S. Hrg. 104-694 TOIBAL SOVERHGN IMMUNFTY HEARING BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED FOURTH CONGRESS SECOND SESSION ON TRIBAL SOVEREIGN IMMUNITY SEPTEMBER 24, 1996 WASHINGTON, DC c S. Hrg. 104-694 TRIBAL SOVEREIGN IMMUNITY HEARING BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED FOURTH CONGRESS SECOND SESSION ON TRIBAL SOVEREIGN IMMUNITY SEPTEMBER 24, 1996 WASHINGTON, DC U.S. GOVERNMENT PRINTING OFFICE 35-542 CC WASHINGTON : 1996 For sale by the U.S. Government Printing Office Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 ISBN 0-16-054225-1 COMMITTEE ON INDIAN AFFAIRS JOHN McCain, Arizona, Chairman DANIEL K. INOUYE, Hawaii, Vice Chairman FRANK MURKOWSKI, Alaska KENT CONRAD, North Dakota SLADE GORTON, Washington HARRY REID. Nevada PETE V. DOMENICI, New Mexico PAUL SIMON, Illinois NANCY LANDON KASSEBAUM, Kansas DAMEL K. AKAKA, Hawaii DON NICKLES. Oklahoma PAUL WELLSTONE, Minnesota BEN NIGHTHORSE CAMPBELL, Colorado BYRON L. DORGAN, North Dakota CRAIG THOMAS, Wyoming ORRIN G. HATCH, Utah Steven J.W. Heeley Majority Staff Director /Chief Counsel Patricia M. Zell, Minority Staff Director /Chief Counsel ai) CONTENTS Page Statements: Allen, W. Ron, President, National Congress of American Indiana 68 Anderson, Robert T., Associate Solicitor, Division of Indian Affairs, De- partment of the Interior 8 Anoatubby, Bill, Governor, Chickasaw Nation 59 Becker, Daniel, Esquire 53 Cagey, Henry, Chairman, Lummi Nation 57 Coleman, Jennifer A., Esquire 38 Dawson, Marlene, Council Member at Large, Whatcom County, WA 36 Dorgan, Hon. Byron L., U.S. Senator from North Dakota 13 Endreson, Douglas B.L., Esquire, Sonosky, Chambers, Sachse and Endreson 28 Gorton, Hon. Slade, U.S. Senator from Washington 3 Hatch, Donald C, Jr., Vice Chairman, Tulalip Tribes Of Washington 66 Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Com- mittee on Indian Affairs 1 Johnson, James J., Esquire, Olympia, WA 45 Long, Lawrence, Chief Deputy Attorney General, South Dakota 14 Marcussen, Lana E., Esquire 40 Metcalf, Hon. Jack, U.S. Representative from Washington 5 Pressler, Hon. Larry, U.S. Senator from South Dakota 6 Simon, Hon. Paul, tJ.S. Senator from Illinois 5 Smith, Darrel, Mobridge, SD 43 Swaney, Rhonda R., Chairwoman, Confederated Salish and Kootenai Tribes of the Flathead Nation, Pablo, MT 53 Taken Alive, Jesse, Chairman, Standing Rock Sioux Tribe 60 Williams, Susan M., Esquire, Cover, Stetson and Williams, P.C, Albu- querque, NM 22 Yazzie, Herb, Attorney General, Navajo Nation 63 Appendix Prepared statements: Allen, W. Ron 563 Anderson, Marge, Chief Executive, Mille Lacs Band of Ojibwe (with at- tachments) 569 Anderson, Robert T. (with attachments) 83 Anoatubby, Bill 396 Bourland, Gregg J., Tribal Chairman, Cheyenne River Sioux Tribe (with attachments) 582 Bums, Conrad, U.S. Senator from Montana 74 Cagey, Henry (with attachments) 362 Clinton, Robert N 606 Glower, W. Dewey, President, NATSO, Inc 75 Congdon, Robert 620 Coleman, Jennifer A. (with attachments) 277 Davis, Sam, Mayor, Parker, AZ 75 Dawson, Marlene (with attachments) 217 Dorgan, Hon. Byron L., U.S. Senator from North Dakota 73 Endreson, Douglas B.L. (with attachments) 197 Hatch, Donald C. Jr 558 Hill, James D., Esquire, Assistant Professor, School of Justice Studies, Arizona State University 632 Johnson, James M., Esquire (with attachments) 337 Johnson, Wesley 620 (III) IV Page Prepared statements — Continued Jordan, Derril B., Attorney General, Seneca Nation (with attachments) .... 639 Long, Lawrence (with attachments) 88 Marcussen, Lana E., Esquire 78 Murphy, Virgil, President, Stockbridge-Munsee Community Band of Mo- hican Indians 655 Oneida Indian Nation 77 Rco, Anthony, Tribal Chairman, Viejas Band of Kumeyaay Indians 659 Pommersheim, Frank, Professor of Law, School of Law, University of South Dakota 663 Risling, Dale Sr., Chairman, Hoopa Valley Indian Tribe, California 668 Shields, Caleb, Chairman, Assimboine and Sioux Tribes, Fort Peck Res- ervation 675 Smith, Darrel (with attachments) 321 Sunchild, John R., Chairman, Chippewa Cree Tribe 683 Swaney, Rhonda R 357 Taken Alive, Jesse 79 Teller, John, Chairman, Menominee Indian Tribe, Wisconsin 686 Whitefeather, Bobby, Chairman, Red Lake Band of Chippewa Indians 693 Williams, Susan M. (with attachments) 131 Yazzie, Herb (with attachments) 410 Young, Dora S., Principal Chief, Sac and Fox Nation 706 Additional material submitted for the record: Letters with attachments to: Committee on Indian Affairs 710 Domenici, Hon. Pete V., U.S. Senator from New Mexico 748 Gorton, Hon. Slade, U.S. Senator from Washington 749 Inouye, Hon. Daniel K., UJS. Senator from Hawaii, Vice Chairman, Com- mittee on Indian Affairs 879 McCain, Hon. John, UJS. Senator from Arizona, Chairman, Committee on Indian Affairs 887 Miscellaneous letters, position papers, Jeff Kent Interview chain of own- ership, court cases, Lummi Nation response to testimony of Marlene Dawson, et cetera 916 TRIBAL SOVEREIGN IMMUNITY TUESDAY, SEPTEMBER 24, 1996 U.S. Senate, Committee on Indian Affairs, Washington, DC. The committee met, pursuant to notice, at 9:30 a.m. in room 106, Senate Hart Building, Hon. Daniel K. Inouye (vice chairman of the committee) presiding. Present: Senators Inouye, Simon, Gorton, Dorgan, and Conrad. STATEMENT OF HON. DANIEL K. mOUYE, U.S. SENATOR FROM HAWAH, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS Senator Inouye. Good morning. Delivering the opinion for a unanimous court in the Supreme Court's 1991 ruling in a case enti- tled Oklahoma Tax Commission v. Citizen Band Potawatomi In- dian Tribe of Oklahoma, Chief Justice Rehnquist addressed the subject of the committee's hearing today, when he stated the law of the case, and I quote: Indian tribes are 'domestic dependent nations' which exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or Congressional abrogation. However, in his concurring opinion. Justice Stevens expressed a somewhat different view, and again I quote: The doctrine of sovereign immunity is founded upon an anachronistic fiction. In my opinion, all governments — ^Federal, State, and tribal — should generally be ac- countable for their illegal conduct. The rule that an Indian tribe is immune from an action for damages absent its consent is, however, an established part of our law. Such is the nature of the debate which is the focus of the com- mittee's hearing today. Whether one views it as anachronistic or relevant in contemporary times, the assertion of sovereign immu- nity to suit is a right that is jealously guarded by most sovereign governments. The genesis of today's nearing arises out of a pro- posal that was contained in the Senate's fiscal year 1997 Interior Appropriations bill. Section 329 of that bill provided: In cases in which the actions or proposed actions of an Indian tribe or its agents impact, or threaten to impact, the ownership or use of the private property of an- other person or entity, including access to such property that might arise from such impacts or which impact the receipt of water, electricity, or other utility to such property, an Indian tribe receiving funds under this Act or tribal oflicial of such tribe, acting in an oflicial capacity, shall No. 1, be subject to the jurisdiction, orders, and decrees of the appropriate State court of general jurisdiction or Federal district courts for requests of injunctive re- lief, damages or other appropriate remedies; and No. 2, shall be deemed to have waived any sovereign immunity as a defense to such court's jurisdiction, orders and decrees. (1) When the bill was brought before the full Senate Appropriations Committee, the author of the proposal agreed to an amendment to delete the provisions from the bill, so that the authorizing commit- tee of jurisdiction, the Committee on Indian Affairs, could conduct a hearing on the issue sought to be addressed by the provisions of section 329. However, the committee's hearing this morning also has a broader focus, which is the assertion of sovereign immunity by tribal governments. In the Federalist No. 81, Alexander Hamilton wrote. It is inherent in the nature of sovereignty not to be amenable to suit of an individ- ual without its consent. This is the general sense and the general practice of man- kind, and the exemption, as one of uie attributes of sovereignty, is now enjoyed by the government of every State in the Union. The member States of our Union decided that this organizing principle was so fundamental to our constitutional framework that in 1795, they ratified the 11th Amendment to the U.S. Constitu- tion, and by their action, made their sovereign immunity to suit part of the supreme law of the land. The doctrinal foundation of the concept of sovereign immunity has several sources. In English law, the traditional immunity of the English sovereign was ex- pressed in the phrase, "The king can do no wrong." Others attribute the doctrine of sovereign immunity to another constitutional doctrine of equal force in American law, the separa- tion of powers, and conclude that the assertion of sovereign immu- nity is to protect the official actions of the Government from undue judicial interference. Or put another way, that the courts, as one branch of the government, cannot enforce judgments against an- other branch of the Grovemment without the latter's consent. Especially relevant to smaller governments is the notion that the doctrine prevents burdensome financial losses that could seriously impair or destroy governmental operations. In fact, this was the driving force behind the ratification of the 11th Amendment by the States. They feared suits to collect unpaid war debts and to recover property seized during the Revolutionary War. As recently as March of this year, 32 States sought and success- fully secured a reaffirmation of their sovereign immunity to suit in the Supreme Court of the United States, making clear to one and all that the several States which comprise our Union do not view their sovereign immunity to suit as anachronistic. Whatever may be one's views on the subject of sovereign immunity, and whether the Federal Govemment, the State governments, city and county governments or tribal governments should be able to assert their sovereign immunity to suit, I believe the underlying concern is ac- tually a concern about due process. Our Constitution also guarantees to all of its citizens a right to due process, an opportunity to be heard. What process is due to each citizen depends upon the nature of the affected interest. The Supreme Court has held that this right may be satisfied in any of a number of forums, including administrative proceedings or hear- ings of regulatory bodies, and may range from notice in the publi- cations of general circulation to litigation in the courts of the var- ious sovereign governments. In Indian country, there are courts established either by a tribal government or by the Federal Government. For actions in tribal courts involving non-Indians, tJiere is an additional process af- forded such citizens, which is the review by the Federal courts of the exercise of a tribal court's jurisdiction. It was 5 years ago, this committee held a hearing on a report which had recently been completed by the U.S. Commission on Civil Rights. Following a comprehensive study of tribal courts na- tionwide, the U.S. Civil Rights Commission concluded that notwith- standing the meager resources with which they were forced to oper- ate, tribal judicim systems were providing due process to all liti- gants, both Indian and non-Indian. For over 200 years, the Nation has recognized the sovereignty of the Indian tribes. Federal law and policy has been built upon this foundation, which finds its expression in the Constitution of the United States, in treaties, in statutes, and in the rulings of the Su- preme Court. Today we recognize that sovereignty is also a defin- ing element of the economic future of governments. As a Harvard law professor informed this committee last week, after years of study in this area: K we look back on this history of Federal Indian policy in the 20th century, it is not a coincidence that it has only been in the era of self-determination that a sig- nificant number of reservations have begun to break the cycle of poverty and de- pendence. Sovereignty is one of the primary development resources tribes can have. And the reinforcement of tribal sovereignty under self-determination should be the central thrust of public policy. One of the quickest ways to bring development to a halt and prolong the impoverished conditions of reservations would be to further undermine the sovereignty of Indian tribes. For the many representatives of the tribal governments gathered this morning for this hearing, there is much at stake. Just as the States have, over the years, sought to accord due process while pro- tecting their rights as sovereigns to assert their immunities from suit, so do other sovereigns, including tribal governments. In the course of our history as a Nation, we have learned that our constitutional framework has stood well the tests of time. So too have the fundamental principles which inform the powers and rights of the sovereign governments which make up our Union. Our task this morning is not to revisit the provisions of our Con- stitution that recognize the Indian tribes as sovereigns, nor is it to overturn 200 years of Federal law. But rather, it is, I believe, to develop a better understanding of the rights and responsibilities that tribal governments have assumed in the exercise of their in- herent sovereignty. May I call upon my distinguished colleague, Senator Gorton. STATEMENT OF HON. SLADE GORTON, U.S. SENATOR FROM WASHINGTON Senator GrORTON. Thank you, Mr. Chairman. You are certainly accurate in describing the genesis of this hear- ing, a hearing on a vitally important subject which I believe was last discussed in the late 1980's or early 1990's in connection with the Indian Civil Rights Act. The question before this committee, as it was in connection with the Appropriations Committee provisions, is the degree and the extent to which sovereign immunity is an ap- propriate or a live doctrine in the last decade of the 20th century, in connection with disputes over property rights, most broadly de- scribed when the contending parties are Indian tribes or nations and non-Indians. I think perhaps without meaning to, Mr. Chairman, you have stated better than I possibly can the total anachronistic nature of sovereign immunity for Indian tribes or any other, when you stated that one of the grounds, historic grounds for sovereign immunity was the traditional doctrine in England that the King can do no wrong. We know perfectly well that the king can do wrong. And that is the reason that every other government, I suspect in the free world, but certainly the Government of the United States and the government of each of the States and the local governments that are dependent on them have increasingly over the course of the last century either abolished or severely restricted the doctrine of immunity. It is only in connection with Indian tribes in the Unit- ed States that it retains its original scope and extent. And the real question in my view is not one of an abstraction, whether the King can do no wrong or not. It is one of simple jus- tice. It is one of due process. Citizens of the United States of Amer- ica have an inherent right to have their disputes decided by a neu- tral court or a neutral arbitrator. Citizens of the United States now who live on Indian reservations and have disputes with an Indian tribe lack that right. They are literally the only American citizens who lack that right. And in my view, it is clear that tribal sovereign immunity, as it applies to Indian/non-Indian disputes is an anachronism. I do not here raise the question of whether or not it also ought to be abol- ished with respect to disputes between individual members of In- dian tribes and their tribal governments, though I rather suspect it should be. But in any event, it has long since outlived its useful- ness in this connection. The Chairman also quoted the statement of Justice Rehnquist, which in turn is based on much earlier statements that Indian tribes are domestic dependent sovereigns. That is true. That is true because the Constitution of the United States grants specifically to the Congress the right to govern our relationships with Indian tribes. I think we ought to do so, because here we're dealing, as I've said, with the rights of individuals, with people who feel left out, who are not able to get a neutral decision with respect to very im- portant, often life-important, problems that they have, simply be- cause they own land or live on Indian reservations. I think there are a number of really significant questions that we can ask and discuss here. One of course is whether or not sovereign immunity, if it is abolished, should be abolished only with respect to Federal courts. Perhaps it is an argument that at least at this point, only courts of the United States should have jurisdiction over these disputes — an original matter, rather than as an appeal with respect to jurisdictional questions from the decision of tribal courts. Personally, I believe that citizens of a State ought to have access to their State courts for anything which takes place that they feel wrongs them within a State. But that question, the question of sov- ereign immunity from actions in State courts is a separate one from allowing all such courses of action to be tried in Federal courts themselves. It is true that for Indians and for their tribal governments, much is at stake. But for non-Indians, who in many areas are a majority of the residents on Indian reservations, much is at stake as well. And essentially what is at stake, is their rights as American citi- zens and their rights to due process. With that, Mr. Chairman, I'm ready to hear our witnesses. But I would ask for two favors. We have, I understand it, some hun- dreds of letters from non-Indians in various States across the coun- try, from New York to the Pacific Coast, that I would appreciate being included in the record. And Senator Bums' office has called and asked that a statement from him on his behalf and for the Governor of Montana and various Montana citizens also be in- cluded in the record. Senator Inouye. Without objection, so ordered. [Referenced material appears in appendix.] Senator Inouye. May I now call upon Senator Simon. STATEMENT OF HON. PAUL SIMON, U.S. SENATOR FROM ILLINOIS Senator SiMON. Thank you, Mr. Chairman. I'm not going to comment on the question at hand, and I regret I'm going to have to be in and out for the Judiciary Committee meeting. But I think this will be my last meeting of this committee. And I just want to say what a great contribution you have made to this country, Mr. Chairman. And I am pleased that Senator McCain has joined you in keeping this a bipartisan committee. And I think my colleague. Senator Gorton, would agree with this. This committee operates without partisan rancor more than any other committee on which I serve. And that is a tribute to you, Mr. Chairman, and to Senator McCain. And I really appreciate the contribution that you're mak- ing. Senator Inouye. Thank you veiy much. Senator Simon. As al- ways, you are very generous. And now it is my pleasure to call upon a Congressman from the State of Washington, who wishes to introduce his witnesses, his constituents. Congressman Jack Metcalf. STATEMENT OF HON. JACK METCALF, U.S. REPRESENTATIVE FROM WASHINGTON Mr. Metcalf. Thank you very much, Mr. Chairman. I appear here as a member of the Native American and Insular Affairs Committee of the Resources Committee of the House. And I'm very pleased to be here. I don't have an opening statement, other than to say it's my pleasure to introduce five different people from the State that are on the panels. On panel IV is Marlene Dawson, from Watkin County, Jim Johnson from Olympia. And I've known both of those people for quite some time and I welcome them here. On panel V is Henry Cagey, Chairman of the Lummi Business Council of Bellingham, one of the seven tribes in my district. Don Hatch, Vice Chairman, Tulalip Tribes of Marysville. I was born in Marysville, so I'm very familiar with this area. Ron Allen, the President of the National Congress of American Indians, is from the Jamestx)wn S'Klallam Tribe, in Port Angeles, which is Norm Dicks' district. So I'm just pleased to be here, and thank you for this oppor- tunity. Senator Inouye. Thank you veiy much, sir. And now it's my pleasure to calf upon our colleague, U.S. Senator Larry Pressler. STATEMENT OF HON. LARRY PRESSLER, U.S. SENATOR FROM SOUTH DAKOTA Senator Pressler. Thank you, Mr. Chairman. I'm pleased to be here today to discuss tribal sovereignty, an issue which is very important to my home State of South Dakota. I am particularly pleased that the committee has invited three dis- tinguished South Dakotans to testify before you today. Larry Long, the Deputy Attorney Greneral for South Dakota, has had many years of hands-on experience working on tribal jurisdic- tion issues. Currently, he is working on several cases involving tribal sovereignty conflicts, including one case which may be heard by the Supreme Court as early as next January. This court case could be a landmark decision. Specifically, the State of South Dakota and the city of Oacoma, South Dakota, ap- pealed the transfer of 91 acres of non-reservation land into trust for the Lower Brule Sioux Tribe. Much of this land was located within the city's limits, approximately 7 miles away from the res- ervation. The State argued against the loss of property taxes on the land, and against the loss of State and local jurisdiction over the lands to be transferred into trust. The Eighth Circuit Court of Appeals ruled against the transfer. The Court deemed it unconstitutional for the Secretary of the Inte- rior to take land into trust for Indian tribes or individual Indians without clearer direction from Congress. I'm sure we'll be watching this case carefully as the Supreme Court examines it. In another unique case, a recent Federal district court decision reestablished the boundaries of the Yankton Sioux Indian Reserva- tion, which now includes most of Charles Mix County. This decision could have drastic consequences on civil and criminal judicial juris- diction within that county. For nearly a century, ever since Congress opened the Yankton Sioux Indian Reservation to non-Indian settlement, residents of fee-owned land in the county understood themselves to be subject to the State of South Dakota law. The Eighth Circuit court re- versed this. If this decision is upheld, the tribe could exercise juris- diction over those landowners. Disagreements would have to be re- solved in Federal court. Civil and criminal jurisdiction would be- come blurred. The basic question of who's in charge would turn on the parties' involved and the particular set of circumstances present in the case. The court's reinstatement of the reservation also raises a number of concerns regarding the validity of prior State court judg- ments. This could result in years of costly new litigation testing the validity of prior court action. Mr. Chairman, you also will be hearing testimony from Barrel Smith from Mobridge, SD. Barrel's ranch, located just west of the Missouri River, lies within the boundaries of the Standing Rock Sioux Indian Reservation. Barrel will be sharing his personal expe- riences as a non-Indian resident of a reservation. As you know, Mr, Chairman, it has been almost a century since Congress and the President opened many of the reservations in the west to non-Indian settlement. In addition, Federal allotment poli- cies divided up Indian reservations, giving tracts of lands to indi- vidual Indians. In many cases, these individual allotments were sold in fee to non-Indians. As a result, we now have the situation where many acres of non- Indian, fee-owned land lie within the borders of Indian reserva- tions. This has created a checkerboard ownership pattern. Non-In- dians, such as Barrel Smith, own some of the land. Tribal members own other parcels of land. And finally, some land is held in trust by the Federal Government for the tribes. This is a complex situation. It has prompted many court cases, which often must resolve the question of whether the State or the tribe has jurisdiction over non-Indians or non-Indians in Indian country. We now have four different jurisdictional layers in Indian country, the local, State, Federal and tribal. This is nothing less than confusion to the people living there. They have no clear un- derstanding of which set of rules apply to them in varying situa- tions. It is far too costly and far from practical to have a court hearing every time someone needs and answer to who's in charge. When I meet with people living in Indian country, this jurisdic- tional quagmire is cited as one of the most pressing problems fac- ing them every day. Finally, Mr. Chairman, the committee will hear testimony from Jesse Taken Alive, Chairman of the Standing Rock Sioux Indian Tribe. A couple of years ago, I attended a July 4 pow wow in McLaughlin, SB. I had the privilege of standing with Jesse during the opening ceremonies. It is something Til never forget. I am pleased Jesse is here to testify of his own run-ins with sovereignty conflicts. Mr. Chairman, it is time for Congress to address these problems. It is time to untangle the jurisdictional quagmire. This hearing is a good first step. I thank you for allowing me to speak before you today. I look for- ward to working with you in the future as we consider legislation to resolve these jurisdictional conflicts, and I thank you very much for your time. [Prepared statement of Senator Pressler appears in appendix.] Senator Inouye. I thank you very much. Senator Pressler. Thank you very much, sir. And now it is my pleasure to call upon the Associate Solicitor of the Bureau of Indian Affairs, the Bepartment of the Interior, Rob- ert Anderson. 8 STATEMENT OF ROBERT T. ANDERSON, ASSOCIATE SOLICI- TOR, DIVISION OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR Mr. Anderson. Thank you, Mr. Chairman and members of the committee. I am pleased to be here this morning to present the Ad- ministration's views on this very important topic. Thank you for your interest generally in Indian affairs and for the improvement of tribal governments and tribal court systems. I believe that the self-determination era, the adoption of tne Indian Civil Rights Act in 1968 and the continued support through the Indian Tribal Jus- tice Act of 1992 have resulted in great strides within Indian coun- try and that have allowed forth implementation of effective tribal forums to vindicate the rights of Indians, non-Indians and States and in some circumstances the Federal Government. As you pointed out, Mr. Chairman, the genesis of this hearing is the proposal set forth in section 329 of the Interior Appropriations Bill, which would result in a blanket waiver of tribal sovereign im- munity and authorize actions for injunctive relief and damages, in Federal and State courts. Let me emphasize two points at the outset here, as I summarize my remarks. First, the administration firmly supports tribal self- determination and the doctrine of tribal immunity from lawsuits. We feel that Indian tribes, like States and the Federal Govern- ment, should and may waive their immunity under appropriate cir- cumstances. But like States and the Federal Government, the choice of when and whether to waive tribal immunity is something the tribe should be free to decide for itself. As the testimony of Doug Endreson, points out, there are numer- ous tribal court decisions citing to tribal codes, and tribal constitu- tions, wherein tribes have waived their immunity from suit to allow appeals from administrative actions and other actions of In- dian tribes within Indian country. The administration supports the efforts of tribes to actively regulate activities within Indian country that affect their lands, healtn, and welfare of members generally, and views it as the ultimate aspect of self-determination — ^that the decision whether to waive immunity be left to the tribes. What follows from that perspective is the administration's oppo- sition to any blanket Congressional waiver of immunity without the consent of the tribes. Congress has legislated waivers of immu- nity, most notably in water rights settlements in the last 10 years. I hasten to say that those waivers of immunity were the result of negotiations between tribes. States, non-Indians and tribal mem- bers, relative to the use of those resources. The waiver of tribal immunity provided in section 329 will not resolve the jurisdictional conflicts alluded to by Senator Pressler just a few minutes ago. Rather, such a waiver would simply spawn additional litigation within Indian country and result in great hardship to tribal economies, as tribes are forced to expend great resources in defending their actions in State and Federal courts, and tribes could also be subject to damage awards in State courts which could have the potential for bankrupting tribal governments. The jurisdictional conflicts alluded to in checkerboard situations common on many Indian reservations are best dealt with through negotiations between tribes. States, the Federal Government, In- dian and non-Indian neighbors. Such arrangements have already been worked out in Indian country, in many circumstances. These arrangements are typically difficult and require lengthy negotia- tions. Our view is that solutions to problems among tribes and their Indian and non-Indian neighbors are best dealt with at the local level through negotiations between the sovereign govern- ments, so that solutions can be reached which will accommodate the interests of all the local parties and is not something that should be legislated in a blanket fashion from Washington, DC. I also want to emphasize that Congress carefully considered the waiver of tribal immunity in 1968 when the Indian Civil Rights Act was passed, and decided, after great deliberation, on a limited waiver of tribal immunity to accommodate the interests of who might be incarcerated, and provided a habeas corpus relief in the Indian Civil Rights Act. As you pointed out earlier, Mr. Chairman, the Civil Rights Com- mission conducted extensive hearings throughout Indian country and in major urban areas to consider the actions of tribal govern- ments and the role of tribal courts in vindicating the rights of Indi- ans and non-Indians within Indian country. They recommended that there not be a waiver of tribal immunity and that causes of action against Indian tribes in Federal courts not be provided. Rather, tney recommended tiiat additional funding and support be provided for the improvement of tribal justice systems within In- dian country. I submit that their recommendation is still the wisest course. Again, as Mr. Endreson's testimony states, tribes are making great strides. The Indian Law Reporter demonstrates the great ac- tivity within tribal courts, and demonstrates that tribal courts are fair and neutral forums. And they vindicate the rights of non-Indi- ans and Indians alike. Tribal courts like State and Federal courts, are willing to rule against the tribal governments in appropriate circumstances, and a waiver of tribal immunity in such a blanket fashion is not appropriate. Finally, the provision in section 329 would authorize actions for simply proposing tribal actions to regulate the conduct of non-Indi- ans and their property within Indian country would have a nega- tive effect on the operations of tribal government and the ability of tribes to assume and continue their proper role as governments regulating activities within Indian country. For example, a non-In- dian with fee land might propose a toxic waste dump which could harm tribal natural resources, a river system and the reservation environment and its people generally. If a tribal committee were to merely discuss a proposal to regu- late that activity or to discuss possibly bringing a lawsuit in tribal or Federal court to halt that activity, the terms of this provision would allow the proponent of the toxic waste dump to bring an ac- tion in State or Federal court for damages that, if the individual were precluded from engaging in that activity. I submit that this type of action is not appropriate. In closing, I would reiterate the administration's support for trib- al immunity and self-determination and indicate our continued op- position to Section 329 in any legislated Congressional waiver of tribal immimity. 10 Thank you, Mr. Chairman. [Prepared statement of Mr. Anderson appears in appendix.] Senator Inouye. Thankyou very much, Mr. Anderson. I note the presence of Senator Dorgan. Would you care to make an opening statement? Senator Dorgan. I'll put a statement in the record. [Prepared statement of Senator Dorgan appears in appendix.] ' Senator Inouye. Thank you very much. Mr. Anderson, would you agree that an integral part of the Fed- eral Government's trust responsibiHty to tribes is to protect their sovereignty, which also includes the protection of their sovereign immunity? Mr. Anderson. Yes; I would, Mr. Chairman. Fd add that the Federal Government has an obligation to protect tribal trust re- sources: land, water, hunting and fishing rights, and that sovereign immunity is integral to the protection of those resources on the part of the tribes. Therefore, it's critical that tribal immunity be preserved and that the United States support that immunity. Senator Inouye. Are there any limitations on the types of activi- ties for which tribes can waive their sovereign immunity? Mr. Anderson. I believe that tribes would choose not to waive their immunity with regard to protection of trust resources. A tribe, for example, could not waive its immunity and authorize lEind that's subject to Federal restrictions to be taken without the con- sent of the United States. Likewise, I believe a tribe could not waive its immunity and authorize tribal trust funds to be taken without its consent or other resources that are, in essence, owned in fee by the United States. Because technically, the legal title is held by the United States and tribes could not authorize actions which would affect those resources. However, tribes can waive their immunity and indeed, lack im- munity generally, under the Ex parte Young doctrine, which allows non-Indians and Indians alike in States to bring actions against tribes to allege that a tribal government lacks a particular power to regulate some activity within Indian country. For example, the power to zone an action for prospective relief, can be brought in the Federal court against tribal officials for a determination of whether the tribe has that power. Senator Inouye. While in some cases dicta has suggested that the Congress has the power to waive tribal sovereign immunity, do you know of any cases which have upheld the legality of a Federal waiver of tribal sovereign immunity? Mr. Anderson. I'm not aware of such a case, but I believe that it is certainly within Congress' power and really is a matter of horn book Federal Indian law that Congress, having the ultimate au- thority to terminate the Federal-tribal relationship, likely has the authority to eliminate tribal sovereign immunity under various cir- cumstances. Senator Inouye. In your opinion, would conferring jurisdiction on State courts over matters governed by tribal law raise 10th amend- ment concerns about the power of the Congress to affect the juris- diction of the State courts over matters not within the judicial power of the United States, or otherwise a subject of affirmative, substantive legislation by the Congress? 11 Mr. Anderson. I usually think of 10th Amendment concerns in terms of limiting the Federal Government's power to regulate and coerce action on tiie part of the States. That's where most of the litigation has been. Whether or not the lOth Amendment itself would be applicable here or whether an analogous Federal common law doctrine under Federal Indian law principles would apply is something I'm not certain of. However, I believe that the concerns over whether the Federal Government should regulate, as em- bodied in 10th Amendment limitations, are certainly applicable to consideration of whether Congress should engage in such inter- ference with the exercise of inherent tribal sovereignty and sov- ereign immunity. Senator INOUYE. Thank you very much. I have many other ques- tions which I will submit and look forward to your responses. [Referenced material appears in appendix.] Senator Inouye. Senator Gorton, Senator Gorton. Mr. Anderson, I think the operative language in your statement, if I caught it correctly, was that the administra- tion opposes any blanket waiver of the sovereign immunity of In- dian tribes without their consent. Does that accurately state your position? Mr. Anderson. That's our position. And in fact, I would elabo- rate that we oppose any waiver of tribal immunity, even a limited waiver, absent the consent of the tribe. Senator Gorton. Well, you certainly anticipated my second ques- tion. So the word blanket was not an operative word in your — ^you could rephrase that to say you oppose anv waiver of Indian tribal sovereign immunity without the consent of the tribes? Mr. Anderson. That's correct. Senator GrORTON. And while you worked around it, Mr. Anderson, you're not going to sit here and tell this committee that there are any limitations on the power of the Congress of the United States with respect to this matter? Mr. i^^ERSON. I am loathe to try to overturn the Supreme Court's clear statements to the effect, first in Lone Wolf v. Hitch- cock, then as modified in Delaware Tribal Business Committee, that Congress has plenary power over Indian tribes and Indian af- fairs, so long as the Congress' action is tied rationally to its rela- tionship with Indian tribes. So, I believe that it's quite clear that this body's power is quite strong. Senator GtORTON. And the 10th amendment to the Constitution of the United States reads that the power is not delegated to the United States by the Constitution, nor prohibited to it by the States or reserved to the States respectively, or to the people is ir- relevant in this debate, is it not? Mr. Anderson. It would seem to be, based on the plain language of the Constitution, but as we've learned from our 11th amendment jurisprudence, the court has firom time to time interpreted provi- sions of the Constitution as embodying other common law notions. And as I pointed out to Chairman Inouye, it might be appropriate to consider whether, in the Federal Indian law context, similar lim- itations on Federal power might be applicable. Fm rather skeptical 12 that this would be the case, but it's something that I must think about further. Senator Gorton, Now, is the position of the administration sim- ply one of an abstract concern for Indian sovereignties and for the trust responsibility of the Federal Government, or is the position of the administration that non-Indian residents and landowners who live and own their land within the exterior boundaries of res- ervations are perfectly well served by their access to Indian tribal courts? And therefore the administration has no concern with re- spect to whether or not they are dealt with justly in connection with actions that relate to their land ownership or their rights as landowners? Mr. Anderson. It's more than an abstract notion of protection of tribal sovereignty, Senator Gorton. The administration is concerned that justice be provided equally to all citizens of the United States, wherever they reside, including within Indian country. It is our view that tribal courts do in the vast majority of instances provide good access to justice for non-members. We often hear anecdotal evidence of injustices worked by tribal courts, just as we often hear anecdotal evidence of injustices wrought by State and Federal courts on other citizens. To ensure that tribal courts and Indian tribes generally are able to provide justice to all, the Administration strongly supports and works with the Justice Department to improve the administration of tribal courts. We've worked with this committee and the Appro- priations Committee to provide additional funding, so that tribes can administer justice eflfectivelv. Senator Gorton. But from the point of view of the administra- tion of justice with respect to these non-Indians, as a general prop- osition, they are as likely to obtain that justice in an Indian court as they are in a State or Federal court? Mr. Anderson. That's correct. Senator Gorton. Does the Department of Justice or the adminis- tration make any distinction with respect to sovereign immunity in connection with actions in State courts and sovereign immunity with respect to actions, based on the same complaints in Federal Court? Mr. Anderson. Well, as I believe Senator Pressler pointed out, and as I believe that you pointed out in vour opening remarks, some view tribal courts as imfair forums. As I noted earlier, that is not correct. I think many Indians and Indian tribes view State courts as biased forums against tribes. And while we oppose, and I believe all tribes would oppose the waiver of immunity in State and Federal courts as currently cast in section 329. The tempera- ture gets a little hotter when you talk about subjecting tribes to the jurisdiction of State courts. Senator Gorton. One other question, or set of questions, Mr. An- derson, while not directly relevant to this hearing, I think you brought the subject up. Is it the position of the Administration and of the Department that Indian tribes have full, that is to sav, the same degree of land use, regulatory authority and taxing authority over non-Indians on reservations and non-Indian lands as they do over Indians and In- dian lands? 