achieved in this area by providing technical resources, training, models and expertise in alternative dispute resolution as well as general encouragement and validation of the process. Second, in our experience NCAI has found that it is critical that any facilitators of negotiated disputed resolution have a firm understanding of federal Indian policy. Facilitators who lack this knowledge will often discriminate against the tribal government viewpoint because they do not understand the underlying principles. Finally, NCAI believes that any dispute resolution process defined in federal law on the issue of state retail sales taxes should be non-binding and look to achieve its results through dialogue and mutual recognition of common interests. Title II: Tort Liability Insurance Title II of S. 2097 would require the Secretary of Interior to obtain or provide tort liability insurance or equivalent coverage for each Indian tribe that receives a tribal priority allocation from the Bureau of Indian Affairs. This issue of tribal immunity for tort liability has also arisen in the midst of a good deal of misinformation. The opponents of tribes have repeatedly stated that tribes are the only entities in the U.S. to continue to exercise the "anachronistic” doctrine of sovereign immunity. The reality, however, is that tribal governments exercise a form of immunity that is similar in scope to that of states and the federal government. Governmental immunity from suit is an inherent right of all governments, including the federal, state and tribal governments, for reasons of sound public policy. The purpose served by this policy is to provide special protection against loss of assets held for the performance of vital government functions. Since 1946, the federal government, most states and many tribes have provided limited waivers of sovereign immunity that allow these governments to be sued when the government functions in the same manner as a private individual, such as when a government employee gets in a car accident. However, the federal government, states and tribes have retained sovereign immunity in broad areas in order to protect governmental functions from lawsuits and limit the size of damages claims. It is well known that in 1946 Congress passed the Federal Torts Claims Act (FTCA), which exposes the United States government to limited liability for certain tort claims in the same manner as a private individual. The FTCA does not waive immunity for interest prior to judgment or for punitive damages, and in addition, any claim for money damages must first be presented to the appropriate federal agency. In 1988 amendments to the FTCA, Congress clarified and strengthened the federal government's right to any defense based upon judicial or legislative immunity. Under this statute, the federal government has retained its rights to sovereign immunity in broad areas, including those functions that are inherently "governmental." 28 U.S.C. §§ 2671-2680. What is less well known and understood is the degree to which many state governments have only recently begun to provide waivers of state immunity which are a great deal more limited that the FTCA. A common trend is for state governments to impose a ceiling on the amount of recoverable damages or to limit recovery to the extent of insurance coverage. Although the dollar amounts vary, many states have adopted a cap of $100,000 for injuries arising from a single occurrence. Some states set lower caps for property damage claims.' In this regard, NCAI would refer the Committee to the testimony of the Shakopee Mdewakanton Sioux Community on May 6, 1998 on the issue of the extremely limited state waivers. This testimony details the numerous states which continue to assert complete or near complete sovereign immunity for their tortious conduct. In comparison, the exercise of tribal sovereign immunity is relatively generous to claimants. Most Indian tribes in this country provide appropriate remedies to those who may be injured by tortious conduct. Like the federal and state governments, many tribes have voluntarily provided for limited waivers of their immunity and/or have insurance to cover their potential liability. This is a growing trend evidenced by an increasing number of civil claims handled by tribal courts.' 10 Tribes and tribal officials also are subject to suit under various exceptions to tribal sovereign immunity recognized by the courts. For example, courts have applied the Ex Parte Young doctrine to tribal officials. This doctrine creates an exception to the general rule of sovereign immunity when an official acts outside of the government's authority. Tribal sovereign immunity also has been limited by various courts where allegations of personal restraint and deprivation of personal rights were raised." In addition, pursuant to federal law, Indian tribes, contractors and employees are deemed to be agents of the 6 See, e.g., Ala. Code 11-93-2 (1992); Fla. Stat. Ann. 768.28(5) (Harrison 1992); Okla. Stat. Ann. Tit. 51, 154 (West 1993). 7 See, e.g., Okla. Stat. Ann. Tit. 51, 154(A)(1) (West 1993) ($25,000); Tex. Civ. Prac. & Rem. Code Ann. 102.003 (West 1986) ($10,000). See, Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 671 (8th Cir. 1986) (stating that tribal ordinance bars use of sovereign immunity); Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir. 1980) (finding express waiver of immunity in severance tax ordinance). Joseph Calve, Pequots Won't Gamble on Lawsuits at New Casino, Conn. L. Trib., Mar. 2, 1992, at 1. NCAI's informal sampling indicates that a substantial proportion of tribal governments carry insurance. 10 See, The Honorable Sandra Day O'Connor, Lessons from the Third Sovereign: Indian Tribal Courts, The Tribal Court Record, Spring/Summer 1996, at 12. "Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 515 F.2d 926 (10th Cir. 1975). federal government for the purposes of the FTCA when a tribal government program operates with federal dollars."2 The reason that so many states have only recently begun to waive their immunity, and some still exercise significant portions of their immunity against torts, is that governments amend their immunity doctrine only after achieving sufficient economic strength to withstand the legal and financial liability that accompanies a waiver. Without this ability to correlate the scope of exposure with the capacity to pay, state governments would face the risk of those who would raid the public fisc through litigation and threaten the existence of political and civic institutions. This rationale holds even greater relevance for tribal governments because they are just beginning to emerge as economically viable institutions. Because most tribes have limited resources, little ability to raise tax revenues, and still depend heavily on the federal government for much of their revenue, immunity from damage suits is tremendously important to their continued stability and development. In considering Title II of S. 2097, NCAI would like to clearly note that each state government has had the freedom to waive its tort immunity in its own way and in its own time. Tribes should be allowed this