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                                                       Calendar No. 196
104th Congress                                                   Report
                                 SENATE

 1st Session                                                    104-150
_______________________________________________________________________


 
MAKING CERTAIN TECHNICAL CORRECTIONS IN LAWS RELATING TO NATIVE AMERICANS,
                        AND FOR OTHER PURPOSES

                                _______


  September 29 (legislative day, September 25), 1995.--Ordered to be 
                                printed

_______________________________________________________________________


    Mr. McCain, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 325]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 325) to make certain technical corrections in laws 
relating to Native Americans, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                Purpose

    The Purpose of S. 325 is to make certain technical 
corrections in laws relating to Native Americans and for other 
purposes.

                               Background

    S. 325 would make certain technical corrections in laws 
relating to Native Americans. S. 325 includes two provisions 
which make technical corrections to the Pokagon Restoration Act 
(25 U.S.C. 1300j) and the Little Traverse Bay Bands of Odawa 
and the Little River Band of Ottawa Indians Act (25 U.S.C. 
1300k). In addition, the bill also includes a third provision 
that repeals the ``Trading with Indians'' statute (18 U.S.C. 
Section 437).
    The first section of S. 325 amends Section 9 of the Pokagon 
Restoration Act (25 U.S.C. 1300j) which pertains to the 
establishment of tribal membership rolls. Section 9 of the 
Pokagon Restoration Act incorrectly refers to the ``Pokagon 
Bands of Potawatomi Indians.'' The proper reference should be 
in the singular, to the ``Pokagon Band of Potawatomi Indians''. 
S. 325 changes all references in Section 9 of the Act from the 
plural to the singular.
    The second section of S. 325 amends Section 9 of the Little 
Traverse Bay Bands of Odawa and the Little River Band of Ottawa 
Indians Act (25 U.S.C. 1300k) which pertains to the 
establishment of tribal membership rolls for both tribes. 
Section 9 of the Act incorrectly refers to both Indian tribes 
in the singular. The language in Section 9 of the Act referring 
to the tribes should refer to bands. Section 2 of S. 325 
corrects all references in Section 9 of the Act by using the 
plural.
    The third section of S. 325 repeals the Trading with 
Indians Act. The Trading with Indians law was originally 
enacted in the 1800's to protect Indians from unscrupulous 
Indian agents and other Federal employees who were using their 
positions of trust to engage in private business dealings that 
exploited Indians. The original 1834 Act, codified at 25 U.S.C. 
68, imposed a complete ban on any person employed by the 
Federal government in Indian Affairs from having any interest 
in transactions with Indians except on behalf of the United 
States government. The penalty for conviction of a violation of 
this Act included a $5,000 fine and removal from Federal 
employment. In 1874, Congress enacted a law, which was codified 
in 25 U.S.C. 87 and has since been repealed, that applied 
restrictions on all employees of the United States or its 
agencies involving contracts made with Indians or the 
Government for purchases, transportation, or delivery of goods 
or supplies for Indians or for the removal of Indians.
    In 1939, these laws governing trade with Indians were 
amended to permit Federal employees, pursuant to Secretarial 
regulations, to purchase arts and crafts from Indians, so long 
as such purchase was not for the purpose of resale. These 
amendments were intended to make clear that the laws governing 
trade with Indians were not intended to prevent Indian 
employees of the Federal government from receiving benefits 
made available to Indians either by the Federal government or 
by their tribe. In 1948, Congress imposed severe restrictions 
on all Federal employees, whether employed in Indian Affairs or 
not, from having any interest in contracts for the purchase or 
delivery of supplies or goods to Indians. This law superseded 
the provisions of the 1874 Act and was codified in 18 U.S.C. 
437. The penalties established under the 1948 law included a 
fine of up to $5,000, up to six months' imprisonment, and 
removal from office.
    In 1980, the Congress replaced all existing laws relating 
to ``Trading with Indians'' by repealing both the 1834 and the 
1939 Acts, and by modifying the 1948 Act. Under current law, 
employees of the Bureau of Indian Affairs and the Indian Health 
Service are prohibited, with limited exceptions, from engaging 
in trade with Indians except where such trade has been 
authorized by the President by regulation.
    The current provisions of the ``Trading with Indians'' 
laws, including the criminal prohibitions against commercial 
trading with Indians, have had a significant adverse impact on 
employee retention with the Indian Health Service and the 
Bureau of Indian Affairs. Because the prohibitions in current 
law also apply to the spouses of BIA and IHS employees, these 
adverse impacts are far-reaching. If a spouse is engaged in a 
business which is wholly-unrelated to matters affecting the 
Indian Health Service or the Bureau of Indian Affairs, they are 
in violation of the Trading with Indians Act. In addition, a 
Federal employee can violate the Trading with Indians Act by 
simply selling their used car to another Indian. Although these 
statutes served an admirable purpose when enacted in the 
1800's, they are now relics of a very different era. The 
important public purposes serviced by the original Trading with 
Indians Act are now adequately protected by the Standards of 
Ethical Conduct for Employees of the Executive Branch.

