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We had lots of questions, and I can tell you that after 16 or 17 months of research, we didn't really have the answers to those questions. So I think it's very important and more work needs to be done in this area.

But let me just give you a sense of some of the issues that we think are difficult here. The way the bill is structured really the Secretary of the Interior in order to provide this liability insurance is going to have to make some assessment on a tribe by tribe basis of whether the private insurance that tribes have already is adequate.

Well, it seems to me that there are a lot of problems with making that assessment. The first is finding out initially whether the tribes really do have private liability insurance. Ours was a study in which notices were sent to all the recognized tribes and invitations were issued to come and participate in the study. Obviously, that had its limitations. We were only able really to get 22 tribes to participate in our study, and so I would hope that to the extent that there is a much broader study you would have some mechanism for having everybody in.

Since my time is quickly running out, let me just go to what I think is a really critical issue, and that's the issue of sovereign immunity. As I've sat here this morning, I've listened to a variety of witnesses and senators talking about this issue. It was our experience in terms of the tribal representatives that we dealt with that in every case their desire to purchase private insurance was because they felt a commitment to people who might be injured as a result of their activities or their employees' activities on tribal lands to make them whole, and the types of insurance policies that they were able to buy in the market place varied considerably in terms of the coverage that they got.

One insurance company that insured a fair number of tribes had as part of its policy no description at all of how this sovereign immunity issue was to play out, but what they told us when we met with them in our site visits was that they routinely asserted the tribes' sovereign immunity as a way to defeat every claim legitimate or not.

When we inquired about the pricing of their product, it seemed clear to us that those products that they sold to tribes were priced no differently from the other kinds of insurance that other companies were selling, which made it clear that the insurance company would not assert sovereign immunity as a way of defeating claims, except with the express written consent of the tribe.

So the provision in your bill that says that sovereign immunity can't be used by the insurance company to defeat the claims we think is very important. We try to talk-because we guarantee confidentiality to all the participants in the study, we certainly couldn't go back to the tribes that purchase coverage from this one insurance company and specifically tell them about this, but I tried to test whether or not they did not that that's what they were doing. And when I raised the issue with the tribal representative, he said to me,

Well, why do we need insurance? If the point of this is to always assert our tribal sovereign immunity, we could do that. We don't need to pay some insurance com

So I think that's a very important point, and I just want to say in closing that I certainly, and the members of our staff, would be willing to help you in any way we can to refine this legislation.

[Prepared statement of Ms. Borzi appears in appendix.]

The CHAIRMAN. Well, I think this committee looks, actually, to all of our panelists to help us refine the legislation. This may not be the total answer, but it's basically, it's an alternative to what we've been doing, fighting it out in court and seeing a constant erosion of tribal sovereignty through amendments to every kind of a bill that you can imagine here in Congress.

I come from the southwest, as Mr. Deloria does and Judge Canby does, and we have a term out there when we face all consuming forest fires that eat good plants and the bad plants too, and everything in its path, and we call it backfire. It's a method to prevent getting run over by something that's getting out of control, and I'm sure you're aware of that term. Maybe in some respects this bill is kind of a backfire to try and stop the momentum that seems to be developing, at least in some circles here in the Senate and in the House too that are continually eroding tribal rights.

I just simply think that if we can find a way that we can negotiate our differences, it's better than fighting it out and starting to lose more and more here.

Mr. Allen mentioned that tribes do not want to be on the run. There's no question that they don't but they are on the defensive. If you're here 6 days a week, or at least 5 days a week, as we are, I think you would probably recognize that they are on the defensive. And there's more and more legislation coming up, unfortunately, that's directed against Indians, and much of it is done without any background, much of it is done without any knowledge of Indian people, and some of it is done mean-spirited—it's as simple as that, and we want to try and stop that and that's why we're here today trying to look for alternatives.

With that, Senator Inouye, do you have some comments? I would be happy to defer to you.

Senator INOUYE. I thank you very much.

I agree with you, sir, that though we have used words such as tort liability, Federal income taxes, dispute resolution, we should not forget that the issue before us is pure and simple—sovereignty. And I couldn't help but recall that we would not for a moment consider levying a tax against the State of Washington, the Federal Government, nor would be consider levying a tax against Montgomery County here in Maryland, nor would be consider levying real property taxes against the French Embassy. They have all the services—police protection, special police protection, incidentally, their children attend public schools, they receive all the benefits that all the residents here receive, but yet when they go to Saks Fifth Avenue, they do not have to pay a sales tax, State, county or Federal, and none of them pay income taxes. That is sovereignty. No one fusses about that. No one fusses about not taxing the States.

