S. 1991

S.1691

American Indian Equal Justice Act (Introduced in the Senate)

S 1691 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:

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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