13 Mr. Anderson, That depends on the analysis of the factors laid out in the recent Supreme Court decisions. Specifically in the Mon- tana case, where tJie activities of Indians or non-Indians who reside on fee lands affect Uie health, welfare and economy of the tribe, or where the non-Indians have entered into consensual relations with the tribe, then I believe that the tribe does have jurisdiction over those non-Indian activities. A fact-specific inquiry must be under- taken. Senator Gorton. Thank you, Mr. Chairman. Senator Inouye. Thank you. Senator Simon. Senator Simon. Thank you, Mr. Chairman. Seems to me that in response to Senator Gorton's question, the nub of the question is, what you described as anecdotal evidence of abuses. Just as there are anecdotal evidence of abuses outside of tribal governments. Is what you have seen, on the basis of anec- dotal evidence, is this so widespread that Congress has to act? I think that's the fundamental question. And I would be interested in your response. Mr. Anderson. I don't believe that the, problems with tribal courts in Indian country are so widespread that Congress needs to act. And I would point out that the extensive hearings held by the Civil Rights Commission in the late 1980's and early 1990's to in- vestigate problems or alleged problems with the administration of justice within Indian country came to that precise conclusion. There were extensive hearing in Indian country. And fi-ankly, out of all the mail that we receive at the Interior Department, to the Secretary and to the Solicitor, problems associated with the admin- istration of justice within Indian country are an extremely low and very insignificant portion of the matters that are brought to the at- tention of the Interior Department. So I don't believe that Congres- sional action is necessary or appropriate at this point. Senator Simon. I thank you. Thank you, Mr, Chairman. Senator Inouye. Senator Dorgan. STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR FROM NORTH DAKOTA Senator Dorgan. Mr. Chsdrman, thank you. Mr. Anderson, thank you for your testimony. I am, regrettably, Mr. Chairman, having to chair a hearing at 10:30. So I'm not able to stay for the entire hearing. But Chairman Jesse Taken Alive, Chairman of the Standing Rock Sioux Tribe, is going to be testify- ing a little later. And I want to welcome him here. And rd like to say to Mr. Anderson that I appreciate your testi- mony, because I think these jurisdictional issues involving non-In- dians who live on or do business on an Indian reservation, these are very complex issues that have some serious consequences for all sides of the issues. And I think it's unwise to undo the basic notion of tribal sovereignty over civil legal matters without a lot of veiT careflil consideration of what would all this mean. When I was a State official. State tax commissioner in North Da- kota, I was actually in court with some friendly suits to try to re- solve a whole range of issues, to try to get some finality and cer- 14 tainty on some of these legal issues. And having just touched the surface of some of these issues, I understand how incredibly com- plex they are. And that's why I joined the vice chair in opposing the provision that was attached to an appropriations bill. I think these are very significant, very serious issues that need broad air- ing and a broad understanding of what all the consequences will be before anyone proposes action. So, Mr. Chairman, thank you, and I did want to, again, I've read the testimony by Chairman Taken Alive from the Standing Rock Sioux Tribe. Ana I think he makes some excellent points, and I re- gret that I won't be able to attend the entire hearing. Senator INOUYE. Mr. Anderson, is sovereignty determined by the size of that nation, population? Mr. Anderson. No; all tribes, from the smallest to the largest, are acknowledged through the continuous hne of Supreme Court cases as having inherent powers of self-government. There are cer- tain limitations that the court has found to be implied in the fact that tribes exist within the United States. However, all tribes start out with the basic inherent power of self-government which may be modified by tribal law or treaty and other Federal law. Senator Inouye. Does the sovereignty of an entity depend upon the existence within that entity of a judicial system? Mr. Anderson. No; it doesn't. And indeed, you know, many tribes have existed without one. It's been a relatively recent phe- nomenon for tribes to develop tribal court systems in the western mode of a separate branch of government. Many small tribes that I worked with before I came to government service administered justice very well through tribal councils. And tribal councils that sit as courts or that appoint special bodies to hear certain disputes also exist. Tribes have a great deal of flexibility in terms of estab- lishing the matter in whicn they administer justice. And they work quite well. Senator Inouye. I thank you very much. And as I indicated, the committee would like to submit questions to your office and we look forward to your responses, sir. Mr. Anderson. Thank you. Senator Inouye. Thank you. Our next witness is the Chief Deputy Attorney General of the Of- fice of Attorney General, State of South Dakota, Larry Long. General Long, welcome, sir. STATEMENT OF LAWRENCE LONG, CHIEF DEPUTY ATTORNEY GENERAL, SOUTH DAKOTA Mr. Long. Thank you, Mr. Chairman and members of the com- mittee. I appreciate the opportunity to come and address the committee on £in issue which I personally have been involved with since I began practicing law in Indian country in 1972. I appreciated some of the questions which were asked in attempting to determine what the nature and the scope of the problem is out there in Indian country. And I would like to tell the committee what I did in an attempt to prepare for testimony in this proceeding. Mr. Anderson referred to the Indian Law Reporter and indicated that one look at it would indicate that there is really no problem 15 in Indian country in terms of whether or not legitimate claims of Indians and non-Indians are being resolved on the basis of sov- ereign immunity. I attempted to do that, I spent 3 or 4 days before preparing my testimony reviewing the summaries of Indian law cases that appear every month in the In- dian Law Reporter, commencing at about 1980. I attempted to re- view the headnotes and to review the text of the cases which ap- pear there, to ascertain which cases were resolved on the basis of a dismissal, a successful dismissal or an unsuccessful attempt to dismiss a case on the basis of tribal sovereign immunity, I identified 214 cases since 1980 which appeared to have been re- solved one way or another on a sovereign immunity issue asserted by a tribe or a tribal entity. And I have attempted to summarize those, and I have attached those to mv testimony. I found 56 cases tJiat have been determined by the U,S. Court of Appeals since 1980, And in those cases, 44 of the 56 were dis- posed of based upon a determination that tribal sovereign immu- nity prevented the court from reaching the merits of the particular litigants' claim. In that particular situation, at the U.S. Court of Appeals levels, I determined that 14 of those litigants were Indi- ans, 27 of them were non-Indians. And in 15 cases, I couldn't deter- mine whether the litigant was Indian or non-Indian from reading the headnote or the text. At the district court level in the same timeframe, I identified 64 cases. And in 52 of those 64 cases, the case was disposed of based upon a defense asserted by a tribe or tribal entity based on sov- ereign immunity. And in those cases, 18 of the complainants were Indian, 24 were non-Indian, and in 22 cases I couldn't determine from reading the headnote or the text whether the litigant was In- dian or non-Indian. At the State court level, I identified 33 cases with the same is- sues. Three of those litigants were Indian, four were non-Indian and in 26 cases, I could not make a determination. Eighteen of those 33 cases were resolved based upon the State court granting a tribe or a tribal entity's motion for dismissal based upon sov- erei^ immunity. And the litigant never got his claim heard on the merits. And finally, in tribal courts, the Indian Law Reporter I think is probably the only resource available that I know of where one can go and find reported Indian law cases. Because many tribal courts do not have their own reporter systems. And I know many tribes, Indian Law Reporter does not have access to, obviously, all the tribal court decisions. Many of them are not written, are not pub- lished, and are not available. But of those that were available, and they seem to show up in approximately 1982 or 1983, I identified 61 cases from various trib- al courts throughout the country where the issue of tribal sovereign immunity was utilized to dispose of a litigant's claim without hear- ing it on the merits. And in 33 of those cases, the litigant was In- dian. In two of the cases he was non-Indian. And in 26 of the cases, I couldn't tell from reading the text whether he was Indian or not. Now, the, and so I have attempted to, I have attempted, and ad- mittedly, I will not, I will not say that this analysis was as in- depth as I could have done it had I had more time £ind obviously 16 access to tribal court decisions and unreported decisions. I know there are State and tribal court decisions out there that I do not have access to. However, I do believe that the analysis I've done of the 214 cases that I've looked at suggest that in two out of three cases of these 214, the litigant's claim, whatever it was, whether it was civil rights or personal injury or a real estate dispute, or a contract, commercial deal with a tribe or tribal entity, in two out of those three cases, the litigant's claim, whatever the merit, was disposed of based on a sovereign immunity defense, and the litigant was left without a forum within which to assert his claim. Now, so I believe that a detailed examination of the information which is available at the public level from sources like Indian Law Reporter and other sources like that, will demonstrate that the doc- trine of tribal sovereign immunity is clearly alive and well in In- dian country, and is recognized by courts at all levels. I think it also indicates that the doctrine is utilized widely and accepted widely to dispose of litigants' legitimate claims without those claims being heard on the merits. And that the harshness of the doctrine cuts across racial lines, and it cuts across all lines. Be- cause an Indian litigant is inherently in no better shape to get his case heard at any court level than a non-Indian or in the many in- stances when I simply could not determine what the race of the litigant was. A couple of other points I would like to make. I agree with the comments that have been made by the committee that at the bot- tom, this is a due process issue. In my judgment, it's a civil rights issue. It is true that the Federal Government has sovereign immu- nity. It is true that the State government has soverei^ immunity. And clearly, tribes vigorously assert their sovereign immunity in court litigation on a regular basis. However, because the remedy is so harsh, the Federal Govern- ment has seen fit to waive it in a variety of circumstances: the Fed- eral Tort Claims Act, and in other situations. The Federal Congress has also seen fit to waive the State sovereign immunity. And this of course was effectively done right after the Civil War with the en- actment of 42 U.S.C. 1983 and tne associated statutes there, which give the opportunity to individuals to enter U.S. District Court and sue for money damages, attorneys fees and injunctive relief against State officials or against any person who under the color of State law invades the civil rights of any individual. Those remedies are simply not available to these litigants at the tribal court level, I understand the committee's position with ref- erence to protecting the sovereignty of tribal government. I would submit that the committee should also consider whether or not there is a responsibility to the individuals, both Indian and non-In- dian, who live in Indian country, who have legitimate individual civil rights that also require protection, and to assure that with the support that this committee gives to sovereignty of tribal govern- ments, they also require tribal governments to be responsible to the individuals over whom the tribal governments wish to and attempt to exercise jurisdiction. I would point out that some tribal courts I think have moved for- ward. Some tribal councils have moved forward and made statutory 17 attempts to waive sovereign immunity in certain limited contexts. I see the Navajos apparently have enacted a sovereign immunity waiver in some limited circumstances. It appears from the case law that the Mashantucket Pequots have also enacted what appears to me from the case law to be what amounts to a procedure for people who are injured in their casino to be able to recover for personal injuries. I applaud those efforts. However, there are over 500 tribes out there. And the Indian Law Reporter suggests that very few tribes have taken those types of responsible steps. And I think this com- mittee has the power to consider whether or not it has also the re- sponsibility to see that all tribes respond in a responsible way. I have a, I guess I have a personal interest in making a request of the committee to consider whether or not they can ultimately make tribal government more responsible and in effect more sov- ereign by enacting a procedure such as is suggested by Senator Gorton. Because in my view it will have the effect of strengthening the tribal court svstems. As I note in my text, it is my experience that judges, tribal court iudges who feel the responsibility of enforc- ing tne Indian Civil Rights Act in their courts, sometimes do so at their peril. They are subiect to being discharged by tribal councils. And in many instances, tney have no recourse for tnat action. I believe that the, if a review system is put in place so that a tribal judge who rightly in face of the tribal council enforces an In- dian Civil Rights Act violation of whatever variety, that there will be a Federal judge standing behind him who will pat him on the back and say, you've done it right and you've done a good job. On the other hand, if he does it wrong and does not enforce the Indian Civil Rights Act, there will be a Federal judge and a Federal judici- ary who will say, go back and do it right. I think that that would be the single thing that this committee could do to strengthen the tribal court systems on the reservation, would be to give the tribal judges the autonomy and the respon- sibility to enforce the Indian Civil Rights Act as the Supreme Court suggested in the Martinez decision that it ought to be done. Again, I appreciate coming before the committee. Senator, and thank you for your time. [Prepared statement of Mr. Long appears in appendix.] Senator Inouye. I thank you very much, Mr. Long. Before proceeding, without objection, all of the statements of all witnesses will be made part of the record in total. Mr. Long, your statement suggests that sovereign immunity of State and county and local governments have been substantially abrogated. But the sovereign immunity of tribal governments re- mains largely intact. I am certain you are aware that most of the tribes that administer Federal programs under the Self-Determina- tion Act are subject to the provisions of the Federal Tort Claims Act. I think you indicated that. Mr. Long. We mentioned that in our text. Senator iNOUYE. Are you aware that the Congress has authorized waivers of tribal sovereign immimity in the Indian Reorganization Act of 1934? And in the Indian Civil Rights Act for purpose of ha- beas corpus actions? And the McCarran amendment for the adju- dication of water rights? 18 Mr. Long. My background, Senator, in water law, is very limited. I am familiar with the Indian Civil Rights Act is it relates particu- larly to the Martinez decision. And as I understand that, the Fed- eral Courts will enforce Indian Civil Rights Act violations if habeas corpus in that context would be available. In other words, if the ap- plicable is basically in custody or in jail. And in those cir- cumstances, I think that the system works rather well, in terms of enforcing those rights. I'm not familiar with water law, so I cannot comment on that. Senator Inouye. I am certain you are aware that only the U.S. Grovemment can waive sovereign immunity for purposes of suits in- volving tribal trust land, or land which is held in trust for individ- ual Indians? Mr. Long. Well, I don't know that that's a sovereign immuniW issue. I agree with the result that you state. Senator, but I think that perhaps is not a sovereign immunity issue so much as it is the fact that the U.S. literally owns the land. The land literally is owned by the United States. And so obviously United States con- sent would have to be obtained before something could be done rel- ative to that property. Senator Inouye. And you are aware that most of the reservation lands are held in that status? Mr. Long. No question. Senator Inouye. In your written testimony, you suggest that a State court cannot sue a tribe because of tribal sovereign immu- nity, but you indicate tJiat the reverse is not true. For example, you say, the reverse, of course, is not true, the tribe is free to sue a State in State court, and in most circumstances, also free to sue the State and Federal court. But I am certain you are aware that in March of this year, the Supreme Court held, as it had in an ear- lier Alaska case, that tribes cannot sue States in Federal court, be- cause of the State's sovereign immunity guaranteed by the 11th amendment to the U.S. Constitution. Is that correct? Mr. Long. I'm aware of the Seminole decision, yes, Your Honor. In that context, Senator, the 11th amendment, there may be an emerging doctrine, and I will not attempt to predict what the Su- preme Court will do, I don't know if there's an emerging doctrine relative to 11th amendment sovereignty or the reaffirmation of what the 11th amendment says in terms of the Supreme Court. However, relative to that, I am familiar with State law, which in- dicates that sovereign immunity only exists in the State of South Dakota for money damage claims, and in very limited contexts. Any tribe obviously has access to State courts for declaratory relief, and I think that, I think the 11th amendment, I will be surprised, frankly, if the Federal courts hold that the 11th amendment does not allow the tribes to continue their very common practice of suing individual State officials for declaratory relief, and as long as the State itself is not named as a defendant the courts are going to continue to act and to determine those cases on the merits. And I think that will continue to happen. Perhaps it will not, but I would be surprised if it does not. Senator Inouye. Thank you very much, sir. Senator Gorton. 19 Senator GrORTON. In your view, Mr. Long, has the State of South Dakota lost its sovereignty by reason of the close to total dis- appearance of sovereign immunity from suit granted by the State itself? Mr. Long. No, Senator Gorton; I note in my text, and I quote from a Cheyenne River Sioux tribal, superior court case, which sug- gests that it is a measure of the responsibility of a sovereign to as- sure that the wrongs which the sovereign does are handled respon- sibly in those courts. And I think that the limited analysis that I've done of the Indian Law Reporter decisions suggests tnat in many instances, tribal governments do not act responsibly to see that those wrongs done to the persons within their jurisdiction, or the persons against whom they attempt to assert jurisdiction are dealt with responsibly. I think that's the ultimate measure of a sov- ereign, is to be responsible to the citizens that they govern. Senator Gorton. And so your answer would be the same if I were to ask you whether or not the Republic of France has lost its sovereignty because it can be sued in the courts of the United States under certain circumstances? Mr. Long. Well, the U.S. Congress, as we noted in the text, has waived the sovereignty of foreign governments to the extent that they engage in activity in the United States. Senator Gorton. But that doesn't make France less a sovereign? Mr. Long. Not that I'm aware of, Senator. Senator GrORTON. So the rights of self-determination and self-gov- ernment are not implicated by the extent or even the existence of sovereign immunity from lawsuits, when someone claims that he or she has been robbed? Mr. Long. I would agree with that. Senator GrORTON. Thank you, Mr. Chairman. Senator INOUYE. Senator Conrad. Senator Conrad. Thank you, Mr. Chairman. I thank the wit- nesses who are here as well. Last week, we had testimony from a Joseph Kalt, talking about economic development on Indian reservations, and making the ob- servation based on analysis that he had done that you can't have successful economic development without the presence of, number one, sovereignty, that is, tribes being able to make their own deci- sions rather than them being made for them by some bureaucracy here in Washington, And second, that to be effective, there needs to be separation of Eowers, iust as we have it at the Federal level, that is that there e an administrative, a judicial and a legislative branch. And that because of the constitution that many of the tribes have been given, that there is an inadequate separation of powers, that is that there is not, in many cases, a fully independent judiciary. And as I've listened to the testimony here this morning and read some of the testimony to be given here today, it strikes me that there may be a larger question and a larger problem here that goes to the question of an independent judiciary. Have you found that in your analysis of cases? Mr. Long. Yes, I have. Senator, I quote from two tribal court cases, one from the Lummi Tribe and one from the Lac du Flam- beau Tribe, I believe. And as I understand those cases, each of 20 those tribal courts was asked to make a determination of the vahd- ity of some tribal ordinance that had been enacted. And they did an internal constitutional analysis in both of those cases, and de- termined that they had not been granted the power to make those determinations. In other words, they had not been given the power to, by the tribal council, to make a determination, for example, of the constitutionality of a statute or a tribal ordinance, because they were only allowed to exercise those powers that had been granted them by the council. And in both circumstances they concluded, our tribal form of government is not a separation of powers style gov- ernment, as the Federal system is, and we simply don't have the power to make the determination that we've been asked to make. I think that an independent judiciary could be established on res- ervations. And I tihdnk Federal court review of Indian Civil Rights Act violations, for example, or allegations of Indian Civil Rights Act violations, in a broad spectrum, could go a long way toward estab- lishing or assisting the tribal courts to become independent. Let me give you an example. I was, I served as counsel to the Rosebud Sioux Tribal Election Board for the elections of 1977 and 1979 and 1981. And the reason I was hired in 1977 was because there was a time period between the adoption of the Indian Civil Rights Act in 1968 and the issu- ance of the Martinez decision in 1978 where the Federal courts largely believed that the Indian Civil Rights Act allowed Federal court review of all allegations of civil rights violations in Indian country, much more broad than habeas corpus. And I was hired by the election board and the tribe to be counsel to the election board, because the previous election in 1975 had been very fractious, had been highly litigated. And the resulting litigation had been very expensive and had been very disruptive to the tribe. And so they hired me and my directive was, do it right, and see that the election board does it right, so that if we go to Federal court, we will be sustained in whatever decisions nave been made. And so I served for three elections in that capacity. Shortly after the Martinez decision, we had a similar difficulty in the 1981 election, and of course there was no Federal court remedy at that point. A tribal judge on the eve of the general election, the night before the general election, attempted to issue a temporary restraining order to my clients to stop the election for what he per- ceived to be a civil rights act violation that had been brought before him. He issued the TRO and I think legally he was wrong. But I don't question his power to issue the order. And we elected to follow the order. Well, the candidate for chairman and the opposition can- didate got together about 2 o'clock in the morning and they round- ed up the judiciary committee from the tribal council, and they fired the chief judge, and appointed a new chief judge, who lifted the restraining order. So by 8 o'clock, we had a new judiciary and we carried oflf the election the next morning, pretty much on sched- ule. I don't think that was an independent judiciary, and I do not think that would have happened had the Martinez decision gone the other way. 21 Senator Conrad. Would you, just my final question, would vou say that one appropriate conclusion from the testimony that has been given, and I don't know if you have had a chance to look at testimony that will be given, but one appropriate conclusion is that an independent judiciary should be fostered on reservations. And that is one part of addressing the set of problems that are being discussed here. Mr. Long. I don't think that would be the cure-all, end-all. But I do believe it would be a vital first step. Senator Conrad. A vital first step? Mr. Long. Yes. Senator Conrad. Thank you. Senator Inouye. Mr. Long, I believe that the Supreme Court has also addressed tribal suits against State officials, and that the Su- preme Court has barred these suits as a result of the 11th amend- ment, the most recent expression of which was in the Seminole case. Mr. Long. Excuse me? Senator iNOUYE. The Supreme Court has ruled that suits against State officials may be barred by the 11th amendment. You said that tribes are free to bring such suits but the Supreme Court has ruled otherwise. Mr. Long. I will be surprised, Senator, if — I've not reviewed the Seminole case recently, but Fll be surprised if that becomes a wide- spread position in the Federal courts, that actions where a tribe is seeking relief against State officials can be dismissed on 11th amendment grounds. We've attempted to do so under that theory in the lower courts, and we have cases pending where we've at- tempted to do that since the Seminole decision and have not been successful. So I agree that some commentators read the Seminole case to say that, and believe that will be applied in a broad context. We have not seen it up to tliis point. Senator Inouye. In fact, this is the Seminole decision. The doc- trine of ex parte Young may not be used to enforce that section against a State official. Mr. Long. I understand what it says, Senator. We have not seen that it has been applied by the courts in that broad context, al- though they may. I have not seen that it's happened. Senator Inouye. You spoke of waivers that your State has made. Do waivers vary from State to State or are they uniform through- out the Nation? Mr. Long. In the context of personal injury claims and that sort of thing, I do think they waive the, they vary from State to State. But the one which is universal is of course the waiver which exists for civil rights act violations under 42 U.S.C. 1983, and that's of course the one that was imposed by the Federal Congress on State officials. Senator Inouye. So with the exception of the civil rights waiver, it is up to the State to decide what to waive? Mr. Long. Each State does that individually, yes. And almost all have, at some level in some context. Senator Inouye. I thank you very much. Senator Grorton. 22 Senator Gorton. No more questions. Senator Inouye. Senator Conrad. Senator Conrad, No more questions. Senator Inouye. Now it is my pleasure to call upon Susan Wil- liams, Esquire, of Cover, Stetson and Williams law firm, and Doug- las B.L. Endreson, Esquire, of Sonosky, Chambers, Sachse and Endreson, of Washington, DC. Ms. Williams, it is good to see you. STATEMENT OF SUSAN M. WILLIAMS, ESQUIHE, COVER, STETSON AND WILLIAMS, P.C^ ALBUQUERQUE, NM Ms. Williams. Thank you, Mr. Chairman. Senator Gorton, good morning. Senator Conrad, good morning. I'm pleased to be here to testify on the subject of tribal sovereign immunity and in the course of the hearing, some broader issues re- lating to tribal sovereignty with respect primarily to non-Indians within Indian reservations. My testimony, which I have submitted to the committee for the record, basically makes two points. One is that the doctrine of trib- al sovereign immunity, as it exists today, is not an unqualified im- munity, /^d in fact, the U.S. Congress on several occasions in the exercise of its broad power over Indian tribes, has waived tribes' sovereign immunity fi*om suit for limited purposes, such as the In- dian Civil Rights Act and the citizen suits in the Resource Con- servation and Recovery Act that was described in the Blue Legs de- cision. In addition to that, tribes themselves have waived their immu- nity fi-om suit in numerous contexts. In addition, the United States' Congress and tribes have provided for extensive participation in tribalgovemment by not only tribal members, but also non-Indi- ans. There is repeated examples of non- Indians participating in various agencies and tribal governments, such as on housing au- thority boards, water board allocating the use of water on reserva- tions, Navajo Tax Commission in its creation contemplated that there would be non-tribal members participating in the tax com- mission. There's numerous examples of tribes providing much more than due process, but actual participation in tribal government. But before I turn to my testimony on those two points, I wanted to raise and address a number of issues that have been discussed already here this morning, if I might, Mr. Chairman. First of all, I think it's very important as a backdrop to these questions about tribal sovereign immunity and tribal sovereignty today to under- stand the origins of tribal sovereignty in this country. Because I be- lieve that Congress has long paid due respect to that sovereignty, that unique sovereignty and the unique tribal relationship in our government. As this committee knows so well, tribal sovereignty predated United States' sovereignty in this country. The U.S. Supreme Court, since the early 1800's, has recognized that Indian tribes are sovereign governments, and that their governments predated the United States' colonization of this land. Indian tribal governments in the course of U.S. tribal history, enjoy a unique standing of sovereignty, in that unique standing in sovereignty is also a great, great responsibility uniquely for the In- 23 dian tribes. Indian tribal governments, unlike State and Federal Grovemments, have the responsibility to provide protections, police power, fire services, et cetera, to all citizens of the reservation, not just the tribal members, not just non-Indians, but also non-member Indians, such as mvself, who grew up on an Indian reservation other than the one that I was enrolled in. Those tribal governments have these responsibilities at a time when there is very Httle support, diminishing Federal support for their activities and at the same time that there are very difficult questions of Federal law facing these governments: The jurisdic- tional quag^nire discussed earlier. It's very difficult in these set- tings for Indian tribes to govern their reservations and take care of all the citizens. And it is a difficulty that I ask this Congress to understand and to respect. But even broader than those difficult burdens that tribal govern- ments uniquely face, I think it's very important to understand, and this Congress has long recognized, that tribes are sovereigns not only in the traditional sense as we know it, growing up and learn- ing about social studies and government in our system. Because In- dian tribes not only have the responsibility to exercise the police power, but Indian tribes also have the responsibility, and this Con- gress long has respected the right of Indian tribes, to protect their tribal traditions and their customs. And as the U.S. Supreme Court recognized in Santa Clara Pueblo v. Martinez, Confess has long considered the question of tribal sovereign immunity, and in so doing, has considered questions of tribal tradition and custom which tribal forums may be in a better position to evaluate than Federal courts. Quoting from Martinez: Our relations with Indian tribes have always been anomalous and of a complex character. Although we early rejected the notion that tribes are foreign states, we have also recognized that the tribes remain quasi-sovereign nations, which by gov- ernment structure, culture and source of sovereignty, are in many ways foreign to the constitutional institutions of Federal and State governments. Because Indian tribal governments have this responsibility, which was recognized in the Indian Civil Rights Act, in that Con- gress did not prohibit Indian tribes from establishing religion, the unique character of tribal sovereignty must be understood by this Congress and respected in any decisions this Congress may make under a purported power to affect tribal sovereignty. Let me say also as to a question raised earlier, I believe by Sen- ator Grorton, about whether Congress has the power to waive sov- ereign immunity, there is a long line of cases, beginning with Lone Wolf V. Hitchcock, which suggest that Congress has broad power over Indian property. And I would simply like to suggest that I do not believe that same broad power necessarily extends to broad, unrestricted Federal power over tribal sovereignty. The Federal trust relationship is to protect tribal lands, tribal property. I would suggest that trust relationship also extends to respect for tribal sovereignty. And I do not admit, nor do I see any case law support- ing broad, unrestricted Federal power over sovereignty as com- pared with tribal property. Let me turn to the point raised earlier about whether tribes have an immunity that somehow surpasses the immunity of Federal and State governments. Well, the simple fact of the matter is that sov- 24 ereicTi immunity is alive and well in both the State and Federal governments. They're not anachronisms for the Federal and State government, any more than sovereign immimity is an anachronism for tribal governments. And in fact, the very question of whether or not a tribe would lose sovereignty by having its immunity waived is really the ques- tion at issue here. That is, the tribe, itself, can waive its sovereign immunity £ind has done so in repeated instances. Virtually every commercial transaction entered into on an Indian reservation today has a sovereign immunity waiver in there for usually the limited purposes of enforcing the commercial transaction. Tribal laws throughout this country have provisions in there under which ap- peals of agency actions in water codes, housing codes, zoning codes, tax codes, et cetera, in which appeals from those decisions can be taken into the tribal courts. So yes, tribes have waived their sovereign immunity, just like the Federal Government waives its sovereign immunity and States waive their sovereign immunity for limited purposes, as earlier tes- timony provided, for usually injunctive relief, and rarely, and in few instances, damages. And in fact, this committee probably knows quite well, it's very difficult for Indian tribes to sue the United States for breach of its trust responsibility to Indian tribes in the court of claims to obtain monetary damage relief. If you look at the jurisprudence in the U.S. claims court, time after time again tribes have had trouble penetrating the United States' sovereign immimity from suit, even where there's a Federal solemn obliga- tion to protect and defend tribal property. So I would say the question of sovereign immunity is a broader one, not just one regarding tribal sovereignty and the appropriate scope of that sovereign immunity. Let me turn now to my testimony and just tick through instances in which the United States has in fact waived tribal sovereign im- mimity from suit. Recall again that tribes in the first instance are immune from suit. And so then the question is, has Congress waived that immunity for certain purposes, and if Congress has not had tribes independently of Congress, and I think the case law now supports the ability of tribes to, independently of Congress, waive their immunity from suit, with the exception of exposing tribal trust assets, that is, trust assets held by the United States for the benefit of the tribes. With that exception, tribes can waive their own immunity from suit. But again, the U.S. Congress already has faced this question of whether tribal sovereign immunity ougnt to be waived. And as the Supreme Court in Santa Clara Pueblo v. Martinez pointed out, the Congress has said in the context of whether or not there should be Federal court review of Indian civil rights actions, the Supreme Court noted that Congress, After considering numerous alternatives for review of tribal convictions, Congress apparently decided that review by way of habeas corpus would adequately protect the individual interests at stake while avoiding unnecessary intrusions on tribal governments. Tribal governments today in the modern era, in the modern form of governments, usually promoted by the United States in the con- text of the Indian Reorganization Act, have tribal constitutions in 25 which very shortsighted notions of separation of power were im- posed on many tribes, where separation of power into three dispar- ate branches of government may not have been a great idea, given the size of the tnbe, the resources of the tribe, and thus, these con- stitutions are very difficult to operate under. And many tribes are trying to update their constitutions into a more sensible form of government. But the reality is, tribal governments today are relatively infant in their growth and their use of modem forms of government. Many tribal governments do not have extensive tribal treasuries. And this is the very reason why the United States and the State governments don't open up their tribal treasuries to imlimited judi- cial actions, because of the concern that the tribal government would be bankrupt, the State government would be bankrupt, the United States government would be bankrupt. For those concerns that really were the basis for the common law notion of sovereign immunity today very much are alive and well on the Indian reservations. And because that's so. I would urge this Congress to appreciate that tribes have a very delicate balance to strike here, and they are balancing it tribe by tribe, just like the United States and each State balances the right of its individual citizens to obtain remedies with the very important objective of maintaining the integrity of those governments. Tribes are making those decisions on a daily, virtually a daily basis. And I would urge that this Congress not disturb those tribes in making those deci- sions. Because after all, in each of these decisions, tribes are mak- ing their courts, and in fact their governments, directly available to not only tribal members, but tribal non-members like myself and non-Indians as well. Let me just give you some examples of how tribes are currently waiving their own sovereign immunity from suit, in addition to the Federal waivers that were talked about earlier in the context of the Indian Civil Rights Act, their Federal court review, their habeas corpus review. In the context of Resource Conservation and Recov- ery Act, tribes are subject to citizen suits. The McCarran amend- ment waives the United States' sovereign immimity for purposes of adjudicating tribal water rights. There are numerous other exam- ples in which Congress has acted. But in addition to that, take the example in Arizona of the Yavapai-Apache Tribe has a compact with the State of Arizona. Fortunately there, the State of Arizona didn't erect sovereign im- munity as a barrier to have a neutral forum resolve the dispute be- tween the State and the Indian tribe there. Unfortunately, after the Seminole decision, we now have a bigger problem, from my point of view, about sovereign immunity, and that is, what are we going to do to enforce Congress' wishes in the arrangements that tribes are trying to make with States? How do we get a neutral party there? How do we get a neutral forum there to resolve those disputes? That is a big problem indeed in sovereign immunity that I would hope this Congress would attend to. But in Arizona, the Yavapai- Apache Tribe made a compact with the State of Arizona. And as part of that compact, the requirement was that the tribe enact a law protecting patrons of their casinos from slip and falls, torts. And that was done. The Yavapai-Apache 26 Tribe now has an ordinance that waives its sovereign immunity from suit for purposes of slip and falls of all citizens that come to the tribal casino, Indian and non-Indian alike. And that immunity is limited to the extent of insurance proceeds, just like States do it. There is a remedy there, and people are taking advantage of it, and we are solving those problems, even damage claim problems incurred by both non-Indians and Indians on that reservation. And that is a trend that youll see nationwide, as tribes attend to the concerns, not only the injunctive relief concerns, but the damages concerns of individual citizens. Numerous examples exist in tribal laws where, after an adminis- trative process such as water codes or housing authority codes, a decision is taken by a tribal government. Those decisions are ap- pealable to tribal courts. Mr. Chairman, I have been practicing in Indian tribal courts for over 10 years now. And I have seen re- peated instances of individual citizens attacking the system and yet not taking advantage of it, not following the rules. Time and time again I've seen individual citizens come in, with and without attor- neys, filing their complaints but forgetting to read the rules of civil procedure of these tribal courts. They file late, they don't file prop- er documents, and 111 tell you what, in State and Federal court if that happens, you're rarely given a second bite at the apple. But time and time again, I have seen the tribal courts extend them- selves for these individuals to let them have their case be heard. So in my view, I think that the tribal courts are providing ample opportunities for remedies where the tribal government has waived its immunity from suit. Testimony earlier from the Assistant Attor- ney General from South Dakota, going over the Indian Civil Rights Act cases, well, I've done that, too. And what you see in the tribal courts is a due regard and respect for the legislative power of the tribe in determining whether or not there has been an appropriate waiver of sovereign immunity in individual cases. And it has hap- pened on many occasions. Some tribal constitutions waive the tribe's sovereign immimity from suit for purposes of an Indian Civil Rights Act claim. Other tribes use their statutes. Some tribal courts are using the ex parte Young doctrine to restrain tribal officials who are acting outside the cloak of sovereign immunity. So I do not believe it's true that there are a whole arrav of cases out there, even under the Indian Civil Rights Act, in which no rem- edy has been made available. If there are problems on individual Indian reservations, I'm sure that those individual tribes are inves- tigating £ind having hearings about these problems, and are debat- ing, what is an appropriate solution on a case by case basis. That ought to go on, and this Congress should not at this time step in and interfere with that delicate balance of the tribal government on the one hand, and the integrity of that government, and the rights of individuals as well. Mr. Chairman, there is so much to say on the subjects facing this committee. The power of Indian tribes over non-members, non-Indi- ans on Indian reservations, is a power that's under attack. And it's most unfortunate. Because just like myself, I'm a non-member In- dian, I was TEiised on the Navajo Reservation. I grew up there, and I took advantage of Navajo tribal government. I took advantage of 27 the police power. I took advantage of their fire protection services. I took advantage of them giving n e a civilized form of government. And I would never claim that the Navajo Tribe does not have au- thority over me. I lived on the Navajo Reservation, and I enjoyed the protections of that government, and I respected that govern- ment. The concern about non-Indians on fee lands usually is that they don't get to vote in tribal elections. Well, there's many ways to par- ticipate in government. And tribes in fact have provided those many ways. At Lummi, for example, in Washington State, and as you know. Senator Grorton, I spent a lot of time up there trying to negotiate outside of court litigation the water rights solution up there, we're constantly distracted by numerous initiatives by other governments that keep us from the very important task of trying to resolve that water dispute on a local level, where it should be resolved. Nonetheless, we're here, and in an attempt to defend the sovereignty of Indian tribes. It's very unfortunate, because tribes provide protections to these non-members. I see it over and over again, that fi-equently the non- members, they don't like the answers they get and the due process they get in tribal governments, so they attack the heart of tribal sovereignty itself. But the/re not getting the answers they want. I dont have the prerogative in State and Federal courts. I have to accept the decisions, rightly or wrongly, taken in a biased or un- biased fashion. I don't go attacking the power of States, the power of Federal Governments. Unfortunately, these non-members, even at Lummi, participate in tribal government. The Lummi water and sewer ordinance provides directly for an election by all reservation citizens for two members of their five member board to be on the Lummi water and sewer board. In fact, those non-members have a right to know and are agents of the tribal government. So there's full participation there. There's a right to appeal to the tribal court and on to the Federal court. These remedies are already there, provided by the Lummi Nation, like other Indian tribes are providing remedies. Nothing is perfect, especially when you live in the context of In- dian country, where the tribal governments have the solemn obli- gations to protect all citizens where their authority is somewhat in question with respect to non-Indians on fee lands. That's a very dif- ficult burden tribal governments face, because they are trying to govern their reservations in a uniform, careful manner, treating all citizens alike. But when some citizens can st£ind up and say, you have no power over me, therefore you cannot enforce your water laws, or you cannot enforce your zoning laws in the public interest of that tribe, that makes for very difficult burdens for tribal self- government. I believe that the U.S. Supreme Court has strayed way afar in analyzing tribal sovereignty. The old rules in the early 1800's were States have no power over non-Indians on fee lands, much less anybody on Indian reservations, absent Congressional consent. And that is where I think the law ought to be today. Tribes should have unquestioned sovereignty over all persons on tneir reservations and their territories. And that would solve many of these problems. 28 Mr. Chairman, I appreciate again the opportunity to testify, and would be happy to answer any questions at this time, [Prepared statement of Ms. Williams appears in appendix.] Senator Inouye. I thank you very mucn, Ms. Wilhams. I was listening so intently to your statement that I failed to see the clock. But I should point out that there are many other activi- ties scheduled today and many other witnesses, so Mr. Endreson, if you will keep in mind, the committee would be most grateful. STATEMENT OF DOUGLAS BX. ENDRESON, ESQUIRE, SONOSKY, CHAMBERS, SACHSE AND ENDRESON Mr. Endreson. I will. Thank you, Mr. Vice Chairman, Senator Gorton. I appreciate very much the opportunity to testify before you this morning. My name is Douglas Endreson, I'm with the law firm of Sonosky, Chambers, Sachse and Endreson. I want to first express my appreciation to the committee for maintaining its commitment to ensure that Indian tribes are heard before action is considered that would affect their governmental rights. Recent attacks on tribal sovereignty have made it starkly apparent how important this committee is to the protection of In- dian rights and to the tribal future. If I may, I'd like to make two comments on those attacks, both of which I think are relevant to this hearing. First, the question is being asked of Indian tribes today in Congress, with respect to many issues, why? Why tribal sovereignty? Why Indian gaming rights? Why a right to have land put in trust? These are questions that ask tnbes to justify their sovereignty, repeatedly. The same questions, I would point out, are not asked of other governments. For States, the question is, why not State sovereign immunity? Why not State gaming rights? Why not a right to regu- late, to tax? Indian tribes find themselves on the defensive, because the question that is being asked fails to recognize that the sov- ereignty of Indian tribes is established in Federal law, is changing the United States, and is good for the United States, Indian and non-Indian citizens alike. Let me also make one comment about the nature of the discus- sion that we're having today, and express some mild discomfort with it. Many of the comments about tribal courts that are made are highly critical. Many of these comments are made by lawyers. We should not ignore the fact that lawyers are officers of the court. They have obligations to seek to improve the administration of jus- tice in every tribunal that they appear in. One question, then, that ought to be asked, is what are members of the bar that appear in these courts doing to help address the problems that they see? What contributions are they making to the administration of jus- tice in Indian country? I doubt that Federal courts or State courts would sit quietly, as tribal courts have done, while their power was attacked, their in- tegrity impugned, and their competence questioned. You have my written testimony, so let me briefly summarize the points that I make there. Let me first talk briefly about what's at stake when a waiver of sovereign immunity is vmder consideration. In plain terms, sovereign immunity protects a government's right 29 to address and resolve disputes that arise in the course of its gov- ernance. It does this for all governments, Federal, tribal, State. Here's what I mean. All governments seek to meet the needs of their citizens through the exercise of their sovereign authority. Today, as you've heard, Indian tribes are actively engEiged in using their sovereign powers to tax, to regulate, to adjudicate disputes, to improve the quality of life on the reservation, to develop the res- ervation economy, to preserve law and order, to protect the rights of children and tne elderly, to protect individual rights under tribal and Federal law. These are rights in which all members of the res- ervation community, Indian and non-Indian alike, have the same interests. That the tribes are able to pursue these goals today is largely a result of the success of the self-determination policy. But let me point out that all governments, all governments from time to time find that the exercise of their powers creates disputes. Questions of individual rights, personal injury claims, questions about the scope of governmental authority, these questions arise with respect to tribal government as they do with respect to other governments. The sovereign immunity of these governments, tribal. State and Federal, is a vital part of their right of self-government. This is so for the fundamental reason that it permits these governments to protect their right in resolving disputes that arise in the course of their exercise of their authority. For Indian tribes, this right is pro- tected by the Oklahoma decision that the Vice Chairman cited, by the Santa Clara Pueblo decision, and it is protected as well by this country's commitment to the trust responsibility and this Congress' protection of that same obligation. Let me turn to a discussion of what would happen, what the im- pact would be, of a waiver of tribal immunity, of an authorization to adjudicate disputes with Indian tribes in non-tribal forums. First, the judicial branch of tribal government would be rendered impotent, unable to enforce tribal law in tribal forums without the affirmation of the sovereign or sovereigns in whose courts Congress had permitted these actions to be heard. Second, all exercises of tribal power, whether involving children's rights, environmental rights, consumer law, commercial law, all exercises of power by any branch of tribal government would be subject to nullification by rulings of the courts of other sovereigns. Third, Indian tribes would lose their fiindamental right to bring justice to the tribal community, and to define the expectations on which Indians and non-Indians rely on a daily basis in living, working and visiting Indian reservations. Let me emphasize that that interest in protecting rights, meeting expectations, is no dif- ferent for Indians than it is lor non-Indians. There is no basis for the assumption that tribal government would somehow benefit by treating non-Indians less adv£intageously than Indians. In sum, if immunity were waived, the tribal future would again depend on how another government made decisions concerning the rights of Indian tribes. The result would be the death of the self- determination policy. To illustrate that point, let me quote briefly from the Penhurst decision before the Supreme Court, where the Court held that the ex parte Young doctrine does not apply to claims that a State offi- 35-542 97-2 30 cial is acting in violation of a State rather than Federal law. The Court's statement has, I believe, equal application with respect to tribal rights. The Court stated, it is difficult to think of a greater intrusion on State sovereignty than when a Federal court instructs State officials on how to conform their conduct to State law. I would submit that the same is true with respect to Indian tribes. The Congress, since 1991, supported by the Civil Rights Commis- sion report, has rejected calls to reverse the Martinez decision. Un- like tribal opponents. Congress has sought to define what tribal courts needed to enhance their administration of justice, has sought to meet those needs, by enacting the Indian Tribal Justice Act. Congress' judgment has been correct. As you heard today, a number of tribes have enacted legislation, waiving immunity to permit actions to be heard in tribal courts. Administrative remedies have been created in a number of areas. A review of the tribal court decisions also establishes that tribal courts are committed to protecting individual rights under Federal and tribal law, and to effective enforcement of the Indian Civil Rights