Do you think we could ever consider or debate taxing the State of Nevada for gaming income? But we do for Indians, and so I hope we don't lose track of that and lose sight of the fact that what is Indians have experienced many vacillations in our Federal policies and notwithstanding the fact that we have gone through Indian wars and termination and allotments and extermination, reorganization, and self-determination-one thing has remained constant—the Constitution has not been amended. The commerce clause still stands, the Supreme Court decisions are still standing, and they all proclaim that there is a special government-to-government trust relationship between the United States Government and Indian Nations and they all proclaim that there is sovereignty, but with each passing year the forces here somehow have been exerting everything they can to either dilute it, diminish it, or completely wipe it out.

There was a time when I first began serving here when the Congress would act up, and the Supreme Court was there as the buffer and the great protector of Indian country. But today the Supreme Court is no longer a protector of Indian rights, nor is the Congress, and so I say that this is a very crucial moment in the history of Native Americans. And I hope that this committee will be strong enough to stand up against the forces that are now massed against sovereignty.

Thank you.
The CHAIRMAN. I thank you.

No one has ever questioned Senator Inouye's commitment to doing the right thing, and I'm just honored and delighted that he serves on this committee.

Well, I think what we'll do is we're going to have any questions from the Senators—since we're the only two here—sent to you directly, and if you would answer those in writing in the days ahead so that we can put those into the full testimony, I would appreciate that.

And I appreciate this committee being here, as with the other committees. We certainly value and look forward to your recommendations on how we can bring this bill to fruition in a fair and impartial manner.

This committee hearing for the purposes of anyone who has additional information or comments will remain open for the next 10 days.

With that, this committee is adjourned.

[Whereupon, at 11:50 a.m., the committee was adjourned, to reAPPENDIX


PREPARED STATEMENT OF HON. CONRAD BURNS, U.S. SENATOR FROM MONTANA Thank you for the invitation and opportunity to be a part of this hearing. The bill before us today is of critical importance all of the people of Montana.

Recently I conducted a series of Town Meetings across Montana and the culmination of those hearings was a field hearing of the Senate Committee on Indian Affairs conducted by Senator Campbell. Testimony taken during all of those forums clearly demonstrated that there are significant and continuing jurisdictional problems associated with the dependent, sovereign nation status of the Indian tribes of Montana and their relationships with the State and non-members living within the external boundaries of the reservations.

The bill before us today, the Indian Tribal Conflict Resolution and Tort Claims and Risk Management Act of 1998, represents a measured step in the direction of resolving some of the conflicts that exist between the tribes and States. As such, it represents the beginning of a long journey that will hopefully lead to resolving conflicts not only between the tribes and States, but to the conflicts that exist between the tribes and non-members living within the external boundaries of reservations throughout Montana and throughout the entire United States.

This bill, S. 2097, acknowledges and encourages continued dialog and agreement between tribes and government. I applaud Senator Campbell for his recognition of and response to conflicts that are negatively impacting all citizens of Montana and the United States. I support this important first step in developing a framework for understanding between members of the tribes and all other citizens of the United States.


Mr. Chairman, I am glad we are having this hearing today because I think it is important that we consider alternatives to the legislative initiatives we considered earlier this year that were proposed by Senator Gorton. All governmental entities are endowed with immunity to protect their official actions from undue judicial interference. For this reason, I do not think it is prudent for us to impose across the board limits on tribal sovereign immunity from suit. The bill we are considering today addresses many of the issues considered earlier this year, however, it does so in a more moderate way without undermining tribal sovereignty and self-determination efforts.

I have long supported alternative dispute resolution as a way to resolve difficult situations through good faith negotiation. I believe we need to do more to promote dialog between states and tribes. By providing a mechanism for tribes and States to work together to come to agreement on outstanding issues, Senator Campbell's bill would help tribes and states work out excise tax agreements and other jurisdictional issues, while benefiting all of the parties, avoiding drawn out litigation battles and promoting mutual respect and understanding.

In addition, I believe that the idea to use liability insurance as a tool to remedy persons injured or otherwise harmed by the actions of tribal governments or employees moves us in the right direction. We may find that this idea could address the needs in Indian country, protecting tribes and allowing them to voluntarily waive their sovereign immunity in individual cases from time to time, at the same time as we protect Indian sovereignty.

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