S. 2770 (108th): A bill to establish a National Commission on American Indian Trust Holdings.

108th Congress, 2003–2004. Text as of Jul 22, 2004 (Introduced).

Status & Summary | PDF | Source: GPO

S 2770 IS

108th CONGRESS

2d Session

S. 2770

To establish a National Commission on American Indian Trust Holdings.

IN THE SENATE OF THE UNITED STATES

July 22, 2004

Mr. DASCHLE introduced the following bill; which was read twice and referred to the Committee on Indian Affairs


A BILL

To establish a National Commission on American Indian Trust Holdings.

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

SECTION 1. NATIONAL COMMISSION ON AMERICAN INDIAN TRUST HOLDINGS.

    (a) FINDINGS- Congress finds that--

      (1) the United States has entered into treaties with Indian tribes under which the United States made various commitments to Indian tribes and Indian people;

      (2) the United States functions, by treaty and statute, as a trustee for Indian tribes and individual Indians;

      (3) the United States has a fiduciary obligation to Indian tribes and Indian people and, in accordance with that obligation, must use the highest standard of care to protect the assets of Indian tribes and individual Indians;

      (4) the United States has failed Indian tribes and individual Indians and abridged its treaty and other obligations relating to the handling of trust fund management and historical accounting;

      (5) mismanagement of Indian trust assets by the United States is a longstanding problem that spans many administrations;

      (6) the complexity and longevity of that mismanagement neither mitigates the injustice visited on Indian tribes and the 300,000 individual Native Americans whose accounts have been shortchanged nor absolves the United States of its responsibility to correct the situation in a timely manner;

      (7) in 1996 a civil action, Cobell v. Norton, Civ. No. 96-1285 (RCL), was brought in the United States District Court for the District of Columbia to attempt to obtain an order compelling the United States to account for the trust funds managed by the United States on behalf of individual Indians and take all necessary action to bring the United States into compliance with its fiduciary duties;

      (8) those funds are generated from Indian trust land royalties resulting from leases of that land to oil, agricultural, timber, mining, and other interests;

      (9) on April 5, 2004, Mr. Alan L. Balaran, the Special Master in the Cobell case, tendered his resignation to the Honorable Royce C. Lamberth;

      (10) in his letter of resignation, Mr. Balaran stated that--

        (A) there is evidence that energy companies, assisted by the Department of the Interior, routinely pay individual Indians much less than they pay non-Indians for oil and gas pipeline easements;

        (B) the Special Master had uncovered evidence that the Department fails to diligently monitor oil and gas leasing activities on Indian land; and

        (C) there is evidence that the Department has been putting the interests of private energy companies ahead of the interests of individual Indian beneficiaries, notwithstanding their fiduciary obligation to Indian tribes and Indian beneficiaries; and

      (11) the Great Plains, Rocky Mountain, and other regions of the United States are rich in other trust assets such as timber, agriculture, mining, and other resources.

    (b) DEFINITIONS- In this section:

      (1) BALARAN LETTER- The term ‘Balaran letter’ means the letter dated April 5, 2004, from Special Master Alan L. Balaran to the Honorable Royce C. Lamberth.

      (2) COMMISSION- The term ‘Commission’ means the National Commission on American Indian Trust Holdings established by subsection (c).

      (3) DEPARTMENT- The term ‘Department’ means the Department of the Interior.

    (c) ESTABLISHMENT OF COMMISSION- There is established the National Commission on American Indian Trust Holdings.

    (d) MEMBERSHIP-

      (1) IN GENERAL- The Commission shall be composed of 10 members, of whom--

        (A) 2 shall be appointed by the President, 1 of whom the President shall designate as Chairperson of the Commission;

        (B) 2 shall be appointed by the majority leader of the Senate;

        (C) 2 shall be appointed by the minority leader of the Senate;

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

        (E) 2 shall be appointed by the minority leader of the House of Representatives.

      (2) QUALIFICATIONS; INITIAL MEETING-

        (A) NONGOVERNMENTAL APPOINTEES- An individual appointed to the Commission may not be an officer or employee of the Federal Government or any State or local government.

        (B) OTHER QUALIFICATIONS- It is the sense of Congress that individuals appointed to the Commission should be prominent United States citizens, with national recognition and significant depth of experience in such professions as land and resource management.

      (3) DEADLINE FOR APPOINTMENT- All members of the Commission shall be appointed not later than 60 days after the date of enactment of this Act.

      (4) QUORUM- Six members of the Commission shall constitute a quorum.

      (5) VACANCIES- Any vacancy in the Commission shall not affect the powers of the Commission, but shall be filled in the same manner in which the original appointment was made.

