing of an action under this section, the Secretary
shall file with the court a reconciliation record for the cov-
ered claims asserted. The reconciliation record shall in-
clude all account records, statements, reports, and lease,
permit, or sale agreements or other contracts, all data and
work papers associated with the Secretary by the Tribe,
or produced by the Secretary, during the government-to-
government negotiations under section 8 of this Act. The
court shall not—
(1) require either party to produce additional
records in its possession unless it can be dem-
onstrated that such documents were unreasonably
withheld prior to or during the government-to-gov-
ernment negotiations; or
(2) allow either party to enter into evidence ad-
ditional records in its possession which should have
been produced in good faith prior to or during the
government-to-government negotiations.
(d) NETTING AND FORGIVING POLICIES NOT APPLI-
CABLE.—The netting and forgiveness policies specified in
section 5 of this Act shall not apply in the proceeding
under this section solely by virtue of that section.
(e) CALCULATION
OF INTEREST.—Simple interest
shall be paid at a rate of 4 percent of any amounts deter-
mined to be owing by the court, payable from the date
of loss.
SEC. 10. TRUSTEE’S DUTY TO ACCOUNT IN CLAIMS PRO-
CEEDINGS.
In any action brought by a tribe for covered claims
under this Act:
(1) SECRETARY’S DUTY TO ACCOUNT.—When
the Secretary’s duty to account in aid of litigation
is found to exist, the United States shall be deemed
to have met that obligation to account for submit-
ting the reconciliation record, and such statistical
analysis of the reconciliation record (as defined in
section 9(c) of this Act) as the Court may require.
The claimant may then take its exceptions to the ac-
counting submitted by the United States.
(2) COMPENSATION AWARD.—In the event the
court concludes that the tribe has demonstrated that
the United States trust fund management and ac-
counting practices resulted in a loss to the tribe, the
court may award appropriate compensation subject
to the provisions of section 9 of this Act.
SEC. 11. ATTORNEY FEES.
(a) LIMITATION ON FEES.—No attorney or expert
may charge, demand, receive, or collect for services ren-
dered in connection with a claim under section 9 of this
Act in an amount in excess of 20 percent of the total
award a tribe receives for the first $1,000,000 of the
award plus 10 percent of any such award for amounts in
excess of $1,000,000 of such award.
(b) FEES AND EXPENSES UNDER EQUAL JUSTICE
ACT.—The payment of fees and expenses under section
2412 of title 28, United States Code, shall be available
for claims filed under section 9 of this Act in accordance
with the provisions of that Act, including the eligibility
requirements of section 2412(d)(2)(B) of title 28, United
States Code.
SEC. 12. STATUTE OF LIMITATIONS.
Any covered claim for which the statute of limitations
concerning losses to or mismanagement of trust funds was
tolled by the proviso clauses under the heading ‘‘Operation
of Indian Programs’’, Bureau of Indian Affairs of the fol-
lowing statutes: Public Law 101–512 (104 Stat. 1930);
Public Law 102–154 (105 Stat. 1004); Public Law 102–
381 (106 Stat. 1389); Public Law 103–138 (107 Stat.
1391); Public Law 103–332 (108 Stat. 2511); and under
the heading ‘‘Federal Trust Programs’’, Office of Special
Trustee for American Indians of the following statutes:
Public Law 104–134 (110 Stat. 1321–175); Public Law
104–208 (110 Stat. 3009–197); and Public Law 105–83
(111 Stat. 1559) (hereinafter referred to as the ‘‘statute
of limitations proviso clauses’’) shall be governed by the
provisions of this Act. The statute of limitations proviso
clauses shall not be interpreted by any court so as to revive
a claim for which the statute of limitations had already
run as of the time such clauses were enacted. Except as
provided in this section, no other provision of this Act is
intended to or shall be interpreted as altering the statute
of limitations that otherwise applies to any claim arising
from the Department’s management and accounting of
trust funds.
SEC. 13. CLAIMS SETTLEMENTS.
As required by section 2414 of title 28, United States
Code, any proposal by the Secretary to settle a covered
claim pursuant to sections 5, 7, 8, and 9 of this Act, being
a compromise settlement or judgment, shall be submitted
to the Attorney General of the United States, or the des-
ignee of the Attorney General, for approval, as the Attor-
ney General shall deem appropriate in the Attorney Gen-
eral’s sole discretion.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
(a) AUTHORITY.—There are hereby authorized to be
appropriated to the Secretary such funds as may be nec-
essary to carry out the provisions of this Act, including
funds that may be necessary to cover administrative ex-
penses.
