To provide for reform of management of Indian trust funds and assets under the jurisdiction of the Department of the Interior, and for other purposes.

July 25 (legislative day, JULY 21), 2003

Mr. MCCAIN (for himself, Mr. DASCHLE, and Mr. JOHNSON) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs

To provide for reform of management of Indian trust funds and assets under the jurisdiction of the Department of the Interior, and for other purposes.

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

SECTION 1. SHORT TITLE.

This Act may be cited as the `American Indian Trust Fund Management Reform Act Amendments Act of 2003'.

SEC. 2. DEFINITIONS.

Section 2 of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001) is amended--

(1) by redesignating paragraphs (1), (2), (3), (4), (5), and (6) as paragraphs (7), (4), (6), (5), (2), and (3), respectively, and moving those paragraphs so as to appear in numerical order;

(2) by inserting before paragraph (2) (as redesignated by paragraph (1)) the following:

`(1) AUDIT- The term `audit' means an audit using accounting procedures that conform to generally accepted accounting principles and auditing procedures that conform to chapter 75 of title 31, United States Code (commonly known as the `Single Audit Act of 1984').'; and

(3) by adding at the end the following:

`(8) TRIBAL GOVERNMENT--The term `tribal government' means the governing body of an Indian tribe.

`(9) TRUST ASSET- The term `trust asset' means any tangible property (such as land, a mineral, coal, oil or gas, a forest resource, an agricultural resource, water, a water source, fish, or wildlife) held by the Secretary for the benefit of an Indian tribe or an individual member of an Indian tribe in accordance with Federal law.

`(10) TRUST FUNDS- The term `trust funds' means--

`(A) all monies or proceeds derived from trust assets; and

`(B) all funds held by the Secretary for the benefit of an Indian tribe or an individual member of an Indian tribe in accordance with Federal law.

`(11) TRUSTEE- The term `trustee' means the Secretary or any other person that is authorized to act as a trustee for trust assets and trust funds.'.

SEC. 3. RESPONSIBILITIES OF SECRETARY.

Section 102 of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4011) is amended to read as follows:

`SEC. 102. RESPONSIBILITIES OF SECRETARY.

`(a) ACCOUNTING FOR DAILY AND ANNUAL BALANCES OF INDIAN TRUST FUNDS-

`(1) IN GENERAL- The Secretary shall account for the daily and annual balances of all trust funds.

`(2) PERIODIC STATEMENT OF PERFORMANCE-

`(A) IN GENERAL- Not later than 20 business days after the close of the second calendar quarter after the date of enactment of this paragraph, and not later than 20 business days after the close of each calendar quarter thereafter, the Secretary shall provide to each Indian tribe and individual Indian for whom the Secretary manages trust funds a statement of performance for the trust funds.

`(B) REQUIREMENTS- Each statement under subparagraph (A) shall identify, with respect to the period covered by the statement--

`(i) the source, type, and status of the funds;

`(ii) the beginning balance of the funds;

`(iii) the gains and losses of the funds;

`(iv) receipts and disbursements of the funds; and

`(v) the ending balance of the funds.

`(3) AUDITS- With respect to each account containing trust funds, the Secretary shall--

`(A) for accounts with less than $1,000, group accounts separately to allow for statistical sampling audit procedures;

`(B) for accounts containing more than $1,000 at any time during a given fiscal year--

`(i) conduct, for each fiscal year, an audit of all trust funds; and

`(ii) include, in the first statement of performance after completion of the audit, a letter describing the results of the audit.

`(b) ADDITIONAL RESPONSIBILITIES- The responsibilities of the Secretary in carrying out the trust responsibility of the United States include, but are not limited to--

`(1) providing for adequate systems for accounting for and reporting trust fund balances;

`(2) providing for adequate controls over receipts and disbursements;

`(3) providing for periodic, timely reconciliations of financial records to ensure the accuracy of account information;

`(4) determining accurate cash balances;

`(5) preparing and supplying to account holders periodic account statements;

`(6) establishing and publishing in the Federal Register consistent policies and procedures for trust fund management and accounting;

`(7) providing adequate staffing, supervision, and training for trust fund management and accounting; and

`(8) managing natural resources located within the boundaries of Indian reservations and trust land.'.

SEC. 4. AFFIRMATION OF STANDARDS.

Title I of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4011 et seq.) is amended by adding at the end the following:

`SEC. 105. AFFIRMATION OF STANDARDS.

