[Congressional Record Volume 144, Number 65 (Wednesday, May 20, 1998)]
[Senate]
[Pages S5221-S5224]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL:
  S. 2097. A bill to encourage and facilitate the resolution of 
conflicts involving Indian tribes, and for other purposes; to the 
Committee on Indian Affairs.


indian tribal conflict resolution, tort claims, and risk management act 
                                of 1998

  Mr. CAMPBELL. Mr. President, today I introduce the Indian Tribal 
Conflict Resolution, Tort Claims and Risk Management Act of 1998 to 
continue the discourse on matters involving Indian tribal governments 
such as providing a mechanism for the collection of legitimate state 
retail sales taxes and affording a remedy to those persons injured by 
the acts of tribal governments, or those acting on their behalf.
  By introducing this legislation, I am hopeful that tribal leaders, 
concerned parties, and those affected by the actions of tribal 
governments can find some common ground and craft innovative solutions 
to these issues which I believe will continue to hamper Indian tribes 
unless dealt with appropriately.
  It has been said that because of Indian tribal immunity from 
lawsuits, states have no enforcement mechanism to collect state retail 
taxes on transactions made to non-members. Similarly, opponents of 
tribal immunity charge that tribal immunity prevents injured persons 
from seeking legal recourse for their injuries.
  The Supreme Court has held that on retail sales made to non-members, 
Indian tribes are under a duty to collect and remit such state taxes. 
The Court made it clear that there are numerous remedies available to 
the states in such situations including suits against tribal officials; 
levying the tax at the wholesale level before goods enter reservation 
commerce; negotiating agreements with the tribes involved; and if these 
prove unworkable, then seeking congressional action.
  At least 18 states and numerous tribes have chosen the negotiations 
route to settling their differences short of litigation and acrimony. 
Testimony presented to the committee on March 11, 1998, revealed that 
there are approximately 200 intergovernmental agreements between Indian 
tribes and states providing for the collection and remittance by the 
tribes of state sales taxes on sales made to non-members.
  Rather than waive the immunity of all tribes--those who have chosen 
to deal with the issue of taxation through agreement and those who have 
not--the legislation I introduce today declares the policy of the 
United States to be the reaffirmation of the federal obligation to 
protect Indian tribes, people, and trust resources and property of 
Indian tribes. In fulfilling that obligation, the United States should 
make available the framework and machinery for the amicable settlement 
and resolution of disputes, including tax matters, involving states and 
Indian tribes.
  The achievement of mutual agreements is the major objective of this 
bill, and in addition to encouraging such agreements, this legislation 
provides for the creation of an ``Intergovernmental Alternative Dispute 
Resolution Panel'' to consider and render decisions on tax matters that 
cannot be resolved through negotiation.
  The panel will be composed of a five member team including 
representatives of the Departments of Interior, Justice, and Treasury; 
one representative of state governments; and one representative of 
tribal governments. Rather than create a ``new'' mediation framework, 
this bill relies on the existing Federal Mediation and Conciliation 
Service to provide mediation services for such situations.

  Title II of the bill is intended to provide a remedy in tort 
situations for those tribes that are not covered by the Federal Tort 
Claims Act, or covered by private secured liability insurance.
  This title would require the Secretary of Interior to obtain or 
provide tort liability insurance or equivalent coverage for each Indian 
tribe that receives tribal priority allocations from the Bureau of 
Indian Affairs (BIA).
  Because many, if not most, Indian tribes maintain some type of 
insurance coverage, the Secretary is obligated to determine the type 
and adequacy of coverage already provided in order to avoid duplicative 
or redundant coverage.
  Significantly, and as is the case with insurance policies now in 
place for

