To establish a direct line of authority for the Office of Trust Reform Implementation and Oversight to oversee the management and reform of Indian trust funds and assets under the jurisdiction of the Department of the Interior, and to advance tribal management of such funds and assets, pursuant to the Indian Self-Determination Act and for other purposes.

January 15, 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 establish a direct line of authority for the Office of Trust Reform Implementation and Oversight to oversee the management and reform of Indian trust funds and assets under the jurisdiction of the Department of the Interior, and to advance tribal management of such funds and assets, pursuant to the Indian Self-Determination Act 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 `Indian Trust Asset and Trust Fund Management and Reform Act of 2003'.

SEC. 2. FINDINGS.

Congress finds and affirms that the proper discharge of trust responsibility of the United States requires, without limitation, that the trustee, using a high 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;

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

(6) confirm that Indian tribes that manage Indian trust assets pursuant to 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. 3. DEFINITIONS.

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

(1) by striking paragraph (1);

(2) in paragraph (2), by striking `(2) The term' and inserting the following:

`(5) INDIAN TRIBE- The term';

(3) in paragraph (3), by striking `(3) The term' and inserting the following:

`(8) SECRETARY- The term';

(4) in paragraph (4), by striking `(4) The term' and inserting the following:

`(6) OFFICE- The term';

(5) in paragraph (5), by striking `(5) The term' and inserting the following:

`(2) BUREAU- The term';

(6) in paragraph (6), by striking `(6) The term' and inserting the following:

`(3) DEPARTMENT- The term';

(7) by moving paragraphs (2), (3), (5), (6), and (8) (as redesignated by this subsection) so as to appear in numerical order;

(8) by inserting before paragraph (2) (as redesignated by paragraph (5)) the following:

`(1) BENEFICIAL OWNER- The term `beneficial owner' means an Indian tribe or member of an Indian tribe that is the beneficial owner of Indian trust assets.';

(9) by inserting after paragraph (3) (as redesignated by paragraph (6)) the following:

`(4) DEPUTY SECRETARY- The term `Deputy Secretary' means the Deputy Secretary for Trust Management and Reform appointed under section 307(a)(2).';

(10) by inserting after paragraph (6) (as redesignated by paragraph (4)) the following:

`(7) REFORM OFFICE- The term `Reform Office' means the Office of Trust Reform Implementation and Oversight established by section 307(e).'; and

(11) by adding at the end the following:

`(9) TASK FORCE- The term `Task Force' means the Tribal Task Force for Trust Reform established under section 307(a).

`(10) TRUST ASSETS- The term `trust assets' means all tangible property including land, minerals, coal, oil and gas, forest resources, agricultural resources, water and water sources, and fish and wildlife held by the Secretary for the benefit of an Indian tribe or an individual member of an Indian tribe pursuant to Federal law.

`(11) TRUST FUNDS- The term `trust funds' means all funds held by the Secretary for the benefit of an Indian tribe or and individual member of an Indian tribe pursuant to Federal law.

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

SEC. 4. 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. 4011. 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 that are deposited or invested pursuant to the Act of June 24, 1938 (25 U.S.C. 162a).

`(2) PERIODIC STATEMENT OF PERFORMANCE-

`(A) IN GENERAL- Not later than 20 business days after the close of a calendar quarter, the Secretary shall provide a statement of performance to each Indian tribe and member of Indian tribe with respect to which funds are deposited or invested pursuant to the Act of June 24, 1938 (25 U.S.C. 162a).

`(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) ANNUAL AUDIT- With respect to each account containing trust funds in an amount in excess of $1,000, the Secretary shall--

`(A) conduct, for each fiscal year, an audit of all trust funds described in paragraph (1); and

`(B) include, in the first statement of performance completed under paragraph (2) after completion of the audit, a letter describing the results of the audit.

`(b) ADDITIONAL RESPONSIBILITIES- In addition to the responsibilities described in subsection (a), subject to the availability of appropriations, the Secretary, in carrying out the trust responsibility of the United States, shall, at a minimum--

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

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

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

`(4) determine accurate cash balances;

`(5) prepare and supply to account holders periodic account statements;

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

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

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

SEC. 5. INDIAN PARTICIPATION IN TRUST FUND ACTIVITIES.

Title II of the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4021 et seq.) is amended--

(1) by striking sections 202 and 203; and

(2) by inserting after section 201 the following:

`SEC. 202. PARTICIPATION IN TRUST FUND AND TRUST ASSET MANAGEMENT ACTIVITIES BY INDIAN TRIBES.