Act. Let me note with respect to General Long's testimony that a re- view of the figures that he cites shows that in 30 of the 61 Indian law cases that he cites the Court found immunity not to apply. Thus, half of these cases preceded. Compare that figure with the two-thirds dismissal rate that he cites for State and Federal courts. In reviewing his figures, it also occurred to me that one might reasonably point to certain subject areas that he examined and em- phasize those. Only two of four civil rights claims that he identified were dismissed on immunity grounds. None were dismissed involv- ing the regulation of non-Indians. Let me also express some discomfort with the process of calculat- ing wins and losses in an area such as sovereign immunity. Dis- putes get to court because they can't be settled without a judge. Disputes that can be resolved because the law is clear and the rem- edy apparent do not. Disputes that are resolved because the parties are either well represented or the parties are amenable to a rea- sonable solution do not get to court. The court deals with problems that can't be solved without its intervention. Finally let me say that the decisions of the tribal courts that I focused on, with one exception, are decisions fi'om 1988. I think it's clear that the tribal courts are in a process of rapid development, the whole of tribal government is. This Congress's enactment of the Indian Tribal Justice Act in 1991 set a course in favor of support- ing these courts. The journey has just begun. But the progress that these courts have made is remarkable. First, a number of the court decisions discuss the doctrine of ju- dicial review, the threshold question of whether a court can exer- cise review over a legislative body's determination. This is an issue that Federal courts, the Marbury, Madison v. Marhury decision, is historic. I would suggest that these decisions are no less historic for the courts that handed them down among the Indian tribes. Second, these decisions demonstrate that tribal forums often ad- judicate whether the action before the court is barred by tribal sov- ereign immunity. When agencies and officials assert immunity, the tribal courts determine whether Congpress or the tribes expressly 31 waived immunity from suit. Several courts have held that that im- munity has been waived by provisions in the constitution or tribal code. Others have relied simply on the Indian Civil Rights Act. Third, as my sister Sue Williams has described to you, my sister in the bar, a number of courts have adopted the doctrine of ex parte Young, making available as a matter of tribal common law the same remedy that's available in Federal courts to enforce Fed- eral law. In sum, these decisions show that tribal courts are committed to the protection of individual rights under both Federal and tribal law, and that as the Supreme Court said in Santa Clara Pueblo v, Martinez, tribal courts are appropriate forums for the adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. Congress should continue to reject calls to reverse the Santa Clara Pueblo decision and should continue its support for tribal courts. These courts are both bringing justice to the tribal commu- nity for Indians and non-Indians alike, and are defining the legal expectations on which members of that community, Indians and non-Indians alike, will rely on in the future. The tribal courts' success calls for the continued pursuit and sup- port of the self-determination policy, not its abandonment. Thank you. [Prepared statement of Mr, Endreson appears in appendix.] Senator Inouye. Thank you very much. Ms. Williams, when the Federal Government has waived sov- ereign immunity, it is waived for suits in Federal courts, is that correct? Ms. Williams. That's correct. Senator Inouye. With the exception of the Ms. Williams. Indian Civil Rights Act habeas corpus review. Senator Inouye [continuing], the Indian Civil Right Act, the McCarran Act and such? Ms. Williams. That's correct. Senator Inouye. In similar fashion, when Indian tribes waive their sovereign immunity, it is in tribal courts, is that correct, with other exceptions? Ms. Williams. That's correct. Senator Inouye. Now, can vou give this committee any examples that you feel would justify a Federal waiver of tribal sovereign im- munity in the courts of another sovereign? Ms. Williams. No; I cannot, Mr. Chairman. And in fact, I wish to reemphasize the Supreme Court's decision in Santa Clara Pueb- lo V. Martinez on that point, in which the Court there rejected any notion that Federal courts should have broad authority to review Indian Civil Rights Act decisions in light of Congress' very careful pact carved in this area. Because as the Supreme Court noted, Congress recognized that issues imder the Indian Civil Rights Act will likely arise in this context of the Indian Civil Rights Act. And they will frequently depend on questions of tribal tradition and cus- tom, which tribal forums may be in a better position to evaluate than Federal courts. And as my brother in the bar said, it's very important in this dav for the tribes to, either by legislation or by their courts, establisn 32 the norms and the laws of the reservations in a clear fashion, so that all persons understand what the rules are, what the public in- terest is on the Indian reservations. So I believe it is not appro- priate at this time for this Congress to authorize any more intru- sion into tribal sovereignty and the tribal courts than has already been authorized in the context of the Indian Civil Rights Act. Senator Inouye. Thank you. Mr. Endreson, how long have you practiced law? Mr. Endreson. For 15 years. Senator Inouye. And during that time, have you practiced in tribal courts? Mr. Endreson. Yes; I have. Senator Inouye. Now, in your experience, have you found the tribal courts to be biased and incompetent? Mr. Endreson. I have not. If anything, my observations in tribal courts is that they are keenly aware that they are facing litigants who question their commitment, their competence, their ability to provide justice to non-Indians as well as Indians. That deep bur- den, which I believe neither the Federal nor the State court judges must deal with, hasn't stopped the courts in my observation, from doing anything other than providing the same quality of justice to Indian and non-Indian, and from making every effort to bring jus- tice to the tribal community for the same purpose that the judici- ary is established in other jurisdictions. Senator Inouye. We speak of due process. Do you believe that it is necessary to protect the due process of non-tribal members by this waiver of tribal sovereign immunity? Mr. Endreson. I do not. Again, I believe that the interest an In- dian tribe has in providing due process is an interest that is served without distinction in its dealings with Indians as well as non-Indi- ans. And it seems to me that every government has found great benefit from being able to identify, address, resolve, the conflicts that inevitably arise from governance. So I believe that sovereign immunity is a tool that enhances a government's responsibility to deal with the problems that government raises. Senator Inouye. I have a multitude of questions I would like to submit to both of you, and I look forward to your responses. [Referenced material appears in appendix.] Senator Inouye. Senator Gk)rton. Senator (jORTON. Thank you, Mr. Chairman. Ms. Williams, I guess there really is a great gulf fixed between your views on this subject and mine. As I understood your conclud- ing statement, it is that this whole series of problems, going far be- yond sovereign immunity, would best be solved by granting to each Indian tribe or nation plenary authority over all persons and prop- erty located on its reservations, so that non-Indian American citi- zens on reservations would have no less but no more rights, even though they are in the United States, than American visitors have in France, Russia, or China. If I'm incorrect in that, you can correct me on it. You did, however, recognize, and outline to us, a number of areas in which the courts or the Congress of the United States has uni- laterally limited or waived a degree of sovereign immunity on the part of Indian tribes. And I take it, and this is a question, that 33 while you recognize those waivers, you disagree with them. And while you're here to oppose a blanket waiver of sovereign immu- nity, ycu would oppose Congressional actions to limit sovereign im- munity in any respect that it has not already been limited, is that right? Ms. Williams. That's correct. Senator Gorton. Okay. Even though the committee addressed appropriations bill dealt only with property rights disputes involv- ing the property of non-Indians and mostly non- Indian residents on Indian reservations, to allow such persons general open access to either State or Federal courts with respect to those property dis- putes, in your view, is wrong? Ms. WlLUAMS. That's correct. Senator Gorton. And that's based partly on the importance of sovereign immunity to the tribal government itself, but also signifi- cantly on the proposition that those people simply don't need the access to any courts other than the tribal courts for the resolution of their disputes, is that correct? Ms. Williams. That's correct. Senator Gorton. Now, do those views also apply to any land taken in trust, either in the past or in the future, and grant a trust status by the Department of the Interior, off of reservation, outside of reservation boundaries? Ms. Williams. The Federal law on tribal sovereignty and Federal authority on an Indian community extends to all of Indian country, which includes all lands within a reservation and also trust lands dependent Indian communities. So to the extent that land becomes part of Indian country, yes, I think that tribes should have sov- ereignty there as does the Federal Government. Senator Gorton. So the Department of the Interior therefore has the right and should exercise the right to deprive States and for that matter the Federal courts of jurisdiction over land outside of reservation boundaries, simply by reason of taking it into trust? Ms. Williams. Just as one treaty set aside Indian reservations and limited our authority to our own territories, I think yes, once the land is recovered back into our territories and our communities, yes, we should have power. Senator Gorton. Thank you, Mr. Chairman. I think I under- stand her views perfectly. Senator Inouye. Thank you. Senator Conrad. Senator Conrad. Thank you, Mr. Chairman. I'll try not to pro- long this unduly. This is really a question of competing rights, and it is a question of balance. And I would ask the witnesses if this committee were to find a pattern of property rights being violated or a pattern of personal injury claims that were not addressed, if we were to find in our judgment a pattern in those areas, what in your judgment would be the appropriate solution for this committee to come to? Because I hear you saying very clearly sovereign immunity ought to be retained. What would the remedies be? If this committee be- came convinced that in fact there were a problem, what would you propose? Ms. Williams. Senator Conrad, I think that if this committee were to find such a pattern throughout Indian country, I would 34 urge the committee first to give forewarning to the tribal govern- ments that the committee is contemplating or this Congress is con- templating the severe action of extending the Indian Civil Rights Act or some other Federal law even further into tribal sovereignty. And give the tribes the chance, the opportunity, to correct these wrongs. Often you will find, I believe, as part of that pattern, that the tribal courts suffer from the terrible problem of inadequate re- sources. And I guess I would urge this Congress to find every avail- able means to help the tribes in their tribal governments improve the quality of that tribal government with some clear mandates or directives from the Congress in terms of the kinds of things tribes should consider doing. And then and only then, if that doesn't work and the pattern per- sists, then I think Congress has broad authority over tribal prop- erty, at least. And might consider at that time fiirther extending the Indian Civil Rights Act waiver of sovereign immunity to in- clude certain types of Indian Civil Rights actions. But even in that area, Senator, there are so many, having looked at this Indian Civil Rights Act and looked at the kinds of claims that come up against tribal governments, this Congress should be very, very careful in looking at how to extend that sovereign immu- nity waiver. Because oftentimes, tribal custom and tradition, which is very important and vital to the heart of tribal sovereignty, is very much at stake. And to impose standards that are borrowed from the United States Constitution and State constitutions and impose them wholesale on tribal government, I think would be a serious misstep on the part of this Congp'ess. So we'd have to look very, very carefully at how that sovereign immunity would be lifted even fiirther than it is today for the lim- ited purpose of habeas corpus review. Senator CoNRAD. If I could pursue this 1 minute more, I'd be in- terested in your answer too, sir. I go back to the testimony of Mr. Kalt, who was with us, I believe it was last week. And he said, I found it quite interesting, he said in the constitutions that were given many of our tribes, there was not provision for an independent judiciary. But he said in the tribal tradition, and he talked specifically about the Sioux tribal tradi- tion, there was an independent judiciary in the way the Sioux Tribes functioned before thev had a constitution that in many cases was given to them by us. They had an independent judiciary. And they don't now, or at least in many cases do not. Would you see this as something that ought to be pursued in terms of this committee and this Congress urging tribes to pursue constitutional reform that would give them an independent judici- ary? Ms. Williams. The essence of due process is that there be a full and fair opportunity to be heard regarding the dispute, and a fair and impartial hearing on that dispute. Now, for some tribes, that is provided, not necessarily by an independent judiciary as we un- derstand it in the classic three part government that the U.S. (gov- ernment is patterned after. The Pueblos in New Mexico, for exam- ple, some have judiciaries that are independent, some don't. But in 35 the process of adjudicating disputes by the Pueblo councils, what's important is that there be a full and fair opportunity to be heard and for that council sitting as a decider of disputes to render a de- cision in a neutral and impartial way. And that often does take place. So I would counsel caution in urging tribes to pattern themselves directly after the United States. Now, some tribes have, in fact, there are many tribal constitutions that have now been revised to establish by constitution an independent judiciary. That is a judici- ary that is either elected or appointed and cannot be removed ex- cept for very severe breaches of tribal law. Other tribes have set up tribal judiciaries for certain limited functions to review disputes arising under tribal codes, or commercial transactions, but not nec- essarily to review all legislative actions. So depending on the tribe's resources, size and maybe other fac- tors that are relevant, the question of an independent judiciary has to be examined very, very closely. But the bottomline is that I think each tribe does need to establish some mechanism by some entity in which disputes are heard in a mginner that provides due process, and the dispute is heard by an impartial, fair entity. Senator Co^fRAD. Sir. Mr. Endreson. If I could just add a couple of comments. I think it's a very perceptive question, because it goes right the heart of the reason that I think we're here, one of the big reasons, and that is that proponents of Federal court review or waivers of immunity or other actions of the kinds we've been talking about typically sug- gest, seek to suggest to the Congress, to you, that the problem that they present is, exists everywhere. And tney do that using a device that, here's what happened. Well, that may or may not be so, but what they then say is, this could happen to you, too. And they then ask Indian tribes to prove that it couldn't. They then say, here's a case where justice misfired. Prove this can't happen everywhere. Well, the pattern that you referred to, let me respond to it much as Sue Williams did. I think if there were problems in tribal courts that were understood and recognized to exist with regard to a tribe or several tribes that the correct approach is the one that your comment about constitutional reform suggested, which is to deal with the problem on a tribe by tribe basis, to seek to provide the resources, the expertise, the financial resources as well as the tech- nical expertise, I should say, to help the tribe deal with the prob- lem. Your statement is correct, in my experience. The tribal justice systems that I'm familiar with that predated the European arrival did recognize that disputes should be resolved by someone other than a participant in the dispute. I once researched that and found some old articles in a periodical called the Journal of Criminal Law and Criminolog:, , that described in great detail the systems of the Huron, the Potawatomi, the Menominee and other trioes, and illus- trated the very point that you made. Many of the constitutions in existence now were constitutions drafled by the Bureau of Indian affairs following the Indian Reorganization Act. In some ways it would be the height of hypocrisy for the United States to force a constitution on Indian tribes that lacks an element 36 that Congress later finds compels the Government to waive the tribe's immunity. If a tribe wants to revise and amend its constitu- tion, it should certainly be given support in trying to do that. I do think that I should add one other pomt about this kind of debate, and that is, in many ways, this is an argument that the end justifies the means, that a single case justifies a waiver of im- munity. Let me point out that that argument ignores the balance of the benefits that organized government provides to everyone. To illustrate, when the Los Angeles police department was found to have problems following the Rodney King incident, no one sug- gested that the police powers of Los Angeles should be divested. No one suggested in Chicago after the Greylord scandal in the courts in Chicago, no one suggested that Chicago's judicial power should be withdrawn. Indian tribes operate governments for the same purposes that the United States and the States do, within the limits of the re- sources available to them. And they should be treated the same as the other governments are when problems of the kind that your question refers to arises. I should say finally, I don't believe tnere is any such pattern presently. Senator Inouye. Thank you very much, Ms. Williams, Mr. Endreson. And now may I call on a member of the Whatcom County Coun- cil of Ferndale, Washington, Marlene Dawson; Jennifer Coleman, Esquire, of Buffalo, New York; Lana Marcussen, Esquire, of Albu- querque, New Mexico; Barrel Smith of Mobridge, South Dakota; and Jim Johnson, Esquire, of Olympia, Washington. Ladies and gentlemen, welcome to the committee. May I first call upon Ms. Dawson. STATEMENT OF MARLENE DAWSON, COUNCIL MEMBER AT LARGE, WHATCOM COUNTY, WA Ms. Dawson. Thank you, Mr. Chairman, and members of the committee. I am Marlene Dawson and reside within the exterior boundaries of the Lummi Reservation in the State of Washington. It is with utmost gratitude that I wish to thank you for allowing this hear- ing. The Lummi leadership on this reservation is violating good faith negotiations that occurred with the city of Bellingham oy denying public waters to non-Indian property owners. They are interfering with non-Indian aquifers, and despite a Federal consent decree that requires sewer service on a first come, first served basis, the tribe is denying sewer extensions and hookups so as to prevent non-Indian development, sewer and water lines, I must add, which have all been federally ftmded. The tribe is collecting illegal taxes fi-om non-Indian businesses operating on fee land. The taxes have never received Department of the Interior approval per the tribal constitution requirement, and the tribe uses threats and intimidation, not consent, to secure payment. One tax the tribe coerced was an employment tax fi*om a con- struction company called Wilder. The tribe used the threat of confiscation of road equipment fi"om this construction company, 37 which was a county subcontractor. The tribe is currently collecting taxes from pulalic utility companies, even though company lines cross county roads and their easements, which qualify the land as property in fee, and outside tribal jurisdiction. Since all the taxed parties were unfamiliar with the Lummi trib- al constitution which required Department of the Interior approval for the ordinance affecting non-Indians, the Utility and Transpor- tation Commission approved rolling the tax to the ratepayers. They felt the cost of potential litigation by the tribe outweighed the per- sonal rights of t^e consumer. Unfortunately, litigation is now re- quired to reverse the action of the U.T.C. In the meantime, tribal membership recently voted to eliminate the need of Department of the Interior approval for ordinances af- fecting non-Indians from their constitution. And we have no reason to expect the Department of the Interior not to validate this tribal amendment. Based on my experiences, the Department of the Inte- rior turns a deaf ear to non-Indian civil rights violations. In included in my written testimony is the extent of my Alice in Wonderland experiences in tribal court with the tax issues. The tribal attorney who wrote the utility tax ordinance for Lummi In- dian Business Council also represents them. In addition, he rep- resents the Lummi Sewer and Water District, which collect the utility tax from consumer, and as well, served as the hearing exam- iner at the sewer board tax case where my hearing ori^nated. My written testimony mentioned my private meetmg with the tribal judge, and the court intimidation, after explaining I was there for a personal appearance and was not consenting to tribal court jurisdiction. There is no question in my mind that my private meeting with the tribal judge, which included his statement to me that my le^al argument was good, but which still resulted in his determination that I had insufficient evidence, clearly dem- onstrates that one cannot expect justice in tribal court when there is no separation of powers. While the tax issues are important, of greater concern is the de- nial of basic utilities to our property which affect the health, safety and utilization of our land. When a tribe can come onto a fee resi- dential development, erect a huge storage tank next to a resident, construct a pump house, install a chain link fence with barbed and razor wire, and proceed to drill a well 100 feet away and below the association's outtake, which serves over 600 homes on fee land without permits, then something is basically wrong. To further il- lustrate the blatant, hostile nature of acts like this, one needs to understand, the tribe had available road access, several lots from their well site, to a huge tract of trust land where they could have erected their well 1,000 feet away and avoided interference. Senator Slade Gorton and Congressman Jack Metcalf, to their credit, interceded. When you have a tribal government that uses their Lummi law and order to physically accost people on their pri- vate beach, who threaten confiscation of well drillers equipment, who refuse to pav their educators the full payment due their con- tract, when you have a tribal government whose leader threatens a road closure and even goes so far as to try to eject a candidate for Congress from the reservation when that candidate is on pri- vate property at personal invitation, then something must be done. 38 I respectfully plead, give non-Indian residents who thought that they would be living in a community where diversity was cele- brated, the opportunity to protect themselves and their property from tribal tyranny. At the same time, you'll be benefiting the live- lihood of tribal members. If tribes cannot be held accountable, eco- nomic development on reservations will continue to be stunted and non-existent. Thank you very much, and Fm sorry if I got a little emotional. [Prepared statement of Ms. Dawson appears in appendix.] Senator Inouye. I thank you very much, Ms. Dawson. At times it helps to be a little emotional in getting your message across, and I believe your message was very eloquently presented. May I now call upon Ms. Coleman. STATEMENT OF JENNIFER A. COLEMAN, ESQUIRE Ms. Coleman. Thank you, Senator Inouye and members of the committee. I'm an attorney in private practice in Buffalo, New York. For the past 6 years, I've been representing a group of non-Indian lessees of the Seneca Nation of New York Indians. Before I begin my remarks, let me just point out some ways in which the New York Indian situation is very different and unique from the western Indian and indeed, Federal Indian, situations generally. We are not dealing here with fee land. My clients reside on Indian reservation land pursuant to land leases that were granted by Congress in 1875 and 1890. The enabling statutes that authorized these leases clearly state that the non-Indian lessees are the owners of the improvements on the leased land. There were provisions made in the statutes and in the leases for renewals. And without getting into the merits of the renewal process, let me just say, it cmled wr negotiations for new leases. Failing negotiations, it called for arbitration. That is, one arbitrator selected by the nation, one arbitrator selected by the non-Indian lessees, and those two arbitrators to select a third arbi- trator who would then, the panel would then propose the terms and conditions of the new leases. Second, the Seneca Nation of Indians has never exercised police powers or other sovereign powers over the boundaries, over the people within the boundaries of the city of Salamanca. That also is pursuant to the 1875 Congressional act, which explicitly states that city and local law applies within the boundaries of the city of Salamanca. Furthermore, by State law and pursuant to the Federal statutes I've mentioned and those I will mention, the Seneca Nation Peace- makers Court has no jurisdiction over non-Indians or disputes in- volving non-Indians, and explicitly, no jurisdiction over matters arising from these land leases. In other words, tribal court is not an option. In 1990, Congress acted in a manner that completely upset the renewal expectations of the United States, the State of New York, the Seneca Nation of Indians and the non-Indian lessees. It did so by enacting the Seneca Nation Settlement Act of 1990, which pur- ported to adjust past inequities in terms of low rentals that were paid for more than a century to the Seneca Nation. 39 In so doing, Congress acted over the objections of the representa- tive of the Department of the Interior Walter Mills and effectively ratified and imposed a 40 year lease on my clients. Let me repeat. Congress imposed a lease on my clients. At the time hearings were held, my clients had the lease in their possession for a matter of days. The leases and the statutes incorporate by reference agree- ments that they did not see until 1 month after Congress held hearings on this matter. Needless to say, the lessees did not accept or approve this lease. It's also worthy of note that in the 1990 act, perhaps realizing there may be a problem, Congress provided, and I will quote, at section 1774(g), Notwithstanding any other provision of law, any action to contest the constitu- tionality or validity under law of this Act shall be barred unless the action is filed on or before the date which is 180 days after the date of enactment of this act. Ex- clusive jurisdiction over any such action is hereby vested in the United States Dis- trict Court for the Western District of New York. Now, surely, Congress intended that a challenge to the constitu- tionality of the 1990 act could be maintained, provided it was brought within 180 days, and brought within the Western District Court. Within 1 month, we commenced a lawsuit in Western Dis- trict Court, challenging among other things the constitutionality of the Settlement Act of 1990. The outcome at the district court level, at the court of appeals level, and at the Supreme Court level by virtue of its denial of cer- tiorari, was this: Because the 1990 Settlement Act affected the rights of the Seneca Nation and the interests of the Seneca Nation under the settlement act, these U.S. citizens were unable to chal- lenge the constitutionality of an act of Congress because of Indian sovereign immunity. Effectively, the ruling of the court, which I attach to my state- ment, is that Indian legislation from Congress is immune from ju- dicial review unless the party seeking judicial review is an Indian tribal government. The Second Circuit, which has dealt with the unique problems of New York Indians, recently stated that the availability of a forum should not turn on the ancestry, or shall I say, race, of the party seeking the claim to be resolved. The Court stated. There is simply no room in our constitutional order for the definition of basic rights on the basis of cultural affiliations, even with respect to communities whose distinctive sovereignty our country has long recognized and sustained. Adding insult to injury, after four separate opportunities to sign this lease, after the Supreme Court refused to hear the case, most people signed. They wanted to sign under protest. The Seneca Na- tion said that if they indicated under protest beneath their signa- ture, it would be treated as if they rejected the lease. Sixteen people still refused to sign, placing their houses, their businesses, on the line. It's not about rent, by the way. The rental on these parcels would be approximately $100 to $200 a year under the Settlement Act of 1990. Rather, it's that the Settlement Act of 1990 and the agreements it ratifies transfers ownership of the im- provements to the Seneca Nation of Indians. It furthermore im- poses zoning rules of the Seneca Nation of Indians within the city of Salam£inca, and there are other infirmities with the statute. 40 At this point in time, as I sit here today, there is pending before the District Court judge in the Western District of New York, a mo- tion, not by the Seneca Nation of Indians, but by the U.S. Govern- ment through its Department of Justice, to evict these 16 people from their homes. They have argued, so far successfully, to the magistrate judge that these citizens, my clients, these non- Indian, U.S. citizens, who bought their homes pursuant to federally-ap- proved mortgages, are to be evicted from their homes without an opportunity to defend on the merits. We understand there can be no counterclaims because of Indian sovereign immunity. There can be no counterclaims because the Nation is not even in court seeking eviction. But the United States, acting on its behalf, has arguedf successfully to the magistrate judge that my clients may not defend the action based on the prior rulings where the court held that they could not maintain a chal- lenge to the constitutionality of the Settlement Act of 1990. 'Hiey are going to lose their homes. And the reason they are going to lose their homes is that Congress entered into an area and upset the settled expectations of all parties, and failed to provide a forum for resolution of this dispute. I'll end, again quoting the Second Circuit in its recent decision: Indian nations will continue to use their connection with Federal authorities as a sword, while employing notions of cultural relativism as a shield from Federal court jurisdiction. I thank you. [Prepared statement of Ms. Coleman appears in appendix.] Senator Inouye. Thank you very much. Ms. Marcussen. STATEMENT OF LANA E. MARCUSSEN, ESQUIRE Ms. Marcussen. Thank you. Senator Inouye. Let me first introduce myself. My name is Lana Marcussen, I want to thgmk the committee today for holding this hearing and giving us the opportunity to be heard. It's quite a change. I practice in several Federal districts, Federal district courts rep- resenting Indians and non-Indians who have felt that they have not received due process of law in a tribal court and want political accountability. Political accountability is the new test that the U.S. Supreme Court has been using. It is this new argument that ap- pears to be changing a lot of court tribal policy. It s hard to say at this time how far it s going to go. But by the time clients come to me, usually through uie Citizens Equal Rights Alliance, they're pretty frustrated. The first thing I always have to do when they walk into my office or they call me on the phone is explain to them why they've lost their rights. They don't understand. I mean, when people are out there and they're doing business with the tribe, when they're living on lands and suddenly those lands are declared to be in a reserva- tion, and they find out, just like these people in Seneca, New York, did, that they don't have any rights, they're on the phones. They call everybody trying to figure out what happened. These people are very upset. They have oelieved in this country. I'm from New Mexico. New Mexico has one of the largest public lands movements anywhere going on. These people are firm believ- 41 ers in the Constitution. They^re firm believers in the power of Con- gress. They're firm believers in all of the things this country is sup- posed to stand for. And all of a sudden, they have no rights. It is very difficult to explain to someone why they have no choice but to litigate in an Indian court because of Indian sovereign im- munity. I have been trying to do it now for several years, and fi-ankly, I'm not good at it. I don't think I'm ever going to get good at it. Because fi-ankly, I don't understand it. My clients not only don't understand it, but they additionally don't understand why they don't have the right to claim reverse discrimination. I mean, they walk in and the first thing they see is a tribal court where they have no right to vote, they have no rep- resentation, they have no voice, they don't have any of the constitu- tional rights, and they're sitting there saying, well, isn't this a vio- lation of my basic civil rights? Isn't there a civil rights action here? And I have to tell them basically, no. There isn't. Because of the territorial status of that land and the exclusive powers of the United States Government under the property clause, you don't have any rights. That's the way it works. I know that's a very complicated explanation. There's a lot of case law that explains it. And I'm going to just move forward here. Let me give you some very, very specific details. I represent a Navajo man by the name of Dennis Williams. Mr. Williams had land that he inherited fi-om his mother that was probated through the Navajo Probate Court and awarded to him. Two years later, 2 years after all litigation had ceased on this matter, he is told that the Navajo Court of Appeals is going to hold a hearing to deter- mine whether or not he actually inherited this land, or whether this land belongs to his cousin. He finds out through his attorney that the case had been tele- phonically reopened by an opposing counsel. He was given no no- tice, he was given no right to be there, because he objected to the Navajo court doing this. He turns around, he loses his land, two years after this ca&e was totally closed. He pursues the matter, goes in, he starts searching around, goes to the Navajo Supreme Court Building, pulls records. It turns out that on the records, and we have this, and they have been intro- duced in the Federal court, that the case numbers of the appeals documents had actually been switched. Someone had actually gone in and taken a number of a case that had been properly put on ap- peal and stuck it on his probate action, 2 years afi^r the fact. When he found that, he went to the Navajo District Court and said, fix this. He didn't get all upset, he just thought it was going to be a matter of, fix this. The Navajo Tribal Court not only re- fused, they sent him all the way through the appeals process, all the way through the Navajo Supreme Court, noDody disputed the case numbers had been switched. This man didn't get his land. He gets done with the Navajo Supreme Court. His cousin initiates a damages action against him, which he refuses to pay, because he feels like he's been totally deprived of his rights. He gets thrown in jail for civil contempt, and we end up with a Federal habeas cor- pus petition. That's how far this has gone. Now, my client spent 18 days in jail, until he was released by Judge Parker. Now, I think because of the sheer egregiousness of 42 this particular case and our ability to produce the documents, the United States Federal District Court in the District of Arizona has actually agreed to hear the review of the Navajo court decisions that created this situation. To my knowledge, it's the first time that a Federal district court has claimed judicial review authority over Indian court decisions. I may be wrong on that. The Navajo Nation, of course, is challenging that. But I think at this time that's exactly what's going to happen. It would be very helpful, though, if we didn't have to go through any fiirther claims of tribal sovereign immunity. Another case that I have is for a man by the name of Bruce Wil- liams. Mr. Williams was arrested by the Navajo Police Department for refusing to sign a Navajo ticket. Now, unlike Susan Williams, who's from the same town I'm fi-om, Albuquerque, NM, I believe Oliphant v. Susquamish Tribes makes it very clear that the Indian nations are not supposed to be exercising police power authority over non-Indians. But Bruce Williams was thrown in jail for refus- ing to sign a Navajo citation. Now, that Navajo officer was State certified, and my client ex- pressly told this Navajo officer that he would sign a State citation. He didn't object to the race of the officer. He didn't have any prob- lem with that. He objected to the loss of his rights of being cited, by the Navajo Nation actually claiming police power authority over him. That case is now in the New Mexico State court. By the way, since my client objected to this, his business has been attacked. There are three tribal court actions that have been brought against my client in the tribal courts since he made this objection and filed this lawsuit. That is not unusual in these cases. This one just hap- pens to be very specific. Another situation is in Arizona against the CRIT Tribe, the Colo- rado River Indian Tribe. My clients happened to have some very valuable land that they had leased. They made some people angry in the tribal council, the leases were revoked. When the Talleys ob- jected to the leases being revoked, all of their leases were canceled. This family had been farming on the CRIT Reservation for 50 years. And every single lease that they had was canceled by the tribe. Now, they didn't have any rights. A Federal judge in Arizona has just accepted our civil rights action against the Colorado River In- dian Tribe. I represent people at Lake Havasu that have a situation, on the California side, that have a situation almost identical to the Seneca situation. They were leaseholders under a BLM lease. All of a sud- den, the Secretary of the Interior in 1974 corrects the reservation designation, and they're suddenly on an Indian reservation, and told that their leases, their brand new BLM leases, are being re- voked. And that's exactly what happened. We are now locked in litigation in the court of appeals of tne Ninth Circuit. These are individual cases. But tribal sovereign immunity has gone far beyond just the implication of individual rights. Now in Montana, there's all kinds oi discussion of serious taxation on fee owned lands. I mean, tribal sovereign immunity is so strong that you can't object to anything that a tribe does. 43 The other thing that's happening in Montana is that there's some outrageous tribal court jud^ents. The one that I'm specifically in- volved with in the Marchmgton case is for $65 million. Another tribal court has awarded a $250 million claim for a wrongful death action. Now, that's not pimitive damages. The tribes are real smart, the Indian people are very capable of making good decisions. What do you do? More bluntly, the worst problems that are going on right now have to do with gaming. And of course, I'm coming from New Mex- ico. And I'm wondering today whether or not the Mescalero Apache Reservation is actually going to close their casino per the Federal court order. Now, I haven't heard anything yet, and I hope the committee takes that into consideration today. Tribal sovereign im- munity has become so extreme that there is now, there are now tribes in New Mexico claiming that they don't have to obey Federal court orders. And it's quite a few of them over what's happened with the gaming. Senator Conrad, this is a question of competing rights. It's a question of whether we're going to have constitutional rights to due process and equal protection, or we're going to have tribal sov- ereign immunity. Senator Gorton's proposal to waive tribal sov- ereign immunity is a measured response choosing the rights of the Constitution over the right to tribal sovereign immunity. I urge the committee to adopt section 329, Thank you, Mr. Chairman. [Prepared statement of Ms. Marcussen appears in appendix.] Senator Inouye. I thank you very much, Ms. Marcussen. May I now call upon Mr. Smith. STATEMENT OF DARREL SMITH, MOBRIDGE, SD Mr. Smith. Thank you, Senator. I ranch near Mobridge, SD on the Standing Rock and Cheyenne River Indian Reservations. I'm a third generation reservation resi- dent, and one of over 370,000 non-Indians that live on Indian res- ervations in this country. Both my grandparents moved to the Cheyenne River Indian Reservation in the 1920's, where my father and my mother met and married in the early 1930's. My parents bought the ranch that I presently live on in 1946, and I inherited part of that ranch from my dad, and have bought part of it from other family members, and I'm continuing to buy some from my mother. I live in an area that was opened up to homesteading by a 1908 Surplus Land Act, a phrase in this act refers to the respective res- ervations thus diminished. Based on the Surplus Land Acts and the Dawes Act, early homesteaders did not think they lived on res- ervations. Based on the Dawes Act, they expected even neighboring reservations to cease to exist within a short time. They couldn't have anticipated or imagined the problems we face today. Over the years, non-Indians have been put back onto res- ervations and subjected to tribal taxes, license and regulations without the right to vote or participate in tribal government. A con- troversial Supreme Court decision put me back on the reservation in 1984. Both the tribes and the BIA have the legal right to dis- 44 criminate. And since tribes are governed by Federal law, govern- mental powers that are granted to one tribe generally can be adopted by others. In contrast, tribal members can rightly participate in county and local governments. Because of the reservation boundaries, the tribes and their members are exempt from paying the taxes or obeying the laws that they make as participants in city and county government. This threatens non-Indians in towns and counties on reservations. Thus, non-members are being forced to pay taxes, ob- tain licenses and obey regulations of a government that they are excluded from, while tribal members can participate in local gov- ernments that they may not have to support or obey. Tribes are asserting the right to collect many different kinds of taxes from non-members. I pay tribal tax that tribal members are exempted from paying. What limits taxes that can be discriminately collected from people that are excluded from the po- litical process? How do these taxes differ from the British tax on tea imports prior to the Revolutionary War? Tribal taxation also results in double taxation and raises busi- ness costs for non-member reservation businesses. A neighboring tribe has required that non-Indian businesses, even those located on non-Indian land, must have tribal business licenses. License ap- plicants must agree to comply with tribal laws, including tax and preference laws. Applicants also must consent to the jurisdiction of tribal courts over any business conducted on reservations. Inherent in the power to license is also the power not to license. These powers can, and I might add are being used to intimidate or force non-members off reservations. Few reservation businesses can afford effective legal remedies. Contracts with tribes or tribal members can only be enforced in tribal court and sovereign immunity protects them from being sued. Recently, a tribal casino was built near me. Two contracts were entered into by the tribe and unilaterally canceled after con- siderable money was spent by the non-tribal party before a third contract was honored. This risk greatly reduces commerce with tribes. Non-Indian communities and whole counties can't enforce regula- tions against tribal members. In a neighboring community, four In- dian youths vandalized the public school. Protected from effective prosecution by their immunity, several of them vandalized a busi- ness a few months later. In the business, they left Polaroid pictures of themselves behind. Less than 2 months later, they desecrated a church, spreading excrement on walls and also on floors with a buffer. Available chemicals were dumped everywhere. And again, they left photocopies of their faces and genitals. Law enforcement is severely impaired on reservations. Economic prosperity requires certain conditions, and is difficult in rural areas, in the best of circumstances. These added problems and un- certainties resulting from the inability of non-Indians to sue a tribe because of sovereign immunity and other uncertainties related to tribal court devastate the economies of many reservations, nega- tively affecting everyone. It is no accident that my county is one of the poorest in the country. 45 In addition, many potential purchasers of reservation assets are simply not interested when they find out they will be confronted by these problems. When purchasers can be found, asset prices are regularly discounted about 25 percent. These facts make it difficult for non-Indians to either stay or leave. I have a beautiful ranch that is close to town and has miles of shoreline. But I have considered selling it just to avoid these prob- lems for myself and my children. I heard about a potential ranch purchaser that was interested in a ranch like mine. When I con- tacted the realtor that was involved, he said that the word was out about reservations, and he didn't think it was ethical for him to even talk to this purchaser about my ranch. I estimate that if my ranch were sold, I would have to discount it at least $400,000, msiking it very difficult for me to replace it somewhere else. It is time to end the sovereign immunity of Indian tribes, and at least to make them subject to suit for violation of constitutional rights for torts and for breach of contract. Thank you. [Prepared statement of Mr. Smith appears in appendix.] Senator Inouye. Thank you very much, Mr. Smith. Mr. Johnson. STATEMENT OF JAMES J. JOHNSON, ESQUIRE, OLYMPIA, WA Mr. Johnson. Mr. Chairman, members of the committee, thank you for this opportunity. My name is James Johnson. I am an attorney now in private practice in Olympia, WA. Preceding entry into private practice, I worked for about 20 years in the Attorney General's office in the State of Washington. We're here today to ask you to finish the job Congress com- menced with the Indian Civil Rights Act many years ago. In the interim, you have spent millions of dollars. It's now time to help, allow or even force the tribes into our constitutional judicial sys- tem. Chief Deputy Long firom South Dakota systematically analyzed and others have, including my testimony, nas anecdotally shown hundreds of cases of allegations of tribal abuse of both members and non-members, in which there is no remedy in court. Not shown among those reported cases, of course, are the thousands of cases not reported because this arcane English sovereign immunity, to which both the Chair and Senator Grorton alluded, has blocked peo- ple fi'om even having the opportunity to get into court, to repeat; the cases which A.G. Long summarized, are those where people have tried to get into court and have usually been frustrated. At the extreme in my testimony, I observe that when tribes act more like gangs than governments, there must be a remedy. That remedy in our society must be judicial. I take Mr. Endreson's criti- cism, by the way, members of the committee, very seriously. I shouldn t speak of the extremes. Because we do too often call to the attention these anecdotal examples of the extreme. We should talk about the general proposition. And the general proposition is this: that the smaller cases; the trip and falls, the general kinds of land use problems and the others illustrated in this testimony, also cry out for a judicial remedy, in the event there is a problem occurring. 