[[Page S5222]]

many tribal governments, the policy of insurance must contain a 
provision prohibiting the carrier from raising the defense of sovereign 
immunity with respect to any tort action filed involving the tribe. In 
this way, injured persons would be afforded a remedy. Such policies 
would also contain a provision precluding any waiver for pre-judgment 
interest or punitive damages.
  The Secretary would prescribe regulations governing the amount and 
nature of claims covered by such insurance policy, and would also set a 
schedule of premiums payable by any tribe that is provided insurance 
under this bill.
  Lastly, as Indian tribes have begun to re-develop their economies and 
are beginning to assert their influence, issues and matters have 
developed that should receive the attention of a full-time, 
intergovernmental body to review and analyze such situations.
  This legislation creates the ``Joint Tribal-Federal-State Commission 
on Intergovernmental Affairs'' to thoughtfully and deliberately 
consider matters such as law enforcement, civil and criminal 
jurisdiction, taxation, transportation, economic development, and 
related issues. Two years after enactment, the commission is required 
to submit a report of its findings and recommendations to the 
President, the Committee on Indian Affairs in the Senate, and the 
Committee on Resources in the House of Representatives.
  Finally, let me say that I do not agree with those who suggest that 
the doctrine of tribal sovereign immunity is an anachronism and one no 
longer deserving of protection. Several of the states, as well as the 
federal government, have chosen to waive their immunity from suit in 
very limited circumstances and under strict conditions.
  It is simply inaccurate to suggest that tribal governments are the 
last repository of immunity. Whether by limiting damage awards as some 
states have done, or eliminating entire classes of activities that will 
not trigger immunity waivers as the federal government has done in the 
Federal Tort Claims Act, the doctrine of immunity is alive and well in 
the United States.
  That there are issues that need to be dealt with I agree; that the 
way to address these issues is through involuntary, broad-based waivers 
of immunity, I disagree heartily. I call on the quiet, thoughtful, and 
reasonable people on both sides of these issues to craft solutions that 
respects Indian tribal governments and yet provides reasonable 
solutions for legitimate problems that do exist.
  Mr. President, I ask that the contents of the legislation be printed 
in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2097

       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 ``Indian Tribal Conflict 
     Resolution and Tort Claims and Risk Management Act of 1998''.

     SEC. 2. FINDINGS; PURPOSES.

       (a) Findings.--Congress finds that--
       (1) Indian tribal sovereignty predates the formation of the 
     United States and the United States Constitution;
       (2) a unique legal and political relationship exists 
     between the United States and Indian tribes;
       (3) through treaties, statutes, Executive orders, and 
     course of dealing, the United States has recognized tribal 
     sovereignty and the unique relationship that the United 
     States has with Indian tribes;
       (4) Indian tribal governments exercise governmental 
     authority and powers over persons and activities within the 
     territory and lands under the jurisdiction of those 
     governments;
       (5) conflicts involving Indian tribal governments may 
     necessitate the active involvement of the United States in 
     the role of the trustee for Indian tribes;
       (6) litigation involving Indian tribes, that often requires 
     the United States to intervene as a litigant, is costly, 
     lengthy, and contentious;
       (7) for many years, alternative dispute resolution has been 
     used successfully to resolve disputes in the private sector, 
     and in the public sector;
       (8) alternative dispute resolution--
       (A) results in expedited decisionmaking; and
       (B) is less costly, and less contentious than litigation;
       (9) it is necessary to facilitate intergovernmental 
     agreements between Indian tribes and States and political 
     subdivisions thereof;
       (10) Indian tribes have made significant achievements 
     toward developing a foundation for economic self-sufficiency 
     and self-determination, and that economic self-sufficiency 
     and self-determination have increased opportunities for the 
     Indian tribes and other entities and persons to interact more 
     frequently in commerce and intergovernmental relationships;
       (11) although Indian tribes have sought and secured 
     liability insurance coverage to meet their needs, many Indian 
     tribes are faced with significant barriers to obtaining 
     liability insurance because of the high cost or 
     unavailability of such coverage in the private market;
       (12) as a result, Congress has extended liability coverage 
     provided to Indian tribes to organizations to carry out 
     activities under the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450 et seq.); and
       (13) there is an emergent need for comprehensive and cost-
     efficient insurance that allows the economy of Indian tribes 
     to continue to grow and provides compensation to persons that 
     may suffer personal injury or loss of property.
       (b) Purposes.--The purposes of this Act are to enable 
     Indian tribes, tribal organizations, States and political 
     subdivisions thereof, through viable intergovernmental 
     agreements to--
       (1) achieve intergovernmental harmony; and
       (2) enhance intergovernmental commerce.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Federal agency.--The term ``Federal agency'' has the 
     meaning given the term ``Executive agency'' in section 105 of 
     title 5, United States Code.
       (2) Indian country.--The term ``Indian country'' has the 
     meaning given that term in section 1151 of title 18, United 
     States Code.
       (3) 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)).
       (4) Panel.--The term ``Panel'' means the Intergovernmental 
     Alternative Dispute Panel established under section 103.
       (5) Secretary.--The term ``Secretary'' means the Secretary 
     of the Department of the Interior.
       (6) State.--The term ``State'' means each of the 50 States 
     and the District of Columbia.
       (7) 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)).

