A draft of this proposed legislation was distributed Monday, November 11, 2002 at the National Congress of American Indians annual conference in San Diego. While this text is a preliminary draft that may be edited or revised; CERF/CERA anticipates the overriding themes stated in this draft will be reflected in a final version.
The authors of this legislation are:
Kelsey Begaye,
President Navajo Nation
John E. Echohawk, Executive Director
Native American Rights Fund
Tex Hall, President, National Congress of American
Indians
Susan M. Williams, Partner Williams & Works, P.A.
107th
CONGRESS
2D SESSION
S. _______
To affirm the government-to-government relationship between the United
States and Indian tribes, to affirm the inherent sovereign authority of
Indian tribes, to enhance tribal economic development, and for other
purposes.
IN THE SENATE OF THE UNITED STATES
January ___ (legislative day, _______________), 2002
Mr. ___________( for himself and Mr. ___________) introduced the following
bill; which was read twice and referred to the Committee on
__________________
_________________________
A BILL
To affirm the government-to-government relationship between the United
States and the Indian tribes, to affirm the inherent sovereign authority of
Indian tribes, to enhance tribal economic development, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
TABLE OF CONTENTS
Sec. 1. Short title.
Sec. 2. Findings.
Sec. 3. Purposes.
Sec. 4. Definitions.
Sec. 5. Authority and Powers of Indian Tribes.
(a) Option to exercise authority, powers, and jurisdiction
under this
section.
(b) Congressional affirmation and declaration of tribal
powers.
(1) In General.
(2) Legislative powers.
(3) Civil regulatory powers.
(4) Civil adjudicatory powers.
(5) Criminal adjudicatory
powers.
(c) Territorial jurisdiction.
(1) In general.
(2) Indian country.
Sec. 6. Authority and Powers of States.
(a) In general.
(b) Reassumption of civil and criminal jurisdiction.
(1) Public Law 280.
(2) Other statutes.
(3) Option to exercise
authority, powers, and jurisdiction under
this Act.
Sec. 7. Federal Review of Certain Tribal Court Decisions.
(a) Federal jurisdiction.
(b) Limitations on review.
(c) Findings of fact.
(d) Certiorari.
Sec. 8. Intergovernmental Agreements.
Sec. 9. Enhancement Programs.
(a) Tribal government enhancement trust fund.
(b) Payments in lieu of taxes.
Sec. 10. Severability.
Sec. 11. Disclaimers.
Sec. 12. Authorization of Appropriations.
SECTION 1. SHORT TITLE.
This Act may be cited as the "Tribal Governance and Economic Enhancement
Act of 2002."
SECTION 2. FINDINGS.
Congress finds the following:
(1) Indian people have owned and occupied lands within what is now the
United States of America since time immemorial. During the millennia
before
Europeans came to this continent, Indian people formed their own sovereign
nations and governed themselves, according to each nation's own traditions
of political organization, spirituality, and reverence for the land.
(2) The Indian Commerce Clause of the Constitution (art. 1, § 8, cl. 3),
as implemented by the Supremacy Clause of the Constitution (art. VI, cl. 2),
lodged authority over Indian affairs in the Congress. From the earliest
days of the Republic, the Congress has acknowledged that the United States
is bound by a special trust duty to tribes, requiring the Congress, the
President, and all entities of the federal government to assure that "the
utmost good faith shall always be observed towards the Indians," as
provided
in the Northwest Ordinance of 1787 (1 Stat. 50). The Congress has always
recognized the sovereign status of Indian tribes and has dealt with Indian
tribes on a government-to-government basis through hundreds of treaties,
agreements, statutes, and executive orders in which presidents exercised
authority delegated by Congress.
(3) Prior to treaties with the United States, Indian tribes possessed all
the inherent sovereign powers of any government. Courts have found that,
in
the treaties, and in statutes, Congress extinguished the tribes'
international sovereignty, that is, the right to ally with foreign nations.
