[Senate Report 109-208]
[From the U.S. Government Publishing Office]
Calendar No. 329
109th Congress Report
SENATE
1st Session 109-208
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AMENDING A PROVISION RELATING TO EMPLOYEES OF THE UNITED STATES
ASSIGNED TO, OR EMPLOYED BY, AN INDIAN TRIBE, AND FOR OTHER PURPOSES
_______
December 15, 2005.--Ordered to be printed
_______
Mr. McCain, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1312]
The Committee on Indian Affairs, to which was referred the
bill (S. 1312) to amend a provision relating to employees of
the United States assigned to, or employed by, an Indian tribe,
and for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Purpose
The Reducing Conflicts of Interests in the Representation
of Indian Tribes Act of 2005 (S. 1312) requires individuals who
leave federal employment for employment as outside lawyers and
lobbyists for Indian tribes to abide by the federal conflicts
of interest laws as do other former federal government officers
and employees.
Background
Public Law 93-638, the Indian Self-Determination and
Education Assistance Act, [hereafter, ``the Act''] was enacted
in 1975 in the 93rd Congress to provide for the maximum
participation of Indian tribes in directing federal service to
their communities. The Act permitted Indian tribes to contract
programs or portions of programs that have been historically
administered by the Department of the Interior for the benefit
of Indian tribes.
Section 450i(j) of the Act provides an exemption from the
federal conflict of interest laws in Title 18 U.S.C. sections
205 and 207 for all former federal officers and employees who
``are employed by Indian tribes.'' Section 450i(j) provides the
exemption for ``agents and attorneys who appear on behalf of
such tribes.'' Section 205 of title 18 generally prohibits
federal employees from representing parties against the federal
government or benefitting from such claims while employed
there. Section 207 bars certain communications and lobbying of
the federal government by former federal officers or employees
from periods of one year, two years, or for life, depending on
the seniority of the former officer, the level of the
employee's participation with a particular matter, and the
specific matter being addressed.
The House Report No. 93-1600 accompanying the Indian Self-
Determination Act explained the intent of the exemptions in
section 450i(j). \1\ It observed that Indian tribes that took
over the responsibility of operating programs traditionally
fulfilled by the federal government would require the services
of experienced individuals to administer these contracted or
compacted programs. The exemption, therefore, helped facilitate
federal government employees to become employees of the Indian
tribe in order to continue the work they had previously been
performing for the federal government on behalf of Indian
tribes. The exception to the historic conflict of interest laws
appears to recognize that an exemption to these laws was
necessary to permit Indian tribes to recruit former federal
employees to carry out the new tribal programs and functions
that were formerly performed by the federal government.
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\1\ H.R. Rep. No. 93-1600, at 29 (1974).
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In addition, in 1975, when the Indian Self-Determination
Act was enacted, but for those employees of the federal
government who worked in Indian tribal programs, relatively few
lawyers or lobbyists had experience in federal Indian law or
working for Indian tribes or on Indian tribal issues. It was
likely assumed, therefore, that tribes would hire federal
workers, not only as employees who could carry out contracted
services and programs, but also as lawyers and agents who would
represent the Indian tribe and its interests before the federal
government. Over the last twenty-five years, however, the
Indian law and lobbying practice has grown exponentially.
Today, an abundance of lawyers and lobbyists without former
federal service exists to represent Indian tribes.
The Committee believes that exempting lawyers and lobbyists
from the federal conflict of interest laws has outlived its
intended purpose and, in some instances, has validated the
original concerns of the Congress when it enacted sections 205
and 207. The potential that federal employees would put, or
would appear to have put, the interests of future employers
above those of the federal government was of paramount concern.
In enacting the conflict laws, the Congress sought to curb a
practice whereby, at the time, persons who quit the federal
government were free to involve themselves in any type of
proceeding, irrespective of whether they may have participated
directly in the very same proceeding on behalf of the federal
government.\2\
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\2\ See H.R. Rep. No. 748 (1961); H.R. Rep. No. 2213 (1962).