     SEC. 4. DECLARED POLICY OF THE UNITED STATES.

       It is the policy of the United States--
       (1) to continue to preserve and protect Indian tribes, 
     Indian people, and trust resources and property of Indian 
     tribes; and
       (2) that the settlement of issues and disputes involving 
     Indian tribes and States or political subdivisions thereof, 
     through negotiation and accommodation, may be advanced by 
     making available full and adequate governmental facilities 
     for fact finding, conciliation, mediation, and voluntary 
     arbitration to aid and encourage Indian tribes, States, and 
     political subdivisions thereof--
       (A) to reach and maintain agreements; and
       (B) to make reasonable efforts to settle differences by 
     mutual agreement reached by such methods as may be provided 
     for in any applicable agreement for the settlement of 
     disputes.
                 TITLE I--INTERGOVERNMENTAL AGREEMENTS

     SEC. 101. INTERGOVERNMENTAL COMPACT AUTHORIZATION.

       (a) In General.--The consent of the United States is 
     granted to States and Indian tribes to enter into compacts 
     and agreements in accordance with this title.
       (b) Collection of Taxes.--Consistent with the United States 
     Constitution, treaties, and principles of tribal and State 
     sovereignty, and consistent with Supreme Court decisions 
     regarding the collection and payment of certain retail taxes 
     of a State or political subdivision thereof, the consent of 
     the United States is hereby given to Indian tribes, tribal 
     organizations, and States and States and Indian tribes may to 
     enter into compacts and agreements relating to the collection 
     and payment of certain retail taxes.
       (c) Filing.--Not later than 30 days after entering into an 
     agreement or compact under this section, a State or Indian 
     tribe shall submit a copy of the compact or agreement to the 
     Secretary. Upon receipt of the compact or agreement, the 
     Secretary shall publish the compact or agreement in the 
     Federal Register.
       (d) Limitations.--
       (1) In general.--An agreement or compact under this section 
     shall not affect any action or proceeding over which a court 
     has assumed jurisdiction at the time that the agreement or 
     compact is executed.
       (2) Prohibition.--No action or proceeding described in 
     paragraph (1) shall abate by reason of that agreement or 
     compact unless specifically agreed upon by all parties--
       (A) to the action or proceedings; and
       (B) to the agreement or compact.
       (e) Revocation.--An agreement or compact entered into under 
     this section shall be subject to revocation by any party to 
     that agreement or compact. That revocation shall take effect 
     on the earlier of--

[[Page S5223]]

       (1) the date that is 180 days after the date on which 
     notice of revocation is provided to each party to that 
     agreement or compact; or
       (2) any date that is agreed to by all parties to that 
     agreement or compact.
       (f) Revision or Renewal.--Upon the expiration or revocation 
     of an agreement or compact under this section, the parties to 
     such agreement or compact may enter into a revised agreement 
     or compact, or may renew that agreement or compact.
       (g) Effect of Renewal.--For purposes of this title, the 
     renewal of an agreement or compact entered into under this 
     title shall be treated as a separate agreement or compact and 
     shall be subject to the limitations and requirements 
     applicable to an initial agreement or compact.
       (h) Statutory Construction.--Nothing in this title shall be 
     construed to--
       (1) except as expressly provided in this title, expand or 
     diminish the jurisdiction over civil or criminal matters that 
     may be exercised by a State or the governing body of an 
     Indian tribe; or
       (2) authorize or empower a State or tribal government, 
     either separately or pursuant to agreement, to expand or 
     diminish the jurisdiction exercised by the Government of the 
     United States to--
       (A) make criminal, civil, or regulatory laws; or
       (B) enforce those laws in Indian country.