46 And not to be overlooked is the salutary effect even the Indian Civil Rights Act has had on avoiding those things. We provide remedies in the hope not that there will be more and more violations, we provide remedies in the hope there won't be violations, tfiat either the tribal courts or the tribal performance will improve just as by analogy State courts and States improve under tne impetus of an earlier Congress adopting the Civil Rights Act to force fiiem to be accountable in Federal court if necessary. And surely enough, in 25 years, the judicial system, the justice sys- tem improved. It is our hope, and Fm sure that of those who reside on reservations, that would be the effect here. As I walked over here this morning, I walked by the U.S. Su- preme Court and noted, as Tm sure others have in their testimony here, the porticos have "Equal Justice Under Law," a promise to all United States citizens that remedies will be found in a court somewhere, and theoretically all the way to the U.S. Supreme Court. As you know for most of the anecdotes which have been told here and most of the cases Mr. Long describes, the hundreds, there is no remedy. And by the way, even if you get into tribal court, there is no review into the U.S. Supreme Court. I digress for a moment to an exchange between Mr. Anderson and I think Senator Conrad, because an attorney general once told me, answer the judge's questions first of all, get to what they're in- terested in. And a couple of propositions are important here. Mr. Anderson said, many tribes nave recently adopted courts. But a piece of what my testimony notes is that many tribes don't have courts today. Many tribes of the 560 odd that are now shown as tribes, and entitlea to sovereign immunity under Interior's listing of tribes and tiie r^ulation which I cite don't even have courts even as we speak. There is no judicial remedy. Others of them have C.F.R. courts and some others share courts. A second and important proposition. Senator Conrad, we should all remember, is there are limited constraints of the Indian Civil Rights Act. But as a general proposition, tribal courts do not en- force the United States constitutional provisions such as due proc- ess in civil cases. As just one example, you don't get a jury of vour peers. Whether tJiose who have to go into those courts correctly or incorrectly perceive that they're not getting a fair hearing, the fact is, they can't be on that jury. And if they beheve their peers can't be on that jury, it adds to the impression that they're not getting a fair hearing. But I digress, as I sav. Mr. Long has also shown, I think, a very important proposition here, that the impacts are on non-Indians and Indian members al- most equally among the reported cases. My anecdotal part of the testimony, which I shan't go back through in length, is an off-res- ervation illustration of a recent Federal court degree involving tens of thousands of private landowners in the State of Washington. And I call it to your attention, as most lawyers do, their own cases are real important. Of course, my case is important because of that, and because there are lots of private landowners on what used to be peaceful Puget Sound. But also because the judge held that a remedy was necessary. His original decree said, here are conditions to avoid conflict be- 47 tween the tribal treaty citizens and non-Indian citizens owning the land. And he included those conditions and a remedy. Only when the United States and the tribes came back and said, sorry, this remedy is not available because it's barred by sovereign immunity, did he reluctantly, I believe, amend his judgment, and remove that remedy. It is an illustration, I think, of a kind of civil remedy, I hope an illustration also of the point I was earlier making: Do I expect to get my clients damage claims for the tens of thousand, hundreds of thousands? Absolutely not. And I have told them it's not work that I could or would want to do. The salutary effect would be, hopefully, that there would be no such claims. That if there is a remedy available, it has this constraint of avoiding these kinds of problems. And that general proposition, I think is true with the waiver of immunity we seek here. At a second level, I think it would improve the tribal courts just as it has improved State courts, as I had earlier mentioned. One final point, the argument has been made, I think by Ms. Williams most recently, and it's an aged, historic argument that somehow tribes would be bankrupted by this waiver of immunity. I think I have responded to one point. She says, the tribes need fair warning. I say. Congress gave them fair warning when they passed the Incfian Civil Rights Act. It's now time to finish that job. The courts have progressed. More directly on point, you will hear testimony fi*om three Wash- ington tribes following me. And at least several of those illustrate quite clearly why the so-called fear of tribal bankruptcy is unlikely. A first and separate proposition is for two of those tribes, the Tulalips, Congress has gpranted over $9 million last year, to the Lummi Tribe, over $11 million. And those figures are taken from 92 audits that were submitted in this very same case. The point is, it's not just the money. The point is that many of these actions are actually taken under funding by the United States. And therefore citizens such as Ms. Dawson are doubly ag- grieved in that not only have they no remedy, but some of the ac- tions that are taken with respect to their property are funded by their own tax dollars and funded by this Congress. And it is not too much to ask that at least to that extent the tribes be held re- sponsible. In my testimony, Fve gone back through acts of Congress in the last century in which this was a fairly common practice, that Con- gress would hold the tribes responsible at least up to the amount of dollars made available. A separate and important proposition is of these two tribes, actu- ally three who will be testifying to you later, at least the one, the Tulalip Tribe, we know what their casino gambling revenues are. Last year, the public figures show they made $24,800,000 in prof- its. I highlight that point to say they're in business, they're big business now. And second, unlikely to be bankrupted by the kinds of claims which, as I've already said, we hope will not be made. That this waiver of immunity will not necessarily bring big claims, but big responsibility, which the big tribal governments should have, big responsibility. 48 I know it's late, Mr. Chairman. I suspect I had best conclude, and conclude, as lawyers are wont to do, with the quote from the Supreme Court, 16, 17, 18 years ago, Justice Blackmun wrote: "I entertain doubts about the continuing vitality in this day of the doctrine of tribal immunity. I am of the view that the doctrine may well merit reexamination." He was speaking of reexamination by the Supreme Court, I suggest a more appropriate place for such reexamination is the body with plenary autiiority over the tribes, and you and the Con- gress are that bo^. Now is the time for that reexamination. They have, in Ms. Williams' terms, been given fair warning that they will be held accountable and all deliberate speed requires that the total implementation of constitutional rights now be done by waiving those tribes' immunity. Thank you. [Prepared statement of Mr. Johnson appears appendix.] Senator Inouye. I thank you very much, Mr. Johnson. I am cer- tain that the assembled leaders of Indian country in the audience have tsQcen note of the testimony of all of you here. Ms. Dawson, I will most certainly review your statement, as I will all statements. And I will further confer with the Lummi Na- tion to see what is going on there. Because obviously, I am not aware of the specifics of your problem and your case. But I will most certainly discuss this matter with them. And if I feel that something can be resolved here, I will communicate with you, if I may. Ms. Dawson. Yes, Senator. Senator Inouye. And Ms. Coleman, I recall that this committee did handle the Seneca legislation. What you are speaking of, if I am not mistaken, is Federal immunity, isn't it? Ms. Coleman. No, Your Honor. It's that Indian sovereign immu- nity has been apphed to bar Federal judicial review of an act of Congress. It's not Federal immunity at all. It's the immunity claimed by the Seneca Nation of Indians. Senator Inouye. But your suit is against the Federal Govern- ment? Ms. Coleman. No; it's not. It originally was against the Seneca Nation of Indians, to enforce the renewal provisions in the expiring leases and in the 1875 and 1895 statutes. We also brought the con- stitutional claim, which required joinder of the U.S. Government as well. But it was dismissed solely on grounds of Indian sovereign immunity. Senator Inouye. I will most certainly review your testimony and confer with my staff on that matter. Ms. Coleman. Thank you. Senator Inouye. Ms. Marcussen, I listened to your testimony with great interest. If I am not mistaken, there have been hun- dreds of tribal court cases reviewed by the Federal courts. The Su- preme Court has held that the exercise of jurisdiction is a Federal question over which Federal courts have exclusive jurisdiction. But usually, the Federal courts will insist that all tribal remedies have been exhausted before they exercise jurisdiction. Is that correct? Ms. Marcussen. Senator Inouye, I basically agree with you. When I stated what I did about the Dennis Williams case, what is 49 unusual about the case is that the^re actually going to review the Navajo judgment. Now, to my knowledge, there had been exhaus- tion, you're rirfit, there's has been eimaustion of remedies, and that's a normal process. But I've never actually seen, in a matter of internal self-governance like this, where vou actually have In- dian lands on an Indian reservation where they would actually go through and make a due process determination like that. Now, I may be wrong, Your Honor — excuse me. Senator, you know how trial lawyers are. [Laughter.] But this to my knowledge, and certainly the way the Federal Dis- trict Court in Phoenix is treating this matter, they've never actu- ally gone through that due process analysis like that. I mean, they may disagree, they may turn around and do a de novo review. De novo review after exhaustion of tribal remedies has happened many, many times. But I've never actually gone, I've never actually seen the court go back and actually look and see if the process it was given was really fair. Senator Inouye. Your example of your Navajo client is one in which your client went before the tribal probate court, is that cor- rect? Ms. Marcussen. That's correct. Senator Inouye. Did you appeal to the Interior Board of Indian Appeals? Ms. Marcussen. Yes, Your Honor, my client did. And he ex- hausted all of the DOI process. Senator Inouye. Was that trust land? Ms. Marcussen. It is trust land. Senator Inouye, So I would think that the trust land would give the Federal court jurisdiction, it is a Federal question. Ms. Marcussen. Actually, Your Honor, there are other ques- tions. Tribal sovereign immunity is a big issue. When you're actu- ally dealing with public lands questions, the Federal courts have often disclaimed jurisdiction also under the quiet title act. There's more than just one immunity problem to overcome in most cases like this. In this particular situation, Senator Inouye, the court expressly took jurisdiction under the Indian Civil Rights Act, under the ha- beas petition of the Indian Civil Rights Act, and based on the 14th amendment, because of the Adaran decision. And that's the express order of the court. Senator Inouye. In the New Mexico gaming case, if I recall, with regard to the order to close the tribes casinos, that has been stayed pending appeal to the 10th Circuit, is that correct? Ms. Marcussen. Senator Inouye, there are actually three dif- ferent suits. The main suit against the Nine Pueblos was stayed. I do know that as I was leaving New Mexico yesterday that Chair- man Wendell Chino had requested Judge Vasquez to stay the clo- sure order of Judge Parker. I have not heard whether or not that stay was granted m that case. Senator Inouye. Mr. Smith, you have presented a very compel- ling case. But I do not think that individual Indians, the ones that had their pictures taken, have any sovereign immunity. If these perpetrators were not prosecuted, I do not think that it is because of sovereign immunity. So I will most certainly discuss this matter 50 with their tribe. But can you tell me the name of the tribe in- volved? Mr. Smith. That particular case was the Standing Rock. I think that you'll have that opportunity this afternoon. Senator Inouye. The Standing Rock Tribe? Mr. Smith. Yes. Senator Inouye. I thank you very much. Mr. Johnson, your suggestion that Indian nations should take note of some of the concerns expressed by you and others I hope will be seriously taken. I take them very seriously. Mr. Johnson. Thank you. Senator. Senator Inouye. Senator Gorton. Senator GrORTON. Ms. Coleman, your testimony is the first I've ever heard in connection with a statute recommended by a commit- tee of which I was a member at the time in a Congress of which I was a part. I'm not sure whether Senator Conrad was here or on the committee then. But certainly Senator Inouye was chairman. At least fi'om my own point of view, I can't imagine that any of the members of the committee believed that in passing a section that expressly disallowed for a constitutional challenge, that we would be, that we were engaged in a frivolous or a meaningless act. The Chairman can speak ror nimself in that connection. But I take it that the decision in the district court and the court of appeals was on the basis that that section didn't expressly waive the sovereign immunity of the Indians to be sued, and that if want- ed to do so, we would have had to have done so in the act? Ms. Coleman. It's more fiilly expounded in the district court opinion, which is impublished. But that's precisely it, that this lan- guage by Congress, which I read to you, was not explicit enough to authorize suit in the face of Indian sovereign immunity. Senator Gorton. Well, as I said, I can't imagine that there was anything in the committee report, if there was a committee report to that effect, I can't imagine that there was anything in the memo- randa that our staff present to us when we're considering a case to that effect. But I can tell you, as cold comfort as it may be to yours, that I think I can assure you that while I'm here, there won't be another such statute that grants those rights without an express waiver of sovereign immunity. You've described the true outrage. I don't know at this point wnat if anything there is that we can do about it. But it was certainly wrong. Now, for Ms. Dawson and for Mr. Johnson, in answer to the very last question by Senator Conrad, Mr. Endreson analogized his de- fense to a proposition in the Rodney King case in Los Angeles, when there was a feeling that an injustice had been done, we didn't deprive the Los Angeles police department of its police powers. What we did do, however, was when a jury of their peers in a State court found those police officers to be not guilty, the Department of Justice and the Federal Government started an entirely new ac- tion in Federal district court and successfully prosecuted them. My question to you is, I assume that you would be perfectly ame- nable to an analogous set of remedies in your case, in your cases, that if when you go to a tribal court and feel that you have not been dealt with justly, as was the case in the Rodney King case, you would find it a perfectly appropriate remedy if you could then 51 go to a Federal district court and get a decision de novo on the merits of your case, would you not? Mr. Johnson, Yes; I believe the answer to that is yes, Senator Gorton. There are circumstances, however, where exhaustion of remedies is exhaustion of plaintiff. And there are certain causes of action that ought to be brought originally in the Federal court and against the tribe. And so some of those cases, it seems to me, should be brought directly into Federal court. Senator GrORTON. Ms. Dawson, in your case, if you could get a de- cision of a court outside of a tribal court on the merits, you would perforce have to be satisfied with whatever that decision was, would you not? Ms. Dawson. Yes. Senator GoRTON. Mr. Smith, in your case, have you told us in ef- fect that for the purposes of a proposed sale, your realtor has told you that your property is worthless, that it can't be sold? Mr. Smith. No; Fve actually had several situations. That particu- lar realtor with that particular purchaser basically said that he would not talk to that purchaser about my ranch. That doesn't make it worthless, because there's other people out there. But I've had that particular situation in relationship to my ranch. I also had another guy come to me and ask if I'd be inter- ested in selling. And after some consideration, I said, yes, I would, for this amount of money. And after we talked about it and thought about it, he said, well, if your ranch wasn't on the reservation, I might be willing to pay that amount for it. But I'm not, since it's on a reservation. So as a practical matter, because you're dealing with a lot of peo- ple, you're dealing with a discount. And the situation varies, de- pending on who you are, what the situation is, how much that is. But I think in most cases it's 25 percent. And I think there's a lot of cases where it's considerably more than that. Mr. Johnson. Senator Gorton, in my testimony, I recount one witness testifying, an appraiser who had done over 150 waterfront property appraisals, that the diminishment in value was up to 40 percent. And so it is not a total taking, which mi^ht give you dif- ferent causes of action. This diminishment, there is no remedy for that. Senator Gorton. One final question, I think, really for the three of you in the middle. One of the objections of great emphasis on the part of those who are opposed to the bill has to do with the potential of a damage judgment bankrupting a tribe or particularly a smaller tribe. Mr. Johnson, you spoke to that situation. But let me present this question to the three of you. Would your concerns about tribal sovereign immunity and the ability to get what you consider to be due process, an objective deci- sion of controversies, largely be served if the waiver of sovereign immunity affected only a suit for a declaratory jud^ent or a suit for an injunction and suits for damages were not waived? Mr. Johnson. I think that would be an appropriate remedy, Sen- ator Gorton, with this caveat, that as the historic statutes which I alluded to in my testimony today, and have summarized in the written testimony with reference to Felix Cohen's book, as with those statutes, it seems to me that you, Congress, should provide 52 a remedy up to the amount that is made available to the tribe from tax revenues. So in the example I used, if the Lummi Tribe gets $12 million this year, it seems that Ms. Dawson should be able to get declaratory relief, injunctive. But there shouldn't be an impu- nity with respect to the damage claim. But I would say yes to your first proposition, and say if I could get a little more, it seems like this additional remedy would be appropriate under those cir- cumstances. Ms. Marcxjssen. Senator Gorton, it's kind of a tough question. Because by the time clients come to me, they're so angry and they're so frustrated that they are typical clients walking into your office, they want to go for the jugular. So, you know, they would not want me to say what Fm about to say. I think what you are proposing by giving iust a, even a more lim- ited waiver tJian what section 329 does at this time, for the declar- atory judgment actions, and just for injunctive relief, would be very acceptable. It would allow the concept of accoimtability and some review to actually be introduced with respect to the Indian tribes without being a total waiver of tiieir immunity or a threat to their pocketbooks. I would say 95 percent of my, of the people I see, once they calmed down and actually started thinking about what the impHca- tions would be for these huge damages claims, would agree that tribal sovereignty in general needs to be protected. I have found that the clients that walk in my door, once you get them past that point of what iust happened to them, most of them really do believe and respect the Indian nations. And what you're talking about I think would be a very balanced remedy. Ms. Dawson. When you were talking about the real estate, I think you'd have a lot of declaratory relief being asked for by tribal members as well as non-tribal. And Senator Inouye was so kind as to say he would follow through on some of the issues. I talked to a Grace Ericson, who is up in years, she is one of three tribal mem- bers, sisters, two of the sisters were able to sell their property be- fore the tribe became a tribe of self-governing. And she recently has tried to sell her property, I guess it's been in the last five or six years, since the Lummis were appointed a self-governing tribe. And she has been unable to sell her property, even though there's a Federal consent decree that says that the tribe is not to interfere with the buying and selling of properly. They will not re- lease it. And she had a real estate person that had negotiated in good faith a good sale, the tribe had the first option of refusal in terms of buying that property. And I talked to her before I came. And she's one^alf Indian. She married a non-Indian. She has grandchildren who are one-eighth Indian. She has pursued the American dream off the reservation years and years ago, after she was married. And she is unable to sell her property. And she is at her wits end. If she could have some kind of a rem- edy, I think that the tribe would not be doing this to their own peo- ple, their own members. Senator Inouye. Thank you. Senator Conrad. Senator Conrad. What is your intention with respect to the next panel? 53 Senator INOUYE. I have learned a long time ago that once you re- cess, it is almost impossible to get everyone back again. While I re- alize lunch is upon us, I would Uke to stay here until we finish. Senator Conrad. Then I will forego questions of this panel. Senator Inouye. Well, ladies and gentlemen, I thank you once again. And I will now call upon the next panel. The Chair of the Con- federated Salish and Kootenai Tribes of Flathead Nation, Pablo, MT, Rhonda S. Swaney; the Chairman of the Lummi Business Council, Bellinrfiam, WA, Henry Cagey; Bill Anoatubby, the Gov- ernor of the Chickasaw Nation of Oklahoma; the Chairman of Standing Rock Sioux Tribe of South Dakota and of North Dakota, Jesse Taken Alive; the President of the Navajo Nation Council of Window Rock, AZ, Albert Hale; the Vice Chairman of the Tulalip Tribes of Washington, Donald Hatch; and the President of the Na- tional Congress of American Indians, W. Ron Allen. I have been advised that there is a slight change. We have Herb Yazzie, the Attorney General of the Navajo Nation. May I now call upon the Chairwoman of the Confederated States, Rhonda Swaney. STATEMENT OF RHONDA R SWANEY, CHAIRWOMAN, THE CON- FEDERATED SALISH AND KOOTENAI TRIBES OF THE FLAT- HEAD NATION, PABLO, MT, ACCOMPANIED BY DANIEL BECK- ER, ESQUIRE Ms. Swaney. Good morning, Chairman and members of the com- mittee. I'm honored today to represent the Salish and Kootenai Tribes of the Flathead Reservation of Montana in presenting testimony to you concerning tribal civil jurisdiction in Indian country and tribal sovereign immunity. I'm accompanied today by my attorney, Daniel Becker. And if we have any legal questions following my testimony, he will assist me in answering those questions. We would like to offer today some of the many examples of how an inclusive, creative approach to tribal protection of the rights of all citizens living on or near reservations and the implementation of successful dispute resolution mechanisms offer alternatives to unnecessary legislation intended to correct a perceived problem. Perception is one of the major limitations of all of us legislators. We focus on a complaint, dispute, or problem, based on our per- sonal experiences, our knowledge or our feelings. This committee is attempting to deal with the perception that non-tribal members liv- ing on or near reservations have no civil remedies because of tribal sovereign immunity. That's simply not the truth. I would share with you our tribe's perspective of the rights of all Eeople living on or near reservations, and the resolution of conflicts etween, among those people and a tribal government. Tribal gov- ernments all over the Nation, whether they're traditional or reorga- nized forms of government, are all too familiar with the distrust, anger and fear associated with lost property or property rights. For example, my forefathers, by agreement made in good faith with the Federal Government, ceded, relinquished and conveyed to the Unit- 54 ed States property outside an area that we reserved for our exclu- sive use. As with every treaty made, the U.S. Government broke nearly all the promises made in the treaty, including the right to use the re- served area exclusively. By 1934, only 75 years after the treaty ratification, we have lost approximately 66 percent of our reserved land base. Today we own about 60 percent. But we represent only about 30 percent of the population. We realize that the traditional ways of protecting our property and property rights have not worked. And so we turned to innova- tive means of protecting, preserving and enhancing our homeland. This approach benefits all the residents of the reservation. It also provides all types of civil remedies, and provides for governmental participation by non-tribal members. The primary responsibility of any government is to regulate the conduct and the activities permitted within the government's juris- diction. On the Flathead Reservation, we've taken steps to protect the health, safety of persons on the reservation, and to encourage productive enterprise, while attempting to protect natural re- sources. We've also taken many steps to ensure that non-members have the opportunity to play an active role in the promulgation and implementation of government regulations and ordinances. Let me tell you about some other things we've done and are doing. First of all, I'd like to talk about two ordinances: the shore- line protection ordinance and the aquatic lands conservation ordi- nance. The shoreline protection ordinance is an ordinance intended to regulate the kind of construction that takes place below the high water mark in Flathead Lake. As a result of a challenge the tribes made about development of a commercial breakwater and dock, constructed by a non-Indian in Flathead Lake, the Ninth Circuit Court affirmed that the tribes owned the bed and banks of the south half of Flathead Lake. They determined that the Flathead Nation had not been disestablished, and they determined that the tribes were the ones to rightfully exercise regulatory authority over structures constructed below the high water mark. The tribe's regulator/ authority in this ordinance is exercised by a seven member board.. Three of them are non-members and four are tribal members. The board also oversees implementation of the aquatic lands conservation ordinance, which regelates construction in riparian and wetlands on the reservation. It also acts in conjunc- tion with the Army Corps of Engineers dredge and fill permitting program. ^ain, that board representatives containing both non-members and members, actually implement the tribes regulatory authority. We also have a Flamead Lake fisheries comanagement plan, be- cause our ownership extends only to the middle of the lake, we co- manage Flathead Lake fisheries pursuant to an agreement between the tribes and the Montana Department of Fish, Wildlife and Parks. We've also, as a result of litigation, reached agreement with the State of Montana as to regulation of non-member hunting and fish- ing on the reservation. All reservation residents who are non-mem- bers have to buy a tribal permit to hunt and fish tribal resources. 55 But tribal, State and Federal officers all enforce the regulations, citing violators into courts of appropriate jurisdiction. We also operate the reservation utility, an electrical utility. We serve over 16,000 meters, which represents most of the businesses and homes on the reservation. When we took over operation of the utility, pursuant to a self-determination contract, we instituted an independent utility board to manage the utility, and we instituted a consumer council to represent consumer interests. Both entities contain non-member representatives and tribal representatives. And it was a first that a consumer council be given equal power to the utility board in recommending rate changes. Actually, the Federal Government conducts the rate changing or rate change process. But it's pursuant to recommendations made by both of these entities and the tribal council. We also have a tribal administrative procedures ordinance which sets forth a process by which administrative decisions can be chal- lenged by any affected party. The law judge hearing most of these cases is a non-member attorney. Several years ago, our tribes with- drew from concurrent criminal misdemeanor jurisdiction with the State of Montana over tribal members committing offenses on the reservation. This decision came about because we had an extremely high percentage of tribal members incarcerated in the State prison. Actually, we represent about 1 percent of the State population, but our tribal member inmate population is 60 percent of the Indian inmate total — which is about 40 percent of the inmate total. The cooperative agreement reached between the tribes. States and local governments implementing the retrocession provides for cross-citation authority, stop and detain provisions, and emergency powers. Anticipating the increased work load connected with this retrocession, we took steps v/ith tribal fimds before retrocession took place to improve and expand our tribal court system. We have an independent prosecutor's office, a separate defender's office, an expanded legal services program, and adult-juvenile probation serv- ices. Most of the attorneys working in each of these different offices are all non-member attorneys. We also provide civil representation to individuals meeting our representation guidelines. And we provide criminal representation in all matters where people face a criminal charge in our tribal court system. We've also instituted and expanded our appellate court. We have a full panel consisting of three attorney justices and two lay jus- tices. The three attorney justices, including the chief justice, have been non-members and the two lay justices tribal members. Addi- tionally, each side in an appeal has a right to recuse one justice without stating cause. We feel this is a method to provide addi- tional fair and impartial decision making. We also have an instituted regulation development process. Whenever regulations asserting jurisdiction over non-tribal mem- bers and members are adopted, we adopt a fully inclusive public comment process. We include notice and hearing. And the kind of regulations that we promulgate are water quality standards, hunt- ing and fishing and recreation regulations, migratory water fowl regulations, shoreline protection regulations, aquatic lands con- servation ordinance regulations, and many more. 56 Over the years we've also developed many environmental initia- tives, including establishment of a 90,000 acre wilderness, mini- mum in-stream flow protections, establishment of water quahty standards for the reservation, closures for grizzly bear, bull trout, nesting water fowl, elk, bighorn sheep, and other species that have been reintroduced. We've accomplished redesignation of air quality to class 1 status. All of these kinds of initiatives protected and improved the qual- ity of life for all reservation residents. Consequently, the property values for non-members on our reservation have substantially in- creased. In fiact, they've appreciated at about the rate of 15 percent the last 4 or 5 years. We also have a governmental immunity ordinance. Section 2 of the ordinance contains limited waivers of immunity for injunctive, declaratory or mandamus rehef. And it allows waivers for such things as infringement of any civil or constitutional right of an in- dividual arising under the tribal constitution or the Indian Civil Rights Act; for specific waiver of immunity by resolution or ordi- nance, and judicial review of the governmental implementation of those ordinances; for intervention as a party in a lawsuit, except for counterclaims; for agreements with the United States which re- quire us to purchase liability insurance, and then we consent to waiver of liability up to the policy limit; when we enter into agree- ments expressly waiving sovereign immunity and when an agent or officer of the tribe, acting within the scope of authority of his posi- tion, causes serious personal injury or death through negligently breaching a duty of care owed to another individual. Finally, section 2 of the ordinance contains a provision that ad- dresses situations where we've chartered tribally owned businesses. Those businesses operate pursuant to direction given by an inde- pendent board of directors which include non-members, and all ar- ticles of incorporation include sue and be sued provisions. While there are many more stories we could share, we believe that the examples given here indicate that an inclusive, rather than exclusive, approach to tribal civil jurisdiction works. Addition- ally, our experience has shown that tribal civil jurisdiction is not something that needs to be fixed. More to the point, the solution proposed by section 329 would virtually eliminate all these creative and inclusive methods. This would occur, because there would be no incentive for non-tribal members to work within our administra- tive and judicial processes. A waiver of any government's sovereign immunity, whether it's tribal. State or Federal government, would result in judicial chaos by authorizing any one person or entity to file frivolous lawsuits that could virtually bring justice to a standstill. Although it's possible to find anecdotal stories that justify ex- treme remedial responses, as you've been asked to do today, we be- lieve that cooperative examples cited in our testimony prove that tribal and Federal laws as they presently exist already provide suf- ficient authority to protect interests of all concerned parties. We appreciate the efforts of this committee to examine allegations and to hear from tribal witnesses, and we look forward to working with you on this and future matters. 57 Thanks very much for the opportunity to present these comments today. And we will be submitting more detailed testimony for the record. [Prepared statement of Ms. Swaney appears in appendix,] Senator INOUYE. All right, thank you very much, Ms. Swaney. May I now call upon Chairman Cagey. STATEMENT OF HENRY CAGEY, CHAIRMAN, LUMMI NATION Mr. Cagey. Yes; thank you, Mr. Chairman. My name is Henry Cagey, Chairman of the Lummi Nation. And I'm here today to express some concerns that the committee has about I guess due process for Indians and non-Indians on the Lummi Reservation. The hearing today is really, it's not simply a question on due process. But really it's a whether or not the tribe is really com- petent enough to do the things a government needs to do in work- ing for its people. And some of our people have really traced these arguments back to some of the Pope's legal arguments back to the 1500's. And the non-Indian acquisition of the Indians lacking self- governance capacity is over 460 years old. The whole problem is Based on the Grovemment's reliance on the doctrines of conquest and discovery, which are legal fictions created for the benefit of non-Indians. Speaking in a more contemporary vein, the tribe has four points that we'd like to make to the committee. First, our rights began not with treaties, but with the historic fact that the Lummi people have never been conquered, nor have they relinquished their inher- ent sovereignty. Second, the treaties are bilateral agreements be- tween the Indian nations and the United States, and cannot unilat- erally be altered. Third, the govemment-to-govemment relation- ship between the Indian tribes and the United States is embedded in the U.S. Constitution. Permit me to refer to Concurrent Resolution No. 76, in which it states: The Congress — hereby reafiinns the constitutionally recognized govemment-to- govemment relationship with Indian tribes which historically nave been the comer- stone of the Nation's ofiicial Indian policy. Last, I'd like to quote from the Treaty of Point Elliott that the reservations were set apart for the exclusive use of Indians, nor shall any white man be permitted to reside upon the same without permission of the said tribes and the Superintendent or his agents. Reflecting on some of the things that we're doing at home, as you heard a previous witness. Sue Williams stated that the tribe is doing different things with due process for Indians and non-Indians on the reservation. We have a water and sewer board in place that is elected by the resident of the reservation, Indian and non-Indian, which has three members from the tribe and two members from the reservation. For the last 14 years now we've had only two appeals, one of which was Marlene Dawson herself, a non-Indian resiaent and also a county council member. And she did stipulate that the hearings were fair and in accordance with due process. Other areas that we're working with in due process is that the tribe does have a permitting process in natural resources, which in- clude licensing, a hearing in tribal courts for citations, availability 58 of tribal courts for de novo trial. In the area of zoning on the res- ervation, we have in place comprehensive procedures that include a permitting process for open public hearings, and a process for re- view and appeals based on written record. In contrast, we've had a few problems working with the system on the reservation. For example, we've had a non-Indian resident who basically had some land cleared on the reservation which we did note that there was eagle nests in the area. We noted that there was a fish bearing stream also in that area. We also noted that there was an archaeological site. To date there has been no, nothing done about this issue. There has been nothing done be- tween the Federal Government or the State government to address these concerns that we pointed out before this land was cleared. Also, we recognize, Mr. Chairman, that really no system is per- fect. We have been making great strides since self-government to improve our codes and ordinances for the nation and for the people. And it does tstke time. And we're doing the best we can to keep up with some of the things that need to be fixed on the reservation. We have a lot of problems. We have a lot of problems in the fact that we have things happening around us today. We have wells being put on the reservation right now in consideration that we're also in negotiations for the Federal negotiating team. And it's been ignored by certain citizens, non-Indian citizens, on the reservation today. We have also witnessed in an area of due process Congressional legislation that directly adversely affects our abilities to exercise treaties on the reservation. And we also look forward to the day, I'm sorry to see Mr. Gordon leave, but we're also looking forward to the day that we can be cooperative and begin to look at how we can better work together on some of these things that we're hear- ing and seeing the effects of Indians and non-Indi£ins on the res- ervation. And it is going to take some time, Mr. Chairman. But we think about the negative energy that is being spent, we could spend bet- ter positive energy working together. I guess Fd like to close our remarks with a quote from the min- utes of the treaty. This is firom Isaac Stevens, the Governor of Washington Territory, as recorded in the minutes of the signing of the Treaty of Point ElHott in 1855: There will be witnesses. These witnesses will be tides. You Indians know that the tide goes out and comes in, that it never fails to go in our out; you people know that streams that flow from the mountains never cease flowing. You people know the sun rises and sets and never fails to do so. Those are my witnesses, and you Indians, your witnesses, and these promises will be carried out, and your promises to me and the promises the Great Father made to you will be carried out as long as these three witnesses continue. Mr. Chairman, tribal members, I think we've got a lot of work to do ahead of us. I'd hate to see this committee take such drastic action because of a few people. And we should not be judging prob- lems based on patterns, as I heard Senator Gorton talk about. There's a lot of problems out there, not just with our system, but with the whole system. And I, as a tribal leader, elected official for the Lummi Nation, look forward to seeing the day that we can do this. And I think there's a lot of things that we can begin to talk about. 59 One other point, Mr, Chairman, is that I'd like to reserve some time here to respond to Marlene Dawson's comments about some of the things that she was making. You mentioned that you wanted to hear about it. I would also like to extend some of those concerns that Mr. Gorton has on her testimony as well. And thank you, Mr. Chairman. [Prepared statement of Mr. Cagey appears in appendix.] Senator INOUYE. Thank you very much, Chairman Cagey. Now may I call upon Governor AnoatiJbby of the Chickasaw Na- tion. STATEMENT OF BILL ANOATUBBY, GOVERNOR, CHICKASAW NATION Mr. Anoatubby. Good afternoon, Mr. Chairman. I'm Bill Anoatubby, Grovemor of the Chickasaw Nation from Oklahoma. I'm very thankful for the opportunity to be here today. And I thank this Congress and you. Senator, for your effort in al- lowing us to have input. I sat veiy quietly here today listening to much of the testimony. When you hear both sides of an issue, it tends to shed considerable light. However, I think that when instances are verbalized, such as those of the previous panel, we must examine both sides of those questions and those issues as well. I don't think that sovereign im- munity is entirely the problem having to do with these matters. I come from a tribe that believes itself to be very progressive, and has shown it in its actions. We do not condone mistreatment of anyone by anyone. It's just not in our code of ethics. We believe that we must be responsible in our approach to tribal government. In the case of those who may have been damaged in some way, we do our best to provide an avenue for them to be made whole. An example would be one that was given by a previous person who testified, having to do with insurance for Uability claims. We carry insurance, we carry that because we believe that the individ- uals who may be harmed in some way deserve to be made whole. And we do not allow, in fact we bar, sovereign immunity as a de- fense by the insurance carrier. In our business agreements with others, we allow that that particular agreement be enforced by ei- ther party, whether it be the tribe or the other party to the agree- ment. In our case, it would require us to waive sovereign immunity at least in the enforcement of that agreement. We heard this morning the testimony, I believe it was Senator Pressler, and the dilemma about who is in charge, who has juris- diction. And that's not a new question. That question's been there for generations. In fact, it dates back to the time of expansion of this great United States from eastern to western United States. Of- tentimes, the American Indian has seemed to be in the way. In fact, we were in the way. And oftentimes, the argument that was given is that we weren't taking care, we were not showing our re- sponsibility. And even today, we hear some of those same argu- ments. And such is not always the case. We know that we have competing interests. And I believe that these things can be worked out without a blanket wmver of sovereign immunity. Oftentimes the argument is a level playing field. And for tribes, a level playing field can only be maintained if we maintain our im- 60 munity from suit and we maintain our sovereignty. Without it, the tribe itself then will be controlled. With it, we can deal with others. Because then we are on a level playing field. With it, we can find common ground and can reach agreements. Without it, history has proven that we are subject to one-sided, and often discompassionate rule. The answer to our questions today I think rest in our delibera- tion with one with the other, one sovereign with another, and working to reach agreements, agreements that will not only benefit the tribes, but will benefit those around us. And when it comes to the waiver of sovereign immunity, it should be up to the tribe to determine when and how sovereign immunity will be waived. The Chickasaw Nation strongly opposes the language in Section 329. We truly believe that there is another way, and we need to look for those ways, not trash all the work that's been accom- plished by tribes to this point and the progress that's been achieved in developing our tribal governments, but to continue the process and sit down across the table and do our best to work together co- operatively. Thank you. [Prepared statement of Mr. Anoatubby appears in appendix.] Senator INOUYE. I thank you very much, Governor Anoatubby. May I now call upon the Chairman of the Standing Rock Sioux Tribe, Chairman Taken Alive. STATEMENT OF JESSE TAKEN ALIVE, CHAIRMAN, STANDING ROCK SIOUX TRIBE Mr. Taken Alive. [Remarks given in native tongue.] My firiend Senator Inouye, I thank you for this opportunity you have given to us to talk about the tribe's waiver of sovereign immu- nity. I first want to say, as I did in our language, that these laws are your laws. When I go back home to Standing Rock amongst the Lakota people, the descendants of Sitting Bull and Gaul and Rain In The Face, I can't find any of these laws. These are your laws. So most graciously, humbly, I thank you for this opportunity to re- spond to these. Senator Inouye, members of the committee, for the record, the in- terpretations of these laws is what we're talking about. The reason we are here today is simple. The reason we are here today is be- cause we represent nations. Just because we have situations that plague us socially and economically does not make us less than na- tions. As we look at these situations, we are finding the resolve to these situations in only a short period of time. The resolve that we find is within our own cultures. The resolve that we find are within our own languages. The resolve that we find are in the ways that the Creator has given to us. So respectfully, again, I appreciate this opportunity to offer to you and this committee and this Congress and this Government our interpretation of these laws, because truly we are nations, and we are rebuilding. We are living in a prophecy today that our fore- fathers gave to us when we were put on those concentration camps, that what's going to return is now here. As I stated, this is a clear and simple example that yes, there are jurisdictional issues. Ours come from the fact that we have 61 treaties in your interpretation. But in our interpretation, ours come before treaties. Ours come before nationhood of the United States. That is what is still alive and well out there. Having said that, this is an issue of respect, respecting those laws, respecting those issues. As you have given us this oppor- tunity to offer our comments, our recommendations, our responses to what's being said about our little nations, because we've abided by those land lease documents, and have maintained in those little boxes called reservations. We've abided by those. We haven't abro- gated. We haven't broken any laws. It's imperative that we offer these responses. First of all, to the gentleman from South Dakota, I would not talk about juveniles piiolicly. As a matter of fact, the juveniles, one of the mothers I talked to recently involved in this matter that he cited, I will take this testimony and share it with her. Share it with her, because she knows well the truth that there was prosecu- tion. There was things done for these, two of these juveniles in our court system. I say that reluctantly, but I know I must respond. The taxes he mentions are taxes about lands on trust lands. And they've already been heard in court. Trust lands which he's been able to lease 1,250 acres of tribal land from the Standing Rock Sioux Tribe. We talk about economic development, I appreciate his assess- ment. But economic development goes beyond his assessment. Eco- nomic development is something, again, that we know we have re- solve to. But I must respond to those. Yes, we do have and are working cooperatively and do have cooperative agreements with fel- low States, in particular with North Dakota. We would like to do likewise with South Dakota. We have an accord with the State of North Dakota, signed by myself and the Honorable Governor Schafer of the State of North Dakota. As a result of that accord, many, many meetings have followed. Many, many other attempts to work jointly and together are being talked about. For example, we are working jointly with our hi^way department. Most re- cently, there's discussions now to turn over the highway mainte- nance to the Standing Rock Sioux Tribe. I can go on and on and on. Likewise, within our judicial system, there's a Northern Plains Court body that meets periodically. This body is made up of tribal. State and Federal court judges to talk about the jurisdictional mat- ters and look to resolve. And some of the resolve has already been reached. So as we take a look at all of these issues that are in front of us, again, it's important for me to state that I appreciate this op- portunity to be in front of you, Senator Inouye, who represents the United States. I want to say that the tribes that were mentioned here should also be given an opportunity to respond here in person. Because that's the Indian way, to give each other that respect. And I hope in the future that that can happen. I concur with the good Senator from Washington, Senator Gor- ton, when he looks for neutral decisions, our interpretation of that, yes, let's find an international court system to hear issues between indigenous nations of North America and the United States of America. I agree with Senator Pressler when he references Indian 62 country, particularly the Lakotas, because we live there yet. That's where our origins developed from, I agree with all of the comments that were made, because we in- terpret them in a way that we do, and we can interpret them in another way. I invite Mr. Long from the State of South Dakota to set up a meeting with our judiciary committee chairperson. I invite anybody who has comments, recommendations, qualms with the Standing Rock Sioux Tribe to come to any of our committee meet- ings, any of our council meetings, to my office. We've never closed a door on anybody. The matters are at home, the resolve to them are also at home. I invite them to come, respectfully, to our committees and our council. Finally, the comment that was made by the previous panel mem- bers that it's imperative that we finish a job that was started, what job was started? Hopefully it's not the annihilation and eradication of indigenous peoples of North America. Because we're having a heck of a time, as you well know, and appreciate your efforts in that, Senator, with the NAPRA laws, trying to get the bones of our ancestors off" shelves. We hope that's not the job that was ref- erenced. I appreciate the comments that were made, when it was said that we must be allowed to have consent to things. We humble ourselves to other peoples, to other cultures, to other men, other governments, in hopes that this is not mistaken for in- competence or fear. It's done out of respect. We are here for two reasons yet as American Indians. First of all, the compassion and love of the Creator and our belief in that, that he loves all men, regardless of what history shows. The second rea- son we are here is because of treaties. In my opening comments, when I said [remarks given in native tongue], that means ordinary, common men with a simple view of life. And that's what we are un- derstanding these treaties with. So in the upcoming meeting this weekend, as we meet with the State Department of the United States in Fort Laramie, Wyoming on Saturday, we intend to build upon that govemment-to-govern- ment relationship. We intend to offer our interpretations of those treaties. Last, it was offered to me one time, when we were having de- bates between the State government and our tribal government, the State government official asked me to lay an olive branch out there to the State legislators. My only response to him was that sir, that's all we have left. You have all the olive trees, you have all the olive groves, and all we have left is that olive branch. And I can't lay that out there. [Remarks given in native tongue.] Thank you very much. Senator Inouye. [Prepared statement of Mr. Taken Alive appears in appendix.] Senator Inouye. I thank you very much. Chief Taken Alive. May I now call upon the Attorney General of the Navajo Nation, Herb Yazzie. 