same freedom to decide when a waiver of immunity is feasible, and when such a waiver could cripple a developing government. In our review of the record from the tribal immunity hearings, we could find little evidence of unbridled reliance on tribal tort immunity. In fact, there was a great deal more evidence of questionable state government use of the doctrine. Nevertheless, NCAI fully understands and recognizes the challenges that the Committee has faced in fending off the extreme attacks on tribal immunity embodied in S. 1691, and the desire to create legislation that will assure Congress that, where appropriate, parties who are harmed by tribal government activities do have an opportunity to be compensated. NCAI would like to bring to the forefront tribal governments' concerns with correlating the scope of liability exposure with the capacity to pay. Section 201 of the bill is somewhat unclear in delineating who will pay for the insurance, but it appears that the bill intends to use existing federal funding for tribes from the BIA budget. For most tribes the existing federal funding is overwhelmingly inadequate, and adding the burden of insurance premiums of some unknown amount would simply exacerbate a situation of chronic under funding of tribal operations. However, Section 202 of the bill contains provisions for what could be a very useful study of risk and coverage of tort claims against tribal governments. The study is not due to be completed for three years, while the insurance requirements take effect after only two years. NCAI would like to put the horse back before the cart and ask the 12 Indian Self-Determination and Education Assistance Act and related acts. Pub. L. No. 101-152, Title III, 104 Stat. 1959 (codified at 25 U.S.C. § 450). Committee to gather further information on the expense of coverage and its impact on federal funding before proceeding with a program of mandatory insurance. As noted above, most tribal governments already purchase insurance to cover a great deal of their activities and filling the gaps in coverage may be a very affordable prospect. A study that would identify those gaps and estimate the cost could provide the assurance to Congress and to tribal governments that Title II is within the means of existing tribal revenues. NCAI is especially concerned with the impact on the many tribal governments with fewer resources, and requests that these concerns be studied in detail. If Section 201 does create a significant burden, there is a clear responsibility of the federal government to provide the necessary funding to alleviate this burden. Tribal governments have already had some experiences with skyrocketing medical malpractice insurance under SelfDetermination Act contracting. An appropriate solution in that instance was to provide coverage for tribes under the FTCA, and this solution may also be appropriate in some instances under the scheme envisioned in S. 2097. Conclusion NCAI would like to extend its sincere thanks to the Chairman and Vice-Chairman and the many other members of the Committee for this hearing on matters that are so critical to tribal self-governance and the cultures and futures of Indian people. As the work continues for solutions to the issues that have been raised today, NCAI would encourage the Committee to bear three points in mind. First, one-size-fits-all solutions have proven to have disastrous effects when applied among the diversity of Indian Nations in this country. NCAI is particularly concerned about the impact of an insurance requirement on tribal governments with fewer resources. A comprehensive review of the variety of circumstances and specific issues is far more likely to lead to workable solutions. Second, many of the issues that have been raised regarding state taxation on tribal lands involve matters of purely local concern that can be resolved on the local level among the tribes and states. The role of the federal government in these instances should be to encourage local negotiation and cooperation. Third, and finally, any solutions should be guided by the principle that it is the federal government's role to protect tribal self-government. NCAI is looking forward to working on these challenges with the Committee. W. Ron Allen, President National Congress of American Indians 1301 Connecticut Ave., NW, 2nd Flr. Washington, DC 20036 (202)466-7767 (202)466-7797 fax TESTIMONY OF PHILIP S. DELORIA ON S. 2097 P.O. Box 4496 Station A Albuquerque, New Mexico 87196 (505) 277-5462 JULY 15, 1998 Mr. Chairman and members of the Committee. Thank you for the opportunity to testify on this important bill. My name is Philip S. Deloria. I am a member of the Standing Rock Sioux Tribe and I am the Director of the American Indian Law Center, Inc., of Albuquerque, New Mexico, the only Indian-controlled policy studies organization in the nation, having been created in 1967. I am also the President of the Legi\x Corporation, a private lobbying firm with exclusively tribal clients. I am here today giving testimony that is entirely my own, however. I have been professionally involved in Indian affairs for the past 36 years and have considerable experience that might be of some use in these deliberations. CONTEXT Let me first say that I appreciate the intention of this Committee to bring greater clarity to Indian affairs over the years and to bring about improvement in the conditions among Indian people, particularly through the Committee's efforts to realize the repeated promise of Indian tribal selfdetermination. These are not easy times for a student of American politics to understand, if one gives credence to the professed principles of the great American political parties. We have on the agenda a number of bills in the past several sessions that would use the power of Congress to dictate policy at the most local level and to substitute for the wisdom of the local political processes the solutions dictated from Washington. The Congress has been presented with bills that would seriously distort tribal legal systems to virtually ensure - to be blunt - that non-Indians always win in tribal court. That is a privilege that we Indians are not accorded in state or federal court. If one looks at the history of the doctrine of sovereign immunity, one can see that the real driving force which has limited sovereign immunity has been the marketplace - the place that I had always thought was a place of worship for the Republican party. The federal government and the states have limited their reliance on sovereign immunity in response to the political and economic pressures of the marketplace, as well as their notions of fairness. Have we identified a reason to think that Indian tribes will not do the same if left to that marketplace? Will investors put money into tribes where there is no recourse? Will gamblers visit casinos on a reservation where there is no way to vindicate the various rights that they consider important? If a bank is stupid enough to lend money where there is no recourse, is it the job of Congress to hold them harmless? And, once burned, will that bank ever again lend money to a tribe or other entity that burned them? |