`Congress affirms that the proper discharge of trust responsibility of the United States requires, without limitation, that the trustee, using the highest degree of care, skill, and loyalty--

`(1) protect and preserve Indian trust assets from loss, damage, unlawful alienation, waste, and depletion;

`(2) ensure that any management of Indian trust assets required to be carried out by the Secretary--

`(A) promotes the interest of the beneficial owner; and

`(B) supports, to the maximum extent practicable in accordance with the trust responsibility of the Secretary, the beneficial owner's intended use of the assets;

`(3)(A) enforce the terms of all leases or other agreements that provide for the use of trust assets; and

`(B) take appropriate steps to remedy trespass on trust or restricted land;

`(4) promote tribal control and self-determination over tribal trust land and resources without diminishing the trust responsibility of the Secretary;

`(5) select and oversee persons that manage Indian trust assets;

`(6) confirm that Indian tribes that manage Indian trust assets in accordance with contracts and compacts authorized by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) protect and prudently manage those Indian trust assets;

`(7) provide oversight and review of the performance of the trust responsibility of the Secretary, including Indian trust asset and investment management programs, operational systems, and information systems;

`(8) account for and identify, collect, deposit, invest, and distribute, in a timely manner, income due or held on behalf of tribal and individual Indian account holders;

`(9) maintain a verifiable system of records that, at a minimum, is capable of identifying, with respect to a trust asset--

`(A) the location of the trust asset;

`(B) the beneficial owners of the trust asset;

`(C) any legal encumbrances (such as leases or permits) applicable to the trust asset;

`(D) the user of the trust asset;

`(E) any rent or other payments made;

`(F) the value of trust or restricted land and resources associated with the trust asset;

`(G) dates of--

`(i) collections;

`(ii) deposits;

`(iii) transfers;

`(iv) disbursements;

`(v) imposition of third-party obligations (such as court-ordered child support or judgments);

`(vi) statements of earnings;

`(vii) investment instruments; and

`(viii) closure of all trust fund accounts relating to the trust fund asset;

`(H) documents pertaining to actions taken to prevent or compensate for any diminishment of the Indian trust asset; and

`(I) documents that evidence the actions of the Secretary regarding the management and disposition of the Indian trust asset;

`(10) establish and maintain a system of records that--

`(A) permits beneficial owners to obtain information regarding Indian trust assets in a timely manner; and

`(B) protects the privacy of that information;

`(11) invest tribal and individual Indian trust funds to ensure that the trust account remains reasonably productive for the beneficial owner consistent with market conditions existing at the time at which investment is made;

`(12) communicate with beneficial owners regarding the management and administration of Indian trust assets; and

`(13) protect treaty-based fishing, hunting, gathering, and similar rights-of-access and resource use on traditional tribal land.'.

SEC. 5. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.

Section 202 of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4022) is amended by striking subsection (c) and inserting the following:

`(c) MANAGEMENT THROUGH SELF-DETERMINATION AUTHORITY-

`(1) IN GENERAL- An Indian tribe may use authority granted to the Indian tribe under the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.) to manage Indian trust funds and trust assets without terminating--

`(A) the trust responsibility of the Secretary; or

`(B) the trust status of the funds and assets.

`(2) NO EFFECT ON TRUST RESPONSIBILITY- Nothing in this subsection diminishes or otherwise impairs the trust responsibility of the United States with respect to the Indian people.'.

SEC. 6. DEPUTY SECRETARY FOR INDIAN AFFAIRS.

(a) IN GENERAL- Section 302 of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4042) is amended to read as follows:

`SEC. 302. DEPUTY SECRETARY FOR INDIAN AFFAIRS.

`(a) ESTABLISHMENT-

`(1) IN GENERAL- There is established within the Department the position of Deputy Secretary for Indian Affairs (referred to in this section as the `Deputy Secretary'), who shall report directly to the Secretary.

`(2) APPOINTMENT- The Deputy Secretary shall be appointed by the President, by and with the advice and consent of the Senate.

