II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; FINDINGS; PURPOSE.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘American Indian Equal Justice Act’’.

6 (b) FINDINGS.—Congress finds that—

7 (1) a universal principle of simple justice and

8 accountable government requires that all persons be

9 afforded legal remedies for violations of their legal

10 rights;

11 (2) the fifth amendment of the Constitution

12 builds upon that principle by guaranteeing that
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1 ‘‘. . . no person shall be deprived of life, liberty, or

2 property without due process of law’’;

3 (3) sovereign immunity, a legal doctrine that

4 has its origins in feudal England when it was policy

5 that the ‘‘King could do no wrong’’, affronts that

6 principle and is incompatible with the rule of law in

7 democratic society;

8 (4) for more than a century, the Government of

9 the United States and the States have dramatically

10 scaled back the doctrine of sovereign immunity with11 out impairing their dignity, sovereignty, or ability to

12 conduct valid government policies;

13 (5) the only remaining governments in the

14 United States that maintain and assert the full

15 scope of immunity from lawsuits are Indian tribal

16 governments;

17 (6) according to the 1990 decennial census con18 ducted by the Bureau of the Census, nearly half of

19 the individuals residing on Indian reservations are

20 non-Indian;

21 (7) for the non-Indian individuals referred to in

22 paragraph (6) and the thousands of people of the

23 United States, Indian and non-Indian, who interact

24 with tribal governments everyday, the rights to due
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1 process and legal remedy are constantly at risk be2 cause of tribal immunity;

3 (8) by providing a complete shield from legal

4 claims, the doctrine of sovereign immunity frustrates

5 justice and provokes social tensions and turmoil in6 imical to social peace;

7 (9) the Supreme Court has affirmed that Con8 gress has clear and undoubted constitutional author9 ity to define, limit, or waive the immunity of Indian

10 tribes; and

11 (10) it is necessary to address the issue re12 ferred to in paragraph (9) in order to—

13 (A) secure the rights provided under the

14 Constitution for all persons; and

15 (B) uphold the principle that no govern16 ment should be above the law.

17 (c) PURPOSE.—The purpose of this Act is to assist

18 in ensuring due process and legal rights throughout the

19 United States and to strengthen the rule of law by making

20 Indian tribal governments subject to judicial review with

21 respect to certain civil matters.

22 SEC. 2. DEFINITIONS.

23 In this Act:

24 (1) INDIAN TRIBE.—The term ‘‘Indian tribe’’

25 means any Indian tribe or band with a governing
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1 body duly recognized by the Secretary of the Inte2 rior.

3 (2) TRIBAL IMMUNITY.—The term ‘‘tribal im4 munity’’ means the immunity of an Indian tribe

5 from jurisdiction of the courts, judicial review of an

6 action of that Indian tribe, and other remedies.

7 SEC. 3. COLLECTION OF STATE TAXES.

8 Section 1362 of title 28, United States Code, is

9 amended—

10 (1) by inserting ‘‘(a)’’ before ‘‘The district

11 courts’’;

12 (2) by inserting ‘‘(referred to in this section as

13 an ‘Indian tribe’)’’ after ‘‘Interior’’; and

14 (3) by adding at the end the following:

15 ‘‘(b)(1) An Indian tribe, tribal corporation, or mem16 ber of an Indian tribe, shall collect, and remit to a State,

17 any excise, use, or sales tax imposed by the State on non18 members of the Indian tribe as a consequence of the pur19 chase of goods or services by the nonmember from the In20 dian tribe, tribal corporation, or member.

21 ‘‘(2) A State may bring an action in a district court

22 of the United States to enforce the requirements under

23 paragraph (1).

24 ‘‘(3) To the extent necessary to enforce this sub25 section with respect to an Indian tribe, tribal corporation,
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1 or member of an Indian tribe, the tribal immunity of that

2 Indian tribe, tribal corporation, or member is waived.’’.

3 SEC. 4. INDIAN TRIBES AS DEFENDANTS.

4 (a) PROVISIONS TO PARALLEL THE PROVISIONS

5 THAT ARE POPULARLY KNOWN AS THE TUCKER ACT.—

6 Section 1362 of title 28, United States Code, as amended

7 by section 3, is further amended by adding at the end the

8 following:

9 ‘‘(c)(1) The district courts of the United States shall

10 have original jurisdiction in any civil action or claim

11 against an Indian tribe, with respect to which the matter

12 in controversy arises under the Constitution, laws, or trea13 ties of the United States.

14 ‘‘(2) The district courts shall have jurisdiction of any

15 civil action or claim against an Indian tribe for liquidated

16 or unliquidated damages for cases not sounding in tort

17 that involve any contract made by the governing body of

18 the Indian tribe or on behalf of an Indian tribe.

19 ‘‘(d) Subject to the provisions of chapter 171A, the

20 district courts shall have jurisdiction of civil actions in

21 claims against an Indian tribe for money damages, accru22 ing on or after the date of enactment of the American

23 Indian Equal Justice Act for injury or loss of property,

24 personal injury, or death caused by the negligent or

25 wrongful act or omission of an Indian tribe under cir-
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1 cumstances in which the Indian tribe, if a private individ2 ual or corporation would be liable to the claimant in ac3 cordance with the law of the State where the act or omis4 sion occurred.

5 ‘‘(e) To the extent necessary to enforce this section,

6 the tribal immunity (as that term is defined in section 2

7 of the American Indian Equal Justice Act) of the Indian

8 tribe (as that term is defined in such section 2) involved

9 is waived.’’.

