S.2097 - Indian Tribal Conflict Resolution and Tort Claims and Risk Management Act of 1998105th Congress (1997-1998)
|Sponsor:||Sen. Campbell, Ben Nighthorse [R-CO] (Introduced 05/20/1998)|
|Committees:||Senate - Indian Affairs|
|Latest Action:||Senate - 10/01/1998 Committee on Indian Affairs. Ordered to be reported with an amendment in the nature of a substitute favorably. (All Actions)|
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Introduced in Senate (05/20/1998)
[Congressional Bills 105th Congress] [From the U.S. Government Printing Office] [S. 2097 Introduced in Senate (IS)] 105th CONGRESS 2d Session S. 2097 To encourage and facilitate the resolution of conflicts involving Indian tribes, and for other purposes. _______________________________________________________________________ IN THE SENATE OF THE UNITED STATES May 20, 1998 Mr. Campbell introduced the following bill; which was read twice and referred to the Committee on Indian Affairs _______________________________________________________________________ A BILL To encourage and facilitate the resolution of conflicts involving 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 ``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-- (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 an 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 dispute 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 an 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 (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. <all>