63 STATEMENT OF HERB YAZZIE, ATTORNEY GENERAL OF THE NAVAJO NATION Mr. Yaztje. Thank you, Mr. Chairman, members of the commit- tee. On behalf of President Albert Hale and the Navajo Nation, I would like to thank you for giving the Navajo Nation this oppor- tunity to present testimony today. My name is Herb Yazzie, and I'm the Attorney General of the Navajo Nation. Today I speak on behalf of 250,000 members of the Navajo Nation and on behalf of the several thousand non-member citizens of the Navajo Nation. This amendment would subject Indian nations and Indian gov- ernment officials to State and Federal jurisdiction for claims relat- ing to actions or proposed actions of such governments, or govern- ment officials impacting or threatening to impact the ownership or use of private property. The Navajo Nation, quite frankly, is ap- palled by the language of section 329. The language would grossly, grossly impinge upon the sovereign status of the Navajo Nation, and would violate the inherent rights of self-government of the Navajo people, rights which are granted to the Navajo people in the 9th and 10th Amendments to the U.S. Constitution, and in the treaties that we have between us and the United States. Quite sim- ply, section 329 would make a mockery of the Navajo Nation's so- phisticated, professional court system by subjecting the Navajo Nation to suits in traditionally hostile State forums, by Navajo Na- tion members and non-members. Proven remedies currently exist in Navajo law and Navajo legal institutions to protect all persons, whether Navajo or not, from the risk of harm intended to be addressed by section 329. The written testimony that we have submitted goes into detail citing those laws and institutions. The legitimacy of the Navajo Nation government is beyond question. Nevertheless, the obvious underlying premise of section 329 is that all Indian nations are incapable of providing justice to non-members within the framework of their governments. This view is misinformed and is without factual foundation. Speaking just for the Navajo Nation at the moment, you have heard from witnesses today citing Navajo Nation examples, such as our government allowing non-member participation in our system, such as participation on the Tax Commission, implementing the most basic function of any government. And also other examples, such as participation on the Navajo Labor Commission, which reg- ulates labor problems within the Nation. I would also say that our system allows — there has been so much talk about laws and lawyers today — the Navajo Nation has a sys- tem to allow people who wish to practice before the justice system of the Navajo Nation, if they would take the exam. I would say to those lawyers, as was mentioned earlier by another witness, that it behooves them to take that exam, because then it teaches them what laws provide the foundation for the government. Just as I would, if I were to venture to practice in Federal court or any State court, I would have to comply with those rules. There's a lot to be said to the point that was made that when one practices before an- other government, one ought to know those laws, the foundation and the policies of those governments. And then as a bar member 64 of that government, they have an obligation to not only educate but also to participate in the development and the improvement of the system, rather than attack the system. The Navajo Nation has a civil and criminal court system which operates effectively at the tribal and appellate levels as a separate branch of the Navajo Nation government. The courts of the Navajo Nation have been in continuous operation since the early years of the 20th century. And a system of just dispute resolution has ex- isted under the Navajo common law far longer. The concept of justice runs deep within the culture of the Navajo people. In the Navajo way, individual rights and responsibilities, as well as the rights and responsibilities of the larger community, are considered in every dispute resolution. It is deeply offensive to the Navajo people to suggest that its government engages in conduct that deliberately and consistently violates the rights of persons within its jurisdiction. Nearly 30 years ago, the Navajo Nation Council enacted the Nav- ajo Nation Bill of Rights in order to ensure that individual liberties 01 all persons are secured within the nation. The nation guaranteed fundamental liberties against violation by the Navajo Nation gov- ernment even before the United States Congress enacted the In- dian Civil Rights Act of 1868 the following year. The Navajo Nation Bill of Rights is more expansive and protective of individual rights than either the Indian Civil Rights Act or the Bill of Rights within the U.S. Constitution. Most importantly, in the context of section 329, the Navajo Nation Bill of Rights protects private property. The Navajo Nation Bill of Rights expressly mandates that private prop- erty shall not be taken, nor its lawful private use be impaired for public or governmental purposes or use without just compensation. These words were interpreted more than 20 years ago by our su- preme court. These enumerated rights, as well as other unenumerated rights retained by the people, apply to all persons, irrespective of race, nation affiliation, gender or religion. As an ex- ampk, non-member citizens of the Navajo Nation sit on civil juries in Navajo Nation courts, along with Navajo Nation members. Thus, in the Navajo Nation, all persons have every one of the rights enu- merated in the United States Constitution and more. In the Navajo Nation, there is no need for section 329. On the contrary, section 329 would only destroy an effective Navajo Nation judicial systems already attuned to the individual rights of all persons, Navajo and non-Navajo alike. Indian nation courts have been thoroughly studied and have been found to provide effective protection oi individual civil rights. It is significant that the Honorable Sandra Day O'Connor of the U.S. Supreme Court most recently in 1966, in a speech before the annual sovereignty symposium sponsored by the Oklahoma su- preme court and tne Indian courts of Oklahoma, praised the third judicial sovereigp for effectively guaranteeing the rights of all. Jus- tice O'Connor singled out Navajo peace making as an effective al- ternative to litigation. Legislation like 329 is completely unnecessary for another rea- son. There are already adequate remedies in Federal court for al- leged interference with private property rights by Indian nation governments. Under controlling U.S. Supreme Court precedent, ac- 65 tions of an Indian government which are alleged to be in excess of its authority as defined by applicable Federal statutory and com- mon law are redressable in Federal courts. Thus, where an Indian nation government acts in excess of its authority, particularly where alleged interference with private property rights or other individual rights of a non-member are con- cerned, there already is a remedy in Federal court. The nation urges this committee to consider other ramifications of 329. The language of the section would expose virtually all In- difin nation property interests to suit in foreign jurisdictions, in- cluding disputes between Indian nation members and their own In- dian nation governments over private property rights. The section does not limit itself to non-members of Indian nations, but reaches out to encompass any person with a private property interest which might be impacted by the actions of an Indian nation government. This will have a chilling effect on the ability of all Indian nation governments to provide effective government within Indian nation territories, particularly the ability of Indian nation governments to effectively regulate for the health and safety of both Indian nation member and non-member citizens alike. Fundamentally, that Congress might even consider imposing such legislation upon Indian nations reflects a lack of appreciation of the conceptual basis of Indian peoples' right to self-government. Governments only have such powers as the people delegate to them. The 10th amendment teaches us that the power is not dele- gated to the United States by the Constitution, nor prohibited by it to the States or reserved to the States respectively or to the peo- ple. Indian people generally have never delegated any of their inher- ent political rights to the States. Rather, Indian people have ex- pressed their constitutionally protected retained rights through del- egations to their respective Indian nation governments. Much of the conflict between Indian nations and non-Indian property owners is a direct result of the checkerboard land owner- ship patterns which exist within many Indian nations. These land ownership patterns are a direct result of actions by the United States during the allotment era, where the United States carved up and distributed Indian nation Igmds to Indian families and sold surplus lands to non-Indian settlers and speculators. The United States imposed this policy in a deliberate attempt to destroy traditional Indian governments and institutions, and to force Indian people to abandon their culture and to assimilate into mainstream America. After two generations, the United States Congress found this policy to be a complete failure and abandoned it in 1934 in favor of reorganizing and promoting Indian self-gov- ernment. However, the damage had already been done. Non-Indian people came to own land within the boundaries of many Indian nations. And cultural and legal conflicts have arisen as Indian nation gov- ernments increasingly seek to fulfill their responsibilities as gov- ernments. Nevertheless, it would be both unfair and unwise to pe- nalize Indi£in nations and Indian people further for the con- sequences of this failed Federal policy. 66 To the witnesses, and for the committee's information, to the wit- nesses that cited incidents involving the Navajo Nation government and the treatment of individuals, I would respond by saying that in addition to the comments I made earlier about learning what the law is and participating in that government system that you are practicing in, I would also say that they must realize that Navajo Nation, like other Indian governments, have a different system, have a different culture as to land. Their regard for land is dif- ferent, basically different. In our nation, land is held in common ownership. And the laws and statutes that you will see and are cited regulate the use of the land, not title to the land. Only the Creator can say who has title. So the people who cited those cases, if they would learn and edu- cate themselves about Navajo law, I believe fruitful discussion can be held. Now, it is the Navajo Nation position that section 329 really re- veals the intent of the drafters, which is to destroy the judicial and political integrity of all Indian nations, in complete disregard of the covenant of trust and good faith, which binds the United States and those Indian nations. The Navajo Nation can say with cer- tainty that it is not the only Indian nation to afford all persons within its jurisdiction such basic protections as I have described. American Indian people taught the European immigrants to North America about democracy over 200 years ago. iGid those teachings found their way into the U.S. Constitution and the con- stitution of the States. To suggest now that Indian nations know or practice less justice, less protection of individual liberty or less democracy than do the States is based upon ignorance. It's prob- ably rooted in racism, and is therefore immoral and contrary to the American ideals of government. Accordingly, the Navajo Nation urges this committee to reject the concept of section 329. As we all engage in this great endeavor of building a more perfect Union, the Federalism,, which includes In- dian nations, must be protected from such concepts as that ex- pressed in 329. Mr. Chairman, I thank you for this opportunity to present these comments. [Prepared statement of Mr. Yazzie appears in appendix.] Senator Inouye. Thank you very much, General Yazzie. And may I now call upon Vice Chairman Hatch. STATEMENT OF DONALD C. HATCH, Jr., VICE CHAHIMAN, TULALJP TRIBES OF WASHINGTON Mr. Hatch. Good afternoon, Mr. Chairman and members of the committee. My Indian name is Spat-ub-kud. My EngHsh name is Donald Hatch, Vice Chairman of the Tulalip Tribes of Washington. I'd like to thank my Indian people that are here, who are behind me and on the panel, and what's happening here today. There's a lot of hurt in my heart to come here today. There's a lot of hurt for my people, my elders, my yoimg children and my children's children and their children, and what might happen ailer this is over. We don't look at a lot of things in the long nm at what could happen. 67 But I'd like to thank the committee for this opportunity to send tes- timony in an oversight hearing on this tribal sovereignty immunity. I have a prepared statement which I'd like to submit for the record and summarize. First, Mr. Chairman, I'd like to raise here the strong opposition of the Tulalip Tribes to language such as pro- posed in section 329 of H.R. 3662, as reported by the Senate Sub- committee on Interior Appropriations. Such language would un- justly penalize In(^an tribes who are asserting their legal rights in disputes with non-Indian reservation residents and neighbors. And I'd like to paint another picture, a little different picture than the word that was stated in an earlier panel of gangs, Indians are like gangs in my tribe, my Tulalip Tribe and all the other tribes and nations. Under our treaties and other legal precedents the Tulalip Tribes have a government-to-govemment relationship with the United States. These treaties and precedents also created legal protected governmental resource rights into the tribes. We do not onlv have Constitutionally protected rights, but we also have adopted a process inclusive of non-Indians to manage our lands with good government. The Tulalip Tribe has established a track record with the Fed- eral, State and local government, as well as a positive record with our community, tribal and non-Indian. In my written testimony I detail several examples of how the Tulalip Tribes have entered into a friendly relationship with cooperative, accepting local govern- ments and entities. On the Federal and State level, I would like to cite two specific examples. First, on Interstate 5, we were successful in adding an interchange at 88th Street, where the Tribe assumed the lead role in the NEPA process. Second, under the Clean Air authorities, the Tribe has worked with the State of Washington and EPA to estab- lish a tribal regulatory management. Mr. Chairman, one of the things that was stated earlier was that the Tribe made x amount of dollars in our casino. I wish they could find that for me so I could carry it home in a suitcase to bring it back to my people. We have 1,300 employees of our tribe and 51 percent of them are non-tribal members. So we're feeding a lot of non-tribal, non-Indians, 51 percent. Also, Mr. Chairman, the tribe has established a good working re- lationship with Snohomish County. For example, the tribe and Sno- homish Coimty entered into a comprehensive plan relating to res- ervation development. Under the plan, there was a clear division of permitting responsibilities, with the county regulating non-In- dian property and the tribe regulating Indian property on the res- ervation. Tulalip has in this process a planning commission com- posed of Indian and non-Indian residents. Also, to further enhance the law enforced coverage within the boundaries of the reservation, the tribes, Snohomish County Sher- iffs office, has entered into agreement with the result of the estab- lishment of a sheriffs substation on the reservation. The Sheriffs department is on our reservation, cooperative with our tribe. Finally, Mr. Chairman, I want to show that the tribe has been able to work well with the local government within our boundaries. The Tulalip Boys and Girls Club is a prime example of the Tulalip Tribe's Marysville School District, the Boys Club of America, the 68 Department of Housing and Urban Development, the Indian and non-Indian individuals coming together to fulfill a dream which has been a positive influence on everyone in our community. That is going to be the first Boys and Girls Club in the State of Washing- ton on Indian land, on a reservation, only the eighth in the United States, eighth, first in the State of Washington. And it's a coopera- tive between the Boys and Girls Club, all Snohomish County, and the Tulalip Tribes. Mr. Chairman, I think the remarks and my written statement made it very clear that there are leaders of good will, mutual re- spect on both sides of these Indian and non-Indian disputes. They can be resolved without the need for ill consideration. Unjust con- stitutional actions, such as section 329, in many respects, the lead- ers and citizens of Snohomish County and cities of Marysville and Everett have accepted the governmental status of the Tulalip Tribes and have shown a great respect for our rights and our insti- tution. And as a consequence, we have done the same and have been able to resolve many of our differences cooperatively. This concludes my statement, and I would be happy to respond to any questions the committee may have. And one thing, Mr. Chairman, I think it's just things that I feel and it really hurts me to come here for my people, it hurts me in the heart. Sometimes we look at, what can I do. Ajid I come back here many times to fight a war that I think I could be home taking care of my people. But we as Indian people are back here, on that plane flying back here and trying to fight these wars day in and day out. -^d we talk about where the money's spent. That's where the money is spent. We need a cooperative agreement govemment- to-govemment to make things happen successfully for all our peo- ple, Indian and non-Indian. Thank you. [Prepared statement of Mr. Hatch appears in appendix.] Senator Inouye. I thank you very much. Vice Chairman Hatch. And now may I call upon the distinguished President of the Na- tional Congress of American Indians, Ron Allen. STATEMENT OF W. RON ALLEN, PRESIDENT, NATIONAL CONGRESS OF AMERICAN INDIANS Mr. Allen. Thank you, Mr. Chairman. It's an honor, as always, to be able to be here before you to tes- tify with regard to the matters before this committee and the Con- gress. I really do want to extend my appreciation to vou as a cham- pion and leader addressing Indian issues all over the map, eveiy- thing from our Indian Child Welfare issues to housing, to health, etc., and now the gravest and one of the heaviest concerns to In- dian country; tribal sovereignty. It is a pillar and foundation of our existence that you have been very clear about in terms of support- ing us. And we do appreciate it. I know the day is long and I know that you have sat through a great deal of testimony trying to capture the essence of this issue from all perspectives. I know that we at NCAI and I know that In- dian country does appreciate that you want to make sure that the focus on this issue is clear, and it is well balanced, and it is in 69 proper perspective not only with the current conditions, but also historical conditions. I think Chairman Jesse Taken Alive has captured a great deal of the spirit that has gone into this relationship historically. I don't think that a sjmopsis could be better captured on the legal and po- litical history of the Federal tribal relations than was done by the attorneys Sue Williams and Doug Endreson. In my opinion, it was outstanding. I was very encouraged to hear the administration officials say that they were going to im equivocally support and stand behind the tribes' sovereignty. When issues are brought before this Congress regarding sov- ereign immunity or even just small components of sovereign immu- nity, and try to look at it from the perspective that all we're doing is refining the notion of how comprehensive should it be, we can look at it maybe as a great oak. And the foundation of that great oak is our sovereignty. Well, if you keep chipping away at the foundation of that great oak, no matter how big it is, no matter how far it reaches out, no matter how old it is, it will fall. And that's the essence of our sov- ereignty. And we are very concerned about that. We come here with heavy hearts, as you can hear in the testi- mony of the people on this panel, the testimony of lawyers who un- derstand our issues, like Sue Williams and Doug Endreson. And the issues are conveyed to you by the many leaders and the many leaders who aren't even here. We're going to be conveying to you that our heart is heavy because the Congress has taken up a mat- ter that we think is of great concern to us. Should we even be tak- ing this issue up? But we're here with also our warrior hearts. We're here because we're going to fight. We're here because we're standing side by side, 557 nations across this Nation. This Nation is great because of us, because of the conciliatory disposition of our people, from the Iro- quois Confederacy to the California tribes. And I think that what you've been witnessing today is the fact that, for 500 years, we have moved over, we have adjusted. Every time you turn around in the course of our history, we've made adjustments. The fact that we have checkerboard reservations is not the fault of the Indian people. It is the fault of the Federal policies, the gyrations of the Federal policies in their attempt to take over Indian land, Indian resources, to dominate the Indian people, fi-om the very beginning. So we experience that today, again, in a new form. Arid the issue here is, as you have seen in witnesses here today, is that we are showing that our political systems do work. It does coexist very well with this system. And we've got a long way to go. We admit that. We don't have any problems admitting that we have a long way to go to refine our governmental system. But the fact is, the Federal Government has an obligation to as- sist us in refining our judicial systems to meet the kind of stand- ards that is expected in this Nation, within our political and judi- cial systems. Due process and remedies are available. The mere fact that you can find anecdotal examples, you can find those any- where. We discovered that in Indian Child Welfare. But does that 70 mean we throw the law out? No. Does that mean we try to refine and diminish tribal sovereignty? The answer is no. There are better answers, and there are great examples out there where you're seeing it working and being refined, if we're provided the opportunity. You see, these tribes here who have shown this committee countless examples, and we haven't even begun to add on to the list. We see tribal State accords in Washington and New Mexico, and North Dakota, where tribes and States are working things out and getting onto a better track. You see tribal State Memoranda of Un- derstanding [MOUs] with the tribes and the local counties. So those kinds of arrangements and processes are being devel- oped. They are there. You see the Congress recognizing the need for improved court systems, like the American Indian Tribal Justice Act in 1994. Is Congress funding it? Is Congress providing the kind of quality that we need as court systems to elevate their capacity and capabilities to provide due process and improve those systems? No, it is not. The Federal Government has an obligation there, and it should as- sist us in that effort. So what we're sajdng here, and what I think is being conveyed, is that the tribes, reflective of the theme of the NCAI convention in Tulsa, Oklahoma, is that we're standing our ground. We're not going to back off. And there is a better way. You have said many times over that you can't legislative atti- tude. But we quite frankly will keep working with all of our coun- terparts out there. You see it in Lummi Nation, you see it with the Navajo Nation, Standing Rock and every other tribe out there. We are constantly working, no matter what the size of the tribe, or no matter what the condition, no matter what the issue. We're there. And we're doing it very, very well if we're given due credit for that. The Congress must understand that. Everybody who was affected by this must understand that. We currently only own, still, 4 percent of the land in this Nation. Is the issue that they really want more than 4 percent, or should we be moving toward providing the tribes the opportunity to reac- quire the fee patent lands within reservation boundaries to help re- solve some of those problems? So there are lots of solutions, and we have lots of solutions here for this Congress. But the abrogation or the diminishment of tribal sovereignty is clearly not one of them. We have seen many treaties, we have seen many speeches throughout our history. And they all have said that we are distinct nations and we can and will and must live in peace and harmony. And I always like to reflect back on the treaty wampum belt that was a part of the Iroquois Confederacy, when I read a little clip about what it meant, and it has these two rows of purple beads. And what do they represent? The chiefs back then said very clearly that they represent two nations, two different kinds of cultures, different sets of values, that have to co-exist. They represent our two vessels that will tra- verse these rivers side by side. And it means we will live together, but we will not try to steer each others' boat, each others' vessel. 71 That is reflective of our governments, and that's what we're trying to do here. So we are here to help, we're here to make sure that the picture is clear, it's crisp and you understand the truth. The notion that our sovereignty, our governments are an anachronism is the re- verse really of what the situation is. The anachronism is to go back to any notions of termination and assimilation. The true solution here is to strengthen the tribal governments, so we can co-exist in a very meanin^l way, to the benefit of everybody, including our people. With that, I thank you very much, Senator. And I look forward to being able to work with you, the committee and the Congress in resolving this very serious issue. [Prepared statement of Mr. Allen appears in appendix.] Senator INOUYE. Thank you very much. President Allen. I had every intention of staying here as long as I could to carry on this discussion with you, to ask you questions. But I find that I will have to submit those questions, and further, to share with the Navajo Nation, the Lummi, and the Standing Rock Tribes, the transcripts of the testimony, because certain statements were made affecting your area. And I would hope that you will find it possible to respond to them. The reason I have to leave is something that may be of concern to you. We will soon begin the debate on the continuing resolution for fiscal year 1997 appropriations. It involves, among other things, the appropriations for the Interior Department. And we have been advised that there may be attempts made to amend that portion, and such amendments may place in jeopardy, grave jeopardy, your gaming enterprises, among other things. There may be an attempt to revive section 329, one of the subjects that we have been discuss- ing here, and include it in this resolution. And so I must be there to make certain that these things do not happen. It is a big responsibility, but I am prepared to accept that. As some of you are aware, as a U.S. Senator, and as a senior member of this committee, I have taken an oath to defend and up- hold the Constitution of the United States. I have also taken a pledge to uphold and support the laws of this land, the treaties of this land and the decisions of our courts. And to me, it is very clear that these laws, provisions in the Constitution, and the decisions of our courts, clearly declare that Indian nations are sovereign, and that sovereignty is inherent. It is further clear to me from these decisions and these provi- sions in Federal law Uiat sovereign immunity can be waived, but it should be waived with the consent of the tribe involved. I realize that these are difficult times, and for that matter, studying the history of Indian nations, it does not seem that there has ever been an easy time for you in the last 500 years. But not- withstanding the good reports that you have given of cooperation with your neighbors and working together, there is a perception, as other witnesses have testified, a perception that the legal process in Indian land, the judicial process is not fair, that it is somehow biased, that those providing such process are not quite competent. Whereas the realities do snow that to the greatest extent, as the 72 Civil Rights Commission indicated, the courts are not biased, and the courts are competent. I have over the years, ever since becoming chairman of this com- mittee, tried my best to assure fininacial support for the judicial systems of Indian country. And as President Allen has indicated, though we do have a law on our books calling for such improve- ment and enhancement, we have failed miserably in providing the necessary funds. Second, I have done my best to bring about better cooperation be- tween States, the Federal Government, county governments and Indian nations. We have spent years on one measure, gaming, to bring about this cooperation. I have personally met with dozens upon dozens of Governors, spent hours and days, I think we have had over 81 meetings already. But now the Seminole decision of re- cent days has frustrated our efforts. But 1 will not give up on that. I think we should continue to fos- ter cooperation. We should continue to insist upon the Ciovemment of the United States carrying out its trust responsibility to see that the courts of Indian country are improved. I think it is a trust re- sponsibility. And so with that, I have to bid you good-bye, because I am cer- tain you want me in the Senate Chambers instead of here. The work there is a bit more important at this point. But finally, I would hope that upon receipt of the transcript of this hearing, those of you who have been mentioned in the testi- mony would respond to what has been said. Because if not, our record will not be complete. So with that, to all of you, I thank you for your attendance, as well as your patience. Goodbye. [Applause,] [Whereupon, at 2:22 p.m., the committee was recessed, to recon- vene at the call of the Chair.] \ APPENDIX Additional Material Submitted for the Record Prepared Statement of Hon. Byron L. Dorgan, U.S. Senator from North Dakota Civil Jurisdiction in Indian Country September 24, 1996 Mr. Chairman, I would like to thank you for scheduling this hearing and for inviting Jesse Taken Alive, Chairman of the Standing Rock Sioux Tribe of North and South Dakota, to testify today. Chairman Taken Alive brings an interesting perspective to the issue of civil jurisdiction and tribal sovereign immunity, as the Standing Rock Reservation is lo- cated in two states. Because of this, opening up tribal £ictions to suit in state court and eliminating tribal sovereign inamunity as a defense to the court's jurisdiction would have an especially large impact for the Standing Rock Sioux Tribe. I would Uke to say a few words about the subject of today's hearing. I have been a long-standing supporter of tribal sovereignty. The Supreme Court ruled in 1987 that tribal authority over the activities of non-Indians on reservation lands is and important part of tribal sovereignty" and, as such, "civil jurisdiction over such ac- tivities presumptively lies in the tribal courts unless affirmatively limited by a spe- cific treaty provision or Federal statute." I support this Supreme Court ruling, and believe that Congress should exercise extreme caution when considering whether to infringe on Indian tribal sovereignty or the jurisdiction of Indian tribes over legal matters. For this reason, I joined Vice Chairman Inouye, Senator Murray and others in op- posing the so-called Lummi" provision in the 1996 Omnibus Rescissions and Appro- priations Act. This provision, contained in Section 115 of the Act, penalizes any Self- Governance tribe of Washington State involved in a dispute over water ripits by cutting its Federal funding in half. This language, which was intended to address a dispute on the Lummi Indian Reservation, set a dangerous precedent by legislat- ing fiscally punitive measures against any tribe in any state which attempts to exer- cise its legitimate governmental powers. In a broad expansion of the Lummi provision, the fiscal year 1997 Interior appro- priations bill approved by the Senate Appropriations Subcommittee on Interior would have provided that tribal actions or proposed actions which might impact pri- vate property would be subject to state and Federal court jurisdiction. It also would have waived tribal sovereign immunity as a defense in state and Federal courts. Thankfully, this onerous provision was deleted from the bill during full Committee consideration. I realize that jurisdictional issues involving non-Indians who live or do business on Indian reservations is a complex matter that has serious repercussions for both sides. However, I also believe that it is fundamentally unwise to undue the basic notion of tribal sovereignty over civil legal matters without careful consideration of the long-standing legal precedents surrounding this issue. I look forward to hearing from all of the witnesses at todajr's hearing and to working with my colleagues to ensure that legal disputes can be resolved equitably without trampling on tribal sov- ereignty. (73) 74 Prepared STATENrea^ of Hon. Conrad Burns, VS. Senator from Montana I would like to thank the Chairman for this opportunity to offer testimony on the issue before the Committee today. This is a matter of great importance to states with Indian reservations. The issue of non-tribal and tribal members with regard to tribal sovereignty and immunity dealing with private property rights is one that is extremely volatile in my state of Montana today. In reality the thought is one that is 80 very simple, it deals with the basic foundation upon which our country was established more than two centuries ago. I join with Governor Racicot of Montansi, in urging Congress to address and rec- oncile the competing visions of both tribal and non-tribal residents of reservations. Fortunately, I do not agree with the Governor's prognosis that Congress will not have the will to address and simply delineate the differences and seek a common answer to the concerns of all involved. We can look back in our nation's history and see that conflicts result between states and tribes due to the undefined concept of what we call tribal sovereignty. The line between what can and should be done, is at many times as gray as gray can be, and leaves no understanding for the states to react to the needs of their citizens. This is neither the fault of the state nor the tribes. The fault lies within the halls of the buildings within which we work. At best Congress has done a com- plete job confusing and complicating the situation. We started out more than a hundred years ago, with a policy which did nothing for the future of the Native Americans in this great land. We have turned now to the point of abandoning the private property ri^ts of non-tribal members, whose families settled on tribal lands under the full protection of Federal law. I come here today to challenge the members of this Committee and Congress to address these concerns so that the future may be blessed with a sense of peace and understanding among all Americans. Mr. Chairman, in the past 2 years I personally have seen conflict arise that could have been avoided if Congress had addressed the concerns of the people. The private property ri^ts of the non-Indians are being subjugated to appease a few Members of Congress. Peace and understanding on tirbal lands across the country are in con- fusion due to the indirect manner that Congress has taken to address the concerns of both the private citizen and the governments that represent them at the local level. Although I do not always agree with what the senior Senator from Washington is seeking in the legislative process, I do tip my hat to him for coming to the table to start the debate on behalf of all the people. In Montana the problems that we see and hear from the people are not just from the non-tribal residents of the res- ervations, but also from trioal members who feel that their rights as citizens of this great country are being taken advantage of by some, not all, but some level of tribal authority. Mr. Chairman, I have always commended you for your work on behalf of the In- dian population in our country, and I have appreciated the way that you have come out to the states to get an understanding of the problems facing both the tribes and the non-tribal menabers living on reservations. However, the difference between your state's reservations, and my state of Montana are huge. The concept of the open reservation has created problems that you cannot really understand with a few trips through the area. Earlier this year I invited you to come to Montana and visit with both tribal and non-tribal members living on reservations, and I thank you for accepting that offer. Yet neither of our schedules have allowed us the opportunity to travel around Montana and listen to the people. Today, I renew that invitation, and I hope that in the coming year we can make this trip happen. The basic problem which faces us today is not what is wrong, but how far we are willing to go to address the concerns of not just a select population, but of all the people. Before we go any further with any legislation, I hope that we will all go back to our homes during the upcoming time we have away from the confines of Wash- ington and haten to the people. For it is in their wisdom and understanding, their courage and ability to face tne problems and concerns on a daily basis that we can and will find the answers to the questions that this conunittee and Congress must ultimately address. Mr. Chairman, I would also like to have included in the committee record state- ments from the Governor of Montana, a Dumber of the Montana Legislature, the Montana Stock -growers and tribal and non-tribal residents of reservations in Mon- tana. Thank you, Mr. Chairman for providing me with this opportunity to address the Committee on this very important issue to the state of Montana. 