The tribes retained all other sovereign powers not expressly relinquished by
the tribes or expressly limited by Congress.
(4) In Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the United
States Supreme Court recognized the principles set forth in Findings (1),
(2), and (3). Chief Justice Marshall wrote that, before treaties with the
United States, America was inhabited by "separate nations . . . having
institutions of their own and governing themselves by their own laws."
Through treaties and other forms of relationship with the United States,
Chief Justice Marshall wrote, the United States "explicitly recogniz[ed]
the
national character of the [Indian tribes] and their right of
self-government." The tribes continued to be "considered as
distinct,
independent political communities, retaining their original natural rights,
as the undisputed possessors of the soil, from time immemorial, with the
single exception" of laws that might be enacted by Congress.
(5) The detailed and carefully-considered views of Chief Justice Marshall
accurately describe Congress' view of tribal sovereign powers then and
today.
(6) Through the treaties and subsequent statutes, wars, and other actions,
including the allotment and termination programs, Indian tribes ceded or had
taken from them most of the land within the boundaries of the United States.
Beginning in the mid-nineteenth century, Congress enacted laws and policies
that limited and suppressed the exercise of tribal sovereignty.
(7) Congress has acknowledged, and attempted to correct, the loss of land
and the suppression of tribal sovereignty. The Indian Reorganization of
1934 (Ch. 576, 48 Stat. 984) brought the allotment policy to an end and set
out statutory procedures for tribes to adopt constitutions as one means of
exercising their inherent sovereignty. In the 1970s, Congress adopted its
policy of self-determination. The Indian Self-Determination and Education
Assistance Act of 1975 (Public Law 96-638, 88 Stat. 2203), announced this
policy in strong and clear terms: "The Congress declares its
commitment to
the maintenance of the Federal Government's unique and continuing
relationship with, and responsibility to, individual Indian tribes and to
the Indian people as a whole through the establishment of a meaningful
Indian self-determination policy."
(8) Contemporary Indian tribes govern their reservations as one of the
three sources of sovereignty, along with the federal government and the
states, recognized within the federal constitutional system. Tribes adopt
laws through their legislatures, administer laws through their executive
offices and agencies, enforce law and order, and adjudicate cases through
their courts. Nonetheless, while tribes have made many advances during the
past two generations, because of their long and difficult relationships
first with European governments in the colonial era and later with the
United States, Indian tribes, people, children, and families have
extraordinary unmet governmental, education, health, housing, employment,
and other social and economic needs.
(9) In modern times, Congress has consistently followed the policy of
self-determination so that tribes can continue to make progress. Many
statutes have been enacted to treat tribes as states and otherwise to affirm
and acknowledge their sovereign status in areas such as environmental
protection, revenue sharing, and federal taxation; to protect and expand the
jurisdiction of tribal courts; to support tribal natural resource
management, including hunting and fishing rights; to protect and enhance
cultural, spiritual and religious rights of tribal citizens; and generally
to protect and enhance inherent tribal sovereignty.
(10) Congress has enacted these laws and many others in the belief that
strong and stable tribal governments are the key to improving economic
conditions, governmental services, and social well-being on Indian
reservations.
(11) Recent opinions of the United States Supreme Court have left unclear
the respective powers of tribal and state governments within Indian country.
Many of these opinions have been inconsistent with Congress' policy of
tribal self-determination; have created confusion regarding the respective
powers of tribes and states within Indian country; and have hampered tribal
efforts in such areas as raising tax revenues, regulating land use
practices, ensuring law and order, and generally governing Indian country in
a stable and efficient manner.
(12) The entire nation will benefit from enhancing tribal governments and
encouraging economic development opportunities in Indian country. Citizens
from nearby local communities, and from afar, visit Indian reservations in
increasing numbers to enjoy Indian art and traditional ceremonies, pursue
recreational activities, visit tribal museums, shop at reservation
businesses, attend tribal colleges, receive treatment at tribal medical
facilities, and for many other purposes. The attractions of Indian
reservations will expand as economic development increases. Regional
economies will improve as reservation poverty is reduced. Visitors, as
well
as reservation residents, will benefit from improved tribal justice systems
where tribal, state, and federal law enforcement and judicial officials work
cooperatively under clearly-established guidelines.
