[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1691 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1691

      To provide for Indian legal reform, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 27, 1998

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

_______________________________________________________________________

                                 A BILL


 
      To provide for Indian legal reform, and for other purposes.

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

SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

    (a) Short Title.--This Act may be cited as the ``American Indian 
Equal Justice Act''.
    (b) Findings.--Congress finds that--
            (1) a universal principle of simple justice and accountable 
        government requires that all persons be afforded legal remedies 
        for violations of their legal rights;
            (2) the fifth amendment of the Constitution builds upon 
        that principle by guaranteeing that ``. . . no person shall be 
        deprived of life, liberty, or property without due process of 
        law'';
            (3) sovereign immunity, a legal doctrine that has its 
        origins in feudal England when it was policy that the ``King 
        could do no wrong'', affronts that principle and is 
        incompatible with the rule of law in democratic society;
            (4) for more than a century, the Government of the United 
        States and the States have dramatically scaled back the 
        doctrine of sovereign immunity without impairing their dignity, 
        sovereignty, or ability to conduct valid government policies;
            (5) the only remaining governments in the United States 
        that maintain and assert the full scope of immunity from 
        lawsuits are Indian tribal governments;
            (6) according to the 1990 decennial census conducted by the 
        Bureau of the Census, nearly half of the individuals residing 
        on Indian reservations are non-Indian;
            (7) for the non-Indian individuals referred to in paragraph 
        (6) and the thousands of people of the United States, Indian 
        and non-Indian, who interact with tribal governments everyday, 
        the rights to due process and legal remedy are constantly at 
        risk because of tribal immunity;
            (8) by providing a complete shield from legal claims, the 
        doctrine of sovereign immunity frustrates justice and provokes 
        social tensions and turmoil inimical to social peace;
            (9) the Supreme Court has affirmed that Congress has clear 
        and undoubted constitutional authority to define, limit, or 
        waive the immunity of Indian tribes; and
            (10) it is necessary to address the issue referred to in 
        paragraph (9) in order to--
                    (A) secure the rights provided under the 
                Constitution for all persons; and
                    (B) uphold the principle that no government should 
                be above the law.
    (c) Purpose.--The purpose of this Act is to assist in ensuring due 
process and legal rights throughout the United States and to strengthen 
the rule of law by making Indian tribal governments subject to judicial 
review with respect to certain civil matters.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Indian tribe.--The term ``Indian tribe'' means any 
        Indian tribe or band with a governing body duly recognized by 
        the Secretary of the Interior.
            (2) Tribal immunity.--The term ``tribal immunity'' means 
        the immunity of an Indian tribe from jurisdiction of the 
        courts, judicial review of an action of that Indian tribe, and 
        other remedies.

SEC. 3. COLLECTION OF STATE TAXES.

    Section 1362 of title 28, United States Code, is amended--
            (1) by inserting ``(a)'' before ``The district courts'';
            (2) by inserting ``(referred to in this section as an 
        `Indian tribe')'' after ``Interior''; and
            (3) by adding at the end the following:
    ``(b)(1) An Indian tribe, tribal corporation, or member of an 
Indian tribe, shall collect, and remit to a State, any excise, use, or 
sales tax imposed by the State on nonmembers of the Indian tribe as a 
consequence of the purchase of goods or services by the nonmember from 
the Indian tribe, tribal corporation, or member.
    ``(2) A State may bring an action in a district court of the United 
States to enforce the requirements under paragraph (1).
    ``(3) To the extent necessary to enforce this subsection with 
respect to an Indian tribe, tribal corporation, or member of an Indian 
tribe, the tribal immunity of that Indian tribe, tribal corporation, or 
member is waived.''.

SEC. 4. INDIAN TRIBES AS DEFENDANTS.

    (a) Provisions To Parallel the Provisions That Are Popularly Known 
as the Tucker Act.--Section 1362 of title 28, United States Code, as 
amended by section 3, is further amended by adding at the end the 
following:
    ``(c)(1) The district courts of the United States shall have 
original jurisdiction in any civil action or claim against an Indian 
tribe, with respect to which the matter in controversy arises under the 
Constitution, laws, or treaties of the United States.
    ``(2) The district courts shall have jurisdiction of any civil 
action or claim against an Indian tribe for liquidated or unliquidated 
damages for cases not sounding in tort that involve any contract made 
by the governing body of the Indian tribe or on behalf of an Indian 
tribe.
    ``(d) Subject to the provisions of chapter 171A, the district 
courts shall have jurisdiction of civil actions in claims against an 
Indian tribe for money damages, accruing on or after the date of 
enactment of the American Indian Equal Justice Act for injury or loss 
of property, personal injury, or death caused by the negligent or 
wrongful act or omission of an Indian tribe under circumstances in 
which the Indian tribe, if a private individual or corporation would be 
liable to the claimant in accordance with the law of the State where 
the act or omission occurred.
    ``(e) To the extent necessary to enforce this section, the tribal 
immunity (as that term is defined in section 2 of the American Indian 
Equal Justice Act) of the Indian tribe (as that term is defined in such 
section 2) involved is waived.''.

