the ability to create, say, groups, particularly of the smaller tribes together, under one blanket policy? It's one thing for a large tribe that's sophisticated in its business acumen to go out and get a good deal on an insurance policy. We all know with our automobile insurance there's a wide variety of premiums for pretty much the same coverage, but in the case of small and unsophisticated drivers, would they not be better off with some way to do that collectively, rather than some kind of requirement that each of them have it and use their TPA's to buy it? Mr. GOVER. That's a good point and one that I had not considered. That actually holds a lot of promise to create these-to create groups instead of having, especially the small tribes, go out and try individually to get decent policies. My experience, again, in representing tribes in the private sector was that, as you point out, there's a wide disparity in these policies, and quite often I thought that tribes were being taken advantage of by insurers because it's not that easy to understand a liability policy. I keep coming back to this HHS study because I think they make a number of good points. One role that clearly the Federal Government can play through the BIA and the IHS is to do a couple of things-one, show the tribes where the gaps in their coverage are. The Tort Claims Act does cover a considerable amount of tribal activities. What many tribes may not know is that it does not cover everything, and we ought to, and should, be helping them to identify the gaps in any coverage so that when they go to an insurer, they can say, "We don't need a comprehensive policy; we need this policy," and that's a role that I think is appropriate for us to play. And, certainly, with the committee's endorsement we would do so, but that's the kind of analysis that needs to be done, and if we can help put together groups to reduce the costs of these policies, then I suppose we're willing to do that. Senator GORTON. And what distinctions are there as a matter of fact between a proposal that simply requires a tribe to have an insurance policy and have the insurer as the defendant against one that allowed a suit to be brought against the tribe but with a limitation of liability co-extensive with such insurances they had? Mr. GOVER. What's the difference between them? Senator GORTON. Yes; isn't that a distinction without a difference? Mr. GOVER. I suppose the difference would be in-it's not a distinction without a difference because it does matter who the party defendant is and what this Congress chooses to do with the doctrine of sovereign immunity. Sovereign immunity, obviously, is meaningful to the tribes. It is not meaningful to insurance companies, and I think that it is-it creates no difference in the outcome, which ideally is that the victim of tortious conduct is compensated, but it does make a great deal of difference, I think, certainly, as a matter of principle and precedentially speaking, that the tribe not be subjected to those suits. Senator GORTON. One other question on this subject that we tribes from suites under Federal environmental laws that give an individual cause of action against State or local governments? Mr. GOVER. That create an individual right Senator GORTON. A number of our Federal environmental laws, of course, allow units of government to be sued for violations of Federal environmental laws. Why should Indian tribes be exempt from such lawsuits? Mr. GOVER. I apologize, I'm having some trouble with the question. First of all, my understanding is that Federal environmental laws, the substantive requirements of the Federal environmental laws, do apply to tribes Senator GORTON. Yes; that is correct. Mr. GOVER. That they are enforceable by the United States, at least, against the tribes. Senator GORTON. But many environmental laws-many environmental organizations don't think the United States does a very good job in bringing those lawsuits, and they are permitted to sue States and local governments under the statute, but a State-an individual who can sue a State or local government will be prevented from suing an Indian tribe on the same environmental cause of action. Is there a justification for that? Mr. GOVER. I think there absolutely is, and it is that these individuals, these environmental groups and the plaintiffs that they find to bring these actions have no trust responsibility to these tribes, and it is much better that a Federal agency that is charged with, No. 1, a government to government relationship; and, No. 2, a fiduciary responsibility regarding tribal trust assets to be the one that makes the determination whether an enforcement action is the appropriate method, and that is the difference. I mean, there's a vast difference between the EPA having acknowledged its trust responsibility to the tribe bringing an action against it, and an individual who believes he or she has been wronged in some way through some alleged violation of the environmental laws. The difference