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The Committee is aware that the exemption to section 205
and 207 has resulted in improprieties, and the appearance of
improprieties, by former officers and employees who left
federal service to represent Indian tribes as lawyers or
lobbyists. The Inspector General of the Department of the
Interior, in a report issued in February 2002, entitled
``Allegations Involving Irregularities in the Tribal
Recognition Process and Concerns Relating to Indian Gaming,''
reported finding that several former Department of Interior
employees engaged in improper contacts with the Bureau of
Indian Affairs. The Report documented that while they were
federal employees, some individuals were personally and
substantially involved, on behalf of the federal government, in
matters directly relating to an Indian tribe that the former
employee went on to represent. Contacts on behalf of the tribes
were made soon after the employee left the federal government
and were made to the federal offices in which the former
employee had exercised substantial responsibility. The
Inspector General stated that but for the exemption from
theconflicts laws in section 450i(j), the contacts would have been
illegal.
In addition, early in the 109th Congress, in testimony
before the Committee, the Inspector General again raised the
issue of conflicts of interest and a ``revolving door'' effect
that resulted from the exemption involving former Department of
the Interior officials. The Inspector General explained that
frequently, federal employees who handle sensitive tribal
issues as federal employees often left to immediately represent
the very same tribe on the same or similar issue before the
federal government. Since the original exemption in section
450i(j) of the Act was recommended by the Department of the
Interior and the General Accounting Office, such abuse of the
exemption could not have been contemplated at the time.\3\
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\3\ H.R. Rep. No. 93-1600, at 21 (1974).
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The Committee believes that in order for the federal
government to function free from undue influence, and the
appearance of undue influence, the Indian Self-Determination
and Education Assistance Act must be amended. Therefore, S.
1312 reinstates the conflict of interest laws for former
federal officers and employees who are retained by Indian
tribes as outside lawyers, lobbyists, or other agents. In doing
so, the Committee recognizes that a distinction exists between
former federal employees who become employees of Indian tribal
governments to further the compacting and contracting process
and former federal employees who are not tribal employees but
rather are retained or hired on contract for a limited purpose.
The distinction between a tribal government employee and
one who is retained by a tribal government is an important one.
A tribal government employee is under the day-to-day control of
that government. As such, the employee is unaffected by the
acts of an intervening agency, business or organization. The
latter, however, in whole or in part, is controlled or
supervised by an independent agency or contractor. That
individual may be affected by other entities that function free
of tribal government rule or regulation. In distinguishing
between a tribal government employee and one who is retained by
or under contract with a tribal government several factors may
be considered including (1) who provides the person's liability
insurance; (2) who pays the person's social security tax; (3)
who pays for the person's medical or other benefits and (4)
whether the individual is authorized to contract for others.
The Committee believes this limited amendment will meet its
intended purpose without unduly impeding tribes' ability to
hire qualified personnel. Former federal employees hired by
Indian tribes to work in contracted or compacted programs will
continue to be free to contact and interact with the federal
government as required to administer the tribal program so long
as the contact is made during the course of an official
employment duty by the tribal employee or official.
Finally, the Committee recognizes that some Indian tribal
governments have retained lawyers and lobbyists who have
recently left federal employment. Therefore, the Committee
believes that a sufficient grace period is required to permit
former federal officers and employees to become familiar with
the new law, to permit law and lobbying firms to redistribute
work where feasible, and to permit Indian tribal governments to
seek alternative representation ifnecessary. Therefore, the
amendment will take effect one year after enactment of the law.
Summary of Major Provisions
The Reducing Conflicts of Interests in the Representation
of Indian Tribes Act of 2005 removes from the exemption of
conflict of interest laws former federal employees who work for
Indian tribes in the capacity of outside counsel, lobbyists, or
other agents.
Legislative History
S. 1312 was introduced on June 27, 2005, by Senator McCain,
and was referred to the Committee on Indian Affairs. On June
29, 2005, S. 1312 was unanimously passed out of the Committee
on Indian Affairs and ordered reported without amendment.
Section-by-Section Analysis
Section 1. Short title; table of contents
This Act may be cited as the ``Reducing Conflicts of
Interest in the Representation of Indian Tribes Act of 2005.
Section 2. Additional employment rights
This section amends 25 U.S.C. Sec. 450(j) by limiting the
exemption from 18 U.S.C. Sec. Sec. 205 and 207 to federal
government employees who leave such employment to become
employees of Indian tribal governments for the purpose of
performing compacting or contracting services on behalf of the
tribe. The section subject to the conflicts of interest those
former federal workers who are employed by Indian tribes as
outside counsel, lobbyists, or other agents.
