[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2302 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2302

  To provide for tort liability insurance for Indian tribes, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 14, 1998

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

_______________________________________________________________________

                                 A BILL


 
  To provide for tort liability insurance for Indian tribes, 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.

    This Act may be cited as the ``American Indian Tort Liability 
Insurance Act''.

SEC. 2. AMERICAN INDIAN TORT LIABILITY INSURANCE.

    (a) Findings.--Congress finds that--
            (1) Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 
        Inc., 523 U.S. ____ (1998), recognized the increasing 
        interaction between tribal governments, tribal corporations, or 
        individual members of Indian tribes with individuals who are 
        not members of an Indian tribe, on and off Indian reservations 
        (including property held in trust for Indian tribes) in the 
        areas of economic development and commerce;
            (2) the interaction referred to in paragraph (1) may lead 
        to disputes that could include claims by individuals against 
        tribal governments or tribal organizations as a result of 
        injury in tort;
            (3) as Justice Kennedy stated in his opinion in Kiowa Tribe 
        of Oklahoma v. Manufacturing Technologies, Inc., the doctrine 
        of tribal immunity asserted by the governing bodies of Indian 
        tribes to shield the Indian tribes from court actions that are 
        necessary to recover for the liability of the governing bodies 
        or tribal organizations of Indian tribes, can ``harm those who 
        are unaware that they are dealing with a tribe, who do not know 
        of tribal immunity, or who have no choice in the matter, as in 
        the case of tort victims''; and
            (4) in order to provide protection for individuals 
        interacting with tribal governments or organizations--
                    (A) Indian tribes should maintain tort liability 
                insurance; and
                    (B) tribal immunity should not be used as a basis 
                for the denial of a claim under that tort liability 
                insurance.
    (b) Definition.--In this section:
            (1) Indian tribe.--The term ``Indian tribe'' has the 
        meaning given that term in section 4(e) of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450b(e)).
            (2) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (3) Tribal immunity.--The term ``tribal immunity'' means 
        the immunity of an Indian tribe from--
                    (A) jurisdiction of the courts; and
                    (B) judicial review of an action of that Indian 
                tribe and other remedies.
            (4) Tribal organization.--The term ``tribal organization'' 
        has the meaning given that term in section 4(l) of the Indian 
        Self-Determination and Education Assistance Act (25 U.S.C. 
        450b(l)).
            (5) Tribal priority allocation.--The term ``tribal priority 
        allocation'' means an allocation to a tribal priority account 
        of an Indian tribe by the Bureau of Indian Affairs to allow 
        that Indian tribe to establish program priorities and funding 
        levels.
    (c) Indian Tribes as Defendants in Tort Disputes.--Section 1362 of 
title 28, United States Code, is amended by--
            (1) inserting ``(a)'' before ``The district courts'';
            (2) inserting ``(referred to in this section as an `Indian 
        tribe')'' after ``Interior''; and
            (3) adding at the end the following:
    ``(b) 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 this subsection for injury or loss of property, personal 
injury, or death caused by the negligent or wrongful act or omission of 
an Indian tribe (including a tribal organization) 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.
    ``(c) Subject to the provisions of chapter 171A, to the extent 
necessary to enforce this section, the tribal immunity of the Indian 
tribe involved is waived.''.
    (d) Tort Liability Insurance.--
            (1) In general.--
                    (A) Insurance.--Except as provided in paragraph 
                (2), not later than 180 days after the enactment of 
                this Act, the Secretary shall obtain or provide tort 
                liability insurance or equivalent coverage, on the most 
                cost-effective basis, for each Indian tribe that 
                receives a tribal priority allocation.
                    (B) Coverage.--The insurance obtained under 
                subparagraph (A) for an Indian tribe shall cover the 
                governing body of the Indian tribe, each tribal 
                organization, of that Indian tribe and each contractor 
                or employer of that Indian tribe, within the scope of 
                that contractor or employer. The coverage shall become 
                effective on the date on which that coverage is 
                obtained.
            (2) Exception.--If the Secretary determines that an Indian 
        tribe described in paragraph (1) has obtained liability 
        insurance in an amount and of the type that the Secretary 
        determines to be appropriate (including meeting the requirement 
        of paragraph (4)) by the date specified in paragraph (1), the 
        Secretary shall not be required to provide additional coverage 
        for that Indian tribe.
            (3) Tribal immunity may not be asserted to deny claims.--
        Under the liability insurance obtained under paragraph (1) or 
        that the Secretary determines to be appropriate under paragraph 