`(a) PLANNING PROGRAM- To meet the purposes of this title, an Indian Trust Fund and Trust Asset Management and Monitoring Plan (in this section referred to as the `Plan') shall be developed and implemented as follows:

`(1) Pursuant to a self-determination contract or compact 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), an Indian tribe may develop or implement a Plan to provide for management of the trust funds and assets (or portions of trust funds or assets) of which the Indian tribe is the beneficial owner. Subject to the provisions of paragraphs (3) and (4), the tribe shall have broad discretion in designing and carrying out the planning process.

`(2) To include in a Plan particular trust funds or assets held by multiple individuals, an Indian tribe shall obtain the approval of a majority of the individuals who hold an interest in any such trust funds or assets.

`(3) The Plan shall be submitted to the Secretary for approval pursuant to the Indian Self-Determination Act (25 U.S.C. 450f et seq.).

`(4) If an Indian tribe chooses not to develop or implement a Plan, the Secretary shall, at the request of the Indian tribe, develop or implement, as appropriate, a Plan in close consultation with the affected Indian tribe.

`(5) Whether developed directly by the Indian tribe or by the Secretary, the Plan shall--

`(A) determine the amount and source of funds held in trust;

`(B) identify and include an inventory of trust assets based on the information available to the Indian tribe and the Secretary;

`(C) identify specific tribal goals and objectives;

`(D) establish management objectives for the funds and assets held in trust;

`(E) define critical values of the Indian tribe and its members and provide identified management objectives;

`(F) identify actions to be taken to reach established objectives;

`(G) use existing survey documents, reports and other research from Federal agencies, tribal community colleges, and land grant universities; and

`(H)(i) be completed not later than 3 years after the date of initiation of activity to establish the Plan; and

`(ii) be revised periodically thereafter as necessary to accomplish the purposes of this Act.

`(b) MANAGEMENT AND ADMINISTRATION- Plans developed and approved under subsection (a) shall govern the management and administration of funds and assets (or portions of funds and assets) held in trust by the Bureau and the Indian tribal government.

`(c) PLAN DOES NOT TERMINATE TRUST- Developing or implementing a Plan shall not be construed or deemed to constitute a termination of the trust status of the assets or funds that are included in, or subject to, the Plan.

`(d) LIABILITY- An Indian tribe managing and administering trust funds and trust assets in a manner that is consistent with an approved Plan shall not be liable for waste or loss of an asset or funds that are included in such Plan.

`(e) INDIAN PARTICIPATION IN MANAGEMENT ACTIVITIES-

`(1) TRIBAL RECOGNITION- The Secretary shall conduct all management activities of funds and assets held in trust in accordance with goals and objectives set forth in a Plan approved pursuant to and in accordance with all tribal laws and ordinances, except in specific instances where such compliance would be contrary to the trust responsibility of the United States.

`(2) TRIBAL LAWS-

`(A) IN GENERAL- Unless otherwise prohibited by Federal law, the Secretary shall comply with tribal law pertaining to the management of funds and assets held in trust.

`(B) DUTIES- The Secretary shall--

`(i) provide assistance in the enforcement of tribal laws described in subparagraph (A);

`(ii) provide notice of such tribal laws to persons or entities dealing with tribal funds and assets held in trust; and

`(iii) upon the request of an Indian tribe, require appropriate Federal officials to appear in tribal forums.

`(3) WAIVER OF REGULATIONS- In any case in which a regulation or administrative policy of the Department of the Interior conflicts with the objectives of the Plan, or with a tribal law, the Secretary shall waive the application of such regulation or administrative policy unless such waiver would constitute a violation of a Federal statute or judicial decision or would conflict with the Secretary's trust responsibility under Federal law.

`(4) SOVEREIGN IMMUNITY- This section does not constitute a waiver of the sovereign immunity of the United States, nor does it authorize tribal justice systems to review actions of the Secretary.

`(5) TRUST RESPONSIBILITY- Nothing in this section shall be construed to diminish or expand the trust responsibility of the United States toward Indian funds and assets held in trust, or any legal obligation or remedy resulting from such funds and assets.

`(f) REPORT-

`(1) IN GENERAL- Not later than 180 days after the enactment of this section, and annually thereafter, the Secretary shall submit a report to the Committee on Indian Affairs of the Senate and the

Committee on Resources of the House of Representatives.

`(2) CONTENTS- The report required under paragraph (1) shall detail the following:

`(A) The efforts of the Department to implement this section.

`(B) The nature and extent of consultation between the Department, Tribes, and individual Indians with respect to implementation of this section.

`(C) Any recommendations of the Department for further changes to this Act, accompanied by a record of consultation with Tribes and individual Indians regarding such recommendations.'.

SEC. 6. DEPUTY SECRETARY FOR TRUST MANAGEMENT AND REFORM.

(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 TRUST MANAGEMENT AND REFORM.

