tribal Recognition of Authorization of direct actions against the tribe's insurer, if the insured tribe has not waived its sovereign immunity up to the amount of valid and collectible insurance, and prohibit the insurer from raising tribal sovereign immunity as a defense to a claim that falls within its policy coverage; Recognition of tribal court jurisdiction to adjudicate cases arising within tribal territory against the tribe or its insurer; Authorization of intertribal insurance corporations under § 17 of the Indian Reorganization Act, 25 U.S.C. § 477, to manage intertribal risk pools as an alternative to commercial insurance; and Authorization of tribal self-insurance alternatives to commercial insurance. programs as Under this model, the Secretary could "assist" or "help" Indian tribes identify the most cost effective insurance coverage, risk pool, or self-insurance alternative. Conclusion In conclusion, we believe that obtaining insurance is a function best left to tribal governments. Rather than require the Secretary to obtain insurance for Indian tribes, legislation that establishes guidelines for minimum tribal liability insurance based on consultation and consensus with Indian tribes is preferable. Such assistance to Indian tribes in identifying cost-effective insurance coverage, in our view, is preferable to a requirement that the Secretary "provide" insurance to Indian tribes. Mr. Chairman and members of the Committee, my name is Alex Lujan. I am Governor of the Pueblo of Sandia, a federally-recognized tribe in New Mexico. I thank you for this opportunity to offer my comments on S. 2097, "The Indian Tribal Conflict Resolution and Tort Claims and Risk Management Act of 1998." We believe that the Chairman's bill provides a useful starting point as we continue to work towards resolution of some of the issues, real or perceived, concerning retail transaction taxes and tort claims. While we believe that S. 2097 represents an earnest attempt to balance the competing interests, much more needs to be done before such broad legislation is enacted. First, S. 2097 impractically deals with two unrelated issues: (1) the collection and payment of retail transaction taxes, and (2) tort liability and insurance. The fact that Titles I and II of the bill basically contain no common provisions is a tacit acknowledgment that they deal with distinct and separate issues. We suggest dealing with each quite important concern separately in order to avoid confusion of the issues, and so that each may be dealt with in a more clear and purposeful manner. The overbreadth of the bill, we believe, stems in part from the fact that no one yet has any real measure of the "problems" that S. 2097 claims to resolve. We are not aware of any cases of tort claimants left destitute, without any recourse against a culpable tribe, though Title II of S. 2097 seems to proceed on the assumption that this is the norm. Title II of the bill itself acknowledges that it puts the cart before the horse, requiring the Secretary of the Interior "before carrying out the requirements of section 201, [to] conduct a comprehensive survey of the degree, type and adequacy of liability insurance coverage of Indian tribes." § 202(a)(1) (emphasis added). We would strongly discourage the consideration of any new rules before the facts are in-hand. If no substantial problems are shown to exist, a law may be unnecessary. A survey, not only of tribal insurance coverage, but also of the resolution of tribal tort claims to date, should be in order before the Committee designs a solution to a problem the extent and even the very existence of which is not yet known. With regard to retail transaction taxes, S. 2097 again appears to be based on an insufficient foundation and is, as a result, incomplete and in many respects inequitable. Amid all of the "statistics" bandied about by retail trade associations, we have yet to see any hard numbers, presented by an unbiased source, regarding the amount of revenues "lost" to state and local governments as a result of tribes' failure to collect non-tribal retail taxes. We have no idea of how much revenue tribes would be compelled to forgo if required to collect state taxes in full, without offset for tribal taxes on the same transactions. Nor do we know how much tribes will need to expend to do the states' tax collecting. In a serious oversight, the bill's new Intergovernmental Alternative Dispute Resolution Panel is permitted to hear only claims for the collection of retail taxes owed by an Indian tribe to a state or political subdivision. The Panel's lack of authority to entertain claims regarding tribal taxes is, we feel a glaring omission. Tribes may apparently raise before the Panel only "counterclaims, setoffs, or related claims submitted or filed by the tribe . . . regarding the original claim." If the purpose of S. 2097 is truly to "achieve intergovernmental harmony," as it states in § 2(b), then it should treat each government similarly and fairly. Tribal taxes, like state and local taxes, should be equally subject to tax compacting under § 101(b), and the same opportunity to bring original claims for the collection and payment of their taxes should be available to tribes. As the Supreme Court indicated in both Cotton Petroleum Corp. v. New Mexico, 460 U.S. 163 (1989) and Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980), the problems raised by double taxation (by the state and by the tribe) are real. S. 2097 should make these problems capable of alternative dispute resolution to achieve the self-determination that the bill purports to encourage, The waiver provisions of § 104(a)(2) should be much more specific as to the nature and scope of such waivers and should specifically require states to waive any Eleventh Amendment defense as well. While Congress may not generally abrogate a state's Eleventh Amendment immunity, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), a state can be required voluntarily to waive its immunity in exchange for a tribe's waiver of its immunity. The principle operative provision of Title I, section 101(b), states that the "compacts and agreements" it envisions are to be "consistent with Supreme Court decisions regarding the collection and payment of certain retail taxes of a State or political subdivision thereof." Rather than open the door to additional years of costly and potentially conflicting litigation (the very result that Title I seeks to avoid), the bill should clearly state the rules and the decisions with which the participants are supposed to be consistent. While states and local governments may legitimately levy consumer taxes on non-Indian patrons of reservation businesses according to Oklahoma Tax Comm'n v. Citizen Band of Potowatomi Indian Tribe of Okla., 498 U.S. 505 (1991), these consumer taxes should be the subject of the tax compacts undertaken pursuant to the bill. Taxes that states have attempted to levy on the tribes themselves, however, are clearly not permitted without Congressional authorization, as stated in Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995). We feel that the Committee should unequivocally affirm and codify the rule that states may not tax the operations of tribal governments, and make it clear that it is not, by this or other legislation, providing Congressional authorization to do so. |