(13) Accordingly, in order to fulfill Congress' constitutional
responsibility to implement federal Indian policy as trustee in utmost good
faith, it is Congress' duty to clarify the nature and extent of the powers
of sovereign tribal governments.
SECTION 3. PURPOSES.
The purposes of this Act are:
(1) to affirm the government-to-government relationship between the United
States and Indian tribes;
(2) to affirm the governmental authority and powers of Indian tribes;
(3) to improve and enhance tribal courts and other tribal governmental
institutions; and
(4) to enhance economic development and reduce poverty in Indian country.
SECTION 4. DEFINITIONS.
As used in this Act the term:
(1) INDIAN COUNTRY. - "Indian country" means the geographic
territory
encompassed by 18 U.S.C. Sec. 1151, as amended by Section 5(c)(2) of this
Act.
(2) INDIAN TRIBE. - "Indian tribe" means an Indian or Alaska
Native tribe,
band, nation, pueblo, village, or community that the Secretary of the
Interior acknowledges to exist as an Indian tribe pursuant to the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. Sec. 479a, and that is
recognized as possessing powers of self-government;
(3) SECRETARY. - The term "Secretary" means the Secretary of the
Interior
or the designee of the Secretary.
SECTION 5. AUTHORITY AND POWERS OF INDIAN TRIBES.
(a) OPTION TO EXERCISE AUTHORITY, POWERS, AND JURISDICTION UNDER THIS
SECTION. - In addition to exercising the inherent authority, powers, and
jurisdiction recognized under existing law, Indian tribes shall have the
option of exercising the full authority, powers, and jurisdiction affirmed
in this section. Upon tribal resolution or other official tribal action
declaring that an Indian tribe intends to assert all or any measure of the
authority, powers, and jurisdiction affirmed in this section, the Secretary
shall accept such resolution and immediately cause such resolution, and the
Secretary's acceptance of it, to be published in the Federal Register. The
exercise of jurisdiction set forth in the resolution shall become effective
upon the date of publication.
(b) CONGRESSIONAL AFFIRMATION AND DECLARATION OF TRIBAL POWERS. - Congress
hereby affirms and declares that the inherent authority and powers of Indian
tribes, except those expressly and clearly limited by Indian treaties or
Acts of Congress, shall include, but shall not be limited to:
(1) IN GENERAL. - Within their territorial jurisdiction, all sovereign
governmental authority and powers.
(2) LEGISLATIVE POWERS. - Authority and powers to establish a form
of
government, by constitution or otherwise, and to legislate concerning all
matters within their territorial jurisdiction.
(3) CIVIL REGULATORY POWERS. - Authority and powers to exercise civil
regulatory powers, including taxation, within their territorial
jurisdiction.
(4) CIVIL ADJUDICATORY POWERS. - Authority and powers to adjudicate all
civil disputes arising within their territorial jurisdiction.
(5) CRIMINAL ADJUDICATORY POWERS. - Authority and powers to enforce and
try violations of applicable criminal laws by any person within their
territorial jurisdiction.
(c) TERRITORIAL JURISDICTION.
(1) IN GENERAL. - An Indian tribe's authority and powers shall extend to
all places and persons within its Indian country, as defined in 18 U.S.C.
Sec. 1151, as amended by section 5(c)(2) of this Act; to the exercise of any
valid tribal hunting, fishing, gathering, or other right, including tribal
sovereign immunity, that may exist outside of Indian country; and to any
person, activity, or event having sufficient minimum contacts with a tribe's
territorial jurisdiction to meet the requirements of due process.