`(a) ESTABLISHMENT-

`(1) IN GENERAL- There is established within the Department the position of Deputy Secretary for Trust Management and Reform.

`(2) APPOINTMENT AND REMOVAL-

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

`(B) TERM- The Deputy Secretary shall be appointed for a term of 6 years.

`(C) REMOVAL- The Deputy Secretary may be removed only for good cause.

`(3) ADMINISTRATIVE AUTHORITY- The Deputy Secretary shall report directly to the Secretary.

`(4) COMPENSATION- The Deputy Secretary shall be paid at a rate determined by the Secretary to be appropriate for the position, but not less than the rate of basic pay prescribed for Level II of the Executive Schedule under section 5313 of title 5, United States Code.

`(b) DUTIES- The Deputy Secretary shall--

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

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

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

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

`(2) 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.

`(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 tribal 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 paragraph (2), nothing in this section shall be construed to diminish any responsibility or duty of the Assistant Secretary of the Interior for Indian Affairs, or any other Federal official, relating to any duty of the Assistant Secretary or official 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 Assistant Secretary of the Interior for Indian Affairs, the Commissioner of Reclamation, the Director of the Bureau of Land Management, and the Director of the Minerals Management Service, to the extent they 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 Assistant Secretary of the Interior for Indian Affairs, 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;

`(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; and

`(H) enter into 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) 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'.

(2) 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 this Interior an Office of Special Trustee for American Indians' and inserting `by directing the Deputy Secretary'.

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

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

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

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

(C) in subsection (e)--

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

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

(ii) by striking `and his staff' and inserting `and staff of the Deputy Secretary'; and

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

(4) 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'.

SEC. 7. ADVISORY BOARD AND TRIBAL TASK FORCE.

The American Indian Trust Fund Management Reform Act of 1994 is amended by striking section 306 (25 U.S.C. 4046) and inserting the following:

`SEC. 306. TRIBAL TASK FORCE ON TRUST REFORM.

`(a) ESTABLISHMENT- As soon as practicable after the date of enactment of this section, the Deputy Secretary shall establish a Tribal Task Force on Trust Reform.

`(b) COMPOSITION-

`(1) IN GENERAL- The Task Force shall be composed of 18 members and 12 alternates, of which--

`(A) 6 members shall--

`(i) serve as primary members; and

`(ii) be selected by the Deputy Secretary;

`(B) 12 members shall--

`(i) serve as primary members; and

`(ii) be selected by members of federally-recognized Indian tribes located within the regions of the Bureau represented by the members; and

`(C) the 12 alternates shall--

`(i) serve as alternate members for the members described in subparagraph (B); and

`(ii) be selected by members of federally-recognized Indian tribes located within the regions of the Bureau represented by the members.

`(2) REGIONAL REPRESENTATION- Each region of the Bureau shall be represented by a primary member and alternate member on the Task Force.

`(3) TERM- A member of the Task Force shall serve for a term of 2 years.

`(c) DUTIES- The Task Force, in cooperation with the Deputy Secretary, shall--

`(1) not later than 1 year after the date of enactment of this section, conduct and submit to Congress a report on a study of appropriate standards and procedures for inventorying and management of trust assets; and

`(2) not later than 2 years after the date of enactment of this section, identify, and submit to Congress a report that includes recommendations relating to, modifications to existing law relating to trust reform, including recommendations on matters such as--

`(A) the need for an independent commission to oversee the administration of trust funds and assets; and

`(B) the most beneficial administrative structure and procedures.

`(d) FACA- The Task Force shall not be subject to the Federal Advisory Committee Act (5 U.S.C. App.).

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

`(f) TERMINATION OF AUTHORITY- The Task Force and authority of the Task Force under this section terminate on the date that is 3 years after the date of enactment of the Indian Trust Asset and Trust Fund Management and Reform Act of 2003.'.

SEC. 8. REGULATIONS.

(a) IN GENERAL- Not later than 1 year after the date of enactment of this Act, the Secretary of the Interior shall promulgate regulations to carry out the amendments made by this Act.

(b) ACTIVE PARTICIPATION-

(1) IN GENERAL- All regulations promulgated under subsection (a) shall be developed through a negotiated rulemaking in accordance with subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the `Administrative Procedures Act').

(2) PARTICIPANTS- With the exception of the Secretary of the Interior, each participant in the negotiated rulemaking under paragraph (1) shall be a federally-recognized Indian tribe.

SEC. 9. NO EFFECT ON CERTAIN JUDICIAL DECISION.

Nothing in this Act or any amendment made by this Act limits or otherwise affects any finding, remedy, jurisdiction, authority, or discretion of any court with respect to Cobell v. Norton, Civ. No. 96-1285 (RCL).

END