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."

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

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).

8 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.

See, The Honorable Sandra Day O'Connor, Lessons from the Third Sovereign: Indian Tribal

Courts, The Tribal Court Record, Spring/Summer 1996, at 12.

11 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.12

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?

I am quite frankly amazed that a Committee of Congress - especially one with a Republican majority - is willing to put so much time considering legislation that would substitute a Washington-made and Washington-dictated solution to a problem - a problem that may not even exist - rather than allow the natural social processes to evolve a solution out of local conditions managed by the people who know the situation the best.

In the last few years we have seen a disturbing pattern to the Indian policy proposed by a member of this committee, who seems to be driving the agenda in this business not only here but because the Republican party saw fit to put the federal Indian budget in his hands. The pattern is that of reversing the thrust of the plenary Indian power of Congress from one which protects the Indians from the ravages of the states and their nearest neighbors to a power which makes the federal Congress the guarantor that a single non-Indian can win in every case. The power of Congress over Indian tribes is not morally justified if it is more often used to hamper them competitively and to force them to give advantages to non-Indians than it is to protect them from the overreaching by their neighbors which history amply demonstrates.

We have seen a parade of non-Indians in here to complain about tribal governments. Many of the members of this Committee have served in state and local government. Do they have any doubt whether the same or similar parade could be assembled to complain about municipal, county or state government - not to mention federal agencies - in any community in this nation? No sane person would take the position that tribal governments or tribal courts are flawless - nor would any sane person take that position as to their federal or state counterparts. The question really is: are the flaws of tribal governments so egregious that federal action is warranted to limit their powers or to dictate their policies? And underlying that question is: is the same energy put into hearing Indian complaints about state government; into ensuring that Indians will always win in state courts? We know the answer.

Many Indian people do not like the notion of the plenary power of Congress on the subject of Indian affairs, in large part because they have been misled as to the meaning of that legal doctrine. The "Plenary Power of Congress" does not mean that Congress can do anything it wants to Indians. It merely means that when the subject of legislative consideration legitimately falls within the aegis of "Indian affairs", Congress has the power to legislate without relying on one of the enumerated Constitutional powers. It does not mean that there is no limit on the powers of Congress.

This doctrine of "Plenary Power" was most clearly enumerated first in the case of Kagama v. United States, where the United States Supreme Court identified as the rationale for this plenary power the fact that the states and the Indians' neighbors are usually the Indians' most deadly enemies. Indian affairs, in the view of the Supreme Court, must be broadly federalized to protect the Indians. Here we have a Congress that is seriously considering using this power - which implicitly limits Indian self-government - to protect non-Indians who may be affected by tribal governments and indeed to give them greater protection than they have against the federal government or against their own state and local governments. I urge this Committee that if we are to be stuck with this plenary power of Congress to at least return it to its doctrinal roots, that of protecting the Indians from overreaching by their more powerful neighbors.