(2) INDIAN COUNTRY. - 18 U.S.C. Sec. 1151 shall be amended to read as
follows:
"The term 'Indian country' means (a) all land within the limits of any
Indian reservation, pueblo, rancheria, or colony under the jurisdiction of
the United States government, notwithstanding the issuance of any patent and
including rights-of-way running through the reservation, (b) all dependent
Indian communities, which include, but are not limited to, restricted or fee
lands held by or set aside for Indian tribes and that are associated with
existing Indian country or are of an Indian character, (c) all tribal and
individual trust land and all Indian allotments, the Indian titles to which
have not been extinguished, including rights-of-way running through same,
and (d) all land within the exterior boundaries of Alaska Native villages'
core townships, as identified as being eligible for village corporation land
selections under the Alaska Native Claims Settlement Act of 1971, 43 U.S.C.
Sec. 1601 et seq."
SECTION 6. AUTHORITY AND POWERS OF STATES.
(a) IN GENERAL. - To the extent tribes exercise jurisdiction under Section
5 of this Act, the several States do not possess, and shall not exercise,
civil or criminal authority, powers, or jurisdiction within Indian country
or with respect to any valid off-reservation rights unless such state
authority is expressly and clearly granted by an Indian treaty, an Act of
Congress, or a voluntary agreement between an Indian tribe and a State.
Nothing in this subsection or in this Act shall limit the ability of states
to provide services within Indian country. Such state service programs
shall be subject to concurrent state and tribal jurisdiction.
(b) REASSUMPTION OF CIVIL AND CRIMINAL JURISDICTION.
(1) Public Law 280. - 25 U.S.C. Sec. 1323(a) shall be amended to read as
follows:
"The United States, through the Secretary of the Interior, shall
immediately reassume on behalf of any Indian tribe that requests, by tribal
resolution or other official tribal action, all or any measure of the
criminal or civil jurisdiction, or both, acquired by the applicable State
pursuant to the provisions of 18 U.S.C. Sec. 1162 or 28 U.S.C. Sec. 1360, or
section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect
prior to its repeal by subsection (b) of this section."
(2) Other Statutes. - The Secretary of the Interior shall immediately
reassume on behalf of any Indian tribe that requests, by tribal resolution
or other official tribal action, all or any measure of jurisdiction that had
been transferred, recognized or affirmed to a State or subdivision thereof
under the authority of 97 Stat. 2016 and 100 Stat. 3184 (Connecticut); 96
Stat. 2016 and 101 Stat. 1556 (Florida); 62 Stat. 1161 (Iowa); 54 Stat. 249
(Kansas); 94 Stat. 1785 and 100 Stat. 3184 (Maine); 101 Stat. 710
(Massachusetts); 64 Stat. 845 (New York); 30 Stat. 495 and 34 Stat. 137
(Oklahoma); 92 Stat. 813 (Rhode Island); or 107 Stat. 1118 (South Carolina).
(3) Option to Exercise Authority, Powers, and Jurisdiction under this
Act. - Tribes reassuming jurisdiction under the jurisdictional statutes
referred to in subsections (b)(1) and (b)(2) of this section shall also have
the option of exercising authority, powers, and jurisdiction pursuant to
Section 5 of this Act.
SECTION 7. FEDERAL REVIEW OF CERTAIN TRIBAL COURT DECISIONS.
(a) FEDERAL JURISDICTION. - Any person adversely affected or aggrieved by
a final decision of a tribal court may, to the extent that such tribe
exercises jurisdiction under Section 5 of this Act, obtain review of such
decision in the United States Court of Appeals for the appropriate Circuit.
Any petition for such review shall be filed within sixty days following the
entry of such decision.
(b) LIMITATIONS ON REVIEW. -
(1) Jurisdiction for review under this section shall be exclusive with
the Court of Appeals for the appropriate Circuit and shall be limited to the
following issues:
(A) Alleged violations of the Indian Civil Rights Act of 1968, 25 U.S.C.
Sec. 1301 et seq.;
(B) Interpretations of federal law; and
(C) Jurisdiction of the tribal court.
