II 114th CONGRESS 2d Session S. 3234 IN THE SENATE OF THE UNITED STATES July 14, 2016 Mr. Barrasso (for himself and Mr. McCain ) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To amend the Native American Business Development, Trade Promotion, and Tourism Act of 2000, the Buy Indian Act, the Indian Trader Act, and the Native American Programs Act of 1974 to provide industry and economic development opportunities to Indian communities.

1. Short title This Act may be cited as the Indian Community Economic Enhancement Act of 2016 . 2. Findings Congress finds that— (1) (A) to bring industry and economic development to Indian communities, Indian tribes must overcome a number of barriers, including— (i) geographical location; (ii) lack of infrastructure or capacity; (iii) lack of sufficient collateral; and (iv) regulatory bureaucracy relating to— (I) development; and (II) access to services provided by the Federal Government; and (B) the barriers described in subparagraph (A) often add to the cost of doing business in Indian communities; (2) Indian tribes— (A) enact laws; (B) determine policy for the benefit of tribal members; and (C) produce goods and services for consumers; (3) the Federal Government has— (A) an important government-to-government relationship with Indian tribes; and (B) a role in facilitating healthy tribal economies; (4) the input of Indian tribes in developing Federal policy and programs leads to more meaningful and effective measures to assist Indian tribes and Indian entrepreneurs in building tribal economies; (5) (A) many components of tribal infrastructure need significant repair or replacement; and (B) access to private capital for projects in Indian communities— (i) may not be realized; or (ii) may come at a higher cost than such access for other projects; (6) (A) Federal capital improvement programs, such as tax-exempt bond financing and loan guarantees, are tools that help improve or replace crumbling infrastructure; (B) Indian tribes may not be accorded the same status as other units of government under Federal law for purposes of issuing tax-exempt debt because certain tribal projects may not qualify as essential government functions; and (C) as a result of the difference in status described in subparagraph (B), investors may avoid financing, or demand a premium to finance, projects in Indian communities, making the projects more costly or inaccessible; (7) there are a number of loan guarantee programs available for projects in Indian communities, but those programs may not be fully used; and (8) (A) most real property held by Indian tribes is trust or restricted land that essentially cannot be held as collateral; and (B) while creative solutions, such as leasehold mortgages, have been developed in response to the problem identified in subparagraph (A), some solutions remain subject to review and approval by the Bureau of Indian Affairs, adding additional costs and delay to tribal projects. 3. Native American Business Development, Trade Promotion, and Tourism Act of 2000 (a) Findings; purposes Section 2 of the Native American Business Development, Trade Promotion, and Tourism Act of 2000 ( 25 U.S.C. 4301 ) is amended by adding at the end the following: (c) Applicability to Indian-Owned businesses The findings and purposes in subsections (a) and (b) shall apply to any Indian-owned business governed— (1) by tribal laws regulating trade or commerce on Indian lands; or (2) pursuant to section 5 of the Act of August 15, 1876 (19 Stat. 200, chapter 289; 25 U.S.C. 261 ). . (b) Definitions Section 3 of the Native American Business Development, Trade Promotion, and Tourism Act of 2000 ( 25 U.S.C. 4302 ) is amended— (1) by redesignating paragraphs (1) through (9) as paragraphs (2), (4), (5), (6), (7), (8), (11), (12), and (13), respectively; (2) by inserting before paragraph (2) (as so redesignated) the following: (1) Director The term Director means the Director of Native American Business Development appointed pursuant to section 4(a)(2). ; (3) by inserting after paragraph (2) (as so redesignated) the following: (3) Fund The term Fund means the Indian Economic Development Fund established by section 9(a)(1). ; and (4) by inserting after paragraph (8) (as so redesignated) the following: (9) Native community development financial institution The term Native community development financial institution means a community development financial institution (as defined in section 103 of the Community Development Banking and Financial Institutions Act of 1994 ( 12 U.S.C. 4702 ))— (A) the investment area of which includes an Indian reservation; or (B) the targeted population of which includes an Indian tribe. (10) Office The term Office means the Office of Native American Business Development established by section 4(a)(1). . (c) Office of Native American Business Development Section 4 of the Native American Business Development, Trade Promotion, and Tourism Act of 2000 ( 25 U.S.C. 4303 ) is amended— (1) in subsection (a)— (A) in paragraph (1)— (i) by striking Department of Commerce and inserting Office of the Secretary ; and (ii) by striking (referred to in this Act as the Office ) ; and (B) in paragraph (2), in the first sentence, by striking (referred to in this Act as the Director ) ; and (2) by adding at the end the following: (c) Duties of Director (1) In general The Director shall serve as— (A) the program and policy advisor to the Secretary with