        (2), tribal immunity may not be asserted by the insurer as a 
        reason for denying a claim for damages resulting from the tort 
        liability of an Indian tribe.
            (4) Amount of coverage.--In carrying out this subsection, 
        the Secretary shall ensure that each Indian tribe obtains, or 
        is provided, in accordance with this subsection, a sufficient 
        amount of insurance coverage to cover tort liability of the 
        Indian tribe, under chapter 171A of title 28, United States 
        Code.
    (e) Funding of Tort Liability Insurance.--
            (1) Initial payment of insurance premiums.--For the initial 
        payment of insurance premiums for insurance obtained or 
        provided by the Secretary under subsection (d), the Secretary 
        shall take such action as may be necessary to ensure the 
        payment of premiums by the Indian tribe, including adjusting 
        the amount of the tribal priority allocation made to the Indian 
        tribe to cover the cost of the initial payments.
            (2) Subsequent payments.--
                    (A) In general.--After an initial payment under 
                paragraph (1), and before the Secretary makes a tribal 
                priority allocation for an Indian tribe, the Secretary 
                shall verify that the Indian tribe--
                            (i) has insurance coverage that meets the 
                        requirements of subsection (d); and
                            (ii) has made such payments for premiums of 
                        that insurance as are necessary to provide 
                        insurance coverage for the fiscal year for 
                        which the tribal priority allocation is to be 
                        made.
                    (B) Payment required as a condition to receiving 
                tribal priority allocation.--Notwithstanding any other 
                provision of law, if the Secretary determines under 
                subparagraph (A) that an Indian tribe has not made the 
                payments described in subparagraph (A)(ii), the 
                Secretary shall withhold the tribal priority allocation 
                of that Indian tribe until such time as those payments 
                are made.
    (f) Jurisdiction of District Courts.--Notwithstanding any other 
provision of law, the district courts shall have jurisdiction over any 
action concerning the tort liability of an Indian tribe that is covered 
under insurance that meets the requirements of subsection (d), and a 
case to recover damages through an insurer that provides coverage under 
subsection (d) may be brought without regard to whether remedies under 
otherwise applicable tribal law have been exhausted.
    (g) Regulations.--To carry out this section, as soon as practicable 
after the date of enactment of this section, the Secretary shall issue 
regulations that--
            (1) provide for the amount of insurance coverage or 
        equivalent coverage needed to protect an Indian tribe for the 
        liabilities that may be subject to a claim under chapter 171A 
        if title 28, United States Code;
            (2) establish a schedule of premiums to be assessed against 
        an Indian tribe that is provided liability insurance under 
        subsection (d); and
            (3) establish a means to verify the amount, maintenance, 
        and funding of insurance of Indian tribes that obtain and 
        maintain insurance under subsection (d)(3).
    (h) Indian Tort Claims Procedure.--
            (1) 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. Exceptions; waiver.
``Sec. 2691. Definitions
    ``In this chapter:
            ``(1) The term `employee of an Indian tribe' includes--
                    ``(A) an officer or employee of an Indian tribe 
                (including an officer or employee of a tribal 
                organization); and
                    ``(B) 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).
            ``(2) The term `Indian tribe' has the meaning given that 
        term in section 4(e) of the Indian Self-Determination and 
        Education Assistance Act (25 U.S.C. 450b(e).
            ``(3) The term `tribal immunity' means the immunity of an 
        Indian tribe from--
                    ``(A) jurisdiction of the courts; and
                    ``(B) judicial review of an action of that Indian 
                tribe and other remedies.
``Sec. 2692. Liability of Indian tribes
    ``(a) Subject to the limitations under subsection (c), an Indian 
tribe (including a tribal organization) shall be liable for the actions 
of the employees of that Indian tribe (or tribal organization), 
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) Subject to the limitations under subsection (c), 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.
    ``(c)(1) The liability of an Indian tribe or tribal organization 
may not exceed--
            ``(A) $500,000 for each claim made under this chapter; or
            ``(B) in any case in which more than 1 claim arises from 
        the same occurrence for damages for a tortuous act or omission, 
        an aggregate amount equal to $1,000,000 for those claims.
    ``(2) If the Secretary of the Interior determines that a limitation 
on the amount of liability of an Indian tribe under subparagraph (A) or 
(B) is appropriate, the Secretary of the Interior shall submit to 
Congress proposed legislation to provide for that increase.
``Sec. 2693. Exceptions; waiver
    ``(a) The provisions of this chapter and section 1362(b) 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 of that Indian tribe is 
waived.''.
            (2) 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''.
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