Section 3. Effective date
This section provides a one year moratorium prior to the
Act's provisions taking effect.
Committee Recommendation and Tabulation of Vote
On June 29, 2005, the Committee, in an open business
session, considered S. 312 and unanimously voted to have the
amendment favorably reported to the full Senate with a
recommendation that the amendment do pass.
Cost and Budgetary Considerations
The Congressional Budget Office has calculated the attached
cost estimate for S. 312:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 21, 2005.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1312, the Reducing
Conflicts of Interests in the Representation of Indian Tribes
Act of 2005.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 1312--Reducing Conflicts of Interests in the Representation of
Indian Tribes Act of 2005
S. 1312 would amend the Indian Self-Determination and
Education Assistant Act which currently provides an exemption
from federal conflict-of-interest laws for former employees
when they are acting on behalf an Indian tribe, as long as
proper notification is provided to the agency. S. 1312 would
limit the exemption to former federal employees who work for
tribes pursuant to self-government contracts or compacts that
they formerly performed for the federal government.
CBO estimates that implementing this legislation would have
no significant cost and would not affect direct spending or
revenues. S. 1312 contains no intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA) and would
impose no costs on state, local, or tribal governments.
S. 1312 would impose a private-sector mandate, as defined
in UMRA, but CBO estimates that the direct cost of the mandate
would be minimal and fall well below the annual threshold
established by UMRA ($123 millon in 2005, adjusted annually for
inflation).
S. 1312 would impose a private-sector mandate because some
former federal employees would be prohibited from working on
certain matters regarding Indian tribes. Former federal
employees may continue to be employed by Indian tribes to
perform services related to self-governance contracts or
compacts. According to information from government sources, the
number of persons affected by this prohibition is small, and
the direct cost of complying with the mandate would be minimal.
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs) and Paige Piper/Bach (for the
private-sector impact). This estimate was approved by Peter H.
Fontaine, Deputy Assistant Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee concludes that
S. 1312 will reduce regulatory or paperwork requirements and
impacts.
Executive Communications
The Senate Committee on Indian Affairs has not received
official views or comments from the Department of the Interior
as of the filing of this Report.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 1312, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
Public Law 100-47
* * * * * * *
SECTION 450i OF CHAPTER 14 OF TITLE 5, UNITED STATES CODE
25 U.S.C. 450i
[(j) Additional employee employment rights. Anything in
sections 205 and 207 of Title 18 to the contrary
notwithstanding, officers and employees of the United States
assigned to an Indian tribe as authorized under section 3372 of
Title 5, or section 48 of this title and former officers and
employees of the United States employed by Indian tribes may
act as agents or attorneys for or appear on behalf of such
tribes in connection with any matter pending before any
department, agency, court, or commission including any matter
in which the United States is a party or has a direct and
substantial interest: Provided, That each such officer or
employee or former officer or employee must advise in writing
the head of the department, agency, court, or commission with
which he is dealing or appearing on behalf of the tribe of any
personal and substantial involvement he may have had as an
officer or employee of the United States in connection with the
matter involved.]
SEC. 2. ADDITIONAL EMPLOYMENT RIGHTS.
(a) In General.--Notwithstanding sections 205 and 207 of
title 18, United States Code, an officer or employee of the
United States assigned to an Indian tribe under section 3372 of
title 5, United States Code, or section 2072 of the Revised
Statutes (25 U.S.C. Sec. 48), or an individual that was
formerly an officer or employee of the United States and who is
an employee of an Indian tribe employed to perform services
pursuant to self-governance contracts or compacts under this
Act that the individual formerly performed for the United
States, may communicate with and appear before any department,
agency, court, or commission on behalf of the Indian tribe with
respect to any matter relating to the contract or compact,
including any matter in which the United States is a party or
has a direct and substantial interest.
(b) Notification of Involvement in Pending Matter.--An
officer, employee, or former officer or employee described in
paragraph (1) shall submit to the head of each appropriate
department, agency, court, or commission, in writing, a
notification of any personal and substantial involvement the
officer, employee, or former officer or employee had as an
officer or employee of the United States with respect to the
pending matter.''
SEC. 3. EFFECTIVE DATE.
The effective date of the amendment made by this Act shall
be the date that is 1 year after the date of enactment of this
Act.