                          Legislative History

    S. 325 was introduced by Senator Thomas on February 1, 1995 
and was referred to the Committee on Indian Affairs.

            Committee Recommendation and Tabulation of Vote

    In an open business session on March 29, 1995, the 
Committee on Indian Affairs ordered the bill to be favorably 
reported to the Senate without amendment, with a recommendation 
that it do pass.

                      Section-by-Section Analysis

            section 1--correction to pokagon restoration act

    Section 1 of the bill amends Section 9 of the Pokagon 
Restoration Act to change the references to the Pokagon Band of 
Potawatomi from plural to singular.

       section 2--correction to odawa and ottawa restoration act

    Section 2 of the bill amends Section 9 of the Little 
Travese Bay Bands of Odawa and the Little River Band of Ottawa 
Indians Act to change the references in the section to the 
tribes from singular to plural.

    section 3--federal employees contracting or trading with indians

    Section 3 of the bill would repeal the ``Trading with 
Indians Act'' (18 U.S.C. 437).

                   Cost and Budgetary Considerations

    The cost estimate for S. 325, as calculated by the 
Congressional Budget Office is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, April 4, 1995.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 325, a bill to make certain technical corrections 
in laws relating to Native Americans, as ordered reported by 
the Senate Committee on Indian Affairs on March 29, 1995. CBO 
estimates that enacting this bill would have no significant 
impact on the federal budget or on the budgets of state and 
local governments. Enactment of S. 325 would not affect direct 
spending or receipts; therefore, pay-as-you-go procedures would 
not apply.
    S. 325 would make technical corrections to the Act to 
Restore Federal Services to the Pokagon Band of Patawatomi 
Indians and the Little Travese Bay Bands of Odawa and the 
Little River Band of Ottawa Indians Act. The bill also would 
repeal Section 437 of Title 18 of the United States Code. 
Section 437 prohibits any employee of the Bureau of Indian 
Affairs or Indian Health Service from purchasing any service or 
any real or personal property from any person of Native 
American descent.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Rachel 
Robertson.
            Sincerely,
                                 June E. O'Neill, Director.

                      Regulatory Impact Statement

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires each report accompanying a bill to evaluate the 
regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee believes that S. 325 will 
have minimal regulatory or paperwork impact.

                        Executive Communications

    The Committee has received no official communications from 
the Administration on the provisions of the bill.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee states that the 
enactment of S. 325 will result in the following changes in 25 
U.S.C. Sections 1300j and 1300k, and 18 U.S.C. Section 437, 
with existing language which is to be deleted in black brackets 
and the new language to be added in italic:

                           25 U.S.C. 1300j-7a

    (a) List of Members as of September 1994.--Not later than 
120 days after November 2, 1994, the [Bands] Band shall submit 
to the Secretary a list of all individuals who, as of September 
21, 1994, were members of the [respective] [Bands] Band.
    (b) List of Individuals Eligible for Membership.--(1) In 
general.--Not later than 18 months after November 2, 1994, the 
[Bands] Band shall submit to the Secretary [membership rolls 
that contain] a membership roll that contains the names of all 
individuals eligible for membership [in such] in the [Bands] 
Band. [Each such] The Band, in consultation with the Secretary, 
shall determine whether an individual is eligible for 
membership in the Band on the basis of provisions in the 
governing documents of the Band that determine the 
qualifications for inclusion in the membership roll of the 
Band.
    (2) Publication of notice.--At such time as the [rolls] 
roll have been submitted to the Secretary, the Secretary shall 
immediately publish in the Federal Register a notice of such 
[rolls] roll.
    (3) Maintenance of [rolls] roll._The [Bands] Band shall 
ensure that the [rolls are maintained] roll is maintained and 
kept current.
          * * * * * * *

                           25 U.S.C. 1300k-7

    (a) List of Present Membership.--Not later than 120 days 
after November 2, 1994, the [Band] Bands shall submit to the 
Secretary a list of all individuals who, as of September 21, 
1994, were members of [the Band] the respective Bands.
    (b) List of Individuals Eligible for Membership.--(1) In 
general.--Not later than 18 months after November 2, 1994, the 
[Band] Bands shall submit to the Secretary membership rolls 
that contain the names of all individuals eligible for 
membership in such [Band] Bands. [The Band, in consultation] 
Each such Band, in consultation with the Secretary, shall 
determine whether an individual is eligible for membership in 
the Band on the basis of provisions in the governing documents 
of the Band that determine the qualifications for inclusion in 
the membership roll of the Band.
          * * * * * * *