respect to the trust and governmental relationship between the United States and Indian tribes; and (B) the point of contact for Indian tribes, tribal organizations, and Indians regarding— (i) policies and programs of the Department of Commerce; and (ii) other matters relating to economic development. (2) Departmental coordination The Director shall coordinate with all offices and agencies within the Department of Commerce to ensure that each office and agency has an accountable process to ensure— (A) meaningful and timely coordination and assistance, as required by this Act; and (B) consultation with Indian tribes regarding the policies, programs, assistance, and activities of the offices and agencies. . (d) Indian community development initiatives The Native American Business Development, Trade Promotion, and Tourism Act of 2000 is amended— (1) by redesignating section 8 ( 25 U.S.C. 4307 ) as section 10; and (2) by inserting after section 7 ( 25 U.S.C. 4306 ) the following: 8. Indian community development initiatives (a) Interagency coordination The Secretary (acting through the Director), the Secretary of the Interior (acting through the Assistant Secretary for Indian Affairs), and the Secretary of the Treasury (acting through the Administrator of the Community Development Financial Institutions Fund), shall coordinate— (1) to develop initiatives that— (A) encourage, promote, and provide education regarding investments in Indian communities through— (i) the loan guarantee program of Bureau of Indian Affairs under section 201 of the Indian Financing Act of 1974 ( 25 U.S.C. 1481 ); (ii) programs carried out using amounts in the Community Development Financial Institutions Fund established under section 104(a) of the Community Development Banking and Financial Institutions Act of 1994 ( 12 U.S.C. 4703(a) ); and (iii) other capital development programs; (B) examine and develop alternatives that would qualify as collateral for financing in Indian communities; and (C) provide entrepreneur and other training relating to economic development through tribally controlled colleges and universities; (2) to identify regulatory or legal barriers to increasing investment, including qualifying or approving collateral structures, in Indian communities; and (3) to ensure consultation with Indian tribes regarding increasing investment in Indian communities. (b) Waiver For assistance provided pursuant to section 108 of Public Law 103–325 ( 12 U.S.C. 4707 ), to benefit Native American communities and provided primarily through qualified community development lender organizations with experience and expertise in community development banking and lending in Indian country, Native American organizations, Indian tribes and tribal organizations, and other suitable providers, section 108(e) of Public Law 103–325 ( 12 U.S.C. 4707(e) ) shall not apply. (c) Tribal government functions Notwithstanding any other provision of law, for purposes of financing and economic or community development, the essential governmental functions of an Indian tribe shall be considered to include any function that may be performed or financed by a State or unit of local government with general taxing authority. 9. Indian Economic Development Fund (a) Establishment (1) In general There is established in the Treasury of the United States a fund, to be known as the Indian Economic Development Fund , to be allocated by the Secretary of the Treasury for administration by the Secretary of the Interior, acting through the Assistant Secretary for Indian Affairs (referred to in this section as the Secretary ). (2) Composition The Fund shall consist of— (A) such amounts as are deposited in the Fund under subsection (b); and (B) any interest earned on investment of amounts in the Fund under subsection (c). (b) Deposits to Fund (1) In general Beginning on the date that is 1 year after the date of enactment of the Indian Community Economic Enhancement Act of 2016 , any Indian tribe may deposit amounts in the Fund. (2) Action by Secretary of Treasury The Secretary of the Treasury— (A) may accept from an Indian tribe any amounts deposited by the Indian tribe pursuant to paragraph (1); and (B) shall allocate all amounts in the Fund to the Secretary of the Interior for use in accordance with this section. (3) Use Amounts deposited pursuant to this subsection shall be used— (A) to support existing credit subsidies for the loan guarantee program of the Bureau of Indian Affairs under section 201 of the Indian Financing Act of 1974 ( 25 U.S.C. 1481 ); and (B) to establish a credit subsidy solely for any eligible community development financial institution (as defined in section 114A of the Community Development Banking and Financial Institutions Act of 1994 ( 12 U.S.C. 4713a ))— (i) that applies for financing under the program for bonds and notes issued for eligible community or economic development purposes under that section; and (ii) (I) the investment area of which includes an Indian reservation; or (II) the targeted population of which includes an Indian tribe. (c) Investment of amounts (1) In general The Secretary shall invest such portion of the Fund as is not, in the judgment of the Secretary, required to meet current withdrawals. (2) Credits to Fund The interest on, and the proceeds from the sale or redemption of, any obligations held in the Fund shall be credited to, and form a part of, the Fund. (d) Expenditures (1) In general