     SEC. 102. INTERGOVERNMENTAL NEGOTIATIONS-PROCEDURES.

       (a) Good Faith Negotiations.--In negotiating a claim, the 
     parties shall conduct full and fair good faith negotiations 
     pursuant to this title, with the objective of achieving a 
     intergovernmental agreement or compact that meets the 
     requirement of this title.
       (b) Request for Negotiations.--
       (1) In general.--An Indian tribe or a State may request the 
     Secretary to initiate negotiations to address a claim covered 
     under this title.
       (2) Notification.--The Secretary shall notify the parties 
     of any request made under paragraph (1).
       (3) Requests.--Any request made to the Secretary under this 
     subsection shall be in writing.
       (4) Participation as a prerequisite to invoke procedures 
     under section 103.--
       (A) In general.--A party may not file a claim under section 
     103 unless that party is available for, agrees to, and 
     participates in, negotiations under this section.
       (B) Notice.--Upon receipt of any request made pursuant to 
     paragraph (1), the Secretary shall, not later than 30 days 
     after such receipt, send a notice by registered mail, return 
     receipt requested, advising the parties that are subject to a 
     request made under paragraph (1), that no party may file a 
     claim under section 103 without having participated in 
     negotiations under this section.
       (c) Negotiations.--
       (1) In general.--The Secretary shall, in a manner 
     consistent with section 103, cause to occur and facilitate 
     negotiations that are subject to a request under subsection 
     (a).
       (2) Non-binding nature of negotiations.--Consistent with 
     the purposes of this title, the negotiations referred to in 
     paragraph (1) shall--
       (A) be nonbinding; and
       (B) be facilitated by a mediator selected in accordance 
     with section 103.
       (3) Selection of mediator.--
       (A) In general.--The Secretary shall select 3 mediators 
     from a list supplied by the Federal Mediation and 
     Conciliation Service and submit a list of these mediators to 
     the parties.
       (B) Challenges.--Each party may challenge the selection of 
     1 of the mediators listed by the Secretary under subparagraph 
     (A).
       (C) Selection.--After each party has had an opportunity to 
     challenge the list made by the Administrator under 
     subparagraph (B), the Secretary shall select a mediator from 
     the list who is not subject to such a challenge.
       (4) Payment.--The expenses and fees of the mediator 
     selected under paragraph (3) in facilitating negotiations 
     under paragraph (1) shall be paid by the Secretary.
       (5) Reimbursement.--If a party that files a claim under 
     section 103 and that party is not the prevailing party in 
     that claim, that party shall reimburse the Secretary for any 
     fees and expenses incurred by the Secretary pursuant to 
     paragraph (4).
       (d) Procedures.--Negotiations conducted under this title 
     shall be subject to the following procedures:
       (1) Commencement.--Negotiations conducted under this 
     section shall commence as soon as practicable after the party 
     that receives notice under subsection (b)(4)(B) responds to 
     the Secretary.
       (2) Additional investigation, research, or negotiation.--
       (A) In general.--Each party that enters into negotiation 
     under this section and the Secretary may agree to additional 
     investigation, research, or analysis to facilitate a 
     negotiated settlement.
       (B) Payments.--The cost of the additional investigation, 
     research, or analysis referred to in subparagraph (A) shall 
     be borne by the party that undertakes that investigation, 
     research, or analysis, or causes that investigation, 
     research, and analysis.
       (3) Exchange of records and documentation.--Each party that 
     enters into negotiations under this section shall exchange, 
     and make available to the Secretary, any records, documents, 
     or other information that the party may have with regard to 
     transactions within the scope of the claims alleged that--
       (A) may be relevant to resolving the negotiations; and
       (B) are not privileged information under applicable law, or 
     otherwise subject to restrictions on disclosure under 
     applicable law.
       (4) Termination.--
       (A) In general.--
       (i) Termination.--Except as provided in clause (i) and 
     subparagraph (B), negotiations conducted under this section 
     shall terminate on the date that is 1 year after the date of 
     the first meeting of the parties to conduct negotiations 
     under this section.
       (ii) Mutual agreement.--The period for negotiations under 
     clause (i) may be extended if the parties and the Secretary 
     agree that there is a reasonable likelihood that the 
     extension may result in a negotiated settlement.
       (B) Mutual agreement.--At any time during negotiations 
     under this section, the parties may mutually agree to 
     terminate the negotiations.
       (C) Fulfillment of certain requirements.--A party shall be 
     considered to have met the requirements described in 
     subsection (b)(4) in any case in which negotiations are 
     terminated by mutual agreement of the parties under 
     subparagraph (B).
       (e) Negotiated Settlements.--
       (1) In general.--A negotiated settlement of a claim covered 
     by this title reached by the parties under this section shall 
     constitute the final, complete, and conclusive resolution of 
     that claim.
       (2) Alternative dispute resolution.--Any claim, setoff, or 
     counterclaim (including any claim, setoff, or counterclaim 
     described in section 103(c)) that is not subject to a 
     negotiated settlement under this section may be pursued by 
     the parties or the Secretary pursuant to section 103.

