Statement on Signing the Department of the Interior and Related Agencies Appropriations Act, 1991

Today I signed H.R. 5769, the "Department of the Interior and Related Agencies Appropriations Act, 1991."

I am pleased that the Act includes funding for many programs important to the environment. In particular, the Act includes funds to expand our national parks, forests, and wildlife refuges, as I recommended in my budget. Many nationally significant natural and cultural resources will be protected by these appropriations. Furthermore, the Act provides funds for the commencement of my tree-planting program and the start-up of the National Tree Trust Foundation. I commend the Congress for these actions.

I have serious reservations with four provisions in this Act: those dealing with restrictions on the reorganization of the Bureau of Indian Affairs (BIA); those dealing with a permanent extension of coverage of the Federal Tort Claims Act to Indian Tribes, tribal organizations, tribal contractors, and their employees; those dealing with unconstitutional committee approval requirements; and those dealing with restrictions on preleasing, leasing, and drilling activities in the Outer Continental Shelf (OCS).

The Department of the Interior will be restricted by the Act from taking certain actions relating to a BIA reorganization. The United States has a long-standing duty to execute the Federal trust responsibility for the natural and financial resources we hold in trust for American Indian Tribes and their members. In 1789, the very first Congress assembled under the new Constitution declared, in ratifying the Northwest Ordinance of 1787, "The utmost good faith shall always be observed towards Indians." Over the years, the courts have repeatedly made it clear that Federal officials have an obligation of the highest responsibility and trust toward American Indians and their property. The courts have measured Federal performances of our Indian duties by the most exacting fiduciary standards.

I am committed to good-faith fulfillment of our obligations to Indian Tribes and their members. I look to the Secretary of the Interior as the officer responsible for fulfilling the Federal Indian trust responsibility. The Secretary is in the midst of addressing organizational changes to better fulfill that responsibility and to improve service to the Indian people generally. He is addressing some of the issues that have been the most crucial and admittedly difficult in Indian affairs. The Congress has now chosen to block this good-faith effort by the Secretary, even as he is continuing discussions with the Indian people on his improvements. I view this intervention in performance of the trustee's duties to be unfortunate and unwise.

The Act includes permanent substantive legislation with respect to the Federal Tort Claims Act that is both fiscally irresponsible and also will undermine our efforts to foster the independence and autonomy of Indian Tribes and tribal organizations.

The Act provides that Indian Tribes, tribal organizations, and Indian contractors and their employees shall be considered employees of the United States with respect to claims arising from contracts, grants, and cooperative agreements authorized by the Indian Self-Determination and Education Assistance Act and the Tribally Controlled School Grants of the Hawkins-Stafford Elementary and Secondary School Improvement Amendments of 1988. The effect of this provision would be to make the United States permanently liable for the torts of Indian Tribes, tribal organizations, and contractors. This provision is fundamentally flawed because the United States does not control and supervise the day-to-day operations of the tribes, tribal organizations, and contractors. Moreover, such control and supervision would be inappropriate and inconsistent with the relationship of the United States with the tribes.

I have supported legislation to foster the independence and autonomy of Indian Tribes and tribal organizations. Hence, supervision and control over tribes and their organizations and contractors would be wholly unacceptable. Without that supervision and control over daily activities, the United States has no opportunity to limit the risks of grave injury to persons, as well as the public fisc. The extension of governmental responsibility for private conduct under these circumstances is untenable.

Our objections to this provision are fundamental and unequivocal. We will work with the new Congress to address the underlying concerns and to repeal this provision at the first opportunity.

Several provisions of H.R. 5769 purport to condition my authority, and the authority of affected executive branch officials, to use funds otherwise appropriated by the Act on the approval of various committees of the House of Representatives and the Senate. These provisions constitute legislative veto devices of the kind declared unconstitutional in INS v. Chadha, 462 U.S. 919 (1983). Accordingly, I will treat them as having no legal force or effect in this or any other legislation in which they appear. I direct agencies confronted with these devices to consult with the Attorney General to determine whether the grant of authority in question is severable from the unconstitutional condition. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 - 87 (1987).

Section 121 of the General Provisions applicable to the Department of the Interior, which requires the National Park Service to submit questions regarding valuation of certain mining claims to an independent panel of three arbitrators, raises constitutional concerns. Section 121(d) purports to require the National Park Service to make an offer to the claimant "to purchase said claim for the appraised value." The process of determining the amount of money which the government will offer in exchange for a claim is an exercise of significant authority, which must be undertaken by an Officer of the United States, appointed in accordance with the Appointments Clause, Article II, sec. 2, cl. 2, of the Constitution. Appraisers selected pursuant to Section 121, however, must be appointed in accordance with the procedures of the American Arbitration Association. I instruct the Secretary of the Interior to consult with the Attorney General concerning the appropriate response to Section 121 of H.R. 5769.

I also regret that the Congress continued 1-year legislative moratoria on preleasing, leasing, and drilling in certain areas of the Outer Continental Shelf. My June 26th decisions to forego such activities in many areas of the OCS made these legislative moratoria unnecessary.

Notwithstanding these reservations, I have signed the bill because its benefits -- particularly the treatment of many environmental, conservation, and energy-related issues important to the Nation -- outweigh my reservations.

George Bush

The White House,

November 5, 1990.