75 Prepared Statement of Sam Davis, Mayor, Parker, AZ My name is Sam Davis, and I am the Mayor of Parker, AZ, an incorporated town with approximately 2,500 residents, located just east of the Colorado River in west- em Arizona. . Thank you for the opportunity to briefly describe to you the present situation in Parker. In 1908 Congress appropriated money to enable the Secretary of the Interior "to reserve and set apart lands for townsite purposes" in the Colorado River Indian Res- ervation. The Secretary subsequently created the townsite of Parker, AZ, and ap- proximately two-thirds of the lots in town were purchased by non-Indians at pubuc auctions. Ninety percent of the population of Parker is non-Indian. Following 5 years of litigation in Federal District Court in Phoenix, AZ, last month Ju&e Strand issuea a decision which concluded that the Parker lands are still part of the Colorado River Indian Reservation. He enjoined the Town from en- forcing its building code on "tribal lots" in the townsite. Parker is appealing Judge Strand's order. In the meantime, the court's decision leaves residents of Parker subject to a com- plicated and confusing combination of state, tribal and Federal jurisdiction. There are numerous unanswered questions regarding whether and how the tribes will as- sert jurisdiction in Parker in such areas as taxation, zoning, business licensing, liq- uor sales and health and safety reflation. The most serious and urgent problems relate to law enforcement. A particular law enforcement oflicer's authority in a given situation on an Indian reservation depends upon the identities of the sus- pect(s) and victim(s). The varying degrees of authority between Federal, state, coun- ty, town and tribal officers can lead to confusion, delay and even physical harm-to both citizens and police oflicers. Last month, for example, a tribal member driving a pickup truck repeatedly rammed, at high speeds, a squad car occupied by the Town s chief of police. Because the suspect is an Indian, the police chief and other Parker police ofiicers had no au- thority as police officers to taxe any law enforcement action in response to the sus- pect's unprovoked attack. They could only stand by as the suspect threatened the chiefs life, damaged property and fled from the scene. This attack was only the lat- est in a series of recent incidents in which tribal members have assaulted Parker police officers. The existing situation is very frustrating for town police officers. Our officers were trained to enforce the law fairly and uniformly for tne benefit of the entire commu- nity, without regard to race or creed. Now they are being required to discriminate on the basis of race, refraining from enforcing the law m any situation involving an Indian. Not surprisingly, the town is finding it increasingly difficult to retain ex- isting members of its police force and to recruit additional ouicers. Federal, state, county, town, and tribal officials agree that cross-deputization of law enforcement officers would constitute an effective and efficient solution to the law enforcement problems stemming from Judge Strand's decision. The tribes, how- ever, are refusing to cross-deputize Parker police officers. The town is attempting to secure deputy special officer commissions from the Bureau of Indian Affairs for all Pariker police onicers who do not presently have such commissions. The tribes have requested Federal funding for six additional tribed officers in order to provide increased law enforcement services in town. The town of Parker opposes tnat re- ?uest but, as a compromise, it is willing to have extra BIA officers assigned to 'arker on a temporary basis to supplement, as needed, the existing resources of the law enforcement agencies with jurisdiction in Parker. Both the tribes and the town are interested in working out a comprehensive, per- manent resolution regarding law enforcement and other jurisdictional issues relat- ing to the townsite. Representatives of the two governments are engaging in discus- sions to achieve that oojective, starting with the issue of law enforcement. We an- ticipate that any final agreement wall be presented to Congress for approval. Thank you again for this opportunity to discuss the difficulties in Parker. I would be happy to address any questions you may have. Prepared Statement of W. Dewey Clower, President— NATSO, Inc. On behalf of NATSO, Inc., the professional and legislative representative of Amer- ica's $28 billion travel plaza and truckstop industry, I am pleased to present testi- mony to the Senate Inoian Affairs Committee on the issue of Native American sov- ereignty and its effect on business competition between Indian and non-Indian re- tailers. Our association has over 1,050 travel plaza and truckstop members employ- ing nearly 200,000 individuals nationwide and more than 300 allied companies that provide products and services to the industry and its customers. As fuel sales con- 76 stitute the largest portion of our truckstops' retail sales, many of our members are increasingly concerned about retail fuel lacilities located on Native American res- ervations that sell fiiel state tax free to non-Indians. Native American sovereignty provides Indians with significant tax benefits includ- ing exemption from state sales and excise taxes on items they purchase on reserva- tion land. Though Federal law intends this tax exemption for Indians only, many tribal retailers extend the tax exemption to non-Indians who also purchase goods such as motor fiiel on reservations. State excise taxes on motor fuel range from 7.5 cents to 32.5 cents per gallon. Since taxes make up audi a large portion of the retail price, selling motor fiiel state tax-fipee provides Indian retailers with an unfair com- petitive advantage over non-Indian retailers who must collect and remit the taxes. For example, just outside of Buffalo, New York, along the New York State Thruway lies the Cattaraugus Indian Reservation. An Indian fuel retailer there cur- rently sells diesel fuel for $1.15 per gallon. Meanwhile, non-Indian truckstops else- where along the thruway sell diesef fuel for $1.39 per gallon — a difference of 24 cents per gallon. The fuel is the same, the only difference is the price. The Indian tax exemption unfairly allows tnis Indian retailer to offer fuel for sale at a price much lower than his non-Indian competition. By purchasing fuel on the reservation, a non-Indian trucker saves $26.40 on an average fiU-up of 110 gallons and $72 if he fills up to his tank capacity of 300 gallons. This price difference pro- vides a strong incentive for the non-Indian trucker to fill up on the reservation. And in the retail mel industry where profit margins are measured in pennies, this price difference will force non-Indian retailers out of business. Additionally, the uncol- lected tax deprives the state of New York critical funding for infrastructure con- struction and maintenance. The Supreme Court has ruled that states have a right to impose taxes on reserva- tion sales to non-Indians. However, the Court has also held that if a tribe fails to collect state taxes from non-Indian purchasers, tribal sovereign immunity prevents a state from bringing suit against the tribe to recover the taxes. States, then have a right to taxes on sales to non-Indians but no remedy when tribes fail to collect them. While several states such as Wisconsin, Minnesota and North Carolina have nego- tiated successful working agreements with tribes that provide for the collection of taxes on sales to non-Indians, other states such as New York, New Mexico, and Oklahoma have experienced great difficulty reaching this type of agreement. Native American sovereign immunity provides little incentive for tribes to work out an agreement with states over these taxes legally due the state. Although state taxes are at stake in this debate, NATSO believes the Federal Government can and should play a role in this policy question. The Constitution vests the Federal Government with exclusive authority over relations with the tribes. NATSO strongly encourages Congress to add reservation fuel tax collection firactices to the list of other Indian issues — ^like gaming and Bureau of Indian Af- airs [BLA] reform — already under congressional scrutiny. NATSO also strongly supports the Istook/Visclosky amendment included by the House of Representatives in tiie fiscal year 1997 Interior Appropriations. This amendment provides what we believe to be a fair incentive for tribes to work out an agreement over taxes rightfully due the state. The amendment simply requires that before any new lands can be transferred into tribal trust, the tribe must have a binding agreement with state and local governments providing for the collection and payment of state and local taxes on sales to non-Indians. Again, this amend- ment deals only with taxes on non-Indians. Enactment of this legislation this year would be timely. Several tribes are actively seeking trust land along busy trucking corridors. For example, the Peoria Indians of Okl^oma are seeking to open a large truckstop in Wright City, MO, just outside of St. Louis along Interstate 70. The tribe plans to aoply to the BIA to have the land placed in Federal trust. Once placed into trust, local and state laws wiU no longer be applicable on this land. To ensure collection of state taxes on any sales this truckstop will make to non-Indians, the Istook/Visclosky amendment would re- quire the Peoria Tribe to enter into an agreement with the state of Missouri regard- ing collection of these taxes before the land is placed into trust. NATSO believes this amendment to be a reasonable means of addressing state-tribal tax problems before they have a chance to escalate. Also on the Federal level, NATSO believes that limits should be placed on Federal grants that tribes receive for economic development absent an agreement between uie tribe and state over state taxes. In 1995, the Choctaw Tribe of Oklahoma re- ceived $750,000 from the Housing and Urban Development Indian Community De- velopment Program to help build a trudcstop along a busy trucking route. Mean- while the BIA is giving the Cherokee Nation of Oluahoma $150,000 to complete a 77 travel plaza on an Interstate highway. At the time these grants were awarded, no agreement was in place between the tribes and the state. In the interest of fairness, NATSO urges Congress to prohibit using Federal grants to help tribes construct re- tail fuel outlets on reservations that fail to collect and remit state taxes on fuel sales to non-Indians. In conclusion, NATSO urges Congress to close the legsil loopholes that allow tax- free sales by Native American retauers to non-Indians. Requiring Native American fuel retailers to collect state taxes due on sales to non-Indians wiU not jeopardize their economic viability; it will simply level the playing field for all retail fuel out- lets — ^both Indian and non-Indian. Additionally, collection of state taxes will prevent states from losing revenues vital to meeting infrastructure needs. Prepared Statement of the Oneida Indian Nation The Oneida Indian Nation thanks the Senate Conunittee on Indian Affairs for this opportunity to offer public testimony on the critical issue of sovereign immunity. Common law immunity &x>m suit is an inherent and essential attribute of sov- ereignty. It protects one sovereign fi^om unwarranted intrusions by other sovereigns and their citizens. It provides a sovereign with the power and freedom to express the will of its people in matters of culture, community and association. There are only three sovereigns within the outer geographical boundaries of the United States: the Federal Government, the states, and Indian nations. These three sovereigns have each chosen to allow the other two sovereigns some intrusion into their sovereign domain. In the case of the states, they voluntarily gave up a great deal of their original sovereignty in choosing to join the union. In the case of the Indian nations, they gave up millions of acres of land and established unique rela- tionships to the United States. The Federal Government's sovereignty has been waived in some respects to allow suits by states and Indian nations. Tins method of shared responsibility and sovereign authority is integral to the continued inter- governmental cooperation of these three governments. Pursuant to the Constitution and principles of Federal Indian law, the Federal government claims the power to alter the balance of this shared responsibility and sovereign authority. However, any chan^ to the balance has an effect on thousands of U.S. citizens, and should not be exercised without serious consideration of the po- tential consequences. In addition, the Federal Government owes a special treaty ob- ligation and treaty responsibility to Indian nations above and beyond the typical re- sponsibilities it owes to all U.S. citizens. It has made solemn vows, promises and covenants to the Indian nations throu^ the numerous treaties it has entered into with them, and it has a special relationship with the Indian nations by virtue of its own laws and recognizea international legal norms. The Supreme Court has recently restated the importance of sovereign immunity in Seminole Tribe of Florida v. Florida [1996]. There the Court noted that sovereign immunity, as preserved by the 11th Ajoaendiaaent, is an inherent attribute of sov- ereignty, and is essential to a sovereign's continued vitality as the protector of its citizens' right to choose their culture and the character of their communities. In re- gard to Indian nations the Court has repeatedly emphasized the importance of sov- ereign immunity, as demonstrated in California v. Cahazon Band of Mission Indi- ans [1987] [Indian nation is immune from state attempts to regulate high stakes bingo, in li^t of tribal interest in economic development and self-sufiiciency] and in Santa Clara Pueblo v. Martinez [1978] [Indian nation is immune from suit be- cause determination of citizenship is an inherent power of the sovereign]. The amendment recently proposed by the Senate Subcommittee on Interior and related Agencies to the fiscal year 1997 Interior Appropriations Bill [Section 329] would havejpermitted anyone who asserts that his or her private property interest might be affected by a proposed action of an Indian nation to sue tne Indian nation and its officials in state or Federal court to stop the Indian nation from proceeding. It would allow the party brin^g the suit to recover damages from the Indian na- tion for any harm the court might decide the action, or threat of action, has caused. The amendment would have empowered state courts, many of which have long histories of hostility toward Indian nations, to bankrupt Indian governments for even considering actions that mi^t adversely affect any private individual's inter- ests. Congress has never before provided such a blanket authorization for state court jurisdiction over Indisui nations and Indian officials. Indian nations, like the state and Federal Governments, have long been recog- nized as possessing immunity fix)m suit, unless that immunity was waived by the Indian nation or an Act of Congress. Congressional waivers of Indian sovereign im- munity are both rare and limited. The blanket waiver of sovereign immunity in this 78 legislation would allow disgruntled opponents of Indian nations to flood both state and Federal courts with litigation that has historically been reserved to tribal courts out of respect for the govemment-to-govemment relationship between Indian na- tions and the United SUtes. Indian nations would quickly be impoverished simply by the costs of defending this litigation. . „ , , r In addition to litigation fix)m their non-Indian neighbors, dissatisfied members ol an Indian nation would also be able to force the Inenihcrs owing or using land within Indian reservations. Both law and public policy suggest this conclusion. First, several dangers exi-st in legislating a broad waiver of tribal sovereign immunity. A broad waiver of this nature may result in serious, unintended impacts. It would undermine the historic common-law right and federal policy grantmg Indian tribes autonomy and self-determination as sovereigns, and it would expose tJie limited financial and economic resources of modem-day tribal governments to unfettered litigation and ultimate depletion. Second, a broad waiver of tribal iinuiunily from suit simply is not necessary to protect non-Indians and non-members. The federal government and tribal governments already afford substantial legal protections to the interests of non-tribal entities and individuals on reservation lands. 1 "ribai governments arc dealing with non-lribal entities and individuals with increased frequcnc)' in the civil regulatory, commercial, and environmental contexts. As proactive measures and of their own volition, tribes have initiated programs and policies designed to solicit input and participation of non-tribal members. This has resulted in more effective administration, enforcement, and adjudication of tribal laws and regulations. For these reasons, it is essential that Congress refrain from legislating a broad waiver of tribal sovereign immunity. I. Tht Doctrine of Tribal Sovereign Immunity from Suit Must be Preserved . It has long been recognized that Indian nations possess "the common-law immunity from suit traditionally enjoyed by sovereign powers."' The basis of this immunity has been cApres.scd as an inherent aspect of tribal sovereign powers predating the United States Con.s-titution and as ' Santa CTara Pueblo v. Martinez, 936 U.S. 49, 58 (1978) (citing United States v. United Statea V. United States Fidelity & Guaranty . 309 U.S. 506, 512-13 (1940)). 132 (^insistent with federal policy in preserving liic existence of tribal autonomy.' The United Stales thus must tread lightly in this area as the important federal interetit in tribal self determination is at stake.' Indian tribes, however, are not eloaked with an absolute, unqualified immunity from suit. Like other sovereign poweis of Indian tribes, iril^al immunity may be waived by eongressional aet.' Courts also have recognized exceptiun:> to tribal immunity from suit. In fact, tribal sovereign immunity is similar, but not identical, to that enjoyed by the federal government, state guvernmenls, oi other foreign .sovereigns. A. 0^^^^ln and Limited Scope of tlie Doctrine . As a general matter, the doctrine of sovereign immunity has been supported on the theory that official actions of government must be protected from undue interference.* As a practical and policy matter, the doctrine has been deemed necessary to protect public treasuries from depletion by unfettered litigation.' Thus, the common law doctrine of immunity from suit remains viable, not only for tribal governments but also the slate and federal governments. The Supreme Court applied the common law immunity doctrine to Indian tribes for the first time in 1940.' The Court has viewed the common law sovereign immunity possessed by *Id.; White Mountain Apache Tribe v. Bracker . 448 U.S. 136, 142 (1980); Turner v. United States. 248 U.S. 354, 357-58 (1919), ' See e.g.. Santa Qara Pueblo . 9.% U.S. at 66-67 (Cungre.s.s' provision in the Indian Civil Rights Act of 1968 "for habeas corpus relief, and nothing more, reflected a considerable accommodation of the competing goals of 'preventing injustices perpetrated by tribal governments, on the one hand, and, on the other, avoiding undue or precipitous interference in the affairs of the Indian people."'). ^ Santa Clara Pueblo. 436 U.S. at .58. " Sec Note, Tribal Sovereign Immunity: Searching For Sensible Limits, 88 Columbia L. Rev. 173 (1988); s(^ also The Federalist No. 81 at 548 (J. Cook E. 1961); See alse Reynolds, The Discreiionary Function Exception of the Federal Tort OaimsAct, 57 Geo. L.J. 81 (1968); 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3654 (1985)(litigation must not be allowed to stop or slow down official activities tliat arc essential to governing a nation); )!^rson V. Domestic & Foreign Commerce Corp. . 337 U.S. 682, 704 (1 949)(the govemmeni represents the community as a whole and cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right) *Sg£ Ziontz, In Defense of Tribal Sovereignly: An Analysis of Judicial Error in Construction of the Indian Civil Rights Act, 20 S.D.L. Rev. 1 (1975). ' 'United States v. United States Fidclitv & Guaranty Co.. .309 U.S. 506, 512 (1940)(Indian nations are exempt from suit; "li]t is as tl)ough the immunity which was theirs as sovereigns passed to the United States for thdr liencFit . . . ."). 133 tribes as "a necessaiy corollaiy to Indian sovereignty and self-govcmajice."* Courts have recognized that tribal immunity from suit is essential to preserve tribes' autonomous political existence and tribal assets, as •well as to promote the federal policies of tribal self determination, economic development, and cultural autonomy.' From a policy standpoint, tribal immunity from suit advances the federal policy of assuring thai Indian nations remain viable cultural and political cnfilics.'° Current-day jurisprudence docs not regard the s«.>pc of tribal sovereign immunity from suit, however, as identical to that of oilier sovereigns. Indian nations arc subject to broad federal control and definition. Consequently, tribes are characterized as "ijuasi-sovercigns,"" and as such, tribal immunity from suit "is not congruent with that which the Federal Govcinmcnt, or the states, enjoy."" Thus, the scope of tribal sovereign immunity from suit isnot unlimited and is subject to a number of exceptions or waivers by the United States and tribes themselves. B. Excentloiis to and Waivers uf Tribal Soverclim Immunity . Tribes and tribal agencies and officials are subject to suit under various exceptions to tribal sovereign immunity recognized in the courts. For example, euuru have applied the age-old doctrine established by Ex parte Young " in the tribal context.'^ Tliis dtx;trinc works as an 'Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Enpinecrinp. P.C. 476 U.S. 877, 890 (1986), citing Santa Clara Pueblo v. Martinez. 436 U.S. 49 (1978). ' Native Village of Tvonek v. J^ucketl . 890 F.2d 1054 (901 Cir. 1989). ' "Sec Kerr-McGee Corp. v. Navaio Tribe of Indians . 471 U.S. 195, 201 (198.5). " SHnta Clara Pueblo . 436 U.S. at 71, 55, and 58 (1978). ' ^hree Affiliated Tribes of Ft. Berthold Reservation . 476 U.S. at 890-91 (1986)(becausc of the peculiar "quasi-sovereign" status of Indian tribes, the Tribe's immunity cannot be coextensive with that of the federal government, or even the states.), citing United States Fidelitv & Guaranty Co.. 309 U.S. 506, 513 (1940). "209 U.S. 123, 159-160 (1908)(where a state official attempted lo enfoi-cc an unconstitutional slate law, he was "stripped of his official or representative character;" his immunity from suit in federal court under the Eleventh Amendment did not protect him from the consequences of his individual conduct). This doctrine remains vital as a mechanism to force compliance with the commands of the federal Constitution although it is based, In part, on the legal fiction dial "unauthorized" or "illegar' actions of govcrnmcnis officers arc not actions of the sovereign itself. " Sec Wisconsin v. Baker . 698 F.2d 1323, 1332 (7tb Cir. 1983), cerL denied 463 U.S. 1207 (1983)("an official ot an Indian tribe should be stripped of his authority, and corresponding immunity, to act on behalf of his tribe whenever he exercises a power that his tribe was powerless to convey to him*^; Puvallup Tribe. Inc. v. Department of Game . 433 U.S. 165, 171 (1977)(a suit to enjoin violations of state law by Individual tribal members is permissible). 134 exception to the general rule of sovereign immunity from suit and is applied lo federal and state governments. At its core, the Ex parte Young doctrine permits suits for prosi>ectivc injunctive or declarative relief to require governmental officials to comply with the law. It is based on the notion that an action against individual government officials engaging in unauthorized or illegal conduct is not an action against the sovereign government itself. Thus, in the tribal context, a litigant may seek injunctive or declaratory relief" against individual tribal officials who allegedly have acted outside the scope of their authority." This exception to tribal sovereign immunity has been broadly construed, permitting, for example, developers or individuals to obtain adjudications of the validity of various tribal laws and actions." Thus, although the Ex parte Young doctrine was intended to waive state immunity to vindicate violations of federal law by state olTicials, the doctrine has been extended to act by tribal officials in demgation of tribal or federal law. Tribal sovereign immunity has been limited by various court decisions cstablisliing other exceptions to tribal immunity from suit. For instance, where particularly egiegious allegations of personal restraint and deprivation of personal rights were raised, the Tenth Circuit distinguished the Santa Clara Pueblo case and pennitted a claim for damages for constitutional violations of personal and property rights against a tribe." In addition, an exception based upon the equitable "As with suits against state or federal officials, an action against tribal officials can only seek injunctive or declaratory relief; suits for monetary relief arc barred under the notion that suits affecting the treasury are suits against the .sovereign itself. See Edclman v. Jordan . 415 U.S. 651 (]974)(action for retroactive relief barred); but sey Dry Creek. Lodge. Inc. v. Arapahoe and Shoshone Tribes . 515 F.2d 926 (10th Cir. 1975) and 623 F.2d 6«2 (K)th Or. 1980). cert, denied 449 U.S. 1118 (J981)(no tribal remedy, tlius non-Indians' claim for damages against tribe permitted). " Burlington N. R. Co. v. Blackfeet Tribe of the Blackfect Indian Reservation .. 924 F.2d 899, 901 (9th Or. 1991), amended and cert, denied 5U5 U.S. 1212 (1992). In this regard, some tribal governments insure or indemnify employees against lawsuits in a manner similar to some state and federal governments. Since the court must make a threshold deienmination of whether the tribal employee was acting within his or her authority before deciding if jurisdiction exists, there will be costs associated even with a successful defense of an officer suit. Sec e^ Hardin v. White Mountain. Apache Tribe . 761 F.2d 1285 (9th C1r. 1985), amended 779 F.2d 476 (10th Cir. 1985); sec also Santa Clara Pueblo v. Martinez , supra (the Governor of the Pueblo w.is required to litigate the extent of the protection the Pueblo's immunity afforded him). " See Kerr-McGee Corn, v. Navajo 1 ribe of Indians . 471 U.S. 195 (J985)(Supreme Qmrt decided case involving a non-Indian challenge to tribal taxes without discussing sovereign immunity); Tenneco Oil Co. v. Sac & Fox Tribe of Indians. 725 F.2d 572 (10th Cir. 1984)(oil company permitted to maintain action against individual tribal officials and challenge certain tribal licensing and taxing ordinances). '" Dry Creek Lodge. Inc. v. Aranahoc and Shoshone Tribes. 515 F.2d 926 (lOih Cir. 1975) and 62.^ F.2d 682 (lOlh Cir. 1980), cert denied 449 U.S. 1 1 18 (l981)(wrongful denial of access to a non-Indian guest ranch located on the reservation). 135 recoupment doctrine has been recognized in the Tenth Circuit." These trends are disturbing as the power of the United States to waive tribal sovereignty rests in Congress, not the courts, and Uiat power must be exercised judiciously. Tribal sovereign immunity may be waived by cither acts of Congress or acts of the tribes. Although Congress has power to waive a tribe's conunon law immunity from suit," Congress appropriately, only sparingly has exercised this power. Only a few instances can be cited where Congress has waived tribal immunity from suit.^' In addition, tribes may waive sovereign immunity fmm suit voluntarily.^ Tribal waivers of sovereign immunity must be "unequivocally expressed."" Courts have foimd tribal waivers of immunity from suit in a variety of circumstances. For instance, courts have held that an Indian tribe's contract providing for resolution of dL<;pules by arbitration and making the arbitration agreement enforceable in any court having jurisdialon creates a right to sue, and thus constitutes " Jicarilla Apache Tribe v. Andrus . 5S7 F.2d 1324 (10th Cir. 1982)(doctrine of equitable recoupment applies to tribes as It applies to federal and state governments) When a sovereign sues, it waives immunity to: (1) claims of the defendant which assert matters in recoupment (matters arising out of the same transaction or occurrence), or (2) claims of equal or less monetary value that arc of the same form or nature as those sought by the .sovereign plaintiff, sec Frederick v. United States . 386 F.2d 481, 487-88 (5th Cir. 1967). " >1 hrcc Affiliated Tribes of Fort Berthold. 476 U.S. at 891. " See e.g. Santa Clara Pueblo , supra (in the Indian Civil Rights Act. Congress waived sovereign immunitj' for habeas corpus proceedings to review decisions of tribal courts); Metropolitan Water Dist. of Southcni California v. U. S. . 830 F.2d 139 (9th Cir. 1987), cert, granted 485 U. S. 1020 (1987), afTd 490 U.S. 920 (1987)(in the McCarran Amendment. 43 U.S.C. § 666, Congress waived the United States' sovereign immunity as a paily defendant in suits to adjudicate all water rights in a stream system, which included Indian water rights); Blue Lcp> v. U.S. Bureau of Indian Attain. 867 F.2d 1094, 1097 (8th Cir. 1989)(tribal sovereign immunity from suit is abrogated under the Resource Conservation and Recovery Act, thus permitting "citizen sxiits" against tribes). '' Wichita and Atniiatcd 1 ribes v. Hodel. 788 F.2d 765 (D.C. Cir. 1986); Chemchuevi Indian Tribe v. California State Bd. of Equalization . 757 F.2d 1047 (9th Cir. 1985), rcv'd on other grounds 474 U.S. 9 (1985); Mcrrion v. Jicarilla Apache Tribe. 617 F.2d 537 (lOth Cir. 1980), M£d on other grounds 455 U.S. 130 (1982); United States v. Oregon . 657 F.2d 1009 (9th Cir. 1981); Fontencllc v. Omaha Tribe of Nebraska . 430 F.2d 143 (8th Cir. 1970); Maryland Casualty Co. v. Citizens Nat'l Bank . 361 F.2d 517 (5lh Cir. 1966), cert, denied 385 U.S. 918 (1966). "Santa Clara Pueblo, supra. 136 a waiver of the tribe's sovereign immunity." Most courts also have held as a general rule that the presence of "sue and be sued" clauses in corporate charters established under the Indian Reorganization Act ("IRA")" constitute a waiver of M^vcreign immunity." In the commercial context, increased economic development itivolving non-tribal entities has resulted in tribal governments wluntarily waiving tribal immunity and providing protections to non-Indians' and non-members' interests as necessary. For example, in its gaming compact with the State of Arizona, the Yavapai-Apache Nation agreed to a establish procedures for the disposition of tort claims arising from alleged injuries to patrons of Its gaming establishment. See. Exhibit 1, attached hereto. Under the gaming compact, it was agreed that tlie procedures may be analogous to the remedial system available for similar claims arising against the State. Pursuant thereto, the Yavapai-Apache Nation adopted comprehensive tort remedies procedures, wherein the Nation waives the sovereign immunity of the gaming establishment and/or the Nation for the express purpose of allowing patrons to bring tort claims against the Nation and/or the gaming establishment in the Nation's tribal court. Sec. Exhibit 2. attached hereto. These are but some examples of circumstances in whidi tribal immunity from suit has been limited. Given this discussion, it is clear that tribes are not cloaked by an impermeable shield of sovereign immunity from suit. The courts appear to be finding exceptions and waivers by tribes of tribal sovereign immunity with increasing frequency. Thus, a sweeping waiver of tribal sovereign immunity is unnecessary and will undermine tribes' entitlement as sovereigns to common law Immunitj' from suit afforded other sovereigns. As with any sovereign, tribal governments must retain their autonomy and ability to protect their treasuries from attack and to subject themselves to government on a casc-by-ca.sc basis. '^ Sokaopon Ciaminp Enter. Corp. v. Tushic-Montgomerv Assocs.. 86 F.3d 656 (7th Cir. 1996); Rosebud Sioux Tribe v. Val-U Construction Co. of South Dakota Inc.. 50 F.3d 560 (8th Cir. 1995); sec Aubertiii v. Colvillc Confcdcr.ited Tribes. 446 F.Supp. 430, 435 (E.D. Wash. 1978); sec also In re Colcgrovc . 9 B.R. 337 (Bankr. N.D. Cal. 198J)(where "sue and be sued" language is omitted from tribal corporate charter). '•'12 U.S.C. §§ 461. 462, 464-479 (1983); 25 U.S.C. § 463 (Supp. 1986). "Sec, e^. Merrion v. Jiearilla Apache Tribe. 617 F.2d 537, 540 (10th Cir. 1980), aCrd qu other grounds . 455 U.S. 130 (1982); Boe v. Fl Belknap Indian Communitv of Ft. Belknap Reservation. 455 F.Supp. 462, 463 (D. Mont. 1978). afPd 642 F.2d 276 (9th Cir. 1981)(corporate waiver of immunity, however, should not waive Irilial immunities); Maryland Casualtv Co. v. Citizens National Bank . 361 F.2d 517 (5th Cir. 1966), cert, denied sub nom. . Maryland Casualtv Co. v. Seminole Tribe of Florida. Inc. . 385 U.S. 918 (1966)(Seminolc Tribe adopted a § 17 corporate charter with a "sue and to he sued" provision, and Che court found this a waiver of immunity, which was expressly qualified, and the tribe's assets were beyond the reach of the gami.shment action in is.<5uc); see Fontenelle v. Omaha Tribe of Nebraska. 430 F.2d 143. 147 (8th Cir. 1970)(tribe subjected to action to quiet title to lands); Parker Drilling Co. v. M etlakatla Indian Community.. 451 F.Supp. 1127 (D. Ark. 1978)(tribe exposed to tort suit). 137 II. The Federal Government and Trilits are rrotcctlnp Sipiificant Intere sts of Non-Indians unJ Non-Members on Rgservations Now . A broad waiver of tribal sovereign immunity from suit is unnecessary because the federal government and tribal govemmenis already are providing protections to non-Indians and non- members within the boundaries of reservations. Existing federal oversight protects the interests of reservation residents without destroying tribal autonomy. A. Tribal Reyulatorv Undcrtaldngs Affecting Nun'lndians and Non-Menibers . Congress ensures the protection of non-Indians and non-members by requiring federal approval of certain tribal laws and ordinances governing a variety of civil regulatoiy areas. While it is arguable that Congress oversteps the "guardian" role of the United States over tribes and effectively usurps tribal governments through this type of legislation, it is certainly less harmful than legislating broad waivers of tribal immunitj' from suit in these aieas. Thus, where tril>es exercise regulator)' jurisdiction in these areas, the involvement and oversight of (he federal government already protects the interests of non-Indians and non-members. For instance, tribes are allowed to enact their own liquor laws wiihin the limitations set by a federal jurisdiction statute." While Congress has set forth the requirements of the tribal ordinances and maintained a federal certification and oversight role." actual regulation of the liquor sales remains vested in the 'ribcs within their jurisdictional boundaries. Several trilx»> have enacted liquor ordinances under these procedures." Significantly, a recent federal court deei-sion upheld a tribal ordinance that authorized the Cheyenne River Sioux Tribe to regulate liquor .sales in non-Indian communities, on lands held in fee by non-Indians within the reservation.'" Other examples include federal agency involvement in forcsiiy" and agriculture.'^ "18 U.S.C. § 1161. '*Thc statute requires that tribal ordinances be consistent with federal and state law and that the Secretary certity and publish the ordinance in the Federal Register. 18 U.S.C. § 1161. " See 59 Fe. Jlcg. 31496 (June 17, 1994)(St. Regis Mohawk Tribal Alcohol Beverages Control Act pa.sscd 11/19/93); .S9 Fe. Reg. .55316 (November 11, 1994)(Coushatta Tribe of Louisiana Liquor Control Ordinance passed 8/30/94); 59 Fed. Reg 26346 (May 19, ]994)(Jamestown S'Klallam Tribe Liquor Control Ordinance enacted 2/22/94). ^atv of Timber Lake v. Cheyenne River Sioux Tribe . 10 F.3d 554 (8th Cir. 1993). "Under the National Indian Forest Resources Management Act (the "Forest Act"), the Secretary must comply with tribal laws and ordinances, including laws, regulaluig the environment and historic or cultural preservation, and laws or ordinances adopted by the tribiU government to regulate land use or other activities under tribal jurisdiction. 25 U.S.C. S 3101 ct scq., P.L. 1010-630. Under the Forest Act, the Secretary is authorized to provide assistance in the enforcement of related tribal laws, notify others of such laws, and if the tribe so requests, require federal officers to appear in tribal court. Tribes must, however, adopt an ordinance identical to 138 In addition, Congress has autliorized federal agencies to a!>sist tribes in developing tribal ordinances and regulations related to the particular agency's areas of concern. For example, tlic Indian Energy Resources Act authorized the Secretaries of Interior and Energy to provide assistance to Indian tribes in the dtwelopmcnt, administration, inuplemcnialion, and enforcement of tribal laws and regulations governing the development of energy resources on Indian reservations." The Indian Gaming Regulatory Act authorizes the Chairman of the National Indian Qaming Commission, a federal agency, to approve tribal gaming ordinances and resolutions.^ I'he interests of all reservation citizens Is taken into account by the federal agency's evaluating tribal undertakings in these areas. B. Tribal Environmental Regulatk>ns . In the area of environmental protection. Congress has acknowledged that tribal governments, like .state governments, have the authority to regulate cnviroitmcnta! matters. This authority, however, is subject to federal agency oversight. The Environmental Protection Agency ("EPA'7 is authorized to approve certain tribal environmental codes as pari of federal government programs. Specific liFA auUiority is found in the Qean Water Act" and the Safe Drinking Water Act.*> Under the "primacy" provision of the Safe Drinking Water Act, tiibes arc provided the opportunity to assume principal responsibility for the enforcement of drinking water supply regulations within the jurisdictional boundaries of the tribe. To attain primacy status, a tribe must have drinking water regulations at least as strict as EPA's and establish an independent agency within the tribal government that has the power to enforce tribal regulations. Increasing numbers the Department of the Interior fore.<:t trespass regulations to obtain cuncurreut civil jurisdiction to enforce the trespass regulations. '^The American Indian Agriculture Resource Management Act, 25 U.S.C. §§ 3701-3745 (1993), contains provisions cxprc^y requiring the Secretary to comply with tribal laws and ordinances, similar to the Korestiy Act. For agricultural resources, the law requires tliat a lO-ycar plan be developed and implemented cither directly by the tribe or by the Secretary. Id. § 3711(b)(1)(C). A requirement for federal approval of the plan Is implied in the statute. See 25 U.S.C. §.371 1(b)(2). "25 U.S.C. § 3504. »*25 U.S.C. § 2710(b)(l)B), (d)(l)(A)(Jil), and (b)(2). "33 U.S.C. § 1377(c). "42 U.S.C. § 300j-ll(a). 8 139 of tribes arc undertaking principal responsibility, with the assistance of the EPA," for protecting sources used for drinking water under llie federal enabling legislation. Tribes also are undertakiitg environmental regulation under the Clean Water Act. Congress has permitted tribes to be "treated as states" for purposes of tliis legislation. As such, tribes can obtain funds necessary to pursue the planning required for protecting water resources vital to the tribes. Section 106 of the Clean Water Act allows for development of a siurface water management program, and section 104 provides for water quality matiagcracnt. Once a tribe's water quality standards have been approved by the EPA,^ the tribe also is treated as a state for purposes of the certification process under section 401 of the CWA. The section 401 certification process requires the technical review of pending permit applications to determine their impacts on water quality standards, and most tribal law-making bodies avoid becoming directly involved in carrying out this kind of technical review process. Another statutory requirement is that tribes, like states, adopting their own water quality standards must conduct a public review of tlieir standards at least every three years. These burdensome administrative procedures ensure the input and protection of the interests affected non-Indians and non-members. Despite the strict statutory burdens of undertaking tribal environmental regulation, many tribes arc establishing the necessary administrative and adjudicatory procedures and expertise in order to protect the resources that are vital to the welfare and future of their uihc. For example, tribal governments have developed extensive solid and hazardous waste regulations, particularly in response to tlie Eighth Circuit's 1989 decision in Blue Lx;gs v. U.S. Bureau of Indian Affairs. ^ which held that tribal governments arc responsible for managing solid waste disjwsal on reservations and may be held liable for failing to meet this responsibility. The Campo Band of Mission Indians, for example, ha.s established comprehensive tribal regulatory and enforcement mechanisms for regulating solid waste on the Reservation. See Exhibit 3, attached hereto. In many of these tribal ordinances, tribes provide a waiver of their sovereign immunity from suit for purposes of appeal of administrative decisions by tribal agencies. The Lummi Water and Sewer Ordinance is an example. "The EPA provides grants and technical assistance to tribes for drafting environmental codes under the Indian Environmental General Assistance Program Act of 1992. 24 U.S.C. § 436b. The Clean Air Act requires the EPA to treat tribes as states for the purposes of funding plaiming grants and program operational costs under those statutes. 42 U.S.C. § 7601(d). The EPA also revised its internal regulations to make it easier for tribes to obtxtin EPA approval to assume environmental rcgulatoiy authority, .59 Fed. Reg. 643.^9 (December 14, 1994). The revision shifted the emphasis from treating tribes the same as .states to treating tribes as sovereigns in their own right. Under the new regulation, a tribe must meet the applicable statutory requirements, rather than undergo a scpaiatc "trcatjncnt as state" approval process. **We note for the record that any affected person may seek judicial review of the EPA's approval of tribal water quality standards. Citv of Alhugucrauc v. Browner. No. 93-82-M Civil (D.C.D. N.M., Oct. 22, 1993)(federal court jurisdiction is based on the Administrative Procedure Act and Declaratory Judgment Act). »^7 F.2d 1094. 1097 (8th Cir. 1989) 140 C. Tribal Economic Development and Commercial PenHiigs . The interests of non-Indians and non-mcmbcrs are protected to the extent required by federal law or the tentis of commercial transactions. The federal government, for instance. Is inextricably involved in tribal housing development. The Department of Housing and Urban Development ("HUD") has requirements for tribal housing authorities receiving HUD funds. For example, tlie Indian Housing Loan Guaranty Program*" allows HUD to guarantee loans for the purchase, construction, or rehabilitation of family dwellings on restricted lands and in Indian areas. In order for an individual Indian borrower or an Indian Housing Authority to participate in the program, the tribal government must enact both eviction and foreclosure procedures to protect borrowers, lenders, and HUD, in the event of a default. Here, too, tribal housing ordinances often contain a waiver of tribal sovereign immunity from .suit to enforce Individual rights under these ordinances. In the commercial context, tribes have a built-in incentive to waive their immunity from suit or otherwise protect non-Indians. Interested parties will not be interested in conducting business on Indian reservations without an ability lo seek redress for gric^anc^s. Tribes, thus, will choose to waive immunity or take other similar steps to c^m.summate a business deal. Clearly, no intervention is necessary in ihis context. in. Regulatory Issties and PartidpaHon of Non-Indians and Non-Members in Trilml Governmfent. A. Regulatory Issues Involving Modern-PayTribal Govemtnents Authority Over Non- Indians . The authority of tribal governments to exercise tribal jurisdiction over non-Indians has been one of the most disputed issues in Indian affairs during the modem era. In 1978, the Supreme Court held in Oliphantv. Suquamish Indian Tribe *' that tribes could not prosecute and convict non-Indians, unless authorized to do so by Congress. In 1990, the Supreme Court extended the Oliphant ruling to non-member Indians," Congress later reinstated tribal authority over nou-member Indiaiis. Today, controversies relating lo tribal authority to exercise civil jurisdiction and regulatory authority over non-Indians and non-members residing within reservation boundaries pci-sist. In certain civil contexts, particulariy taxation and land use, tribal authority over non-Indians and non-members has l)ccn uphdd.*' *°42 U.S.C. § 1437a (amended 1992). *'435 U.S. 191 (1978). * *Diiro V. Reina. 49.*! U.S. 676 (1990). " Wasliington v. Confederated Tribes of Colville Indian Reservation. 447 U.S. 134 (1 980)(tribal cigarette tax for salc^ to non-Indians on tribal lands has been upheld by the Supreme Court); Mcrrion v. Jicarilla Apache Tribe. 455 U.S. 130 (1982)(tribal tax levied on mineral extraction from tribal lands upheld, even though tlie tribes wci* receiving revenues from the 10 141 TribaJ authority to regulate non-Indians on non-tribaJ trust land within reservation boundaries is subject to certain rules under federal law. In Montana v United States . 450 U.S. 544 (1981), the Supreme Court enumerated the rule for establishing tribal jurisdiction over non- Indians in this context. First, '{a] tribe may regulate, through taxation, licensing, or other means, the activities of non-mcnibcrs who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements."" Second, "(a] tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."*' Under the "tribal welfare" test, lower couns have upheld broad tribal civil powers over non-Indians on non-Indian land in a tribal zoning ordinance,*' a tribal health and safety ordinance,*' and tribal regulation of non-Indian lands bordering tribal trust property.** With regard to water use, the courts have upheld federal and tribal control to the exclusion of state control over water use by non-Indians on an Indian reservation.** B. Tribal Programs aiid Policies Involvhie Participation of Non-Indians and Non- Members in Tribal Govemmeiits. Many tribes have responded to the civil regulatory concerns involving non-Indians as well as tribal members by adopting extensive legal codes and restructuring tribal government capable of adjudicating Indian and non-Indian civil disputes in their own courts and administering their increased regulatory responsibilities. This makes tribal governments more accessible and "user- friendly" to tribal mcmtKirs and non-tribal members alike. mining companies under the mineral leases; the Court compared the tribe to states and cities, which can receive contract payments as landowners and levy taxes in tlteir governmental capacities as sovereigns); Kerr-McGee Corp. v. Navajo Tribe. 471 U.S. 195 (1985)(non-lRA tribal governments may tax on -reservation business activities without first obtaining approval by the Steeretary of Interior where the tribal convtitutiun docs not revjuire sueli advance ap)>roval). ** Montana v. United States. 450 U.S. 544, 565 (1981). "14. 450 U.S. at 566. ** Knight v. Shoshone and Arapahoe Indian Tribes, etc.. 670 F.2d 900 (lOth Cir. 1982). *' Cardin v. De La Qtiz. 671 F.2d 363 (9th Cir. 1982). * *Confcdcratcd Salish and Kootenai Tribes of Flathead Reservation v. Namen . 665 F.2d 951 (9ih Cir. 1982), ££il. denied. 459 U.S. 977 (1982). ** Colvillc Confederated Tribes v. Walton. 647 F.2d 42 (9th Cir. 1981), cert, denied 454 U.S. 1092 (1981). 11 142 For example, the Zuni Pueblo has adopted extensive legal codes, including the Zuni I3u$inci>s Code which controls and regulates the activities of non-Zunis and non-residents of the Reservation in their commercial dealing with the Zuni Reservation and the people living thereon. Sec . Exhibit 4, attached hereto. The Zuni Business Code establishes procedutes and requirements consistent with federal laws and regulations governing the conduct of business on the Zuni Reservation. In addition, because tribes have civil regulatory authority and jurisdiction over non-Indians and non-members, tribal governments are developing initiatives tu increase the participation of non-tribal members in the government. Kor example, the Navajo Nation has established a five- member Navajo Tax Commission, two of whom may be non-Indians and non-members. Sec. Exhibit 5, attached hereto. Particularly important to note here, also, is that Navajo law perniiu an adjudication of a refund action in tribal court in specific instance.<; for certain taxes.** Thus, reservation citizens have direct access to both regulatory and judicial relief. Another example of tribal initiatives to involve non-Indians include the six-nicmbcr Board of Commissioners of the Wind River Housing Authority, established by llie Shoshone Indian Tribe and the Arapahoe Indian Tribe, requires that two members of the Board be non-mcmbcrs. See . Exhibit 6, attached hereto. In addition, the Zuni Pueblo has establi.al sovereign immunity from suit and refrain from legislating a sweeping waiver of tribal immunity. * °See e.g. 24 Nav. Tr. Code § 433 (procedure for refund of Dtisiness Activity Tax). 12 143 EXHIBIT 1 r YAVAPAI-APACHE NATION AND STATE OF ARIZONA GAMING COMPACT 1993 Sj^SBSSSMHUbI . 144 In- addition, public health standards for food and beverage handling shall be in accordance with United States Public Health Service requirements. (b) Emergency Service Acegsaihilily. The Nation shall require the Gan\ing Facility Operator to make provisions for adequate emergency accessibility and service. (c) Tort Remedieg for Patrons . The Nation shall establish procedures for the disposition of tort claims arising from alleged injuries to patrons of its Gaming Facilities/ which procedures may be analogous to the remedial system available for similar claims arising against the State. The Nation shall not be deemed to have waived its sovereign immunity from suit with respect to such claims by establishing such procedures or by any provision of this Compact. (d) Liability for Damag e to Persons and Property . During the term of this Compact, the Nation shall maintain public liability insurance which provides no less than one million dollars ($1,000,000) for personal injury and property damage. The Nation's insurance policy shall include an endorsement providing that the insurer may not invoke tribal sovereign inununity up to the limits of the policy set forth above. SECTION 14. PATRON DlSPimy} 52 145 • (a) Kgfusat to Pay Winning s. Whenever the Gaming Facility Operator refuses pnyment of alleged winnings lo a patron, and tlie Gaming Padlity Operator and the patron are unable to resolve the dispute to tl\e satisfaction of the patron and (he dispute involves: (1) At least five hundred dollars ($500), the Gan\ing Facility Operator shall Immediately notify the Tribal Gaming Office. The Tribal Gaming Office shall conduct whatever investigation It deems necessary and shall determine whether payment should be made; or (2) Less than five hundred dollars ($500), the Gaming Facility Operator shall inform the patron of his or her right to request that the Tribal Gaming Office conduct an investigation. Upon request of the patron, the Tribal Gaming Office shall conduct whatever investigation it deems necessary and shall determine whether payment should be made. (b) Notice tq Patrons . The Tribal Gaming Office shall mail written notice by certified mail, tclurn receipt requested, to tlie Gaming Facility Operator and the patron of the decision rwolving the dispute witliin thirty (30) days after the dale that the Tribal Gaming Office first receives notification from the Gaming Facility 53 146 ■Operator or a request to conduct an investigation from the patron. (c) Effective Date of Pecigion . TJie decision of tlie Tribal Ganung Office is effective on the dale ii is received by the aggrieved parly as reflected on the return receipt. (d) Review of Decision . Witliin thirty (30) days after the date of receipt of the written decision, Ihe aggrieved party may file a petition with Uie Tribal Gaming Office requesting a review of the decision. The Tribal Gaming Office may set a hearing on the matter or may make a decision based solely upon the prior decision and other documentation provided to it by Ihe patron and the Gaming Facility Operator. The Tribal Gaming Office shall then issue a written decision and mail it to the parlies pursuant to the procedures set forth in Section 14(b). The decision of the Tribal Gaming Office shall be final and binding upon the patron and tixe Gaming Facility Operator and shall not be subject to judicial review, dispute resolution or other legal action. SECnONlS. DlSrUTERESQUmOl^ (a) Procedures and Provisions Subj ect to Dispute Resolution. The parties may discuss and reconsider Sections 4, 5, 7, 11, 12, 14 and all appendices to this Compact upon written notice and request by either party. Thereafter, if the Nation 54 147 EXHIBIT 2 RESOLUTION NO. 2^96 01= THE GOVEIUMINO BODY OF THE YAVAPAI AFACIfE NATION WHEREAS, pureumii ;o the Indian Gaming RcgiUwoiy Act ('IGRA"), 25 U.S.C. §5 2701, the Nation has entered into a Oanilng Compact ^"Compact*^ bct>>^n the Nation and the Stntc of Arizona, which Compact dcfincj the respective oWlgattons and rcsponslbUltlcs of the Nation and the state with rcspoct to Qass ID gaming activity' on the reservation, and the Tribal Council has reviewed and Appiwcd the Compact; and "WHEREAS Section 13 of the Compact trqaircs the Nation to establish pnx»durcs fot the disposition of tort claims arising from alleged Injuries to patrons of its samlng facilities; and WliEKCAS no procedure currently exists to addttss adequately such ton clalnu; and WHBREAS the Nation desires to comply ftilly wIlA Section 13 of the Compact by Adopting the anacfaed turt remedy procedures for gaming facility patrons; NOW, TWEREFORB, BE IT RESOL.VBD that the Tribal Council appiwcs the attached Yavapa Apache Nation Ton Remedy Procedures for Gaming Patrons and that these proccdutxs arc hereby adopted as laws of the Nation, effective immediately. CBRTinCA-nON I, the undersized, hereby ccxtl^ (bat at a dnly called mcctfng of i!ic Yovcpal Apcche Tribal Council, og Karcb 1? 