     SEC. 103. INTERGOVERNMENTAL ALTERNATIVE DISPUTE RESOLUTION 
                   PANEL-ESTABLISHMENT.

       (a) In General.--If negotiations conducted under section 
     103 do not result in a settlement, the Secretary may refer 
     the State and Indian tribe involved to the Panel established 
     under subsection (b).
       (b) Authority of Panel.--To the extent allowable by law, 
     the Panel may consider and render a decision on a referred to 
     the Panel under this section.
       (c) Taxation.--Any claim involving the legitimacy of a 
     claim for the collection or payment of certain retail taxes 
     owed by an Indian tribe to a State or political subdivision 
     thereof and shall include or admit of counterclaims, setoffs, 
     or related claims submitted or filed by the tribe in question 
     regarding the original claim.
       (d) Membership of the Panel.--
       (1) In general.--The Panel shall consist of--
       (A) 1 representative from the Department of the Interior;
       (B) 1 representative from the Department of Justice;
       (C) 1 representative from the Department of the Treasury;
       (D) 1 representative of State governments; and
       (E) 1 representative of tribal governments of Indian 
     tribes.
       (2) Chairperson.--The members of the Panel shall select a 
     Chairperson from among the members of the Panel.
       (e) Federal Mediation Conciliation Service.--
       (1) In general.--In a manner consistent with this title, 
     the Panel shall consult with the Federal Mediation 
     Conciliation Service (referred to in this subsection as the 
     ``Service'') established under section 202 of the National 
     Labor Relations Act (29 U.S.C. 172).
       (2) Duties of service.--The Service shall, upon request of 
     the Panel and in a manner consistent with applicable law--
       (A) provide services to the Panel to aid in resolving 
     disputes brought before the Panel;
       (B) furnish employees to act as neutrals (as that term is 
     defined in section 571(9) of title 5, United States Code) in 
     resolving the disputes brought before the Panel; and
       (C) consult with the Administrative Conference of the 
     United States to maintain a roster of neutrals and 
     arbitrators.

     SEC. 104. JUDICIAL ENFORCEMENT.

       (a) Intergovernmental Agreements.--
       (1) In general.--
       (A) Jurisdiction.--Except as provided in subparagraph (B), 
     the district courts of the United States shall have original 
     jurisdiction with respect to--
       (i) any civil action, claim, counterclaim, or setoff, 
     brought by any party to a agreement or compact entered into 
     in accordance with this title to secure equitable relief, 
     including injunctive and declaratory relief; and
       (ii) the enforcement of any agreement or compact.
       (B) Damages.--No action to recover damages arising out of 
     or in connection with an agreement or compact entered into 
     under this section may be brought, except as specifically 
     provided for in that agreement or compact.
       (2) Consent to suit.--Each compact or agreement entered 
     into under this title shall specify that the partner consent 
     to litigation to enforce the agreement, and to the extent 
     necessary to enforce that agreement, each party waives any 
     defense of sovereign immunity.

     SEC. 105. JOINT TRIBAL-FEDERAL-STATE COMMISSION ON 
                   INTERGOVERNMENTAL AFFAIRS.