between the United States and an individual is vast, in my view, and I don't mean to be trite, but there are many millions of individuals, each of whom would have a right of action, presumably under some circumstances. The CHAIRMAN. Senator Gorton, we're going to have to move on. Senator GORTON. I've just got one question for Mr. Columbus, if you don't mind? The CHAIRMAN. Go ahead. Senator GORTON. Mr. Columbus, one thing-you're here advocating the quality of taxation against businesses run by Indian tribes and the members of the organizations that you represent. A large portion, however, of your justification or your rationale for this I take it is simply a fairness and equality of competition. Is not the basic reason that you're here that many of your members just simply can't compete against people who aren't subject to rather substantial taxation right next to a member of one of your organizations who must pay those taxes? Mr. COLUMBUS. Oh, no, Senator, that's absolutely true. The reality is, and most of you are familiar with State motor fuels excise taxes, for example, or cigarette excise taxes. For example, the State of New York's State excise tax on tobacco, I believe is 54 cents a pack. It is impossible in a commercial sense to compete with someone who does not carry that same cost burden. I mean, that's an out-of-pocket per private retailer. I should emphasize, Senator, that people who don't want to pay taxes includes my clients too. They don't want to. They didn't have to they wouldn't either. The problem is that there is a terrific commercial fall-out. It does cost my clients a lot of business and jobs, and it also costs the State a lot of money, at least. Mr. Chairman, when the State of New York went to the U.S. Supreme Court and asked the Supreme Court to approve its taxation scheme for tobacco, the State was pretty insistent that it was costing the State of New York a lot of money, and that they needed that money to support the infrastructure of the State of New York. Money is a zero-sum system. If we don't get it from one place, we're going to get it from another, and what you see is a death spiral for the commercial enterprises who are competing with people who don't carry the same tax burden because while the State has an increasing demand for money, the tax base is shrinking because it's carrying an ever greater share of the State's needs because the folks who are competing with us don't carry any. That doesn't make them bad people; that makes them business people The CHAIRMAN. We're going to have to move on or we're going to run out of time. Mr. Columbus, thank you for your testimony and thanks to this committee. Senator Burns, do you have Senator BURNS. I have no questions. The CHAIRMAN. Okay, and because of the time constraints, we're going to limit the panel to 5 minutes and the questions of the Senators too from now forward. If you have any further comments or recommendations for this bill, we would certainly appreciate your turning those in. Thank you so much. Mr. COLUMBUS. Mr. Chairman, thank you very much. Mr. FRANK. Thank you. Mr. GOVER. Thank you. The CHAIRMAN. We're going to combine panels 2 and 3. That will be William Canby, Jr., U.S. Circuit Judge from Phoenix; Apesanahkwat, Chairman of the Menominee Tribe; Ron Allen, President of the National Congress of American Indians; Sam Deloria of the American Indian Law Center; and Phyllis Borzi from the Center of Health Policy Research. We will start in that order with Judge Canby first with the same time constraints that I mentioned, but all of your testimony will be included in the record. Judge Canby, if you'd start please. STATEMENT OF WILLIAM C. CANBY, JR., U.S. CIRCUIT JUDGE, U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT, PHOENIX, AZ I appreciate the opportunity to speak with you today. I used to teach Indian law, and for the last 18 years I've been on the Ninth Circuit Court of Appeals in the West and I am Chairperson of that Court's task force on tribal courts, which was organized 6 years ago to open lines of communication between the Federal and the tribal courts. I speak, however, as an individual. I can't speak for my court or for the judiciary as a whole. I've been asked to comment on section 105 of S. 2097, which would establish a joint tribal-Federal-State commission on intergovernmental affairs, and I'll confine my remarks to that section. The commission is to be established by the Secretary and would have representatives of all three governments and would deal with matters of law enforcement, civil and criminal jurisdiction, taxation, transportation, economy development and other matters. It would be advisory; it would be established by the Secretary of the Interior and would advise the Secretary and would report to this committee, to the other body and to the President. The experience of a task force in the Ninth Circuit, which encompasses the nine western most States, is that tripartite negotiation and agreement could work very well. We stimulated the