1996. the Ttibal Council voted to adopt this Rcsoiudon with an HSuTOHtiw Yute vf B ({uunua of THboI Council fhnabvre. Cbainnaii ATTEST: Sccrctaiy 148 YAVAPAl-APAaiE NATION TORT REMEDY PROCEDURES FOR GAMING PATRONS Section 1. Policy. The purpose of these procedures is to provide a systcnufor the disi>ositiotv of tort claims arising from alleged injuries to the pcRon or property of patrons of the Naiton's Gaming Facility. Section 2. Applicability. These procedures apply to all persons who allegedly suffer personal injuiy and/or property damage arising out of their patronage of the Nation's Gaming Facility. Section 3. Tribal Court Juiisdielion. The Tribal Court shall have exclusive jurisdiction over all nutters arising from the administration and enforcement of these procedures. Section 4. DefinlUons. Tlie following wotdis have the foUomng meanings as used in thne procedures: A. "Gaming Facilit/' means all Qass m gaming focHitics ovmed and operated by the Yavapai-Apache Nation on its reservation, mcluding but not Ihnited to the Qiff-Castlc Casino; B. "Nation" means the Yavapai-Apache Nation; Q "Patron" means any pereon who is a customer of the Gaming Facility; D. "Peison" meatu any natural indhndual; E. • Tort" means an injuiy to the person or property of a patron; F. 'Tribal Council" means the Tribal Council of the Yavapai-Apache Nation; and G. 'Tribal Court" means the Yavapai-Apadie Nation Tribal Court. Section 5. Limited Waiver of Sovereign Immunity. A. The GanUng Facility is a tribally-owned business and possesses the Nation's 149 sovereign immunity from suit. B. The Nation hereby waives the sovereign immunity of ll>c Gaming Facility and/oi tlic Nation foi tlie express, sole, and limited purpose of allowing |»tron$ to bring tort claims against the Nation and/or tlie Gaming Facility in Tribal Couit; provided that such waiver is made only to tlic extent that the nature of a tort claim is within thccxprcss coverage of the Nation's or Gaming Facility's public liability insurance policy in cflcct at the lime of each judgniem, order, or award, and no judgment, order, or award for such a daim against the Gaming Facility and/or Nation may exceed One Million Dollars ($1,000,000X10); further provided that any such tort claim must be timely and property filed; and provided further thai any judgment, order, or award may be Katisficd only pursuant lo: (i) the e3q>ress provisions of the Nation's or Gaming Facility's public liability insurance policy in efCect at the time of cacfa jodgmeat, order, or awatti; and (ii) if necessary, an action by the pccvaHiog paity against the insurer under such policy. This waiver is strictly limited and docs not waive the imimini^ of the Nation or Gamiag Faality with respect to other suiu for monetary damages or to suits for puiutivo or exemplary damages and docs not waive the immunity of the Tribal Council or any <^Bcer, employee, agent, or Board or Commission member thcrcoC ' C. Except as otbeiwise provided in these procedures, nothing herein shall be interpreted or construed as: 1. a waiver of the sovocign immunity of the Nation and/or Gaming FacQiiy beyond the limits set forth herein; 2. a waiver of the sovereign immunity of the Nation and/or Gaming Facility to impose liability for punitive, double, treble, incidental, consequential, or exemplary damages, interest prior or subsequent to judgement, attorn^ fees, court costs, expert fees, or civil penalties; 3. a waiver of the sovereign imraunigr of the Nation and/or Gaming Facility 150 for any other claims or obligations asserted against the Nation or arising out the Gaming Facility operations; or 4. a vorvcr of the sovereign immunity of the Nation and/or Gaming Facility from levy on any jtidgmcnt, or from a lien, attachment, execution, or other judicial or non-judicial process upon Ihc assets of the Nation or Gaming Facility. ^ SecUon 6. Bringing Autliorixed Claims Against the Nation and/or Gaming Pacility. A. Except as otherwise limited by these procedures, any person may bring a tort claim against the Nation or Gaining Facflity arising out of the operation of the Gaming Facility by filing a written complaint wllh the Tribal Court within one hundred and eigh^ (180) days after the cause of action aecrues. The complaint shall contain facts sufficient to describe the basis upon which liability is claimed, tlie facu supporting the claim, and a specific amount for \^ich the claim is made and shall otherwise comply vrith the rules of procedures for the Tribal Court 'Any claim ° that is not Hied tlmdy under this Section is barred, and no aaion may be brou^i thereon in the Tribal Court or in any odicr court. B. For purposes of (his Section, a cause of action accrues when a patron realizes that he or slic has been injured or that his or her property has been damaged and knows or reasonably should know the cause, source, act. event, instrumentality, or condition that caused or contributed to the damage; provided that, for causes of action that arose prior to the date these procedures were adopted, the cause of action shall be deemed to accrue on the date of such adoption. Section 7. Ainendpient; Bflectivc Date The Tribal Oouncil retains the authority to amend these procedures, including but not limited to modification of the limited waiver of sovereign authority contained herein. Tlie effective date of these procedures is . 151 EXHIBITS CAMFO BAND OF MISSION INDIANS ENVIRONMENTAL POLICY ACT OF 1990 (As Amended Dcecmber 11, 1994) 152 |DMMib«r 1W4J TITLE II CAMPO ENVIRONMENTAL PROTECTION AGENCY (201. Establishment . There is hereby established the Campo Environmental Protection Agency ('CEPA"). § 202. Governing Body; Appointment; Terms; Vacancies . CEPA shall be governed by a Board of Commissioners (the "Board"), which shall be composed of three (3) Commissioners, all of whom shall be members of the Campo Band. The Commissioners shall be appointed by the Chaiiman of the Campo Band with the advice and consent of the General Council. Each Commissioner shall serve for a term of four (4) years, provided that, in order to stagger the terms of office, one of the original Commissioners shall be appointed for a term of two (2) years, one for a term of three (3) years, and one for a term of four (4) years. A vacancy on the Board, howsoever caused, will be filled by the appointment procedure set forth In this Section, provided that any appointment that does not begin coincident with the staggered terms will be shortened as necessary to maintain the staggered terms. § 203. Chairman; Quorum; Meetings . Tlie Commissioners shall elect a Chairman from among themselves. The business of the Board will be conducted at meetings of the Board duly called and noticed and at which a quorum is present. A quorum shall consist of two (2) Commissioners. Any substantive action of the Board must be taken by the afGrmative votes of at least two (2) Commissioners and must be recorded in a written resolution of the Board. The Board shall meet at such places and times as may be 153 IDwMtbv 1*941 TITLE ni MISCELLANEOUS PROVISIONS § 301. Review of Coimisrion Actions . (a) Campo Band Environmenlal Court There hereby is established the Campo Band Enviroamental Court ("Environmental Court"). The Enviromnenlal Court shall hear appeals from Goal actions and decisions of the Board in accordance witli such rules and procedures as CEPA may establish by regulation. Any aCccted party may seek review of any iinal action or decision of the Board by filing an appeal in the Environmental Court within thirty (30) days of the entjy of the final action or decision from which tlic appeal is taken. The Environmental Court shall hear app»eals from the final actions or decision only after exhaustion of aO administrative remedies provided by CEPA. The Environmental Court shall, upon the petition of an affected party, conduct a review of the record of the proceedings of CEPA but shall not take new evidence; it may niodKy or reverse a decision or action of CEPA only where such action or decision is not supported by law or is arbitrary and capricious. CEPA, upon request of the Environmenul Court, shall provide to the Environmental Court a certified copy of all documents, records, transcripts, or other information that formed the basis for any action or decision as to which an afiected party seeks review. The action of the Environmental Court on apj>cal shall be final (b) Review of CEPA Issuance of Preliminary or Pemiancnt Injunctions . An Adverse Party aggrieved by a decision of the Board issuing or failing to 10 154 IDMtBlMT 1W4J issue a prclimuiar)' or pennancnt injunction is entitled to judicial review thereof. Proceedings for review under this Subsection shall be instituted by filing a petition in the Environmental Court The petition shall be served and filed within five (5) days after service of the decision of the Board. Failure to file timely a petition for review shall be deemed a waiver of the right to appeal. The Environmental Court shall proceed to determine such petition as expeditiously as the ends of justice require. The filing of the petition shall not stay enforcement of the decision of the Board, unless the Board or the Environmental Court orders a stay upon such terms as either deems proper. The Environmental Court may afHrm the decision of the Board; it may remand the case for further proceedings; or it may reverse the decision, in whole or in part, if substantial rights of the Adverse Party have been abridged because the Board's findings, inferences, conclusions, decisions, rulings, or orders are not supported by law or arc clearly arbitrary and capricious. (c) Standing of Campo Band . The Campo Band, acting by and tlirough the General Council, shall have standing to object to any final action or decision of CEPA and may appeal such final action or decision in the Environmental Court, subject to the provisions of this Section. § 302. Waiver of Immunity . The General Cou ncil hereby waives the sovereign immuni^ of CEPA for the express and sole purpose of allowing reviews of CEPA actions by the Environmental Court under §301, provided that any such appeal must be timely and properly filed, and provided further, that such waiver is made only to the extent necessary 11 155 1994) to subject CEPA to soil for the s<^c purpose of declaring and adjud^g rights and obligations under the enviroiunental codes and regulations of the Campo Band. This waiver ts stricUv Itmited. specWadlv does not waive CEPA's immunity from siiit for monetary damages, and specificaUy does not vralve the sovereign immunity of the General Council, the Campo Band, or anv olTicer. emplovcc. or agent thereof . § 303. Unlavrftil Acta . (a) It is prohibited (or anjr person: (1) Forcftly, or by bribe, threat, or other corrupt practice, to obstruct or impede the activities of CEPA and the Board; (2) To commit fraud, or knowingly to assist anoUier in the couimi^ion of fraud, with the intent to evade or defeat Trfcal environmental codes or regulations; or (3) With knowledge and intent, falsely to verify by written declaration any report, apfdication for permit, or any other document submitted to or requested by CEPA. (b) Any person who commits any of the above prohibited acts may l>c subject to criminal penalties and also be liable for any civil damages caused by the commission of such acts and may be excluded from the Reservation. (c) Any person ■w^o commits any of the above prohibited acts, or whose employees or agents in the course of their employment or agency commit any of the 12 156 above prohibited acts, may have its lights to engage in activities on the Reservaticm suspended or terminated. (d) Tlie damages and sanctions for violation of this Section may be enforced in the Enviromneotal Court by CEPA under such rules and procedures as CEPA may establish by regulation. 13 157 CMSPO BAND OF mSSICK INDIANS SOLED IIASIE MANRGEKEUr OODE OF 1990 i^ AHQiDED TEBRCnia 13, 1594 35-542 97-6 158 [P^xuary 1994] Tmr. VI S 601. E tifux.L»an ent Aqoricy . C^ft is hftretiy designated as the e nf oroement agency entznisted wiUi the duty and r«s^)onsibillty of ensuring the proper handling, treatment, ocnposting, and disposal of solid waste cm the Reservation and of eiisuring crmTHifinnp by all persons %d.th this Code. S 602. Duties. CS>A shall: (a) PTforcement of Oode. Enforce all pcxjvisixjns of this Oode and regulations adc^ited hereunder that pertain to the minijium standaztls for solid vaste handling, treatntent, ocnposting, and disposal, all for the protection of the public health and stifety and of land, air, and water. (b) Enforoeaaent of mi tigation measures. Enforce oanplianoe vd.th feasible mitigation meeisures identified within Erwironmental Znipact Statements prepared pursuant to NEPA. (c) Enforceiaent by other agencies. Request enforoement by federal, state, and local agencies of their re^>ective laws governing solid waste tiandling; treatzient, ocnposting, and di^xjsal. (d) Provide infarroation to General Comcil. Provide to the General Oouncil information that the General Council requests. (e) Dgvelogmertt. of pr tx i LM ie * . Develop, impleanent, and maintain inflection, enfaroenent, and training programs. (£) Recordkeeping . Keep and maintain records of its inspection, enforcement, and training programs. 38 159 [F^aruaxy 1S94] (g) Oonsultatlon with health agencies. Consult with appropriate health agencies concerning all actions involving solid waste handling, treatment, ooaaposting, and disposal. S 603. Pgrlodlc Review . me General Council sheai periodically review CEPA and its isplementation of the enforoement program. mis review may inclvicle the inspection by the General Council, or any perscn authorized by the General council, of all boolcs, records, acaoounts, and other documents of CEPA. If the General council finds tliat dPA is not adequately fulfilling its enforcement respcaisibilities, the General Council etiall notify ca>A of its intention to take rcBiiadial action if CEPA does not correct the problems Gpecifiea by the Geivral Cowmsil. S 604. FWff ?"^ TBTfP?- In onler to recover operating costs, CEPA may inpose reeisonable fees or taxes on each operator of a solid waste facility and solid waste transportation servicse. The fee or tax may be based on the \rfeight, volume, or type of solid waste received, handled, treated, c on p osted, or disposed of by any such operator, or on any other apprc^iriate biisis or coonbination thereof. (e) Notioe to Chairman of General Council . Within ten days before issuing an enforcement order that is not for an emergency; within five days after issuing an enforcement order for an emergency; and within fifteen days after discovering a violation of a Tribal law, regulation, or permit that is likely to result in an enforcement action, CEFA shcUJ. provide a written statement providing an explanation of and 39 160 [P^zuary 1994] in vlolatJ-Csi of hie facility permit; who oonstructs or operates a solid waste facility without a facility pemit; tiio tran^xurts solid waste in violation of his solid waste tran^soctatloi pecnit; Who transports solid waste without a solid waste tran^xirtation permit; who violates art/ requirements found tn the Caoaopo Band of Mission Indians Solid Haste Management Code of 1990 or the Canpo Bard of Mission Indians Tribal Environmental Policy Act of 1990; or who violates any standard adopted tsy CEPh far ti)& handling, treatJirsnt, oon^xjsting, or disposal of solid waste shall/ xjpan cxder of C£E>A, oease and desist any iinproper action, clean up any solid waste, abate the effects^ thereof, euid take any other remedial action directed by CEPA. Whenever CQ>A determinpff; that the construction or cperatics) of a solid waste facility or the transportation of solid waste is causing or threatening to cause a condition of Iiazard, pollution, ar nuisance due to the migration of hazardous waste or solid waste or for jury ottier reason, CEPA may require the operator of the solid waste facility or the solid waste tran^xarter to taXe corrective action necessary to abate any hazazrl, pollution, or nuiseinoe or to pr o t ect public liealth and safety and the environment. (b) Imminent threats; remadlal actions bv CEPA . If any of the circumstances set forth herelneUOove pose an imminent threat to life or health, C^A may expend any available monies to perform any cleanup, etbatement, etnd remedial work required. (c) Pftiredifll actions bv SSE&- If any of the circumstances set forth hereinabove do not pose an imminent threat to life or health, but C^A deems it necessary for tlie public health and seifety to 41 161 [Fetauaiy 1994] S 607. Ocuplianoe Sefaedule . CQ>A shall dsvelop a ocopluux» scdiedule for ar^ pemitted solid vastB Caclllty or solid vwsta transporter that violates CEPA's nlnlinum standards. ihe coopliance schadule ahall assure that diligent progress sball be made to taring tba solid wast* facility or solid vnste tran^jortsr into cxmplianoa with c^A's miniimmi statviards within a spe c i t ic period of time detezadned by CEPA. If the solid waste facility or solid waste tran^xarter is not in coenplianoe within the period epecified, ceka xnay revcdce, suspend, or nodify the pen&it until such tine as violations of the m^Tl■illllnn standards are renedied. S 608. Rgypcaticn. Suspensjgpr «^ M9^1fg in this Section shedJ. authorize the inspection or copying of any writii^ or thing that is privileged from disclosure by law car otherwise made confidential or protected as attorneys' viorOc product or otherwise. 45 163 [February 1994] ea^laining othsr evSdenoe, but shall not be sufficient in Itself to support a finding unless It would be admissible over objection in civil actions. (3) m reaching a decision, official notice nay be ta)cen, prior to sidanission of the case for decision, of any generally aooepted technical or sclentif io matter pertaining to solid waste management, and of any fact that may be judicitUlly notioad by the co ur ts of Callfocnia. Parties present at the hearing shsill be Infanned of matters to be noticed, and those natters shall be noted in the record. Any sudi party shjill be given a reasonable opportunity an request to refute the officially noticed matters by evideice or by vri'tten or oral presentation of authority. (h) Issuance of decision . Within thirty days after the case is suknitted for decision, the hearing panel shall issue its decision. Cases shall be denlrlad by concurrence of at least two monbers of the panel. "Ona decision shall be in writing and shall contain findings of fact, a deteminatlon of the issues presented, and the as s ess m e n t of costs and penalt^ies, if any. Oopies of the decision shall be sent to all parties and to the chedxman of the General Oouncil. (i) Reduction of penalty or reinstatement. A person whose permit hcis been revoked or suspended by CB?A may petition CEPA for reinstatement after a period of not less than one year has elapsed from the effective date of the revocation or suspension or from the date of the denial of a sinilar previous petition. If CEPA declines to taKe the action requested, the petlticmer, if he so requests, shall be afforded a hearing. 47 164 [Fleteuary 1994] dasi^natad fas: ineetiing 'the costs o£ reqwnses to env i ro ti i ua ntal eateroencles on the Reservation. (c) PwttQtles In miyiii-\ an to otJiar^ . Penalties uiv3er this section are in addition to, and do not si^ersade or limit, any and all other remedies, civil cor criminal. In any civil action h*-"«jht purstiant to this cods in which injunctive relief is sou^bt, it shall not be necessary to allege or prove at any stage of the proceeding that Irreparable daniage will ocxair should the injvmctive relief not be issued, or that the remedy at law is Inadequate, and any £oeb of injunctive relief Shall issue without sucb allegations and witlioat axii proof. 49 165 CKUPO BAND OF MZSSIJCN ZMDIANS C3)MFO ZNVIPOimENZAL VFCfTECrZCK AGENCY KBGUIAmcHS TTTLR I AGQKY IWCEDORES AS AMENECD MAY 31, 1994 166 (May 1994] Itart: 130. Adjudicatiions S130.01. ^fT'MCT'yllfltY- "Biis pare applies to actions or decisions in any oontested case. $130.02. ptd3licafc< f»T nf, y<A. shall receive amd consider public ooBoments on t)ie proposed settlanent of the enforoenent action. The notice requir>Qd under this Sectixxi BttaH invite pubaic odcment and shall state a date after vAxich such oaoDents will no longer be accepted. S130.03. Raoonsixai 'mrtaqn- (a) Within five (5) workiiig days after authorization or issujuioe, CEPA fihekll publish notice of all. acticxis or decisions in civil enforcement actions in a local paper of general circulation. (b) Upon written request frxam any affected person, the Doard shall reocvtsider any action or decision. (c) I3be %a:itten request for reconsideration shall include the affected person's name, address, and telephone nunftser; the action or decision for ^*^iicii the haaring is to be held; (3) a r^eferencse to the particular provlslariB oi tribal lav involved; and (4) a short and plitin statement of the issues anA m&trters eisserted. (d) e xyotU mitv to Present Evidenoe . Any affected person who lias rec^Wstad a hearing under Subsection (c) of this Sectioi ch&ll have the opportunity to respond and present evidence and argustent on all issues before the hearing panel. (e) Iftforaal F'lfp^PiVJPI- Unless prohibited by law, infona&l disposition may also be made of any contested case by stipulation, agreed eettleaaent, consent order, or default. (f) Record . The record before the heeuring panel in a contested case shall include: (1) all pleadings, motions, and interaadiate rulings or orders in the ceise; (2) evidence received by CCPA; (3) a statestant of natters officially noticed by CEPA; (4) questions and offers of proof, objections, and rulings thex«an presented ait tbe reccxisideration heauring; (5) proposed findings aixl exceptions; and (6) any decision, c^inion, or report by the Board of OotnmissionerB at the reconsideration hearing. (9) Reoordina or Transcription of nvtr^nj. Hearings shall be recorded or transcribed. A cxjpy of the entire record or any peurt thereof shaOl be furnished to any affected person upon written request therefor and payment of the costs thereof. (h) riarriimg of Ffact . rindings of fact shall be btead exclusively on the record, on evidence presented to the heauring panel, and on matterB officially noticed. U 168 [May 1994] in the record shall be oonsidezBd in the determination of the case. Documentary evidence may be recseived In the form of copies or excerpts or by inoorporation by raferenoe. (c) Sacii affected party shall have the right of cross- e^cattination of witnesses who testify and shall have the right to submit rebuttal evidenoe- (d) Ihe heax-ing peinel may take notice of judicially cxxrnizable facts and general, technical, or scisitific facts within its specialised knowledge. Parties shall be notified either before or during the liearing, or by reference in prelim-inn ry reports or otherwise, of the material so noticed, and tJiey eitall be afforded an opportunity to contest the facts so noticed. Ihe hearing panel may use its experience, technical cocQ^etenoe, and E^pecialized knowledge in the eveauation of the evidence presented to it. S130.06. Subpoenag ? W^'tnpg sses; Confaoipt . (a) StApoenas . After proper servloe of notice, the heaririq panel may: (1) Issue a subpoena upcn the z^equest of any party and a statement by the party of the general relevance and reasonable scope of the evidenoe sought; or (2) Issue a subpoena on its own motion. Subpoenas may be served outside the Reservation to the iryiYlmiiia extent allowable in oonfonnanoe with the requirements of the Indian Civil Rights Act, 25 U.S.C. §§ 1301-1303, with respect to any activity or any consequence thereof occurring within the Reservation. (b) witness Fees; Costs of Proauctlon . Witnesses shall be paid the same fees and allowances in the same manner and under the same conditions as provided for witnesses in the courts of the State of California, provided , that CEPA shall fix the allcKranoe for meals and lodging. Such fees and 2dJ.owanoes and the cost of producing records required to be produced by subpoena shzill be paid by the party requesting the issu«u>ce of the sut^oena. CEPA shall pay the fees and allowances and the costs of producing records of any witnesses issued a subpoena by CEPA. (c) Brt f c g oaBent of S ub uoe na . If an individual fails to obey a subpoena or obeys a subpoena but refuses to testify when requested oonoemii^ any matter under exaaination or investigation at the hezuring, the party that requested the subpoena may petition the EnvircaimBntal Court for enforcement of the subpoena. The petition shall be aooanpanied fcy a copy of tlve subpoena and prtx>f of service, ^^all set forth the specific manner in which the subpoena has not been oanfilied with, and shall ask the Environmental c»urt to issue an order to conpel the witness to appeeur and 16 169 [May 1994] Fare 140. Revocartlon. SusoenslCTi. or wodifira ifcloai of Pegmits §140.01. Grounds for Suspension. Rgvo catlon. 07- T*^^^^"«^^""- l^ter a hearing, any permit may bs suspended, modified, or revoked by CEPA tor cause, including but not limited to any or all of the following: (a) Any violation of any tern or oondition oontainad in the permit, tribal law or regulaticais prcsnulgated tijerexmder, or the trnderlylng lease or Izuid use permit. (to) Obtaining the permit by misrepresentation or failing to disclose fully aai relevant facts. (c) A change in any condition that requii«s either a teitporeury or permanent modification, reduction, or eliMnation of the permitted operation to bring it into oonplianoe witli the teriss or conditions of the permit, tribeO. law or regulations pro mu l g ated thereunder, or the underlying lease or land use permit. §140.02. statement of Charges . A hearing to determine whether a peanaiit should be revoked, suspended, or modified may be initiated by CEPA by filing a written Statement of Charges that sets forth the acts or amissions with which the permittee is ciieirged and specifies the terms, laws, conditions, rules, or regulations that the permittee is alleged to have violated. The Statenent of Qiazges and all aocompanyiiTj documents shaai be delivered personally or by certified or registered mail, return receipt requested, to the permittee. §140.03. Notice of Hearing . The Statement of Charges sliall be aoooiii?)anied by a notice advising the permittee of a date for a hearing, which hearing shzai be held no earlier than twenty days (20) and no later than fo^ty-five (45) days frtra CEPA's mailing or personal delivery of the Statement of Charges. The Notice shall inform the permittee that he or she has the ri^t to inspect and copy documents relative to the Statement of Charges. S140.04. Wotloe of Defense . (a) Within fifteen days (15) after service, the permittee may deliver to CEPA a Notice of Defense in which he or she may object to the Statement of Charges upon the ground that the allegations contained in the Statement of Charges are untrue, that it does not state acts or aaissxons 18 170 [May 1994 J is Less tJhan ISO nlles trcm his place ot residerxse, except that the hearing panel, i;¥on affidavit of ary party showing that the testimony of saich witness ie material and neoessary, nay endorse on the subpoena an order requiring the attendance of such witness. Fees and mileage shall be paid by the party at whose request the witness is subpoenaed. {140.07. Evldenoe a nd Witnesses. (a) Oml evidence shall be tiJcen only on oath or affirmation. Each party shall hove the right to call and examine witnesses, to introduoe exhibits, to cross-examine opposing witnesses on any loatter relevant to the issues even though that laatter was not covered in the direct examination, to ijipaadlx any witness regardless of whlcfti party first called him to testify, and to r^ut the evidence against hln. Any party who does not testify in his own b^ialf loay be called and evmnlnftd as If under cross- examination. (b) The hearing need not be conduct-etl aooording to the tecimlcal rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on vftilch responsible persons may rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule that ni^it ma)g presented, and the assessment of costs and penalties, if any. Copies of the decision shall be sent to aai parties and to the Chainnan of the General Council. Within five (5) working days «ifter issuance of any order or decision by the hearing panel, CEPA shall publish notice of the action in a local paper of general circulation. §140.09. REPTOcation of Permit . CEPA shall not revoke any permit until the pezmittee has exercised or waived the right to appeal to 20 171 [May 1994] Fart: 150. ,^^«^^rH^l7 t jbvjw of O Tft Actions S15O.01. .Tt»rt1rTA Board of Caamissioners or the BTvironmental Court as provided in such laws. Hie OEPA Bo2u?d of OcBauissioners or the environmental Court may, for good ca u is^ shcMn, order a stay upon socb t-^rnw as either deests proper. ilSO.oe. RaooTd on JftfTTWl- Hithin thirty (30) days after aervioa of the petition, or %fithin such further tline as the EnvironmBntal Court aay allav, CEPk shall tranaiit to the Environmental Court the original or a certified copy of the entire record of the proceeding under review, or such portions of the rec o rd as are requested by the parties. Any pariry unreasonably refusing to limit the record nay be taxed by the dvironisntal 22 172 [May 1994] orjuginal judges shall be appoixtted for a term of two (2) yeeurs, one for a term of thiraa (3) years, and one Cor a t«m of four (4) ya£urs. (C) Vacancies * a vacancy on the Environmental Oourt, howsoever caused, will be filled by the eippointiiient procedure set forth in this Section, provided that smy appointanent that does not begin coincident with the staggered terms will be shortened as neoesseury to maintain the staggered terms. (d) Renoval . Judges shall serve the entire length of tern and shall be removed frcm office only for good cavise. conmiseion of criiDes, misdeiDeanors, or malfeasance in office oonstitutes good cause for removal. (e) Oonfllcts of Interests . A judge of the E^ivironBental court nay not participate in decisions relating to the governance and management of CEPA if t^ie judge has a direct finamcial interest in the person or activity being regulated. Tribal nenibership does not preclude piirticipation in decisions involving activities on or relating to property owned by the Band. 24 173 EXHIBIT 4 TITLE XVi ZUNI BUSINESS CODE CHAFTCR 1. GENERAL PROVISIONS 516-1-1. Scope and Intent . It Is the purpose of the Zuni Business Code to establish procedures and requirements consistent with Federal laws and regulations to eovern the conduct of business on the Zunl Reservation. It is specifically Intended to control and regulate the activities of non-Zunls and non-residonts of the Reservation In their dealing with the Zunl Reservation and the people living thereon. {t6-1-2. Derinitloos Applicable to the Zuni Buslneas Code . (1 ) "Conmilttee* shall mean the Zunl License Committee appointed as ' provided herein. (2J "Established Business" shall mean a business set up at a pemanant location with an approved business lease. (3) "Itinerant Business" shal) mean a business of a person who travels from place to place. (*) "License" shall nean a formal permission to carry out a business authorized under this Business Code. A license shall be a revocable, nontransferable privilege to do a specified thing. (5) "License Clerk" shall mean the Cleric of t»Hs Zunl License Committee. (6) "Person" shall include individuals, groups of individuals, firms, partnerships and other associations, whether Incorporated or not. (7) "Surety bond" shall mean a written undertaking by one or more persons or companies acceptable to the Comilttce whereby such person or companies obligate themselves to be liable for another's debts, defaults or obligations. No surety bond shall be acceptable under this Code unless the sureties thereto consent in writing to the jurisdiction of the Tribe and its Tribal Courts for all purposes related to enforcing the obligations created therein. 174 (8) "Imitation Zuni Jewelry" shall aean any jewelry or prcclous-isctal ware which Is not in fact made t»y Zvnx Indians, and which In any way rescnbloe or Is represented to resemble jewelry of Zuni manuracturej or any Indian Arts or Crafts which according to standards established by the Zuni Tribe or the standard prevalent among Zuni crartsmon is imitation, ot poor quality or spurious. Sl6-1-3> Enfor c caent . (1) Jurisdiction over any act or failure to act declared herein to be a criminal offense shall be exercised by the Courts of the Zuni Tribe as in the case of other criminal offenses. (2) The Courts of the Zuni Tribe shall have authority to enforce the provisions of this Business Code by injunction or otherwise in any civil proceeding maintained in the name of tJie Tribe or otherwise. (3) Cancellation of any license or other privilege granted under this Business Code shall be handled In accordance with Chapter 3 of the Zuni Code of Creditors Rigtits and Ressjonsibilitiea. CHAPTER^ 2. LICQiSING OF BOSINESSES S16-2-1. Zuni License Committee . (1) The Zuni License committee (Committee) s^iall be responsible for reviewing and approving or rejecting all applications for' business licenses, for issuing and renewing business licenses, and for investigating abuses or violations of this Business Bude or licenses issued hereunder and recommending and prosecuting proceedings to cancel business licenses. (2) The Committee may adopt rules and regulations not inconsistent with this Business Code to govern the procedure for issuance of business licenses, the terms and conditions applicable to business licensees, record keeping and inspection requirements for licensees, and other matters reasonably related to the regulation and control oi" businesses on the Reservation. Such rules and regulations shall be subject to the approval of the Tribal Council and the Governor, and upon approval shal] have the force of law on the zuni Reservation. (3) The Clerk of the Zuni License Committee (License Clerk) sbal] receive applications for business licenses, keep records and files as directed by the Committee and perform such other functions relating to this Buiiiness Code as the Committee or the Tribal Council .-shall direct. (orrowed . , (2) The name of the lender of any borrowed capital , the [ date due, the rate of interest to be paid, and the i names of any endorsers and security. (3) A copy of any contract or trade agreement whether oral ; or written with creditors of financing individuals or institutions, Including any stipulations whereby financing fees are to be paid. 177 516-2-5. Established Business Llceosc . (1) Every person otherwise subject to the licensing requirements of this Business Code who maintains an established business as that tern Is defined herein shall be required to have an Established Business License. (2) Application for an Established Business License shall be on a form provided by the Comnlttee and shall fully provide all of the inforfiation requested thereon. 516-2-6. Itinerant BusAdcss License . (1) Every person otherwise subject to the licensing requirements of this Business Code who carries on an itinerant business as that term is defined herein shall be required to have an Itinerant business License. (2) Application for an Itinerant Business License shall be on a fom provided by the Connlttee and shall fully provide all of the information requested thereon. 516-2-7. ContractoT-s License . (1) Every person who engages In building or construction contracting for another shall be required to have a Contractors License specifying the type of work authorized to be done (e.g. general contr-actlng or electrical or plumbing, etc.). (2) Application for a Contractors License shall be on a form provided by the Comniittec and shall fulJy provide all of Ltie information requested thereon. (3) In addition to deatonstratlng proof of training or competence as a condition to receiving a Contractors License, any person receiving .1 Contractors License, any person receiving a Contractors License shall be subject to any llnitations as to type of work to be pei-fotTned indicated in the license. ('<) Any person receiving a Contraci.or-s License shall be required to conform all work f>crfortiied to not less than the mlninuiu New Mexico State, Federal or any Tribal codes, standards or regulations In Bxistence or which may be established to govern the type of work performed. 178 (5) All contractors or other Individuals subject to the requirements or Obtaining a Contractors License shall, berore any work is coimnenccd, obtain a surety bond m amount equal to tbe contract price, for each separate contract to be perrormed, and condltlcnied for the faltliTul performance of the contract ana prompt payment for materials furnished and Jabor performed under the contract. Such bond shall run to the owner and to any person who has furnished labor or inaterlals and nut been paid within forty ('lO) days, and such persons shall have a direct right of action against the sureties on the bond for enforceanent of payment or completion of the project. Such bond shall be exhibited to the Committee or any Interested person upon demand . $16-2-8. Fees and Bondte . (1) The Committee, with the approval of the Tribal Council and Governor, shall establish a schedule of fees to be paid for the issuance and renewal of business Jlnensea. (2) The schedule of license fees may, but need not, provide for reduced fees for enrolled members of the zunl Tribe living on the Reservation. (3.) Applicatlcm for any license or for the renewal of any license shall be accompanied by a surety bond of two or more sureties acceptab) e to the Committee In amount to be specified by the Committee, and such bond shall be for the duration of the license and shall guarantee the licensee's faithful compliance with the terms and conditions of the license, with any rules and regulations adopted by the committee and the payment of any fines or penalties assessed against the licensee for any violation of this Business Code. (U) Payment of all fees and bonds requrled by this Business Code shall be in addition to einy required under the tenaa of Part 252 of Chapter 1 of Title 25 of the Code of Federal Regulations. 516-2-9- Licens e Peri od and Renewal of Licenses . <1) The license period for all licenses shall be one year. (2) Application for renewal uf any business license may be made not more than 90 nor Jess than 60 days prior to the expiration of the license, shall be made on a form to be supplied by the Committee, ami lihall be accompanied by all required fees and bonds. 179 516-2-10. Pwtlea of Liceoace . (1 ) All licenses issued hereunder shall be conspicuously displayed in all businesses having a fixed place of business on ttie Reservation and shall be carried in the possession of all licensees on the Reservation while conducting business. The Coomlttee may authorl:se the issuance of licensee identification badges to be displaced by Itinerant Business, Jewelry, Arts and Crafts, emd contractor licensees. (2) The person to whoa the license is xssutsd shall, for all purposes related to the business license, be responsible for the entire operation of the business and for the conduct of his officers, agenta and employees in relation tnereto, and shall file and keep current with the License Clerk a list of all sucli officers, agents and employees. (3) All licensees shall file annually with the License Clerk a financial statement prepared by a certified public accountant. CHAPTHR 3. FEDERAL TRADERS REGULATIONS 516-3-1. Adoption of Federal Regulations . (1) The rules and regulations found m Part 252 of Chapter 1 of Title 25 of the Code of Federal Regulations as published in the Federal Register, Volume UO, Number ^6tt, on Friday, August 29, 1975, together witti any subsequent additions to, corrections of, or deletions from said rules and regulations are hereby adopted by reference 'aa Uie law of the Zuni tribe. (2) Any such rules or regulations whlcti are expressly applicable only to some other Reservation or are expressly not applicable to the Ituni fieservatlon are not adopted hereby. 516-3-2. Requirements Cwulatlve . The requireaients of the Federal Regulations adopted herein shall apply in addition to and not in the place of the requirements established in this Business Code. $]6-3-3. Prohibited Acts; Eoforcewent . (1) It shall be a civil offense for any person toj (a) Fail to do any act required to be done by such Federal negulationoi or to (b) Do any act forbidden to be done by such Federal Regulations. 180 (2) The Tribal Courts shall have jurisdiction over such offenses and may, In addition, enforce the requlreaents of said Federal REgulations by injunction or uUierwise to a civil proceeding. (3) The Tribal Courts will not assiime crininal Jurisdiction over non-Indians for any criminal offenses defined as sucb by said Federal Regulations. CHAPTER «. AHTIQaiTIES Sl6-'i-1. Definitions . "Protected Places and Objects* shall include, but not be limited to the following: abandoned vllla^ sites; abandoned hotnesites, village sites or honesites not abandoned but located at places of sacred, historical or scientific interest; gravesltes, both ancient and recent; sacred springs, shrines and other sites, locations, or structures having past or present religious signlMcance; hideaway places for rellcjj or sacred objects, whether ancient or recent; relics, objects and/or artifacts of present or past religious, historical and/or scicntlfJc interest; geological formations or natural resources of sacred, historical or scientific Interest; any other place, structure, formation, object or thing of past or present sacred, historical or sciejitiflc interest lucated on the Zuni Heservation. 516_A_2. Prohibited Acta; Penalties . (1) It shall be a civil offense for any person knowingly to excavate upon or move, reeove, destroy. Injure, deface, or desecrate any protected place or object within the Zuni Reservation. In the ca»e of the disturbance of burial grounds, each disturbed graveslte stiall constitute a separate offense hereunder, in the case of abandoned villages, each separate horaeslte which is disturbed shall constitute a separate offense hereunder. In the case of the removal or attempted removal of any object, each such object shall constitute a separate offense hereunder. <2) The provisions of the preceding subsection shall not apply to any person or group of persons or institutionaJ activity which is specifically licensed by both the Zuni Tribe and the Federal Government to carry on historical or scientific exploration, excavation or activity, provided, however, that the exception provided herein shall apply only to such person, persons or institutional activity while acting within the specific limits of permission and authority to carry on such activities contained in their license. 181 (3) In addition to any other penalty imposed herein, the Tribal Court shall order that imy protected objects found in the possession of anyone In violation of this section be forfeited to the Zuni Tribe. (w of Policy . It Is hereby declared as a natter of tribal policy that the uso or the name "Zunl" In connection with the production or sale of Items of Indion Jewelry, arts or crafts is of special and unique Importance and value to the Zunl Tribe and Jts members. It Is hereby further declared that the best Interests of the Zuni tribe and its nembers require that the use of the name "Zuni" be limited to use by the Tribe and Its merabcro. 516-5-2. Prohibited Acts; Penalties . (1) It shall be a civil offense for any person to do any of the following acts within the exterior boundary of the Zuni Reaervationi (a) design, manufacture, sell, advertise or otherwise knowingly aid In the design, manufacture, aale, or promotion of imitation Zuni jewelry as defined in §16-1-2(8) herein: (b) have in his possession for disposition or saJe to Indiana i or others, any limitation Zuni Jewelry as defined in §16-1-2(8) herein; j Ic) transport into, from, or through the Zuni Reacrvation any limitation Zunl Jewelry, which Imitation Zunl Jewelry is intended for sole, or so transport any materials intended to be used in the design, manufacture, sale, or promotion of Imitation Zunl Jewelry; ! (d) use, without the consent of the registrant, any reproduction, i counterfeit, copy, or colorable imitation of a trndemar)< or service mark registered for use in connection with jewelry , or precious-metal ware under the laws of the State of New I Mexico, or of the United States; I (e) affix, apply, or annex, or use in connection with any jewelry or precious-raetal ware or any container or containers for l jewelry or precious-metal ware, a false designation of origin, ' or any false description or representation, including words, j desif^s, or other symbols tending falsely to describe or represent the same, or with knowledge of the falsity of ssuch designation of origin or description or representation cause or procure ! the same to be transported Into, from, or through the Zuni ' Indian Reservation; (f) employ, contract, offer to employ or contract, or otherwise ] • induce or attempt to induce any person to aid in any of the j activities described In (a), (b), (c), (d) or (e) above. j (2) In addition to any other remedy or penalty imposed hereunder, the Tribal Court shall order that any imitation Zunl Jewelry found or confiscated on the Reservation be forfeited to the zunl Tribe. i I I I 183 EXHIBITS MEMpEBSHIP 1 1 rum Cn — U atop alMll coMSist; oC Ctva mmboru mt laaBi: thr«« of vhom 2] Hie CbAicaui of Um Havajo Tribal Couscll sliall at. the time* required u&der BBbeectloas |cl ead le), noeitee'te a person qiutlifled by virtue of edueatioAt experience, or oTf Ice and vipon conclxaatLon by tbe Adrieoary rn— fttae oC the Havajo Tribal CouacLl, socb person shall be appoiated to serve • tooe as a Caaalssiontr. 31 the tenw of oCCice o£ Gosptissioners Shall be Eire years, i) A Cii— Issiotter shall be reosTed only Cor canso by the ChalxmaB oC the nsTajo Urihel Goaacil and opon raticicstioa by the Mvisory CosHtlttes of the aavajo Tribal Goimcil) providsd, that the person so reaoved nay then aiyeal the rssnval to the Snprese Court of the IfAVS^o nation. For the purposas of this sobsectlon> "cease" bmmas; la) Xncapacityt Fhysical or nental incapacity, where such incapacity extends or is espected to ejcbend longer than six Months. Cbl Honfeasancoi Failure to pertoni the duties of office, Iscludiag, but not Itsdtod tOr repeated and onexcused faLlors to attena the- — tteje aad other official Conetif>aB oc tjte OoaailsBion. let Bx parte TielstioBt Participation in ax parte conaultatione vith any re|e wuteti^re of a taxpayer «bo ie an appellant in a dispote before or witli the CaBad.asion. 184 (d) Csr^ala otlMZ acts: Aay act.kbAt is a falony In the ^urlsdietlon wiier* connit:t«a, or any act; imroiTlag Boral turpltuda that is a adaduHABor in tlie jarlBdicticia itfiar* coaolttf^. 