       (a) In general.--The Secretary shall establish a tribal, 
     Federal, and State commission

[[Page S5224]]

     (to be known as the ``Tribal-Federal-State Commission'') 
     (referred to in this section as the ``Commission'').
       (b) Members.--
       (1) In general.--The Commission shall be comprised of 
     representatives of Indian tribes, the States, and the Federal 
     Government.
       (2) Duties of the commission.--The Commission shall advise 
     the Secretary concerning issues of intergovernmental concern 
     with respect to Indian tribes, States, and the Federal 
     Government, including--
       (A) law enforcement;
       (B) civil and criminal jurisdiction;
       (C) taxation;
       (D) transportation;
       (E) economy development; and
       (F) other matters related to a matter described in 
     subparagraph (A), (B), (C), (D), or (E).
       (3) Period of appointment.--Members shall be appointed for 
     the life of the Commission. Any vacancy in the Commission 
     shall not affect its powers, but shall be filled in the same 
     manner as the original appointment.
       (4) Initial meeting.--No later than 30 days after the date 
     on which all members of the Commission have been appointed, 
     the Commission shall hold its first meeting.
       (5) Meetings.--The Commission shall meet at the call of the 
     Chairman.
       (6) Quorum.--A majority of the members of the Commission 
     shall constitute a quorum, but a lesser number of members may 
     hold hearings.
       (7) Chairman and vice chairman.--The Commission shall 
     select a Chairman and Vice Chairman from among its members.
       (8) Powers.--
       (A) Hearings.--The Commission may hold such hearings, sit 
     and act at such times and places, take such testimony, and 
     receive such evidence as the Commission considers advisable 
     to carry out the purposes of this section.
       (B) Information from federal agencies.--The Commission may 
     secure directly from any Federal department or agency such 
     information as the Commission considers necessary to carry 
     out the provisions of this Act section. Upon request of the 
     Chairman of the Commission, the head of such department or 
     agency shall furnish such information to the Commission.
       (C)  Postal services.--The Commission may use the United 
     States mails in the same manner and under the same conditions 
     as other departments and agencies of the Federal Government.
       (D) Gifts.--The Commission may accept, use, and dispose of 
     gifts or donations of services or property.
       (9) Commission personnel matters.--
       (A) Compensation of members.--Each member of the Commission 
     who is not an officer or employee of the Federal Government 
     shall be compensated for each day (including travel time) 
     during which such member is engaged in the performance of the 
     duties of the Commission. All members of the Commission who 
     are officers or employees of the United States shall serve 
     without compensation in addition to that received for their 
     services as officers or employees of the United States.
       (B) Travel expenses.--The members of the Commission shall 
     be allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business in the performance of services for the Commission.
       (c) Report.--Not later than 2 years after the date of 
     enactment of this Act, and annually thereafter, the 
     Commission shall prepare and submit to the President, the 
     Committee on Indian Affairs of the Senate, and the Committee 
     on Resources of the House of Representatives a report on the 
     implementation of this title that includes any 
     recommendations that the Commission determines to be 
     appropriate.

     SEC. 106. FUNDING AND IMPLEMENTATION.

       (a) In General.--With respect to any agreement or compact 
     between an Indian tribe and a State, the United States, upon 
     agreement of the parties and the Secretary, may provide 
     financial assistance to such parties for costs of personnel 
     or administrative expenses in an amount not to exceed 100 
     percent of the costs incurred by the parties as a consequence 
     of that agreement or compact, including any indirect costs of 
     administration that are attributable to the services 
     performed under the agreement or compact.
       (b) Assistance.--The head of each Federal agency may, to 
     the extent allowable by law and subject to the availability 
     of appropriations, provide technical assistance, material 
     support, and personnel to assist States and Indian tribes in 
     the implementation of the agreements or compacts entered into 
     under this title.
                   TITLE II--TORT LIABILITY INSURANCE

     SEC. 201. LIABILITY INSURANCE, WAIVER OF DEFENSE.

