confusing and disjointed. His abandonment in favor of five separate bills, each dealing with a substantive issue, was a good idea. We suggest that the Committee, too, consider dealing with these two matters individually, so that they can be each addressed carefully and with respect. Insurance Title II of the bill is "built backwards," first requiring the Secretary of the Interior to provide insurance for tribes, then excepting tribes that already carry "appropriate" insurance, and then requiring the Secretary, “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). Is it too much to ask that, before a new and sweeping law attempts to change the status quo, Congress and this Committee should have already determined, with some degree of particularity, the extent of the need for such change? 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 whose extent is not yet known. If actual problems are shown to be few, legislation (and funding!) would not be required. The bill's Findings refer to liability coverage provided to tribes in carrying out selfdetermination contracts under Pub. L. 93-638 (the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450 et seq.) ("638"). The 638 provisions are themselves far from a model of clarity. Subsection (c) of 25 U.S.C. § 450f provides that the Secretary of the Interior will provide insurance for tribes administering self-determinationcontracts and requires that such policies "shall contain a provision that the insurance carrier shall waive any right it may have to raise as a defense the sovereign immunity of an Indian tribe," to the extent of the policy limits. But then Section 450n goes on to provide that "[n]othing in this subchapter [the Self-DeterminationAct] shall be construed as . . . affecting, modifying, diminishing, or otherwise impairing the sovereign immunity from suit enjoyed by an Indian tribe." The insurer, therefore, has greater liability than its insured, if this apparent contradiction is to make any sense at all. To further complicate matters, non-codified amendments to the Self-Determination Act provide that, in claims arising from the performance of self-determination contracts, tribes are to be considered part of the Bureau of Indian Affairs or the Indian Health Service, and that such claims "shall be deemed to be an action against the United States and will be defended by the Attorney General and be afforded the full protection and coverage of the Federal Tort Claims Act." Pub. L. 101-512, title III, § 314 (104 Stat. 1959), as amended by Pub. L. 103-138, title III, § 308 (107 Stat. 1416). This confusion of provisions would be a lawyer's dream, if only self-determination tribes controlled enough money to make it worthwhile. The Committee would do better to clarify existing law than to create further confusion by extending its provisions to a rule of general application. Taxes Like the insurance provisions of Title II, Title I's treatment of retail taxes appears to proceed from insufficient factual foundations. We ask again if the Committee knows the true extent of the perceived problem, or if it is proceeding from anecdotal evidence and exaggerations presented as fact by retail industry lobbyists. In addition to determining the amount of legitimate taxes actually foregone by state and local governments, we would urge the Committee as well to research how much revenues would be lost to tribes if they are required to collect state and local taxes without any offset for tribal taxes levied on the same transactions. And how much this effort is likely to cost-and who is expected to pay for it? The federal government? The state? Certainly not us. In general, the provisions of Title I give short shrift to the jurisdiction of tribes to levy their own retail taxes, an aspect of tribal sovereignty repeatedly confirmed by the Supreme Court. The payment and collection of tribal retail taxes are clearly left out of the bill's alternative dispute resolution procedures, and might not even be an appropriate part of the tax compacts that Title I contemplates. Section 101(b) gives the consent of the United States to "compacts and agreements relating to the collection and payment of certain retail taxes.” As "certain retail taxes” is nowhere defined, it is not at all clear whether these "compacts and agreements" are supposed to include consideration of tribal taxes, or if they are intended only to cover state and local taxes. In lieu of any statement supporting the enactment of Title II in the bill's Findings, § 101(b) speaks of consistency with "Supreme Court decisions regarding the collection and payment of certain retail taxes of a State or political subdivision thereof." Whether tribal taxes are to be included in these compacts is therefore an open question. Also unclear from the text of § 101 is what kinds of state and local retail taxes are supposed to be included in these “compacts and agreements.” The Supreme Court clearly distinguished taxes levied on non-Indian patrons of reservation businesses, which state and local governments may charge (Oklahoma Tax Comm'n v. Citizen Band of Potowatomi Indian Tribe of Okla., 498 U.S. 505 (1991)) and taxes on the tribe itself, which they may not, absent Congressional authorization. (Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995).) Only consumer taxes should be included in tax compacts made under § 101, in keeping with these decisions. We would like the Committee to clarify that it is not, by this proposal, giving its consent for states and local governments to tax tribes directly, and to expressly affirm the rule of Chickasaw Nation that they may not generally do so. Further, tribal retail taxes should be clearly included in those taxes that the bill's compacts are intended to address. As noted, tribal taxes are clearly not included in the alternative dispute resolution procedures set forth in § 103(c) of the bill. The new Intergovernmental Alternative Dispute Resolution Panel may only hear a "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,” (emphasis added). A tribe, on the other hand, may apparently only raise "counterclaims, setoffs, or related claims submitted or filed by the tribe... regarding the original claim." We feel that the Committee ought to correct this one-sidedness and give the Panel the authority to entertain original claims regarding tribal taxes. Like the legitimacy of state consumer taxes at issue in Citizen Band of Potowatomi, tribes' authority to levy transaction taxes is the law of the land. Cotton Petroleum Corp. v. New Mexico, 460 U.S. 163 (1989); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980). If S. 2097 is truly to "achieve intergovernmental harmony," as it stated Purposes proclaim (§ 2(b)), then each government should have equal rights and obligations. Without the inclusion of tribal retail taxes in the bill's procedures, the double-taxation problems noted by the Supreme Court in Colville and Cotton Petroleum Corp. will continue to plague relations between tribes and states. The mediation procedures of § 102 not only should be binding, but should set forth firm timetables, in order to keep the parties at the table and to clearly distinguish between mere delay, on one hand, and refusal to participate in the process, on the other. Indian tribes have already seen too much foot-dragging and stonewalling from states in the name of “negotiation" under the Indian Gaming Regulatory Act. Intergovernmental harmony will not be furthered by more of the same. Federal court jurisdiction, provided by § 104(a)(1)(A), should be expanded to include all failures to observe the rules established by the bill, not only those arising under already-made compacts. Federal jurisdiction should also be exclusive, to avoid inequitable results that may follow from state court decisions, to which the tribe may not even be a party, that may nevertheless affect or foreclose a tribe's taxing jurisdiction or other rights, whether under a compact or by law. The provisions of § 104(a)(2), which require each party's agreement to waive sovereign immunity in tax compacts, should require states specifically to waive any Eleventh Amendment defense as well, to avoid any confusion and prevent frustration of the bill's purposes.' Finally, we wonder where all of the money for the new procedures, agencies, and programs required by S. 2097 will come from. Appropriations for the Department of the Interior are already shamefully shy of what is needed to discharge its functions, particularly with respect to Indian tribes. Current efforts to deny tribes sorely needed school construction funds and costs for administration of self-determination contracts belie the bill's assurances of funding for these new programs and procedures. This Congress has repeatedly stated its distaste for "throwing money" at problems; throwing money that does not exist (at problems we know too little about) is unlikely to be more effective. Again, we welcome the Chairman's efforts to provide a realistic starting point for discussion. We feel strongly that S. 2097 should be treated as only a starting point and that discussion and 'Congress may not, as a rule abrogate a state's Eleventh Amendment immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). A voluntarily waiver of a state's Eleventh Amendment immunity may nevertheless provide consideration for a tribe's waiver of its tribal immunity. 51-806 99-11 |