establishment of groups within the States in the Ninth Circuit. We found in some States that State-tribal organization forums had already been set up, and we prevailed upon them to add Federal representation, and that happened in Arizona, my home state. An example of a couple of things that happened informally at the local level. As Senator Gorton said, the States-the Indians are entitled to State services and they were entitled to the State mental hospital, but the State mental hospital would not honor civil commitments when they were issued by a tribal court. The tribal judges raised this in the State- Federal-tribal forum. As a temporary matter, some of the State judges in there agreed to honor State commitments and issued-to honor tribal commitments and issued State commitments on the basis of them, but for a long-term solution legislation was purposed to the State and with the cooperation of all three groups it passed easily, and now the State, as a matter of State law, regularly honors tribal court civil commitments to the State mental hospital. Another example occurred with misdemeanor enforcement on the reservation. As I think this committee knows very well, criminal jurisdiction is highly fractionated on the reservation; civil jurisdiction is too. This creates great enforcement problems. What was discovered was that non-Indians would come on to the reservation and would commit misdemeanors against Indians or against Indian property, and the only authority on the scene were the tribal police and the tribal courts, but they do not have jurisdiction over non-Indian committing crimes. The Federal Government has jurisdiction, exclusive jurisdiction when there's an Indian victim, but the FBI and the United States Attorneys are usually after bigger crimes and can't handle misdemeanors. The solution that was worked out by agreement with the help of Attorney General Reno was that the United States Attorney in Arizona would authorize as a special assistant United States attorneys tribal prosecutors who could then bring offenders before U.S. Magistrates and prosecute misdemeanor crimes. That system is working well; it's being copied in other States. Well, my point is that these local efforts are very effective but they're necessarily sporadic, they're unfunded and they often face systemic problems that could be negotiated on a much wider level. There is also a need for somebody to help stimulate continued local efforts because many solutions still should be done at the local level, but some are national and the proposed commission I think would be a very good step in the direction of having a tripartite body to come up with recommendations, solution, negotiated solu tions. We know the process works. We only need an instrument at the national level, and the key is that the decisions be voluntary and arrived at by the parties who are concerned, and with that kind of an arrangement I think many problems can be solved. Thank you. [Prepared statement of Judge Canby appears in appendix.] The CHAIRMAN. Chairman Apesanahkwat. STATEMENT OF APESANAHKWAT, CHAIRMAN, MENOMINEE INDIAN TRIBE, WISCONSIN APESANAHKWAT. That's close enough. [Laughter.] I Mr. Chairman, Vice Chairman Inouye, Dr. Zell, Apesanahkwat, Chairman of the Menominee Tribe, and this indeed is a good part of our proposal that we submitted to Senator Gorton's bill last year. I am a little disappointed that the Senator from Washington, as well as Montana, did not stay for our testimony because this is the first opportunity I have had to explain why it is that the Menominee people have decided to make this overture to demonstrate that we are willing to address egregious actions, such as a child being killed in a parking lot of a tribally-owned facility, and it's one of the reasons why we are bringing this proposal forward as inevitable to other tribes where we have already arrived at the precipice of having to enter the 21st Century in this third millennium and all of that. We feel it is necessary to cause a mechanism where tribal agents and employees who have committed tortious acts toward individuals that there be a process for them to have relief, to find relief, and, as a result, we have done this, and basically kept in tact the concept of sovereign immunity for tribal nations, just as State governments, city governments and Federal Governments have in certain instances waived their immunity from suits for certain instances. I applaud the Senator from Colorado for introducing, but, more importantly, I want the committee and I want Senator Gorton and I want Congressman Istook, and I want Senator Enzi to know that one of the reasons why we demonstrate this is because myself personally I've been the Chairman five times in the last 25 years, and I grow weary of coming to Washington every Congressional session to combat anti-Indian legislation. I find it more difficult to tell it to my 24-year old Marine daughter why it is critical to remain patriotic and honorable to this country, to this body, why it is I have |