       (a) Tribal Priority Allocation Defined.--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.
       (b) Insurance.--
       (1) In general.--Except as provided in paragraph (3), not 
     later than 2 years after the date of enactment of this Act, 
     the Secretary shall obtain or provide tort liability 
     insurance or equivalent coverage for each Indian tribe that 
     receives a tribal priority allocation from amounts made 
     available to the Bureau of Indian Affairs for the operation 
     of Indian programs.
       (2) Cost-effectiveness.--In carrying out paragraph (1), the 
     Secretary shall--
       (A) ensure that the insurance or equivalent coverage is 
     provided in the most cost-effective manner available; and
       (B) for each Indian tribe referred to in paragraph (1), 
     take into consideration the extent to which the tort 
     liability is covered--
       (i) by privately secured liability insurance; or
       (ii) chapter 171 of title 28, United States Code (commonly 
     referred to as the ``Federal Tort Claims Act'') by reason of 
     an activity of the Indian tribe in which the Indian tribe is 
     acting in the same capacity as an agency of the United 
     States.
       (3) Limitation.--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 by the date specified in 
     paragraph (1), the Secretary shall not be required to provide 
     additional coverage for that Indian tribe.
       (c) Requirements.--A policy of insurance or a document for 
     equivalent coverage under subsection (a)(1) shall--
       (1) contain a provision that the insurance carrier shall 
     waive any right to raise as a defense the sovereign immunity 
     of an Indian tribe with respect to an action involving tort 
     liability of that Indian tribe, but only with respect to tort 
     liability claims of an amount and nature covered under the 
     insurance policy or equivalent coverage offered by the 
     insurance carrier; and
       (2) not waive or otherwise limit the sovereign immunity of 
     the Indian tribe outside or beyond the coverage or limits of 
     the policy of insurance or equivalent coverage.
       (d) Prohibition.--No waiver of the sovereign immunity of a 
     Indian tribe under this section shall include a waiver of any 
     potential liability for--
       (1) interest that may be payable before judgment; or
       (2) exemplary or punitive damages.
       (e) Preference.--In obtaining or providing tort liability 
     insurance coverage for Indian tribes under this section, the 
     Secretary shall, to the greatest extent practicable, give 
     preference to coverage underwritten by Indian-owned economic 
     enterprises, as defined in section 3 of the Indian Financing 
     Act of 1974 (25 U.S.C. 1452), except that for the purposes of 
     this subsection, those enterprises may include non-profit 
     corporations.
       (f) Regulations.--To carry out this title, the Secretary 
     shall promulgate regulations that--
       (1) provide for the amount and nature of claims to be 
     covered by an insurance policy or equivalent coverage 
     provided to an Indian tribe under this title; and
       (2) establish a schedule of premiums that may be assessed 
     against any Indian tribe that is provided liability insurance 
     under this title.

     SEC. 202. STUDY AND REPORT TO CONGRESS

       (a) In General.--
       (1) Study.--In order to minimize and, if possible, 
     eliminate redundant or duplicative liability insurance 
     coverage and to ensure that the provision of insurance of 
     equivalent coverage under this title is cost-effective, 
     before carrying out the requirements of section 201, the 
     Secretary shall conduct a comprehensive survey of the degree, 
     type, and adequacy of liability insurance coverage of Indian 
     tribes at the time of the study.
       (2) Contents of study.--The study conducted under this 
     subsection shall include--
       (A) an analysis of loss data;
       (B) risk assessments;
       (C) projected exposure to liability, and related matters; 
     and
       (D) the category of risk and coverage involved which may 
     include--
       (i) general liability;
       (ii) automobile liability;
       (iii) the liability of officials of the Indian tribe;
       (iv) law enforcement liability;
       (v) workers' compensation; and
       (vi) other types of liability contingencies.
       (3) Assessment of coverage by categories of risk.--For each 
     Indian tribe described in section 201(a)(1), for each 
     category of risk identified under paragraph (2), the 
     Secretary, in conducting the study, shall determine whether 
     insurance coverage other than coverage to be provided under 
     this title or coverage under chapter 171 of title 28, United 
     States Code, applies to that Indian tribe for that activity.
       (b) Report.--Not later than 3 years after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     shall submit a report to Congress concerning the 
     implementation of this title, that contains any legislative 
     recommendations that the Secretary determines to be 
     appropriate to improve the provision of insurance of 
     equivalent coverage to Indian tribes under this title, or 
     otherwise achieves the goals and objectives of this title.
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