[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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