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states have historically shown a preference to litigation rather than mediate, denial of recourse to the Panel will not likely provide much of an incentive to states. Since the Panel is not likely to be a favorite forum for state complaints and is currently without power to hear original tribal claims, one might wonder, therefore, how the Panel will spend its time, so lacking petitioners.
The other new government body created by S. 2097, the Joint Tribal-Federal-State Commission on Intergovernmental Affairs, is an even more glaring example of bureaucracy without a cause. Its sole purpose appears to be giving states a voice in the Department of the Interior. We see no reason to create a new agency to "advise the Secretary concerning issues of intergovernmental concern” ($ 105(b)(2)), when the U.S. Postal Service already does a commendable job of transmitting communications to both the Administration and the Congress.
FEDERAL COURT JURISDICTION SHOULD BE EXPANDED
AND MADE EXCLUSIVE
Section 104(a)(1)(A) gives the federal district courts original jurisdiction to hear actions arising under an agreement or compact,” but provides no relief for a party frustrated in trying to make an agreement or compact. We suggest that such federal court jurisdiction be expanded to include actions to enforce all of the bill's procedures, including a party's refusal to negotiate in good faith. We would also recommend that federal court jurisdiction in these matters to be exclusive, not only to avoid possible inequities that might result from state court decisions foreclosing or adversely affecting tribal taxing jurisdiction (even if the tribe is not a party), but to provide consistency of interpretation, upon which intergovernmental harmony must be premised. Finally the reciprocal waivers of each party's sovereign immunity, required in tax compacts under $ 104(a)(2), must also include a specific waiver of the state's Eleventh Amendment immunity, lest the purposes of these compacts be frustrated or confused as we have seen with the Indian Gaming Regulatory Act.
IMPLEMENTATION OF S. 2097 WOULD REQUIRE SIGNIFICANT GOVERNMENT
EXPENDITURES IN A TIME OF SHRINKING APPROPRIATIONS
The Chairman's proposed legislation would create entirely new bureaucracies, as well as substantial new burdens for tribes and the Department of the Interior. Given the bent of the current Congress towards government austerity, we wonder which of our other tribal programs will be cut to provide all the money for these new programs, entities, and procedures. Appropriations for the Department, especially for Indian programs, are already bleeding. Even if the goals of S. 2097 were clearly defined, and the Committee were to feel that “throwing money” at these issues would provide solutions, it is doubtful that such funds will be forthcoming. Mindful of the stillborn Indian Tribal Justice Act of 1993, for which funds have never been appropriated, this Committee should be careful not to create new compliance burdens without providing the financial means either to achieve or enforce compliance.
Like a bulldozer attempting to landscape terrain whose existing contours are not known, the blade of S. 2097, we believe, would cut too deep in several places, only to stab at air in others. Given the grand oratory in recent years about needless and overabundant legislation, this Congress ought to be the last institution in need of a warning regarding the danger of enacting laws without a clearly defined purpose. We recognize that the Chairman's bill was prepared quickly and to parry harsher measures, and we appreciate his attempt at providing a more evenhanded approach. We ask, however, that the Committee consider the points raised above and defer action until after it has conducted appropriate research to determine just what, if anything, is actually needed. Thank you. LAVAPALI
Ft. McDowell Mohave
Apache Indian Community
P.O. Box 17779 Fountain Hills, Arizona 85269-7779
Fax (602) 837-1630
July 16, 1998
RE: S. 2097, the Indian Tribal Conflict Resolution and Tort Claims and Risk
Dear Chairman Campbell:
Thank you for this opportunity to comment on the Indian Tribe Conflict Resolution and Tort Claims and Risk Management Act of 1998. Although the bill begins with Title I, Intergovernmental Agreements, I will start out and spend more time commenting on Title II, Tort Liability Insurance
It is vitally important that all tribal governments provide remedies for persons injured by acts of their own governments. The idea of requiring liability insurance appears to be both an effective means to accomplish this purpose and the least intrusive method. If Title II of S. 2097 is enacted into law, it will benefit both injured parties and Tribal Governments. The Fort McDowell Mohave-Apache Indian Community (“Fort McDowell"), therefore, supports the idea of requiring all Tribes to have liability insurance that protects persons injured in tort actions by Tribal Government.