    (e) DUTIES-

      (1) IN GENERAL- The Commission shall--

        (A) fully examine the allegations made in the Balaran letter;

        (B) fully examine whether grazing, leasing, and other trust asset interests have been managed equitably and in a manner consistent with Federal trust law (including regulations);

        (C) fully examine such other alleged breaches of the fiduciary responsibility owed by the United States to Indian tribes and individual Indians that come to the Commission’s attention as the Commission considers appropriate;

        (D) build on the investigations of other entities, and avoid unnecessary duplication, by reviewing the findings, conclusions, and recommendations of earlier studies of the management by the Department of Indian trust assets and trust funds; and

        (E) not later than 1 year after the date as of which all members of the Commission have been appointed, submit to the President and Congress a report that states the findings of the Commission and makes recommendations for corrective measures that can be taken to--

          (i) recoup any losses suffered by Indian tribes or individual Indians as a result of breaches of fiduciary duty by the Department; or

          (ii) prevent any breaches of fiduciary duty in the future.

      (2) RELATIONSHIP TO PREVIOUS STUDIES- When investigating facts and circumstances relating to the management of Indian trust assets and trust funds, the Commission shall--

        (A) first review the information compiled by, and the findings, conclusions, and recommendations that resulted from, previous studies (including congressional investigations); and

        (B) after that review, pursue any appropriate area of inquiry if the Commission determines that--

          (i) earlier studies had not investigated that area;

          (ii) the earlier investigation of that area had not been complete; or

          (iii) new information not reviewed in the earlier studies had become available with respect to that area.

      (3) FOLLOWUP REVIEW- At least once every 2 years after the date on which the Commission submits the report under paragraph (1), the Commission shall--

        (A) reconvene to examine the effectiveness of any actions taken in response to the report in achieving the goals described in clauses (i) and (ii) of paragraph (1)(D); and

        (B) submit to the President and Congress a report that describes the findings of the Commission and makes any further recommendations as the Commission considers appropriate.

    (f) POWERS OF COMMISSION-

      (1) IN GENERAL-

        (A) HEARINGS AND EVIDENCE- The Commission may--

          (i) hold such hearings and sit and act at such times and places, take such testimony, receive such evidence, and administer such oaths as the Commission considers advisable to carry out this section; and

          (ii) subject to subparagraph (B)(i), require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission or such designated subcommittee or designated member may determine advisable.

        (B) SUBPOENAS-

          (i) ISSUANCE-

            (I) IN GENERAL- A subpoena may be issued under this subsection only--

(aa) by the agreement of the Chairperson; or

(bb) by the affirmative vote of 6 members of the Commission.

            (II) SIGNATURE- Subject to subclause (I), subpoenas issued under this subsection may be issued under the signature of the Chairperson or any member designated by a majority of the Commission, and may be served by any person designated by the Chairperson or by a member designated by a majority of the Commission.

          (ii) ENFORCEMENT-

            (I) IN GENERAL- In the case of contumacy or failure to obey a subpoena issued under subparagraph (A), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.

            (II) ADDITIONAL ENFORCEMENT- In the case of any failure of any witness to comply with any subpoena or to testify when summoned

under authority of this section, the Commission may, by majority vote, certify a statement of fact constituting such failure to the appropriate United States attorney, who may bring the matter before the grand jury for its action, under the same statutory authority and procedures as if the United States attorney had received a certification under sections 102 through 104 of the Revised Statutes (2 U.S.C. 192 through 194).

      (2) CONTRACTING- The Commission may, to such extent and in such amounts as are provided in Acts of appropriation, enter into contracts to enable the Commission to discharge the duties of the Commission.

      (3) 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.

      (4) ASSISTANCE FROM THE SECRETARY OF THE INTERIOR- The Secretary of the Interior shall provide to the Commission on a reimbursable basis administrative support and other services for the performance of the functions of the Commission.

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

    (g) PERSONNEL MATTERS-

      (1) COMPENSATION OF MEMBERS- 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.

      (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.

      (4) DETAIL OF FEDERAL GOVERNMENT EMPLOYEES-

        (A) IN GENERAL- An employee of the Federal Government may be detailed to the Commission without reimbursement.

        (B) CIVIL SERVICE STATUS- The detail of the employee shall be without interruption or loss of civil service status or privilege.

      (5) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES- The Chairperson of the Commission may procure temporary and intermittent services in accordance with section 3109(b) of title 5, United States Code, at rates for individuals that do not exceed the daily equivalent of the annual rate of basic pay prescribed for level V of the Executive Schedule under section 5316 of that title.

    (h) NO EFFECT ON COBELL CASE- Nothing in this section limits the findings, remedies, jurisdiction, authority, or discretion of the court in the civil action Cobell v. Norton, Civ. No. 96-1285 (RCL) (D.D.C.).

    (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 shall terminate on the date that is 10 years after the date on which the Commission submits the report of the Commission under subsection (e)(1)(D).