`(b) DUTIES-

`(1) IN GENERAL- The Deputy Secretary shall--

`(A) oversee the Bureau of Indian Affairs;

`(B) be responsible for carrying out all duties assigned to the Assistant Secretary for Indian Affairs as of the day before the date of enactment of the American Indian Trust Fund Management Reform Act Amendments Act of 2003;

`(C) oversee all trust fund and trust asset matters of the Department, including--

`(i) administration and management of the Reform Office;

`(ii) financial and human resource matters of the Reform Office; and

`(iii) all duties relating to trust fund and trust asset matters;

`(D) engage in appropriate government-to-government relations and consultations with Indian tribes and individual trust asset and trust fund account holders on matters involving trust asset and trust fund management and reform within the Department; and

`(E) carry out such other duties relating to Indian affairs as the Secretary may assign.

`(2) TRANSFER OF DUTIES OF ASSISTANT SECRETARY- As of the date of enactment of the American Indian Trust Fund Management Reform Act Amendments Act of 2003, all duties assigned to the Assistant Secretary for Indian Affairs shall be transferred to, and become the responsibility of, the Deputy Secretary.

`(3) SUCCESSION- Any official who is serving as Assistant Secretary for Indian Affairs on the date of enactment of the American Indian Trust Fund Management Reform Act Amendments Act of 2003 and who was appointed by the President, by and with the advice and consent of the Senate, shall not be required to be reappointed under subsection (a) to the successor position authorized under subsection (a) if the Secretary approves the occupation by the official of the position by the date that is 180 days after the date of enactment of the American Indian Trust Fund Management Reform Act Amendments Act of 2003 (or such later date determined by the Secretary if litigation delays rapid succession).

`(c) STAFF- In carrying out this section, the Deputy Secretary may hire such staff having expertise in trust asset and trust fund management, financial organization and management, and Federal Indian law and policy as the Deputy Secretary determines is necessary to carry out this title.

`(d) EFFECT ON DUTIES OF OTHER OFFICIALS-

`(1) IN GENERAL- Except as provided in subsection (c) and paragraph (2), nothing in this section diminishes any responsibility or duty of the Deputy Secretary of the Interior appointed under the Act of May 9, 1935 (43 U.S.C. 1452), or any other Federal official, relating to any duty established under this Act or any other provision of law.

`(2) TRUST ASSET AND TRUST FUND MANAGEMENT AND REFORM- Notwithstanding any other provision of law, the Deputy Secretary shall have overall management and oversight authority on matters of the Department relating to trust asset and trust fund management and reform (including matters that, as of the day before the date of enactment of the Indian Trust Asset and Trust Fund Management and Reform Act of 2003, were carried out by the Commissioner of Indian Affairs).

`(e) OFFICE OF TRUST REFORM IMPLEMENTATION AND OVERSIGHT-

`(1) ESTABLISHMENT- There is established within the Office of the Secretary the Office of Trust Reform Implementation and Oversight.

`(2) REFORM OFFICE HEAD- The Reform Office shall be headed by the Deputy Secretary.

`(3) DUTIES- The Reform Office shall--

`(A) supervise and direct the day-to-day activities of the Deputy Secretary, the Commissioner of Reclamation, the Director of the Bureau of Land Management, and the Director of the Minerals Management Service, to the extent that those officials administer or manage any Indian trust assets or funds;

`(B) administer, in accordance with title II, all trust properties, funds, and other assets held by the United States for the benefit of Indian tribes and individual members of Indian tribes;

`(C) require the development and maintenance of an accurate inventory of all trust funds and trust assets;

`(D) ensure the prompt posting of revenue derived from a trust fund or trust asset for the benefit of each Indian tribe (or individual member of each Indian tribe) that owns a beneficial interest in the trust fund or trust asset;

`(E) ensure that all trust fund accounts are audited at least annually, and more frequently as determined to be necessary by the Deputy Secretary;

`(F) ensure that the Deputy Secretary, the Director of the Bureau of Land Management, the Commissioner of Reclamation, and the Director of the Minerals Management Service provide to the Secretary current and accurate information relating to the administration and management of trust funds and trust assets; and

`(G) provide for regular consultation with trust fund account holders on the administration of trust funds and trust assets to ensure, to the maximum extent practicable in accordance with applicable law and a Plan approved

under section 202, the greatest return on those funds and assets for the trust fund account holders consistent with the beneficial owners' intended uses for the trust funds.

`(4) CONTRACTS AND COMPACTS- The Reform Office may carry out its duties directly or through contracts and compacts under section 102 of the Indian Self-Determination Act (25 U.S.C. 450f) or section 403 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 458cc) to provide for the management of trust assets and trust funds by Indian tribes pursuant to a Trust Fund and Trust Asset Management and Monitoring Plan developed under section 202 of this Act.