                             18 U.S.C. 437

   Section 437. Federal employees contracting or trading with Indians

    [(a) Except as provided in subsection (b), whoever, being 
an officer, employee, or agent of the Bureau of Indian Affairs 
or the Indian Health Service has (other than as a lawful 
representative of the United States) any interest, in such 
officer, employee, or agent's name, or in the name of another 
person where such officer, employee, or agent benefits or 
appears to benefit from such interest--
          [(1) in any contract made or under negotiation with 
        any Indian, for the purchase or transportation or 
        delivery of goods or supplies for any Indian, or
          [(2) in any purchase or sale of any service or real 
        or personal property (or any interest therein) from or 
        to any Indian, or
[colludes with any person attempting to obtain any such 
contract, purchase, or sale, shall be fined under this title or 
imprisoned not more than six months or both, and shall be 
removed from office, notwithstanding any other provision of law 
concerning termination from Federal employment.
    [(b)(1) Notwithstanding the provisions of subsection (a) 
and in accordance with paragraph (2) of this subsection, the 
President or his designee may prescribe rules and regulations 
under which any officer, employee, or agent of the Bureau of 
Indian Affairs or of the Indian Health Service may purchase 
from or sell to any Indian any service or any real or personal 
property or any interest therein.
    [(2) No rule or regulation prescribed pursuant to paragraph 
(1) of this subsection shall permit any officer, employee, or 
agent referred to in that paragraph--
          [(A) to make any purchase from or sale to an Indian 
        or any real or personal property (or any interest 
        therein) for the purpose of commercially selling, 
        reselling, trading, or bartering such property; or
          [(B) to have any interest in any purchase or sale 
        involving property or funds which are either held in 
        trust by the United States for Indians or which are 
        purchased, sold, utilized or received in connection 
        with a contract or grant to an Indian from the Bureau 
        of Indian Affairs or the Indian Health Service, if such 
        officer, employee, or agent is employed in the office 
        or installation of such Bureau or Service which 
        recommends, approves, executes, or administers such 
        transaction, grant, or contract on behalf of the United 
        States: Provided, That such officer, employee, or agent 
        may have such an interest if such purchase or sale is 
        approved by the Secretary of the Interior in the case 
        of a Bureau of Indian Affairs officer, employee, or 
        agent, or by the Secretary of Health, Education, and 
        Welfare in the case of an Indian Health Service 
        officer, employee, or agent, or a designee of such 
        Secretary who is not employed at such office or 
        installation: Provided further, That (1) any such 
        designee may not be a relative by blood or marriage of 
        the officer, employee or agent engaging in such 
        purchase or sale; (2) with respect to purchases or 
        sales by any officer, employee, or agent employed at 
        the reservation, agency, or service unit level, such 
        designee must be employed at not less than one grade 
        level higher than such officer, employee or agent at 
        the Washington, District of Columbia, central office or 
        at an area office installation other than that with 
        authority over such reservation, agency, or service 
        unit; (3) with respect to purchases or sales by any 
        officer, employee, or agent employed at the area office 
        level, such designee must be employed at not less than 
        one grade level higher than such officer, employee, or 
        agent at the Washington, District of Columbia, central 
        office; and (4) the Secretary must approve purchases or 
        sales by any officer, employee, or agent employed at 
        the Washington District of Columbia, central office; or
        [(C) to acquire any interest in property held in trust, 
        or subject to restriction against alienation imposed, 
        by the United States unless the conveyance or granting 
        of such interest in such property is otherwise 
        authorized by law.
    [(c) Except as provided in subsection (b)(2), nothing 
contained in this section shall be construed as preventing any 
officer, employee, or agent of the Bureau of Indian Affairs or 
the Indian Health Service who is an Indian, of whatever degree 
of Indian blood, from obtaining or receiving any benefit or 
benefits made available to Indians generally or to any member 
of his or her particular tribe, under any Act of Congress, nor 
to prevent any such officer, employee, or agent who is an 
Indian from being a member of or receiving benefits by reason 
of his or her membership in any Indian tribe, corporation, or 
cooperative association organized by Indians, when authorized 
under such rules and regulations as the Secretary of the 
Interior or the Secretary of Health, Education, and Welfare, or 
their designee shall prescribe.
    [(d) For purposes of this section, the term ``Indian'' 
means any member of an Indian tribe recognized as eligible for 
the services provided by the Bureau of Indian Affairs who is 
residing on a Federal Indian Reservation, on land held in trust 
by the United States for Indians, or on land subject to a 
restriction against alienation imposed by the United States. 
The term shall also include any such tribe and any Indian owned 
or controlled organization located on such a reservation or 
land.
    [(e) For purposes of this section, the term ``Bureau of 
Indian Affairs'' means the Bureau of Indian Affairs and the 
Office of the Assistant Secretary for Indian Affairs, both in 
the Department of Interior.]