At Fort McDowell, the Tribal Government and all of its subordinate economic enterprises are heavily insured. All insurance policies issued to the Tribe prohibit the insurance company from raising the Tribes governmental immunity. Moreover, Fort McDowell has gone one step further. Fort McDowell has enacted a “Tribal Torts Claim Act.” In this Act, the Tribe has codified the requirement that the Tribe will not raise the defense of sovereign immunity for claims that are covered by insurance or a Tribal self-insurance plan.
The Tribe does, however, have a few concerns regarding the current draft of Title II. First, Title II of S.2097 makes no provision for a Tribal Government choosing to self-insure, either in whole or in part. As you know, in certain circumstances it makes more sense economically to either totally self-insure or self-insure up to certain amounts. If a Tribal Government voluntarily waives its sovereign immunity up to the amounts of self-insurance program, a Tribal Government should be allowed to self-insure. I suggest adding a subsection 201(6X2)(B)(ii) that allows for Tribal Self-insurance programs.
Second, we are concerned that the Secretary and the BIA may go overboard in assessing the needs of Tribes. As you know, the Bureau has a tendency to be overly paternalistic. Certain Tribes, like Fort McDowell, no longer require the paternalism of the past. As I am sure you know, a person or entity could insure just about any conceivable risk known to man. The study required in Section 202 seems like a good idea. Hopefully, the Secretary will arrive at fair and adequate degrees and types of liability insurance. If this bill or a modified version passes, I would ask that your committee monitor the situation periodically to guard against this potential problem.
Another interesting problem is in relation to the Civil rights Title VII claims. As you know, the Tribes are explicitly exempt from the provision of Title VII. Following the recent Supreme Court cases regarding sexual harassment claims, many entities will undoubtably purchase insurance to project against this risk. Will Tribes be forced to carry insurance to cover any lawsuits that might arise under these laws or other laws which exempt tribal governments?
Finally, the Tribe was somewhat unclear as to how the insurance would be funded. Our understanding is that if the Secretary determines that a particular Tribe needs the insurance, the cost of that insurance is deducted from that Tribe's priority allocation. However, if it is determined that a Tribe has adequate insurance coverage in place, that Tribe's priority allocation will not be affected. If that understanding is correct, that is acceptable. However, if Tribes that have existing adequate coverage are somehow penalized, Fort McDowell would object to that provision
At this time, I have the following limited comments regarding Title I. First, Section 103 involves the Intergovernmental Alternative Dispute Resolution panel. Section 103(C) states that
[a]ny claim involving the legitimacy of a claim for the collection or payment of
Although this section allows the Tribe to assert counterclaims or setofits when the State chooses to invoke this process, the process does not seem to allow the Tribe to affirmatively use the panel. It is very possible that a State may hold retail taxes owed by a State to an Indian Tribe. For example, a recent cigarette tax initiative passed by Arizona voters allows the Tribe to enact a similar tax. If the Tribe enacts a tax of equal amount, the Tribe is entitled to the taxes generated from reservation sales. It is my understanding that under the system the State of Arizona has set up regarding these Tribal Cigarette Taxes, the Arizona Department of Revenue first collects the tax, then remits the tax to the Tribal government. In this case and any other cases where the State may wrongfully withhold taxes due a Tribal Government, that Tribal Government should be allowed to affirmatively use this process under S. 2097.
Next, Section 105, Joint Tribal-Federal-State Commission on Intergovernmental Affairs, Subsection 105(b)(3) provides that the members shall be appointed for life. I agree that the appointments should be of a reasonably sufficient length to allow these persons to know the issues and lessen the politics. However, life appointments seem problematic. If either the Tribes or the States feel that the Commission is filled with persons contrary to their interests, the Commission will loose its credibility, for life. A better way to provide continuity and to lessen the politics might be to require staggered terms.
Thank you for the opportunity to comment on this proposed legislation. If you have any questions or comments, please feel free to call me.
FORT MCDOWELL MOHAVE-APACHE INDLAN COMMUNITY
Gutin n. Putten
Clinton M. Pattea