`(f) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as are necessary to carry out this section.'.

(b) CONFORMING AMENDMENTS-

(1) IN GENERAL-

(A) Section 5313 of title 5, United States Code, is amended by inserting `Deputy Secretary of the Interior for Indian Affairs' after `Deputy Secretary of the Interior'.

(B) Section 5315 of title 5, United States Code, is amended by striking `Assistant Secretaries of the Interior (6)' and inserting `Assistant Secretaries of the Interior (5)'.

(C) Title III of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4041 et seq.) is amended by striking the title heading and inserting the following:

`TITLE III--REFORMS RELATING TO TRUST RESPONSIBILITY'.

(D) Section 301(1) of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4041(1)) is amended by striking `by establishing in the Department of the Interior an Office of Special Trustee for American Indians' and inserting `by directing the Deputy Secretary'.

(E) Section 303 of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4043) is amended--

(i) by striking the section heading and inserting the following:

`SEC. 303. ADDITIONAL AUTHORITIES AND FUNCTIONS OF THE DEPUTY SECRETARY.';

(ii) in subsection (a)(1), by striking `section 302(b) of this title' and inserting `section 302(a)(2)';

(iii) in subsection (e)--

(I) by striking the subsection heading and inserting the following:

`(e) ACCESS OF DEPUTY SECRETARY- '; and

(II) by striking `of his duties' and inserting `of the duties of the Deputy Secretary'; and

(iv) by striking `Special Trustee' each place it appears and inserting `Deputy Secretary'.

(F) Sections 304 and 305 of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4044, 4045) are amended by striking `Special Trustee' each place it appears and inserting `Deputy Secretary'.

(G) The first section of Public Law 92-22 (43 U.S.C. 1453a) is repealed.

(H) Any reference in a law, map, regulation, document, paper, or other record of the United States to the Assistant Secretary of the Interior for Indian Affairs shall be deemed to be a reference to the Deputy Secretary of the Interior for Indian Affairs.

(2) EFFECTIVE DATE- The amendments made by this subsection take effect on the date on which a Deputy Secretary for Indian Affairs is appointed under section 302 of the American Indian Trust Fund Management Reform Act (as amended by subsection (a)).

SEC. 7. COMMISSION FOR REVIEW OF INDIAN TRUST FUND MANAGEMENT RESPONSIBILITIES.

(a) ESTABLISHMENT- There is established a commission, to be known as the `Commission for Review of Indian Trust Fund Management Responsibilities' (referred to in this section as the `Commission'), for the purpose of assessing the fiduciary and management responsibilities of the Federal Government with respect to Indian tribes and individual Indian beneficiaries.

(b) MEMBERSHIP-

(1) IN GENERAL- The Commission shall be composed of 12 members, of whom--

(A) 4 members shall be appointed by the President;

(B) 2 members shall be appointed by the Majority Leader of the Senate;

(C) 2 members shall be appointed by the Minority Leader of the Senate;

(D) 2 members shall be appointed by the Speaker of the House of Representatives; and

(E) 2 members shall be appointed by the Minority Leader of the House of Representatives.

(2) QUALIFICATIONS- The membership of the Commission--

(A) shall include a majority of individuals who are representatives of federally recognized Indian tribes, including at least 1 representative who is an individual Indian trust fund account holder; and

(B) shall include members who have experience in--

(i) trust management;

(ii) fiduciary investment management;

(iii) Federal Indian law and policy; and

(iv) financial management.

(3) CHAIRPERSON- The Commission shall select a Chairperson from among the members of the Commission.

(4) DATE OF APPOINTMENTS- The appointment of a member of the Commission shall be made not later than 90 days after the date of enactment of this Act.

(5) TERM; VACANCIES-

(A) TERM- A member shall be appointed for the life of the Commission.

(B) VACANCIES- A vacancy on the Commission--

(i) shall not affect the powers of the Commission; and

(ii) shall be filled in the same manner as the original appointment was made.

(c) MEETINGS-

(1) INITIAL MEETING- Not later than 60 days after the date on which all members of the Commission have been appointed, the Commission shall hold the initial meeting of the Commission.

(2) PROCEDURES- The Commission shall--

(A) meet at the call of the Chairperson; and

(B) establish procedures for conduct of business of the Commission, including public hearings.