Effective beginning on the date that is 2 years after the date of enactment of the Indian Community Economic Enhancement Act of 2016 , of the amounts in the Fund for a fiscal year, the Secretary shall— (A) use such amounts as are necessary to carry out subparagraphs (A), (B), and (D) of paragraph (2); and (B) transfer to the Secretary of the Treasury the amount described in subparagraph (C) of paragraph (2) for use in accordance with that subparagraph. (2) Requirements For each fiscal year beginning after the date described in paragraph (1)— (A) not more than 5 percent of the amounts in the Fund shall be used for administrative expenses; (B) the Secretary shall use to provide credit subsidies under the loan guarantee program of the Bureau of Indian Affairs under section 201 of the Indian Financing Act of 1974 ( 25 U.S.C. 1481 ) an amount equal to the lesser of— (i) 40 percent of the amounts in the Fund; and (ii) $7,500,000; (C) the Secretary of the Treasury shall allocate to provide credit subsidies under the program for bonds issued for eligible community or economic development purposes established under section 114A of the Community Development Banking and Financial Institutions Act of 1994 ( 12 U.S.C. 4713a ) that are targeted solely for distribution to Native community development financial institutions an amount equal to the lesser of— (i) 40 percent of the amounts in the Fund; and (ii) $10,000,000; and (D) the Secretary shall deposit in the reserve fund under subsection (e) not less than 15 percent of the amounts in the Fund. (e) Reserve fund (1) Establishment The Secretary shall establish within the Fund a reserve fund, which shall consist of an amount equal to the greater of— (A) 15 percent of the amounts in the Fund; and (B) the amounts in the Fund in excess of the amounts required to be used under subparagraphs (B) and (C) of subsection (d)(2). (2) Use (A) Prohibition Except as provided in subparagraph (B), amounts in the reserve fund shall not be used for any purpose. (B) Excess amounts (i) Consultation The Secretary shall consult with Indian tribes regarding additional uses for the Fund if the total amount in the reserve fund for a fiscal year exceeds an amount equal to the greater of— (I) 15 percent of the total amounts in the Fund; and (II) $25,000,000. (ii) Use The Secretary may use any excess amounts described in clause (i) to provide to Indian tribes or Native community development financial institutions assistance for projects for— (I) community or economic development; (II) health care or public safety; (III) natural resource protection, including wildfire prevention, rehabilitation, and management; and (IV) sanitation. (f) Consultation Not later than 180 days after the date of enactment of the Indian Community Economic Enhancement Act of 2016 , the Secretary and the Secretary of the Treasury shall consult with Indian tribes regarding the purposes, administration, methods of investment and accountability, and benefits of the Fund. . 4. Buy Indian Act Section 23 of the Act of June 25, 1910 (commonly known as the Buy Indian Act ) (36 Stat. 861, chapter 431; 25 U.S.C. 47 ), is amended to read as follows: 23. Employment of Indian labor and purchase of products of Indian industry; participation in Mentor-Protege Program (a) Definitions In this section: (1) Indian economic enterprise The term Indian economic enterprise has the meaning given the term in section 1480.201 of title 48, Code of Federal Regulations (or successor regulations). (2) Mentor firm; protege firm The terms mentor firm and protege firm have the meanings given those terms in section 831(c) of the National Defense Authorization Act for Fiscal Year 1991 ( 10 U.S.C. 2302 note; Public Law 101–510 ). (3) Secretaries The term Secretaries means— (A) the Secretary of the Interior; and (B) the Secretary of Health and Human Services. (b) Enterprise development (1) In general Unless determined by one of the Secretaries to be impracticable and unreasonable— (A) Indian labor shall be employed; and (B) purchases of Indian industry products (including printing, notwithstanding any other provision of law) may be made in open market by the Secretaries. (2) Mentor-Protege Program (A) In general Participation in the Mentor-Protege Program established under section 831(a) of the National Defense Authorization Act for Fiscal Year 1991 ( 10 U.S.C. 2302 note; Public Law 101–510 ) or receipt of assistance under a developmental assistance agreement under that program shall not render any individual or entity involved in the provision of Indian labor or an Indian industry product ineligible to receive assistance under this section. (B) Treatment For purposes of this section, no determination of affiliation or control (whether direct or indirect) may be found between a protege firm and a mentor firm on the basis that the mentor firm has provided, or agreed to provide, to the protege firm, pursuant to a mentor-protege agreement, any form of developmental assistance described in section 831(f) of the National Defense Authorization Act for Fiscal Year 1991 ( 10 U.S.C. 2302 note; Public Law 101–510 ). (c) Implementation In carrying out this section, the Secretaries shall— (1) conduct outreach to Indian industrial entities; (2) provide training; (3) promulgate regulations in accordance with this section; (4) require regional offices of the Bureau of Indian Affairs and the Indian Health Service to aggregate data regarding