Text: S.2097 — 105th Congress (1997-1998)All Information (Except Text)

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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.
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