[Congressional Record Volume 144, Number 17 (Friday, February 27, 1998)]
[Senate]
[Pages S1155-S1156]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GORTON:
  S. 1691. A bill to provide for Indian legal reform, and for other 
purposes; to the Committee on Indian Affairs.


                   AMERICAN INDIAN EQUAL JUSTICE ACT

  Mr. GORTON. Mr. President, I introduce the American Indian Equal 
Justice Act and ask unanimous consent that the full text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1691

       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

[[Page S1156]]

     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.
                                 ______