10 SEC. 5. TORT CLAIMS PROCEDURE.

11 (a) IN GENERAL.—Part 6 of title 28, United States

12 Code, is amended by inserting after chapter 171 the fol13 lowing:

14 ‘‘CHAPTER 171A—INDIAN TORT CLAIMS

15 PROCEDURE

‘‘Sec.

‘‘2691. Definitions.

‘‘2692. Liability of Indian tribes.

‘‘2693. Compromise.

‘‘2694. Exceptions; waiver.

16 ‘‘§ 2691. Definitions

17 ‘‘In this chapter:

18 ‘‘(1)(A) Subject to subparagraph (B), the term

19 ‘employee of an Indian tribe’ includes—

20 ‘‘(i) an officer or employee of an Indian

21 tribe; and

22 ‘‘(ii) any person acting on behalf of an In23 dian tribe in an official capacity, temporarily or
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1 permanently, whether with or without com2 pensation (other than an employee of the Fed3 eral Government or the government of a State

4 or political subdivision thereof who is acting

5 within the scope of the employment of that indi6 vidual).

7 ‘‘(B) The term includes an individual who is

8 employed by an Indian tribe to carry out a self-de9 termination contract (as that term is defined in sec10 tion 4(j) of the Indian Self-Determination and Edu11 cation Assistance Act (25 U.S.C. 450b(j))).

12 ‘‘(2) The term ‘Indian tribe’ means any Indian

13 tribe or band with a governing body duly recognized

14 by the Secretary of the Interior.

15 ‘‘§ 2692. Liability of Indian tribes

16 ‘‘(a) An Indian tribe shall be liable, relating to tort

17 claims, in the same manner and to the same extent, as

18 a private individual or corporation under like cir19 cumstances, but shall not be liable for interest before judg20 ment or for punitive damages.

21 ‘‘(b) In any case described in subsection (a) in which

22 a death was caused and the law of the State where the

23 act or omission complained of occurred provides for puni24 tive damages, the Indian tribe shall, in lieu of being liable

25 for punitive damages, be liable for actual or compensatory
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1 damages resulting from that death to each person on be2 half of whom action was brought.

3 ‘‘§ 2693. Compromise

4 ‘‘The governing body of an Indian tribe or a designee

5 of that governing body may arbitrate, compromise, or set6 tle any claim cognizable under section 1362(d).

7 ‘‘§ 2694. Exceptions; waiver

8 ‘‘(a) The provisions of this chapter and section

9 1362(d) shall not apply to any case relating to a con10 troversy relating to membership in an Indian tribe.

11 ‘‘(b) With respect to an Indian tribe, to the extent

12 necessary to carry out this chapter, the tribal immunity

13 (as that term is defined in section 2 of the American In14 dian Equal Justice Act) of that Indian tribe is waived.’’.

15 (b) CLERICAL AMENDMENT.—The table of chapters

16 for title 28, United States Code, is amended by inserting

17 after the item relating to chapter 171 the following:

‘‘171A. Indian Tort Claims Procedure ....................................... 2691’’.

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

19 (a) CONSENT TO SUIT IN STATE COURT.—Consent

20 is hereby given to institute a civil cause of action against

21 an Indian tribe in a court of general jurisdiction of the

22 State, on a claim arising within the State, including a

23 claim arising on an Indian reservation or Indian country,

24 in any case in which the cause of action—
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1 (1) arises under Federal law or the law of a

2 State; and

3 (2) relates to—

4 (A) tort claims; or

5 (B) claims for cases not sounding in tort

6 that involve any contract made by the governing

7 body of an Indian tribe or on behalf of an In8 dian tribe.

9 (b) TORT CLAIMS.—In any action brought in a State

10 court for a tort claim against an Indian tribe, that Indian

11 tribe shall be liable to the same extent as a private individ12 ual or corporation under like circumstances, but shall not

13 be liable for interest prior to judgment or for punitive

14 damages.

15 (c) FEDERAL CONSENT.—Notwithstanding the provi16 sions of the Act of August 15, 1953 (67 Stat. 588 et seq.,

17 chapter 505), section 1360 of title 28, United States Code,

18 and sections 401 through 404 of the Civil Rights Act of

19 1968 (25 U.S.C. 1321 through 1324) and section 406 of

20 such Act (25 U.S.C. 1326) that require the consent of

21 an Indian tribe for a State to assume jurisdiction over

22 matters of civil law, this section constitutes full and com23 plete consent by the United States for a State court to

24 exercise jurisdiction over any claim referred to in sub25 section (a).
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1 (d) REMOVAL.—An action brought under this sec2 tion—

3 (1) shall not be removable under section 1441

4 of title 28, United States Code; and

5 (2) shall be considered to meet the require6 ments for an exception under section 1441(a) of title

7 28, United States Code.

8 SEC. 7. INDIAN CIVIL RIGHTS.

9 Title II of the Civil Rights Act of 1968 (commonly

10 known as the ‘‘Indian Civil Rights Act’’) (25 U.S.C. 1301

11 et seq.) is amended by adding at the end the following:

12 ‘‘SEC. 204. ENFORCEMENT.

13 ‘‘The district courts of the United States shall have

14 jurisdiction in any civil rights action alleging a failure to

15 comply with rights secured by the requirements under this

16 title. With respect to an Indian tribe, to the extent nec17 essary to enforce this title, the tribal immunity of that

18 Indian tribe (as that term is defined in section 2 of the

19 American Indian Equal Justice Act) is waived.’’.

20 SEC. 8. APPLICABILITY.

21 This Act and the amendments made under this Act

22 shall apply to cases commenced against an Indian tribe

23 on or after the date of enactment of this Act.

Æ