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Honorable Ben Nighthorse Campbell
ATTENTION: Eleanor McComber, Chief Clerk
July 16, 1998
Page 2

(iii) provides appropriate remedies that address only real problems identified from
credible evidence;
(iv) treats tribal governments fairly, affording them the same rights and responsibilities as
state governments; and

(v) preserves the federal government's trust responsibility to tribes and the federal policies

of promoting tribal self-determination and economic self-sufficiency. We believe that good faith efforts to discuss and negotiate the issues covered by S. 2097 could produce legislation for introduction at the beginning of the next Congress. The provisions in the current version of S. 2097 are a starting point for a dialogue, but it is premature for the Committee to approve or for Congress to enact S. 2097 without additional analysis and study. In fact, Section 105 of the bill recognizes that there are many more facts to be gathered and understood about "issues of intergovernmental concern with respect to Indian tribes, States, and the Federal Government."

While some might argue that enactment of S. 2097 would not harm Indian tribes and could result in tangible benefits to tribes if tribal-state disputes were resolved under its procedures and if tribes received liability insurance to cover tort claims, the danger in enacting S. 2097 at this time would be in creating a false sense that tribal critics are satisfied with this compromise and that tribal sovereignty has been preserved. By enacting S. 2097, not only would Congress compromise several principles affecting the honor of the United States and its duty to protect and defend Indian tribes, but the bill most likely would be followed by more extreme legislation pushed by those intent on destroying the viability of tribal governments rather than on resolving tribal-state disputes or private claims. Further, the provisions of S. 2097 offer some remedial measures for states and individuals, yet tribes receive little or no relief for their problems that have been caused by the states and no remedy for the federal government's failures to fulfill its trust responsibilities to tribes.

Title I of the bill appears to presume that the disputes and problems that arise between tribes and states are caused by tribes, when in fact, states have created as many if not more problems for tribes than tribes have created. Many states refuse to recognize tribal governments as equal sovereigns, and thus take actions that create legal confusion and problems for tribes in many areas, including taxation, land use, tribal economic development, and civil jurisdiction. The bill does not sufficiently recognize that tribes have legitimate grievances against states that need resolution, especially because states often assert their Constitutional sovereign immunity when sued by a tribe. Unfortunately, history shows that tribal attempts to work with states and state officials on a voluntary basis are often thwarted by intransigence, belligerence, or neglect on the part of the states. The nonbinding dispute resolution processes set forth in Title I offer another

Honorable Ben Nighthorse Campbell
ATTENTION: Eleanor McComber, Chief Clerk
July 16, 1998
Page 3

state, only to be faced with the state's rejection of the final solution because it does not give the state everything it wants. Politically, states can get away with such tactics, while tribes are criticized for advocating their position forcefully. In addition, the provisions of Title I raise many questions about how these dispute resolution processes will actually work and whether they can result in the equal treatment of tribes and states in a government-to-government relationship. We will allow others to discuss these specific concerns, which could be thoroughly examined during the tribal consultation period we propose above.

While Title II of the bill appears reasonable, it perpetuates the unsubstantiated allegation that tribes are denying compensation to individuals who have been injured by tribal actions. While there may be isolated examples of tribal assertions of sovereign immunity when sued for legitimate harms and anecdotal evidence of some uncompensated tort injuries to people and property, the record does not support the existence of a pervasive problem that requires federal action. Instead, tribes should be allowed to deal with the issue of voluntarily waiving their immunity for torts while further inquiries are conducted about the extent of the problem and the extent to which liability insurance could resolve it. For Congress to act without sufficient evidence would substantially harm tribal sovereignty, because many tribes already are addressing the issue of injuries to persons and property through voluntary actions and negotiated arrangements with states and private parties. Also, imposing a substantial liability on tribes at the same time the federal government is cutting back funding for Indian programs could create financial hardships for many tribes. A thorough analysis of many of the charges leveled against tribes during the Committee's hearings this Spring should show that most were the result of nonIndians disagreeing with legitimate policy decisions made by tribal governments--the same type of decisions that would be protected from liability under federal and state tort statutes if the decisions had been made by the federal government or a state government.

The need for further study of the tort liability/insurance issue is shown by the failure of the bill to take account of what happened years ago when Congress mandated that the Secretary of the Interior provide liability insurance for tribes engaged in so-called self-determination (or 638) contracts pursuant to the Indian Self-Determination Act. Subsequently, because the Secretary failed to act timely and adequately, Congress provided that activities under selfdetermination contracts would be treated as federal actions for the purpose of affording "the full protection and coverage of the Federal Tort Claims Act." Without further study, it is unclear to us how mandating action by the Secretary at the present time will result in an acceptable solution to the perceived problem when such a requirement had no impact in the case of selfdetermination contracts. Before Congress mandates tribal liability insurance coverage, the issue should be thoroughly examined, including collecting and analyzing credible evidence that a serious problem exists, determining the scope of the problem, examining the history of past attempts to deal with tribal tort liability, reviewing tribally-developed solutions that have worked, and

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