(b) 
LIMITATION.—An 
amount 
not 
to 
exceed
$7,200,000 is hereby authorized to be appropriated to the
Secretary for additional analysis pursuant to section
8(c)(2) of this Act through fiscal year 2006.
SEC. 15. OVERDRAFTS AND ACCOUNTING DISCREPANCIES.
(a) OVERDRAFTS.—(1) The Secretary is authorized
to pay into the individual Indian money account pool, an
amount not to exceed $400,000, that the Secretary deter-
mines in his sole discretion to be necessary to replenish
any deficiencies in the pool resulting from any overdrafts
made prior to the date of enactment of this Act.
(2) A replenishment made by the Secretary pursuant
to paragraph (1) of this subsection for any deficiencies
in the individual Indian money account pool shall not con-
stitute a release of any claim or debt of the United States
Government against the holder of the overdrafted account
as defined in section 3701(b)(1) of title 31, United States
Code.
(3) Any overdrafts recovered subsequent to replenish-
ment under paragraph (1) shall be deposited in the mis-
cellaneous receipts of the Treasury.
(4) An amount not to exceed $400,000 is hereby ap-
propriated to the Secretary for replenishment of over-
drafts pursuant to paragraph (1) of this subsection, from
funds in the Treasury not otherwise appropriated and
shall remain available until expended.
(b) ACCOUNTING DISCREPANCIES.—The Secretary is
authorized to eliminate accounting discrepancies occurring
prior to the date of enactment of this Act: Provided, how-
ever, That the Secretary has determined, in his sole discre-
tion, that the cost of further research to determine the
cause of any such accounting discrepancy is likely to ex-
ceed the cost of clearing such accounting discrepancy. Ac-
counting discrepancies shall be eliminated in the following
manner:
(1) United States Treasury account balances
for 
accounts 
14X5166, 
14X5197, 
14X8060,
14X8176, 14X8327, 14X8365, 14X8366, 14X8368,
14X8563, 14X6039, 14X6140, and 14X6703 shall
be adjusted to be equal to the account balances pur-
suant to the corresponding General Ledger accounts.
(2) United States Treasury suspense accounts
shall be adjusted to zero.
(3) Negative balances interest-clearing accounts
shall be adjusted to zero.
(4) The General Ledger control account for the
individual Indian money accounts shall be adjusted
to agree to the aggregate balance of the individual
Indian money accounts.
(5) Amounts necessary to make the adjust-
ments required by this subsection are hereby appro-
priated to the Secretary from funds in the Treasury
not otherwise appropriated and shall remain avail-
able until expended.
SEC. 16. ROUTINE ADJUSTMENTS.
(a) AUTHORITY.—The Secretary may make routine
administrative adjustments to tribal trust fund accounts
and individual Indian money accounts, as provided under
the loss policies of the Department, attributable to trans-
actions occurring after the date of enactment of this Act.
(b) LIMITATIONS.—The Secretary may use funds ap-
propriated annually to the Office of Special Trustee to
make adjustment payments pursuant to subsection (a) of
this section. In any fiscal year, the Secretary shall not ex-
pend more than $50,000 of the funds appropriated to the
Office of the Special Trustee for this purpose. Adjust-
ments under this subsection shall not exceed $5,000 to
a tribal trust account and $1,000 to an individual Indian
money account: Provided, however, That the Secretary
may make adjustments in excess of these amounts if the
total adjustments in a fiscal year do not exceed $50,000.
To the extent that total adjustments in a fiscal year exceed
$50,000, the Secretary may seek appropriations to fund
such adjustments.
(c) ADDITIONAL LIMITATIONS.—Except as provided
in subsection (b) of this section, funds appropriated annu-
ally to the Office of the Special Trustee shall not be avail-
able to pay final judgments, awards, compromise, settle-
ments, and interest and costs specified in judgments that
are otherwise payable under section 1304 of title 31,
United States Code.
SEC. 17. SEVERABILITY OF PROVISIONS.
If any provision of this Act, or the application of any
provision of this Act to any person or circumstance, is held
invalid, the application of such provision to other persons
or circumstances, and the remainder of this Act shall not
be affected thereby.
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