SEC. 5. TORT CLAIMS PROCEDURE.

    (a) In General.--Part 6 of title 28, United States Code, is amended 
by inserting after chapter 171 the following:

              ``CHAPTER 171A--INDIAN TORT CLAIMS PROCEDURE

``Sec.
``2691. Definitions.
``2692. Liability of Indian tribes.
``2693. Compromise.
``2694. Exceptions; waiver.
``Sec. 2691. Definitions
    ``In this chapter:
            ``(1)(A) Subject to subparagraph (B), the term `employee of 
        an Indian tribe' includes--
                    ``(i) an officer or employee of an Indian tribe; 
                and
                    ``(ii) any person acting on behalf of an Indian 
                tribe in an official capacity, temporarily or 
                permanently, whether with or without compensation 
                (other than an employee of the Federal Government or 
                the government of a State or political subdivision 
                thereof who is acting within the scope of the 
                employment of that individual).
            ``(B) The term includes an individual who is employed by an 
        Indian tribe to carry out a self-determination contract (as 
        that term is defined in section 4(j) of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 
        450b(j))).
            ``(2) The term `Indian tribe' means any Indian tribe or 
        band with a governing body duly recognized by the Secretary of 
        the Interior.
``Sec. 2692. Liability of Indian tribes
    ``(a) An Indian tribe shall be liable, relating to tort claims, in 
the same manner and to the same extent, as a private individual or 
corporation under like circumstances, but shall not be liable for 
interest before judgment or for punitive damages.
    ``(b) In any case described in subsection (a) in which a death was 
caused and the law of the State where the act or omission complained of 
occurred provides for punitive damages, the Indian tribe shall, in lieu 
of being liable for punitive damages, be liable for actual or 
compensatory damages resulting from that death to each person on behalf 
of whom action was brought.
``Sec. 2693. Compromise
    ``The governing body of an Indian tribe or a designee of that 
governing body may arbitrate, compromise, or settle any claim 
cognizable under section 1362(d).
``Sec. 2694. Exceptions; waiver
    ``(a) The provisions of this chapter and section 1362(d) shall not 
apply to any case relating to a controversy relating to membership in 
an Indian tribe.
    ``(b) With respect to an Indian tribe, to the extent necessary to 
carry out this chapter, the tribal immunity (as that term is defined in 
section 2 of the American Indian Equal Justice Act) of that Indian 
tribe is waived.''.
    (b) Clerical Amendment.--The table of chapters for title 28, United 
States Code, is amended by inserting after the item relating to chapter 
171 the following:

``171A. Indian Tort Claims Procedure........................    2691''.

SEC. 6. INDIAN TRIBES AS DEFENDANTS IN STATE COURTS.

    (a) Consent to Suit in State Court.--Consent is hereby given to 
institute a civil cause of action against an Indian tribe in a court of 
general jurisdiction of the State, on a claim arising within the State, 
including a claim arising on an Indian reservation or Indian country, 
in any case in which the cause of action--
            (1) arises under Federal law or the law of a State; and
            (2) relates to--
                    (A) tort claims; or
                    (B) claims for cases not sounding in tort that 
                involve any contract made by the governing body of an 
                Indian tribe or on behalf of an Indian tribe.
    (b) Tort Claims.--In any action brought in a State court for a tort 
claim against an Indian tribe, that Indian tribe shall be liable to the 
same extent as a private individual or corporation under like 
circumstances, but shall not be liable for interest prior to judgment 
or for punitive damages.
    (c) Federal Consent.--Notwithstanding the provisions of the Act of 
August 15, 1953 (67 Stat. 588 et seq., chapter 505), section 1360 of 
title 28, United States Code, and sections 401 through 404 of the Civil 
Rights Act of 1968 (25 U.S.C. 1321 through 1324) and section 406 of 
such Act (25 U.S.C. 1326) that require the consent of an Indian tribe 
for a State to assume jurisdiction over matters of civil law, this 
section constitutes full and complete consent by the United States for 
a State court to exercise jurisdiction over any claim referred to in 
subsection (a).
    (d) Removal.--An action brought under this section--
            (1) shall not be removable under section 1441 of title 28, 
        United States Code; and
            (2) shall be considered to meet the requirements for an 
        exception under section 1441(a) of title 28, United States 
        Code.

SEC. 7. INDIAN CIVIL RIGHTS.

    Title II of the Civil Rights Act of 1968 (commonly known as the 
``Indian Civil Rights Act'') (25 U.S.C. 1301 et seq.) is amended by 
adding at the end the following:

``SEC. 204. ENFORCEMENT.

    ``The district courts of the United States shall have jurisdiction 
in any civil rights action alleging a failure to comply with rights 
secured by the requirements under this title. With respect to an Indian 
tribe, to the extent necessary to enforce this title, the tribal 
immunity of that Indian tribe (as that term is defined in section 2 of 
the American Indian Equal Justice Act) is waived.''.

SEC. 8. APPLICABILITY.

    This Act and the amendments made under this Act shall apply to 
cases commenced against an Indian tribe on or after the date of 
enactment of this Act.
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