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INDIAN TRIBAL CONFLICT RESOLUTION AND TORT CLAIMS AND RISK MANAGEMENT ACT OF 1998

WEDNESDAY, JULY 15, 1998

U.S. SENATE,
COMMITTEE ON INDIAN AFFAIRS,

Washington, DC. The committee met, pursuant to other business, at 10:05 a.m. in room G-50 Dirksen Senate Office Building, Hon. Ben Nighthorse Campbell (chairman of the committee) presiding.

Present: Senators Campbell, Gorton, Burns, Inouye, Reid, and Akaka.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SEN

ATOR FROM COLORADO, CHAIRMAN COMMITTEE ON INDIAN AFFAIRS

Good morning and welcome to today's hearing on S. 2097, the Indian Tribal Conflict Resolution, Tort Claims and Risk Management Act.

This year, the committee has held a series of hearings on Tribal Sovereign Immunity.

We know that Sovereign Immunity, which is held in varying degrees by the Federal and State Governments as well, is necessary because a government cannot operate if every action results in a trip to court. However, in these hearings we heard the other side.

Witnesses told of problems encountered by people living on or near reservations, including enrolled members of tribes who cannot sue their tribal governments. some are old war stories and some are personal grievances that should not involve the legal system, but there are several real problems that we should address.

This legislation is proposed to resolve two of these problems: Collection of State taxes on sales to non-Indians and the ability to be compensated for an injury when a Tribal Government is responsible.

Beginning in 1980 and as late as 1991, the Supreme Court has ruled that tribes have a legal obligation to collect State sales taxes on sales to non-members and give those taxes to the States. There are now over 200 State-tribal tax agreements in place covering a wide variety of commodities. But in cases where a tribe and State do not have a tax agreement, Sovereign Immunity prevents the State from taking their case to court.

S. 2097 encourages negotiations between tribes and States. But if negotiations fail, the bill provides a mediation process with the Federal Mediation and Conciliation Service. States get what they are owed and tribal sovereignty remains intact.

This bill also addresses compensation for injuries when a tribal government is responsible. Many tribes are covered completely or in part through the Federal Tort Claims Act or private insurance coverage. But where there are gaps in the coverage there is the potential for wrongs not being compensated.

S. 2097 addresses this situation by directing the Secretary of the Interior to ensure that there is sufficient liability insurance in place for tribes that receive tribal priority allocations (TPA).

There have been attempts to resolve these issues by waiving Tribal Sovereign Immunity. I have opposed this approach—it solves one set of problems by creating another. But I must say to all the tribal representatives here—we must address these issues. Not just to keep the more drastic legislative solutions at bay, but because if people believe they cannot get justice on tribal lands, they will not do business there. Private sector investment on reservations has worked economic wonders in some areas and is a model for getting out of poverty. If these problems persist, that will all go away.

I want to make it clear from the beginning that S. 2097 is a work in progress. I welcome all suggestions on how to make it more effective. I am confident that working together in this committee, we can develop reasonable and responsible solutions to the issues before us.

[Text of S. 2097 follows:)

II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

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This Act may be cited as the "Indian Tribal Conflict

5 Resolution and Tort Cla'ms and Risk Management Act

6 of 1998”.

7 SEC. 2. FINDINGS; PURPOSES.

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(2) a unique legal and political relationship ex

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ists between the United States and Indian tribes;

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(3) through treaties, statutes, Executive orders, and course of dealing, the United States has recog

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nized tribal sovereignty and the unique relationship

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States in the role of the trustee for Indian tribes;

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(6) litigation involving Indian tribes, that often

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requires the United States to intervene as a litigant,

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(7) for many years, alternative dispute resolu

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economic self-sufficiency and self-determination, and

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(11) although Indian tribes have sought and se

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cured liability insurance coverage to meet their needs, many Indian tribes are faced with significant barriers to obtaining liability insurance because of

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the high cost or unavailability of such coverage in

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(12) as a result, Congress has extended liability coverage provided to Indian tribes to organizations

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to carry out activities under the Indian Self-Deter

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mination and Education Assistance Act (25 U.S.C.

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450 et seq.); and

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