compliance with this section; (5) require procurement management reviews to include a review of the implementation of this section; and (6) consult with Indian tribes, Indian industrial entities, and other stakeholders regarding methods to facilitate compliance with— (A) this section; and (B) other small business or procurement goals. (d) Report (1) In general Not later than 1 year after the date of enactment of this subsection, and not less frequently than once every 2 years thereafter, each of the Secretaries shall submit to the Committee on Indian Affairs of the Senate and the Committee on Natural Resources of the House of Representatives a report describing, during the period covered by the report, the implementation of this section by each of the respective Secretaries. (2) Contents Each report under this subsection shall include, for each fiscal year during the period covered by the report— (A) the names of each agency under the respective jurisdiction of each of the Secretaries to which this section has been applied; (B) a summary of the types of purchases made from, and contracts awarded to, Indian economic enterprises, expressed by agency region; (C) a description of the percentage increase or decrease in total dollar value and number of purchases and awards made within each agency region, as compared to the totals of the region for the preceding fiscal year; (D) a description of the methods used by applicable contracting officers and employees to conduct market searches to identify qualified Indian economic enterprises; (E) a summary of all deviations granted under section 1480.403 of title 48, Code of Federal Regulations (or successor regulations), including a description of— (i) the alternative procurement method used; and (ii) the dollar value of any awards made pursuant to those deviations; (F) a summary of all determinations made to provide awards to Indian economic enterprises, including a description of the dollar value of the awards; (G) a description of the total number and value of all purchases of, and contracts awarded for, supplies, services, and construction (including the percentage increase or decrease, as compared to the preceding fiscal year) from— (i) Indian economic enterprises; and (ii) non-Indian economic enterprises; and (H) any administrative, procedural, legal, or other barriers to achieving the purposes of this section, together with recommendations for legislative or administrative actions to address those barriers. . 5. Indian Trader Act Section 5 of the Act of August 15, 1876 (commonly known as the Indian Trader Act ) (19 Stat. 200, chapter 289; 25 U.S.C. 261 ), is amended— (1) by striking The Commissioner and inserting the following: (a) In general The Commissioner ; and (2) by adding at the end the following: (b) Waiver On request of an Indian tribe, the Secretary of the Interior shall waive any applicable licensing requirement under subsection (a), if the Secretary determines that the Indian tribe has enacted tribal laws to govern licensing, trade, or commerce with respect to the Indian tribe or land held by, or in trust for the benefit of, the Indian tribe. . 6. Native American Programs Act of 1974 (a) Financial assistance for Native American projects Section 803 of the Native American Programs Act of 1974 ( 42 U.S.C. 2991b ) is amended— (1) by redesignating subsections (b) through (d) as subsections (c) through (e), respectively; and (2) by inserting after subsection (a) the following: (b) Economic development (1) In general The Commissioner may provide assistance under subsection (a) for projects relating to the purposes of this title to a community development financial institution— (A) that receives assistance under the Community Development Banking and Financial Institutions Act of 1994 ( 12 U.S.C. 4701 et seq. ); and (B) (i) the investment area of which includes an Indian reservation; or (ii) the targeted population of which includes an Indian tribe. (2) Priority In providing assistance under this section for economic development purposes, the Commissioner shall give priority to any application seeking assistance for— (A) the development of a tribal code or court system for purposes of economic development, including commercial codes, training for court personnel, regulation pursuant to section 5 of the Act of August 15, 1876 (19 Stat. 200, chapter 289; 25 U.S.C. 261 ), and the development of nonprofit subsidiaries or other tribal business structures; (B) the development or maintenance of a community development financial institution, including training and administrative expenses; or (C) the development of a tribal master plan for community and economic development and infrastructure. . (b) Technical assistance and training Section 804 of the Native American Programs Act of 1974 ( 42 U.S.C. 2991c ) is amended— (1) in the matter preceding paragraph (1), by striking The Commissioner and inserting the following: (a) In general The Commissioner ; and (2) by adding at the end the following: (b) Priority In providing assistance under subsection (a), the Commissioner shall give priority to any application described in section 803(b)(2). . (c) Authorization of appropriations Section 816 of the Native American Programs Act of 1974 ( 42 U.S.C. 2992d ) is amended— (1) by striking 803(d) each place it appears and inserting 803(e) ; and (2) in subsection (a), by striking 1999, 2000, 2001, and 2002 and inserting 2017 through 2021 .