(3) QUORUM- A majority of the members of the Commission shall constitute a quorum, but a lesser number of members may hold hearings.

(d) DUTIES- The Commission shall--

(1) review and assess Federal laws and policies relating to the management of Indian trust funds;

(2) make recommendations (including legislative and administrative recommendations) relating to management of Indian trust funds, including but not limited to options for--

(A) historical accounting;

(B) settlement of disputed tribal and individual accounts; and

(C) revisions of--

(i) management standards;

(ii) administrative management structure;

(iii) investment policies and accounting; and

(iv) reporting procedures; and

(3) carry out such other duties as the President may assign to the Commission.

(e) REPORT- Not later than 32 months after the date on which the Commission holds the initial meeting of the Commission, the Commission shall submit to Congress, the Secretary of the Interior, and the Secretary of the Treasury a report that includes the results of the assessment conducted, and the recommendations made, by the Commission under subsection (d).

(f) POWERS OF COMMISSION-

(1) HEARINGS- The Commission may hold such hearings, meet and act at such times and places, take such testimony, and receive such evidence as the Commission considers advisable to carry out this section.

(2) INFORMATION FROM FEDERAL AGENCIES-

(A) IN GENERAL- The Commission may secure directly from a Federal agency such information as the Commission considers necessary to carry out this section.

(B) PROVISION OF INFORMATION- On request of the Chairperson of the Commission, the head of the agency shall provide the information to the Commission.

(3) ACCESS TO PERSONNEL- The Commission shall have reasonable access to staff responsible for Indian trust management in--

(A) the Department of the Interior;

(B) the Department of Treasury; and

(C) the Department of Justice.

(4) POSTAL SERVICES- The Commission may use the United States mails in the same manner and under the same conditions as other agencies of the Federal Government.

(5) GIFTS- The Commission may accept, use, and dispose of gifts or donations of services or property.

(g) COMMISSION PERSONNEL MATTERS-

(1) COMPENSATION OF MEMBERS-

(A) NON-FEDERAL EMPLOYEES- A member of the Commission who is not an officer or employee of the Federal Government shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which the member is engaged in the performance of the duties of the Commission.

(B) FEDERAL EMPLOYEES- A member of the Commission who is an officer or employee of the Federal Government shall serve without compensation in addition to the compensation received for the services of the member as an officer or employee of the Federal Government.

(2) TRAVEL EXPENSES- A member of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter

I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the Commission.

(3) STAFF-

(A) IN GENERAL- The Chairperson of the Commission may, without regard to the civil service laws (including regulations), appoint and terminate an executive director and such other additional personnel as are necessary to enable the Commission to perform the duties of the Commission.

(B) CONFIRMATION OF EXECUTIVE DIRECTOR- The employment of an executive director shall be subject to confirmation by the Commission.

(C) COMPENSATION-

(i) IN GENERAL- Except as provided in clause (ii), the Chairperson of the Commission may fix the compensation of the executive director and other personnel without regard to the provisions of chapter 51 and subchapter III of chapter 53 of title 5, United States Code, relating to classification of positions and General Schedule pay rates.

(ii) MAXIMUM RATE OF PAY- The rate of pay for the executive director and other personnel shall not exceed the rate payable for level V of the Executive Schedule under section 5316 of title 5, United States Code.

(h) EXEMPTION FROM FACA- The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission.

(i) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be appropriated such sums as are necessary to carry out this section.

(j) TERMINATION OF COMMISSION- The Commission and the authority of the Commission under this section terminates on the date that is 3 years after the date on which the Commission holds the initial meeting of the Commission.

SEC. 8. REGULATIONS.

The Secretary of the Interior, in consultation with interested Indian tribes, shall promulgate such regulations as are necessary to carry out this Act and amendments made by this Act.

SEC. 9. EFFECT OF ACT.

(a) COURT PROCEEDINGS- Nothing in this Act limits the findings, remedies, jurisdiction, authority, or discretion of the courts in the matter entitled Cobell v. Norton, Civ. No. 96-1285 (RCL).

(b) USE OF FUNDS- No funds appropriated for the purpose of an historical accounting of the individual Indian trust funds shall be used except as provided in an order of the court in Cobell v. Norton, Civ. No. 96-1285 (RCL) entered after the date of enactment of this Act.

END