(2) Jurisdiction for review under this section shall not extend to
matters related to tribal elections or tribal enrollment or to other matters
internal to the tribe.
(c) FINDINGS OF FACT. - All findings of fact by the tribal court shall be
accepted by the Court of Appeals unless clearly erroneous.
(d) CERTIORARI. - The judgment or decree of the Court of Appeals shall be
final except that it shall be subject to review by the Supreme Court of the
United States upon certiorari, as provided in 28 U.S.C. Sec. 1254, if
petition is filed within sixty days following the entry of such judgment or
decree.
SECTION 8. INTERGOVERNMENTAL AGREEMENTS.
Tribes, the federal government, and states, including subdivisions thereof,
are hereby recognized as authorized to negotiate and enter into cooperative
intergovernmental agreements concerning the respective jurisdictions and
activities of tribal, federal, and state governments. Such agreements may
address civil regulatory issues, including land use planning, child support,
environmental protection, and other appropriate issues; civil judicial
issues, including service of process, garnishments, repossessions, and other
appropriate issues; criminal judicial and enforcement issues, including
service of process, warrants, arrests, confinements, and other appropriate
issues; jurisdiction on former Public Law 280 reservations and other
reservations affected by Section 6 of this Act; the provision of services;
and other issues that the parties may deem appropriate.
SECTION 9. ENHANCEMENT PROGRAMS.
(a) TRIBAL GOVERNMENT ENHANCEMENT TRUST FUND. -
(1) There is hereby established a Tribal Government Enhancement Trust
Fund, to be administered by the Secretary according to the requirements of
this section.
(2) All money received from sales, bonuses, royalties including interest
charges collected under the Federal Oil and Gas Royalty Management Act of
1982, 30 U.S.C. Sec. 1701 et seq., and rentals of the public lands under
the provisions of the Geothermal Steam Act of 1920, 30 U.S.C. Sec. 1001 et
seq., shall be paid into the Treasury of the United States pursuant to 30
U.S.C. Sec. 191, and 5 per centum thereof shall be transferred by the
Secretary of the Treasury to the Secretary for inclusion in the Tribal
Government Enhanced Trust Fund.
(3) The Secretary, upon application by tribes, shall annually distribute
the monies in the Tribal Government Enhancement Trust Fund to tribes for the
following two purposes, with annual payments for each purpose being
approximately equal:
(A) Acquisition of land, or interests in land, by tribes. Special
consideration shall be given to reacquiring lands, within existing or former
reservation boundaries, that passed out of tribal or individual Indian
ownership through the General Allotment Act of 1887, 25 U.S.C. Sec. 331 et
seq., and similar statutes and policies. After acquisition, the Secretary
shall accept such lands in trust upon application by a tribe.
(B) Development and enhancement of tribal courts, other tribal
governmental institutions, and infrastructure.
(b) PAYMENTS IN LIEU OF TAXES. - The Payments in Lieu of Taxes Act of
1976, 31 U.S.C. Sec. 6901 et seq., is hereby amended to add tribal and
individual Indian trust lands to the categories of land for which local
governments receive federal payments because of their inability to tax such
lands.
SECTION 10. SEVERABILITY.
In the event that any section or provision of this Act, or amendment made by
this Act, is held invalid, it is the intent of Congress that the remaining
sections or provisions of this Act, and amendments made by this Act, shall
continue in full force and effect.
SECTION 11. DISCLAIMERS.
Nothing in this Act shall be construed to:
(a) limit or abridge any authority, power, or right, whether inside or
outside of Indian country, that any Indian tribe may possess inherently or
by virtue of any treaty, Act of Congress, Executive Order, or final court
order.
(b) affect, modify, diminish, or otherwise impair the trust responsibility
of the United States to Indian tribes.
SECTION 12. AUTHORIZATION OF APPROPRIATIONS.
There are hereby authorized to be appropriated to carry out this Act such
sums as may be necessary.