5) A vaeaaey in Uia CamDissioa. Nbatlier cransad by daatli, roMoral or rvaigaatioB ahall be CilleA by aa iateriat aopointaeafc awde in aceerdaao* wl4:h thla aae^loa to eoaplete tbe vacatad tern. 6) Orgaaizational Chart (SB EUIBIir' "A"1 . Article V MgETIWQS a COMPBMSATIQg 1 ) TIM oCficial boai&eBB oC tlie OcMftlasloB «ball b* coaduetdd by a quenm oC ita aMMBbersi at meetings OuXj called by its presldlsg officer or a designee. Ia> A quorutt shall coB^ariae tbree C o— > i iw toners «nd any substantive actios at the OooMijieioa sbell be taken by tba aftiznetive vote of a B&)ority e{ the Cii— iiislonegs present., ibi JBKcept tax apecial or eaBrgency SMetings whicb nay be called wben and if circiMBstanceB waxxant it, at least one oEfieial regular bosineaa maetlog sball be held by the Comtiiwion during each calendar quarter, le) ProB time to tine, the Or— ilsnioner snail select their presiding officers and way delegate f>taer apeclflc outlBs aaiong tbaiMMlves. 185 EXHIBIT 6 June 7, 19 91 Mr. Frank Armajo BxecutLi.ve Dlract^or Wind mv«r Housing Auchorlty P.O. Box 327 Fort: Hashakle, tfyomlng 82514 --' JUN 1 1391 •'•''' WIND RIvEM nv^uSING AUTHORITY Dear Mr. Armajoi Enclosed la a copy of the Tribal Ordinance enacted in 1977 for Wind River Housing Authority. You will note that the final page is missing. Therefore, we have attached a copy of Article VIII and IX of the model trilsal ordinance found in 24 C.F.R. 905.201. We have highlighted the language that was included on the final page of the 1977 Ordinance. You will aleo note the Footnotee, which explain allowable modifications. If we may be of further aasistance, please contact Ms. Nancy Todea, Housing ManageiDont Specialist, at (303) 844-2861. Sincerely f Ann Roman Chief, HouGing Manogement Branch Office of Indian Programs Enclosure w in 186 -HTUAt OUDlNftHCE I 4 « o .,.,r r,, M.. a.irl.otttv vented In the Sl.osl.onc li.cll.in Trlb» Oi.d tho Arapnlmo "^^n^r Tr t« ' U 1 wl..d'..iv.r Uo.erv-tlon. Wy„„i..,. l>oth with govern 1..., bod I e. r»co9 ized by U.. United Stato- .nd the Secretary of tho Interior « -uthotited to »ct for tholr r«Bpeoti«- Trlboa. and tho authority of auch cjovornln, bodios to provide tor the health, nalety. moral* and welfare of tholr reopeetivo "J>>«'" the Joint nusli.oBB Council of the Rhoohono ai.J Arapahoe Trlboa haraby eotabllahc; a public body known as the Wind River llousinq M»thorlty (hocalnaftcr trferrnil to as tho Authority) and enacts this ordinance which shall establish tho piirposer., powers anil dutios of the Authority. In any suit, sction or proeoedlng involving the validity or enforcement of or reXatlno to any of it. co,^tract=, tho Authority shall be conclUBlvely deemod to have bocoim) cstabllDhed anO iu.thoriied to iranaact bUBlnesB •■.(! .xerclat- 1 ( « powers upon proot of the adoption of this ordinance. h r:opy of the ordlnanrc- duly certifloa by the Seetot«ry of the rouncll bUoII be artmloelhlc In evJdn.-cr in any auit, action ur procecdinif. ABTICUE 1 D ECLARATIO N OF NE BU It is hereby doclarndt 1. That there exist on the wind Plver neservation inRnnitary, unsafe, and overcrowded dwelling aocommodationac that there in a ahortaqe oE decent, safe and sanitary dwelling accoamodatlona available at rents or prices which persons of low income can sffordi and that such shortage forces such )>«*r90nii to occupy insanitary, unsafe and overcrowded dwelling acconmodatf onai 2. Tliat tliese conditions cause an increase Jn and spread of disoase and crime and constitute a menace to health, safety, morals and welfarci nntl rhat t>ioso conditions noeocsitate oxcet^sivc and disproi'tor tiunst* oxpenrtltnrcs of pviblic Cundu for crlnn- |>reventlon and punishmnnt, public health and safety pro- tection, firn and accident provontion and other public nnrvicob and faciliticn: 3. Thai tl^e Bhortoiie ot dec«nt, sole und r..Ti of low Income cannol br rt;li«>vrd through the operation of private enterprise; 1. That the providing of decent, safe, and nanltary dwelling accomioodat i(>nr. tor persons: of low income aro pviblic uses and putf>one« for which money may be spent and private property acquired and are governmental functions of Tribal concwrni 5. That Tcsldontial construction activity and a supply of occept.iblr housing ore important factors to nonoral economic activity and that the undnr- taklngs author ir.od by tliis ordinance to aid the production of better huusinci and more desirable neighborhood and community dovolopmont at lower costs will make possible a more stable and larger volume of residential construction and housing supply which will assist materially in achieving Cull employmontt and 6. That the necessity in Om public interest for the previsions herein- after enacted Is hereby declared as a natter of legislative determination. ARTICLB II PUWPOSBS The Authority ahMll bo organized .-»fid operntod for the purpooea oft , 1. Remedying unsafe and insanitary housing conditions that ara ln)ur{oUS to the public hnalth, r.afety and mor-ila) 2. M !»..!• .. • 187 DEFIN I T1UN S Tl.c eollowlnq t-,r.ns . w.^rcvec us^d or refecr.-d Vo .n this orrtl,„,.,c«, ^.-oU l-we Che tollowing rost>ectlvc ttoai.ings. unloB. » diftereht mecinlng Clearly appears from th» eoutcxt! -ftrea of Operation - moai.r all areas wltliin tho juriedlctlon of the tribe. J, •t'''^'' Board" i»e*nB the noard o( CotwuiaBiomrre o' th« Authority, ,( *^^Aune\\" ilu>»n» the joint nuslt.ect Coi»ncll consiBtlnq of the Dusinnss Cooocil of tJtc SUoBhone TrSUo ond t)io nunlhoSB Council of tho Arapahoe Tribo. " Fcdaral Goveri«oent" inolodea Oio Uhited Statan of Miw^rlca, the neparVmnit of Housing and Ucb«n Davelopmcnt, or any other aqency or i nctrumcnCal ity corporate! or otherwise, of Iho United States of hRierlca. "Horecbuyer" txenrtv a pemonts) who hn« executed fi loBJv '.iiitablo mothod, Jnclvidlnn but not limited tr>: renval, sale of lndivldu.^1 iinitt In single or muJtifamlly str\>CMitcp undei convctntional couilominiure. or cooperative '^ales contracts or 1 cflso-pvirchrtr,^ arjrecmonts: loans; or suhsidizino of rrntale or charges) decent, safe an'' Svtnitary dwellings, apor tmentr,, or other living accoisraodnt ions fur person*", of low inconc. Such work or vindcrtok inroprriy and all tangible or intangible assets held or used in connection with the housing project. " Obi Igations " means any notes, bonds, intcrlum certificates, debentures, or othor forma of obligation issued by the Authority pursuant to this ordinance. " Obi iqne " Includes any holder of an obligation, agent or trustee for any holder of an obligation, or lessor demising to the Authority property used in connection with a project, or any assignee or assignees of such lessor' r- interest or any part thereof, and the Fodoral government when It is a partv to any contract with the Authority In respect to a housing project. " Persons of low income " means persons or families who cannot afford to pay enough to cause private enterprise in tlicJr locality to build an adequate supply of decent, safe and sanitary dwellings Cor their use. ARTICLE IV BOARD or COMKISSIONtR S 1. c managed by a Board of Conmlssionors coioposed of six persons, a. Two m.TQbors nf •!,. — •'•*^ "l^.jji^ o, memr/.iB t.i eiie anosnonc TriD*. __ ,- Af th^ B^nrd shall b« members of the Arapahoe Trib..' b. Two mewbers of the Bonr 3 -ne „lther Tribe. V::, ::re"- l< l^l ^olV. :ZU ..t be me.^ers of Cither Tribe. (J) The Board mewbars s^all be 188 EXHIBIT 7 I TITLE XXI I i ZUNI TRIBAL EafTEBPRISE BOARD OF DIRCCTOns CHAPTEH 1 ~ GEHEnAL PROVISIOWS I §21-1-1 Council Findings - The Zuni Tribal uonncll pursuant to its constitutional powers has created numerous tribal enterprises. These enterprises have, without exception, developed serious financial problems. The Zunl Tribal ' Council rinds that these problems are a direct result of inadequate oversight i of and direction to the employees of the various enterprises. The Zunl I Tribal Council does not have sufficient time or resources to adequately ' perform these policy making functions or to provide the necessary oversight. ' 521-1-2 Purpose - The purpose of this Title is to create a Board of Directors I with the power to make the necessary policy decisions for all of the Tribe's I enterprises. The Board of Directors shall exercise these powers wHh a | minimum of interference from the Zuni Tribal Council but be bound by an ' obligation to the people of the injeblo of Zunl to: I la) Provide meanlnsful employment to the people of the Pueblo of | Zuni( (b) Protect the resources and culture of the people of Zunl; I (c) Generate surplus revenues for the benefit of the Pueblo of Zunl; (d) Develope the reputation of Zuni Tribal Enterprises as financially sound buslneeses. §21-1-3 Creation of the Board of Directors - There la hereby created a five person Board of Directors to be known as the Zunl Tribal Enterprise Board of Directors and to have such powers as are set out in this Title. \ CHAPTER ^ — BOARD OF DIRECTOnS MEMDERSHIP I §21-2-1 Appointment of Board of Directors Members - The Zuni Tribal Council shall appoint the five members of the Zunl Tribal Enterprises Doard of Directors. A member nay be appointed for more than one tern. 521-2-2 Term of Office - The members of the Board of Directors shall servf! staggered thrf.e (3) year terms. Terms of office sha}l expire on the fjrst j day of the new year and new terms of office shall begin at the same time. One member of the initlaj Board of Directors shnJl have his/her term expire on January 1, 1982; two members of the initial Board of Directors shall have their terms expire on January 1, 1983; two members of the initial Board of Directors shall have their terms expire on January 1, i9Bii. 189 $21-2-3 Vacancy on Board of Plrectora - There shall be a vacancy on the Board of Directors when any of the following occurs: (a) There Is a death of a membar of the Board of Directors' (b) A inember of the Board of Directors resign;? voluntarDy; (c) A wember of the Board of Directors nlssenn three consecutive regular Board of Directors meetings and the remaining members of the Board of Directors by unanimous vote, including the vote of the Chairperson, detemine that the absent member no longer has the desire to act in the best interest of the Board of Directors and should be removed i (d) The tern of office for a aembcr of the Board of Directors has expired. §21-2-'t Filling Vacancies on the Board of Directors - Vacanele» on the Board of Directors shall be filled by action of the Zunl Tribal Council. A kperson appointed to fill an unexpired term on the Board of Directors shall be appointed for the remaining portion of that tern. 521-2-5 Eligibility for Membership - Any person, Zuiii or non-Zunl, resident or non-resident may be appointed to the Board of Directors If such person shows a willingness to further the purposes of this Title. 521-2-6 Ex-Offlcio Member - The Zunl Tribal Council may in its discretion appoint one ex-officio member of the Board of Directors. This inember may take part in any Board of Directors discissions In order to express the views of the Tribal Council. This member .uch surplus revenues; (f) To authorize the lending of enterprise money for cnterpriec purposes, to Invest and reinvest money and take and bold real and personal property as .security for the payment of funds so loaned or invested; 192 (g) To set all salaries for all enploye«a of all enterpriees; (h) To approve and authorize the sale, conveynace, mortgase, pledge, lease, exchange, transfer or other disposition of all or any part of the property or assets of any enterprise; (1) To approve and authorize the purchase, taking, receiving, leasing or other acquisition, owning, holding, Inproving, use or other dealing with real or personal property or other Interest therein, wherever situated when such property is an asset of an enterprise; (j) To authorize suit on behalf of any enterprise; (k) On behalf of any enterprise to make contracts and guarontces and Incur liabilities and borrow laoney at such rates of interest as it may detemine; (1) To exercise its powers or authorize such exercise within or without the reservation; (m) To delegate to any person or persons any of the powers of the Board of Directors. • ~ i CHAPTER 7 — LIMITS OF BOARD OF DIBECTORS POWEBS I §21_7-1 Conuninglins of Enterprise Funds - The Board of Directors may authorize the use of funds from more than one enterprise to be combined for a single purpose for the benefit of all enterprises so contributing. The Board of Directors shall not authorize the use of funds or assets of one enterprise to be used for the benefit of another enterprise or to have the assets Of onft enterprise generally coningled with the assets of any other enterprise. §21-7-2 Consent to Suit - The Board of Directors shall have the power to consent to suit against any enterprise. Skuch consent shall onJy create liability up to the lialts of the assets of the enterprise against which suit is authorized. Consent to suit against one enterprise shaJl not be , valid if the purpose of the consent was to obtain a benefit for another enterprise. This provision shall not be construed to allow suit against any enterprise, officer or employee thereof without an express consent to suit granted by the Board of Directors. No consent to suit shall be ! valid unless the consent is limited to suit in the Zuni Tribal Court. ^ CHAPTER 8 — BOARD DOTIBS ] §21-8-1 Reports to the Council - The Board of Director* shall prepare j and submit annual reports to the Tribal Council regarding the status of j each enterprise on December 15 of each year. ' 193 S21-8-2 Audit - The Board of Directors shall authorize an annual audit or other appropriate Tlnanclal report as to eacb of the enterprises and shall submit such reports to the Zunl Tribal Council. CHAPTER 9 — TnlBM> UABILITT {21_9_1 No Liability - No provision of the Title shall be read to authorize suit against the Zunl Tribe or any officer or employee therof. No provision of this Title shall be read to eapouer the Board of Directors to authorize suit against the Zunl Tribe or any officer thereof. CHAPTER 10 ~ UABILITT OF PIRBCTORS J21-10-1 No Liability - There shall be no liability against nny director for any action taken or not taken pursuant to the performance of their duties or the operation of any enterprise. CHAPTER 11 — EHTERPRISES GOVEBHED BY BOARD OF DIRECTOBS 521-11-1 Existing Enterprises - The Zunl Tribal Enterprise Board of Directors Is hereby given control over the following existing enterprises: (a) Zunl Candle Company; (b) Zuni Air Corporation; (c) Zuni Conservation Enterprise: (a) Zunl B.V. Campground; (e) Zuni Building Company; (f) Zunl Salt Lake E:nterprlse; (g) Zuni Rental Enterprise. 521-11-2 Hew Enterprises - The Zunl Tribal Diterprise Board of Directors shall have contro] over all new enterprises created pursuant to §21-6-1 (a) of thle Title. CHAPTER 12 — TRANSFER OF COHTWOL OVER EXISTIWG EHTERPRISES 521-12-1 Transition Period - It is recognized l-hat there will be a period of transition during which the existing enterprises must function and before the time when the Board of Directors has had tine to delegate powers of day to day operation to the enterprise managers. Until such time as the Board grants or removes any power from any enterprise personnel, such personnel shall continue to exercise such power previously given them by the Zun) Tribal Council. 194 121-12-2 Charter Issuance - The Board of Directors shall issue charters to the enterprises listed in "21-11-1. These charters shall be subject to ratiricatlon by the Zuni Tribal Council. Once ratified the enterprises shall be subject to the provisions of this Title and subject to the control or the Zunl Tribal Enterprise Board or Directors. $21-12-3 Revocation of Prior Council Actions - Any prior action of the Zunl Tribal Council in creating a Zunl Enterprise Board of Directors or similar body is hereby revoked. Any prior tribal action dealing with any tribal enterprise, wkhlch Is Inconsistent with this Title or which is inconsistent with any future Board of Directors action Is hereby declared to be superceded by this Title or by such future Board of Directors action and to the extent of such inconsistency such prior action is of no effect. 521-12-- Rejected Calk to Reverse the Santa Clara Pueblo Decision At Congress' direction, the United States Civil Rights Commission undertook an examination of tribal court enforcement of the Indian Civil Rights Act.'' Beginning in 1986, the Commission conducted numerous hearings and heard testimony from a wide variety of witnesses, including tribal judges, tribal council members, Indian law scholars. Bureau of Indian Affairs' officials, and United States Attorneys." The Commission collected additional information from field interviews, written statements from Indian tribes, correspondence, and responses to requests for information.'* In 1991, the Commission published its findings and recommendations in a report entitled "The Indian Civil Rights Act: A Report of the United States Conunission on Civil Rights, June 1991" ("Report"). The Report traced the evolution of tribal courts since the 1880s, and concluded that "[o]nly in the last 20 years have tfiese courts been permitted to develop."" The Commission frankly attributed the lack of development to "[sjhifts in Federal Indian policy,"'* and their recent development to the self-detemiinatioa policy and the congressional mandate that tribal courts " The Indian Civil Rights Act; A Report of the United States Commission on Civil Rights, June 1991 ("ICRA Report^. " liatl. " IjLatl-2. " Id. at 30. 203 enforce the ICRA." The Report recommended against the enactment of legislation that would reverse the Santa Clara Pueblo decision, stating that it would be a "further encroachment of tribal government sovereignty" which is "imwananted and inappropriate at this time in light of the Federal Government's poor record of support for the costs of insuring Indian civil rights."" Throughout the Report the Conunission observed that tribal courts have historically suffered from a lack of funding, training and resources." The Report also highlighted areas where tribal courts were experiencing difficulty as a result of inadequate training and resources. These areas included "[djefming the parameters of judicial review" particularly in actions brought against the tribal council," and the invocation of the defense of sovereign immunity.^' The Commission acknowledged that tribal governments should address these areas with fmancial support and with the encouragement of the federal government. For example, the Report suggested that the federal government could "play a positive role in encouraging the tribes to examine the extent to which they can enact statutory waivers of their sovereign immunity for adjudication of civil rights claims . . . ."^ Through the federal government's establishment of pilot projects, the Report proposed, tribal "lsLat31. " li at ii-iii. " 14 at 36, 41 (quoting statements reflecting inadequate funding of Uibal courts made by John Collier, the Commissioner of Indian Affairs in 1941 and Senator Daniel Inouye in 1988). » IsL at 51-63. ^' IjL at 63-67. ^ IsL at 67. 204 governments could "take the lead" in considering the enactment of limited waivers of sovereign immimity." Overall, the Commission recognized that tribal justice systems are in a period of " transition ."" and that the federal govenmient should permit Indian tribes, as sovereign nations, to strengthen and improve their tribal justice systems through the exercise of the powers of self- govemment without federal interference, "such as by way of imposing Federal court review."" The Commission also reconmiended that the federal government support the development of tribal justice systems by providing adequate resources, training and funding for their operation,^^ and encouraged Congress to go forward with legislative proposals that authorized funding of tribal courts.^^ In 1993, Congress took action to provide such support by enacting the Indian Tribal Justice Act, 25 U.S.C. §§ 3601 stSSQ- Rather than intrude on tribal sovereignty by providing for federal court review of tribal court decisions, the Act expresses strong support for the tribal judiciary and seeks to provide Indian tribes with the funding and resources essential to the further development of tribal justice systems. Congress' commitment to tribal self-govenunent is reflected in the Act's '■ declarations which state "Indian tribes possess the inherent authority to establish their own form of j ^* liL at ii (emphasis in original). " LLatSl. ^ LL at 51, 72-73. ^ Id. at 72-73. 205 government, including tribal justice systems" and that "tribal government involvement in and commitment to improving tribal justice systems is essentia] to the accomplishment of the goals of this Act."" The Act also declares that "Congress and Federal courts have repeatedly recognized tribal justice systems as the appropriate forums for the adjudication of disputes affecting personal and property rights" and "serve as important forums for ensuring the public health and safety and the political integrity of tribal governments."^ To promote the continued expansion and effective operation of tribal courts, the Act authorizes federal funding for inter alia "the employment of judicial personnel," "the development^ and maintenance of a law library and records management system, the "construction or renovation of facilities for tribal justice systems," and "the development, revision, and publication of tribal codes, rules of practice, rules of procedures, and standards of judicial performance and conduct."'" The Act also established the Office of Tribal Justice Support to provide technical and other assistance to tribal justice systems." Unfortunately, however, recent appropriations show that tribal courts continue to suffer from the lack of adequate resources.'^ " 25U.S.C. §360l(4)and(9). ^ 25 U.S.C. § 3601(5H6). 'o 25 U.S.C. § 3613 (bX2H7). " 25 U.S.C. §3611. '^ A principal purpose of the Indian Tribal Justice Act, Public Law 103-176, was to provide statutory authorization for funding for tribal court operations. Specifically, the Act authorized $58.4 million, with $50 million to be used for the basic operations of tribal judicial systems. However, since the enactment of the Indian Tribal Justice Act, funding for tribal courts has in fact declined. The amount expended for tribal judicial systems in FY 1996 was $10,443 206 In sum. Congress has to date responded to attacks on tribal courts by seeking to determine what could be done to provide assistance to these courts, and has rejected calls to abrogate their authority. Congressactions have been consistent with the recommendations of the United States Civil Rights Commission, which unlike tribal court critics, actually sought to determine the problems facing tribal courts before making its recommendations. Congress' judgment has been correct, as we show next. 2. Decisions of the Tribal Courts Show That Congress Was Correct and That Tribal Courts are the Proper Forum for The Adjudication of ICRA Claims There is no question that the exercise of tribal powers to improve the reservation economy and quality of life, and the growth of the tribal community have created a need for tribal statutory and common law to define the substantive law and protect the individual rights of residents of that community and participants in the reservation economy. This is a natural occurrence in the development of the tribal self-government. While the pace of this development has been unusually quick, the response of Indian tribes to these needs has, despite the limited resources available to do million, which was $4 million less than was expended in FY 1995. The lack of funding for tribal judicial systems has also been the subject of Congressional hearings, most recently in August of 1995, at which the Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, testified that the current lack of funding for tribal courts is a crisis and that "[a] collapse of the tribal court system for lack of resources would be a major judicial disaster, not just for the tribes and their courts, but for our whole system of civil and criminal justice." Statement of the Honorable William C. Canby, Jr., Judge, United States Court of Appeals for the Ninth Circuit, Oversight Hearing on the Indian Tri bal Justice Act. Senate Committee on Indian Affairs 103rd Congress, Second Session (August 2, 1995). 10 207 so, matched this pace. Indian tribes have responded to the expanded need for tribal statutory and common law through the enactment of codes by their legislative bodies and through the development of common law in the tribal courts. The reservation community - Indian and non-Indian - has responded to these developments by using the tribal courts to decide disputes in a broad variety of areas, including contract and tort claims." challenges to tribal tax laws," employment disputes," conservation " Pitts v. Earling . 22 Indian L. Rep. 6052 (C.S.&K. Ct. App., Dec. 5. 1994) (conUact for sale of undivided Indian trust and fee lands is not enforceable absent prior approval by Secretary of Interior); Puyaliup Nation Housing Authority v. Miles . 21 Indian L. Rep. 6049 (Puy. Ct. App., Dec. 9, 1991) (interpretmg housing lease); Greene v. Bourgeau . 21 Indian L. Rep. 6057 (Nez Perce Tr. Ct., Apr. 13, 1994) (under Nez Perce tradition there is no implied rental agreement for occupancy of plaintifTs trailer when the parties made no agreement for rent); Bauer v. Mashantucket Pequot Gaming F.nteiprise . 22 Indian L. Rep. 6145 (Mash. Peq. Ct. App., Oct. 24, 1994) (personal injury suit). ^ Mustang Fuel Corp.. et al. v. Chevenne-Arapaho Tax Comm'n et al. . 21 Indian L. Rep. 6058 (Chey.-Arap. Sup. Ct, Jan. 3, 1994) (Tribe has authority to tax extraction of natural resources on allotted Indian trust land by non-Indian company); Hercules. Inc. v. Skull Valley Band of Goshute Indians, et al. . 20 Indian L. Rep. 6025 (Goshute Tr. Ct., Mar. 25. 1993) (Tribe has authority to impose ad valorem tax on property held by non-Indian corporation). " Hoopa Valle v Indian Housing Authori ty v. Gerstner . 22 Indian L. Rep. 6002 (Hoopa Ct. App., Sept. 27, 1993) (affirming trial court's upholding TERO Commission's reinstatement of director of housing authority after a hearing); PC&M Constniction Co. v. Navajo Nation, et al. . 2 1 Indian L. Rep. 6016 (Nav. Sup. Ct, Nov. 16, 1993) (appeal of suit against company for failure to pay tribal minimum wage). 11 208 violations, '* and domestic relations and child custody matters." The use of the tribal courts to resolve these and other dispirtes reflects a growing confidence in the tribal judiciary within the Indian and non-Indian reservation community. Tliese cases also include actions against Indian tribes and tribal officials alleging that their conduct did not comport with the requirements of the Indian Civil Rights Act, or with procedural rights guaranteed under tribal law. The decisions in these cases address threshold issues, such as the application of the doctrine of judicial review, as well as the issue of whether such actions are barred by tribal sovereign inmiunity, and, when it is within the court's jurisdiction to do so, the merits of the underlying claim. Contrary to the claims made by the tribal opponents, these cases show that tribal courts are committed to protecting individual rights under federal and tribal law, and to effective enforcement of the Indian Civil Rights Act. We point out first that a niunber of these cases have required tribal courts to consider whether to apply the doctrine of judicial review. This is an issue of singular importance, the resolution of ^ Squaxin Island Indian Tribe v. Johns . 22 Indian L. Rep. 601 1 (Sq. I. Ct. App., Apr. 6, 1993) (violation of tribal fishing code); Naff v. Colville Confederated Tribes . 22 Indian L. Rep. 6032 (Colv. Ct. App., Jan. 26, 1995) (violations of tribal fish and wildlife code); Bowen v. Upper Skagit Indian Tribe . 21 Indian L. Rep. 6002 (U. Skag. Ct. App., Apr. 24, 1990) (conviction for fishing in closed area). " Miner v. Banlev . 22 Indian L. Rep. 6044 (Chy. R. Sx. Ct. App., Feb. 3, 1995) (child custody proceeding); Lulow v. Peterson. 22 Indian L. Rep. 6069 (C.S.&K. Tr. Ct., Mar. 21, 1995) (holding no cause of action for services rendered in relation to cohabitation without marriage); DuMarce v. Heminger . 20 Indian L. Rep. 6077 (N. Phis. Intertr. Ct. App., Sept. 25, 1992) (interpreting requirements of traditional adoption procedure). 12 209 which determines the role of the judiciary within the government, as is illustrated by the United States Supreme Courts historic decision in Marfaurv v. Madi«^n S U.S. (1 Cranch) 137 (1803). The reported tribal court decisions show that several different tribal courts have exercised judicial review of tribal council actions just since 1991." These decisions also demonstrate frequent consideration of the question whether the action SUbjudice is barred by sovereign immunity." When tribal agencies and officials assert immunity in an action brought under tribal law. the tribal constitution or the Indian Civil Rights Act, the tribal courts determine whether Congress or the Tribe has expressly waived tribal immunity from suit, or " Bums Paiute Indian Tribe v. Dick 22 Indian L. Rep. 6016 (Bums Paiute Ct. App., Feb. 14, 1994)(holding tribal exclusion order violates ICRAs due process provision); Colville Confederated Tribes v. Wilev. ei ai. 22 Indian L. Rep. 6059 (Colv. Ct. App.. Mar. 27, 1995); Hicis V- Cargrra. gt al. 22 Indian L. Rep. 6065 (Inter-Tribal Ct. App. of Nev., Jan. 30. 1995); Hudson v. Hoh Indian Tribe, d^/a the Hoh Tribal Business Comminee 21 Indian L. Rep. 6045 (Hoh Ct. App., May 28, 1992Xexercising review of tribal council's decision to discharge plaintiff); Shoshone Business Council v. .Skillines. 20 Indian L. Rep. 6007 (Shos. & Arap. Ct. App., Jan. 28, 1993)(exercising review of tribal business council's actions); Wells. Jr. et al. v. Blaine. Jr.. et al. . 19 Indian L. Rep. 6035, 6036-37 (N. Pins. Intertr. Ct App., Nov. 15, 1 99 1)( reviewing tribal council's removal of tribal couikH members). " S££ £.£^ Hudson V. Hoh Indian Tribe, d^/a/ the Hoh Tribal Business Committee . 21 Indian L. Rep. 6045, 6046-47 (Hoh Ct. App., May 28, 1992); Kakwitch v. Menominee Tribal EnleiEdSfiS. 21 ILR 61 12 (Men. Sup. Ct.. Aug. 9, 1994); Shoshone Business Counril v SJHIIinp ^ et al„ 20 Indian L. Rep. 6007 (Shos. & Arap. Ct. App., Jan. 28, 1993); Davis v. Keplin . 18 Indian L. Rep. 6148 (Turt. Mt. Tr. Ct.. Sept. 6, 1991); Sulcer v. Barren. Jr. . 17 Indian L. Rep. 6138, 6139 (C.B. Pot. Sup. Ct., Sept. 5, 1 990)(holding tribal business committee members immune from suit as long as they acted within the scope of their authority); Wells v. Blaine. Jr . 19 Indian L. Rep. 6035. 6036-37 (N. Phis. Inteitr. Ct. App., Nov. 15, 1991); Committee for Better Tribal Covprnment et al. v. Southern Ute Election Board . 17 Indian L. Rep. 6095 (S. Ute. Tr. Ct., Aug, 13, 1990); Francis v. Wilkinson. 20 Indian L. Rep. 6015 (N. Pins. Intertr. Ct. App., Jan. 21, 1993); Davis v. Turtle Mountain Housi ng Authority . 17 Indian L. Rep. 6035 (Turt. Mt. Tr. Ct., Feb. 13, 1990Xholding sovereign immunity does not bar declaratory judgment action brought against tribal housing authority). 13 210 expressly vested the court with jurisdiction over such actions/" Several decisions hold that immunity was waived in the tribal constitution or in the tribal code,'" while others find a waiver in the Indian Civil Rights Act/^ Where Indian tribes have enacted ordinances expressly waiving sovereign immunity, tribal courts have sought to give effect to both the purpose and policy of the ordinance. Thus, in Bauer *" Kakwitch v. Menominee Tribal Enterprises . 21 Indian L. Rep. 6112 (Men. Sup. Ct., Aug. 9, 1994)(holding that tribal constitution waived immunity of tribe and tribal enterprise with respect to actions brought under the tribal constitution, by-laws, ordinances and the Indian Civil Rights Act); Bordeaux v. Wilkinson . 21 Indian L. Rep. 6131, 6132 (Ft. Bert. Tr. Ct., Oct. 1, 1993)(holding tribal constitution waived immunity of tribal council members with respect to suits brought under ICRA); Davis V. Keplin . 18 Ind. L. Rep. 6148 (Turt. Mt. Tr. Ct., Sept. 6, 1991); sse alS2 Francis v. Wilkinson . 20 Indian L. Rep. 6015 (N. Pins. Intertr. Ct. App., Jan. 21, 1993)(holding tribal constitution waived sovereign immunity of tribal council from ICRA claims); rinn7a|p^ v. Allen . 17 Indian L. Rep. 6121, 6123-24 (Sho.-Ban. Tr. Ct., Sept. 17, 1990)(holding that sovereign immunity bars court from awarding back pay, but awarding injunctive relief); Murphy v. Standing Rock Sioux Election Commission . 17 Indian L. Rep. 6069, 6072-73 (St. Rk. Sx. Tr. Ct., Apr. 20, 1 990)(holding tribal election commission violated plaintiffs constitutional rights to due process and equal protection); O glala Sioux Tribal Personnel Board v. Red Shirt . 16 Indian L. Rep. 6052, 6053 (Ogl. Sx. Tr. Ct. App., Oct. 20, 1983)(holding sovereign immunity does not bar ICRA claim brought against tribal personnel board). ^'S££,£i£., Hudson v. Hoh Indian Tribe, d^/a the Hoh Tribal Business Committee . 21 Indian L. Rep. 6045, 6046-47 (Hoh Ct. App., May 28, 1992)(holding that tribal constitutional provision pennitting redress of grievances limited tribe's immunity for purposes of a wrongful termination challenge); Kakwitch v. Menominee Tribal Enterprises. 21 Indian L. Rep. 6112 (Men. Sup. Ct., Aug. 9, 1994); Bordeaux v. Wilkinson . 21 Indian L. Rep. 6131 (Ft. Bert. Tr. Ct., Oct. 1, 1993); Francis v. Wilkinson . 20 Indian L. Rep. 6015 (N. Pins, Intertr. Ct. App., Jan. 21, 1993); Murphy v. Standing Rock Sioux Election Commission . 17 Indian L. Rep. 6069 (St. Rk. Sx.Tr. Ct.,Apr. 20, 1990). *^ Sse, £=£.. Davis v. Keplin. 18 Indian L. Rep. 6148 (Turt. Mt. Tr. Ct., Sept. 6, 1991); Oglala Sioux Tribal Personne l Board v. Red Shirt, 16 Indian L. Rep. 6052 (Ogl. Sx. Tr. Ct. App., Oct. 20, 1983). 14 211 V. Mashantucket Pequot Gamine Enterprise." the tribal appellate court held that the tribal ordinance waived the tribal gaming entoprise's immunity from personal injury suits, and that the lower court had erred in dismissing plaintiffs claim on the ground that she had misnamed the tribal gaming enterprise in her complaint And in Raymond v. Nav^o Agricultural Products Industry .*^ the Supreme Court of the Naviyo Nation examined each of the four exemptions from sovereign immunity provided by die Navsyo Sovereign Immunity Act to determine whether they applied to the employment-related claims brought by plaintiff against a tribal entity. While holding that none of the exemptions applied, the Court explained that plaintiff should have pursued the administrative remedy provided under the Navajo Preference in Employment Act, which authorized an appeal to the tribal court These decisions also show that a number of the tribal courts have adopted as tribal law the remedy that the Supreme Court made available for claimed violations of federal law in Ex parte Young. 209 U.S. 123 (1908). The XfiUQS doctrine authorizes actions for prospective injunctive relief against government officials for claimed violations of federal law by declaring that actions of government ofiRcials that arc beyond the scope of their authority are not actions of the sovereign, and that therefore such actions are not baired by sovereign immunity. The Young doctrine has been applied by a number of tribal courts as a remedy for claimed violations of tribal law, thus avoiding « 22 Indian L. Rep. 6145 (Mash. Peq. Ct App., Oct 26. 1994). ** 22 Indian L. Rep. 6100 (Nav. Sup. Ct, July 20, 1995). IS 212 immunity in the same manner as do the federal courts.*' Applying the same doctrine, tribal courts have dismissed claims against tribal o£Bcials in the absence of allegations that the defendants acted beyond the scope of their authority,** and have recognized tribal immunity when an action brought against tribal o£Bcials is in reality an action against the sovereign.*^ In sum. the tribal courts have, through the development of tribal common law, made new remedies available to litigants whose claims would otherwise be barred by immunity. The individual rights claims that have been presented to and decided by the tribal courts address issues such as the right to equal protection of the law,*' the right to an opportunity to be *' S^, £^, Combrink v. Allen. 20 Indian L. Rep. 6029, 6030 (Ct. Ind. App., Tonkawa, Mar. 5, 1993)(holding sovereign immunity does not bar petition for mandamus directing president to comply with tribal law where president acted beyond the scope of her authority); Wells. Jr. v. Blaine. Jr.. et al. . 19 Indian L. Rep. 6035, 6037 (N. Phis. Intertr. Ct. App., Nov. 15, 1991)(holding that the doctrine of sovereign immunity does not bar actions against tribal officials who have acted outside the scope of their authority); accord Lovermi v. M iccosukee Tribe of Indians of Florida. 23 Indian L. Rep. 6090 (Mice. Tr. Ct, Apr. 17, 1996); Comminee for Better Tribal Government, et al. v. Southern Ute Election Board, et al. . 17 Indian L. Rep. 6095, 6097 (S. Ute Tr. Ct., Aug. 13, 1990). ** SfiS, £,g., Lovermi v. Miccosukee Tribe of Ind ians of Florida. 23 Indian L. Rep. 6090 (Mice. Tr. Ct., Apr. 17, 1996); Committee for Better Tribal Government, et al. v. Southern Ute Election Board, et al. . 17 Indian L. Rep. 6095, 6097 (S. Ute. Tr. Ct., Aug. 13, 1990); accord Sulcer V. Barrett. Jr. . 17 Indian L. Rep. 6138 (C.B. Pot. Sup. Ct., Sept. 5, 1990). *' S^ Sulcer V. Barrett. Jr.. 17 Indian L. Rep. 6138, 6139 (C.B. Pot. Sup. Ct., Sept. 5, 1990); accord Day v. Hopi Election Board, 16 Indian L. Rep. 6057, 6059 (Hopi Tr. Ct., Feb. 29, 1988, July 18, 1988)(holding that defendants were not liable for money damages because the doctrine of sovereign immunity bars any suit "that could potentially reach into the public treasury"). ** Bums Paiute Indian Tribe v. Dick, et al.. 22 Indian L. Rep. 6016 (Bums Paiute Ct. App., Feb. 14, 1994). 16 213 heard/' and to have adequate notice,'" privacy rights," as well as rights to a jury trial," speedy trial," and the right to counsel in criminal proceedings.** The tribal courts have also upheld the right of individuals to a hearing prior to significant governmental actions such as employment termination" and termination of parental rights* While these decisions cannot be evaluated simply *' In re the Welfare of P.P. . 22 Indian L. Rep. 6020 (Port Gam. S'Klallam Ct. App., Jan. 7, 1994) (parental rights may not be terminated without an adequate opportunity to be heard); In Re the Matter o f B.F.C.. a Minor Child . 21 Indian L. Rep. 6035, 6036 (Nook. Ct. App., Mar. 12, 1990Xtrial court's denial of motion for continuance reversed on grounds movant was not permitted to argue his motion). '" SfiC Chehalis Indi an Tribe v. Jansen . 22 Indian L. Rep. 6001 (Chel. Ct. App., Dec. 6, 1993)(personnel service of process adequate in lieu of service by certified mail); Baldv. Sr.. et al. V. Hoopa Valley Tribal Council. 22 Indian L. Rep. 6015 (Hoopa V. Ct. App., Mar. 16, 1 994)(publication of notice in local weekly newspaper of enrollment hearing adequate notice); Tulalip Housing Authority v. Moses . 22 Indian L. Rep. 6070 (Tul. Ct. App., May 25, 1994) (judgment vacated for improper service of summons and complaint on defendant); Hicks v. Harold. gt al,. 20 Indian L. Rep. 6091 (W. Nev. Intertr. Ct. App., May 13, 1994Xextraterritorial service of process permitted). " Tonasket v. CIPP . 20 Indian L. Rep. 6125 (Colv. Ad. Ct, Nov. 29, 1992Xright to privacy under tribjil law not violated by drug testing of tribal employee). " Sk Laramie v. Colville Confederated Tribes . 22 Indian L. Rep. 6072, 6074 (Colv. Ct App., May 1 , 1 995Xonce demanded in a criminal case a right to trial by jury cannot be waived by silence); Coleman v. Colville Confe derated Tribes . 20 Indian L. Rep. 6106 (Colv. Ct App., July 22, 1993) (defendant knowingly waived right to jury trial). " Suquamish I ndian Tribe v. Purser . 21 Indian L. Rep. 6090, 6092 (Suq. Ct App., Sept 18. 1992) (criminal case dismissed on grounds that new trial would violate defendant's right to speedy trial); Sisseton-Wa hpeton Dakota Nation v. Cloud . 21 Indian L. Rep. 61 15, 61 17 (N. Pins. Intertr. Ct App., Apr. 1 8, 1 994Xdeclaring right of criminal defendant to speedy trial); Yakima Indian Nation V. Settler . 20 Indian L. Rep. 6075 (Yak. Tr. Ct, June 25, I993Xcriminal case dismissed for failure to effect speedy trial). " Lununi Indian Nation v. Solomgn, 21 Indian L. Rep. 6085 (Lum. Ct App., Sept 21, 1992) (finding that appellant made knowing and conscious waiver of right to counsel). " Regan v. Finkbonner . 21 Indian L. Rep. 6026 (Nook. Ct App., Feb. 15, I990Xemployee has right to grievance hearing after termination at which she and her supervisors are present); 17 214 by looking at the judgment to see who won, they plainly show that tribal courts are committed to the protection of individual rights, and have no reluctance to rule against the tribal government." Tribal court decisions have also recognized that as tribal economic development creates more employment opportimities for tribal members and non-Indians, and brings more people to the reservation, the role of tribal law and of the tribal courts in protecting individual rights has become even more important.'* Furthermore, where tribal law and precedent have bound the court to dismiss em action on sovereign immunity grounds, two tribal courts have actually suggested that the tribal government take action to remedy the effects of the doctrine. Thus, in Lovermi . a wrongful termination case, the court recognized that the sovereign immunity defense constituted an "insurmountable obstacle" and that without a waiver "remedies Hudson V. Hoh Indian Tribe, d/b/a the Hoh Tribal Business Committee . 21 Indian L. Rep. 6045, 6046 (Hoh. Ct. App., May 28, 1 992Xtribal employee has right to challenge her termination in tribal court). ^ In the Matter of D.J. . 21 Indian L. Rep. 6083 (Hopi Child. Ct., Apr. 29, 1994)(due process requires adequate and timely petition by children's services agency prior to termination of parental rights); In the Matter of M.H. . 20 Indian L. Rep. 6040, 6042 (N. Pins. Intertr. Ct. App., Mar. 5, 1992)(parent has right to a hearing prior to removal of children). " SS£, £& Bums Paiute Tribe v. Dick, et al . 22 Indian L. Rep. 60 1 6, 60 1 7- 1 8 (Bums Paiute Ct. App., Feb. 14, 1994 (exclusion ordinance held overbroad and resulted in denial of equal protection); Schwab v. CTEC Construction . 21 Indian L. Rep. 6027, 6029 (Colv. Admin. Ct., Jan. 3, 1994) (termination of non-Indian held discriminatory). '» SSS Lovermi v. Miccosukee Tribe of India ns of Florida. 23 Indian L. Rep. 6090, 6901 (Mice. Tr. Ct., Apr. 17, 1996)(observing that the number of employment disputes in tribal court will continue to rise along with increasing economic development and employment opportunities for Indians and non-Indians). 18 215 may be unavailable for violations which are properly proven and shown."" While holding the claim barred by sovereign immunity because there was no waiver, the court suggested that the tribal government consider providing for judicial review of final decisions rendered by the tribal personnel board." Similarly, in Clement v. LeCompte . the tribal court recommended that the tribal legislature consider enacting an ordinance providing for a limited waiver of sovereign immunity." In sum, analysis of the reported tribal courts decisions shows that tribal courts are ready and willing to respond to claims of unfairness based on tribal law or the Indian Civil Rights Act. C. Congress Should Continue its Support for Tribal Courts and Should Continue to Reject Attempts to Secure Legislative Reversal of the Santa Clam Pueblo Decision Indian tribes have made remarkable changes in their economies and communities in the relatively short period that the Self-determination policy has been in effect. This has been accomplished largely through the exercise of the tribal powers confumed during the Self- determination era, and supported by Congress through enactments that implement the Self- determination policy, including the Indian Tribal Justice Act " liL at 6091 (internal citation and quotations omitted). *» IjL *' Clement v. LeCompte. 22 Indian L. Rep. 61 18 (Chy. R. Sx. Ct. App., Jan. 12, 1994). 19 216 As with any government, the exercise of these ]X)wers has in some instances generated conflicts between individuals and the tribal govenunent. Under settled law, these conflicts are subject to adjudication exclusively in the tribal courts, and as a result of the actions that have been brought, both the principle of judicial review and the applicability of immunity defenses to actions against Indian tribes and tribal officials are now the subject of a substantial tribal jurisprudence. The decisions in these cases show that tribal courts are committed to the protection of individual rights under both federal and tribal law. In sum, these decisions show that tribal courts are, as the Supreme Court held in Santa Clara Pueblo , "appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians." liL, 436 U.S. at 65 (citations omitted). As a result. Congress should continue to reject calls to reverse the Santa Clara Pueblo decision and should continue its support for tribal courts. Neither the rhetoric of tribal opponents, nor the duration of their attacks on tribal courts offer any reason to change the course that Congress has set. The sovereign immunity of Indian tribes protects the right of the tribes to craft their own remedies for claims against the tribe, both by legislative enactment and through the development of common law, and should not be modified. Rather than consider proposals to abrogate tribal immunity. Congress should continue its support of tribal courts and tribal self-government. DSO 1/8776- 1 20 217 COUNCIL OFHCE ^ Marienc Dawsen Council Mamb^r AILaiga OOB* (2061 e7e-S£9a Couly COe)3S«-«&]7 FAX: (20G) 738-2SS0 SCAM 7S»«6«> 311 Grand Avenu* HOOI*. C06I3S4-0823 Belngnam. WA 9&22S~<038 Septemoer ^'\ , 199o Members o-f Committee o-f Indian Affairs Subject: TRIBAL SOVEREIGN IMIMMUNITY I am here today to explain that -federal and state dollars »re -financing hostile, un-friendly tribal governments that are using sovereign immunity as a means to deny hundreds o-f thousands o-f citizens their due process and constitutional rights that Ars normally guaranteed all citizens o-f this great Nation, regardless o-f race or national heritage. We Are appealing to this body to provide -for us a level playing -field so we can protect our rights in a democratic formed court o-f law and hold tribal governaent accountable -for their tyranny. I reside in Ferndale, Washington within the exterior boundaries o-f the Lumai Reservation, Mtiich is considered a leader among self- governing tribes. This is an open reservation of an approximate equal percentage native and non— Indian residents where the land base excluding the tidelands is little over 13,000 acres. The treaty forming this reservation divided the land base into allotments so the individual native could sell their land when they saw fit and pursue the American Dream off the Reservation. In 1934 all the tribes of our nation were provided the option to reverse the federal government's goal of assimilation, through the Reorganization Act, and set up a separatist and socialistic form of government. The voting members of this reservation voted to continue assimi lation. But today, Lummi tribal council members refuse to honor the vote taken in 1934. Certai n counci 1 members have publ iclv stated they can not be h eld accountable to decisions made by prior counc i Is. The tribal council interferes with the buying and selling of land. Certain Lummi leaders refuse to pledge alliance to our nation's flag. Tribal cou nci 1 members state the Federal Supreme Court decisions on tribal 1 ssues don ' t apply to them because each reservat ion of the 557 total is un ique , so each tribe they say must 1 itiqate the issues at hand in order for it to be relevant to their reservation. It is tribal leadership found on this reservation and others which Are making life difficult, costly, unpleasant and impossible for tribal and non-tribal residents alike. The Lummi Law and Order have assaul ted Law abiding non— Indians on their beach front property, made false accusations against property owners, stopped non-Indian residents to search car trunks, chased small children from the beaches stating they were trespassing on tribal tide lands, threaten well dri 1 lers with confiscation of their equipment when they were complying with state Page 1 218 water law as it relates to -fee land and have allowed private non-Indian property to be used and abused by their members stating their treaty allows them use o-f private property. As well, a Lummi tribal member pulled out a resident's survey stakes which marked the mean high tide and boundary of his property. This -followed harassment by Lu mmi Law and Order wit_h a survey cre w which had been called out a-fter- a Whatcom County Judge ordered the survey to establish the jurisdiction boundary on a water-front con-f rontation. While the Lunwni Law and Order prevent non-Indians access to the 1,000 acre park land o-f Portage Island, purchased with state and -federal tax dollars, they allow their own members -free rein. Lummi Business Council, through their Law and Order, thr eatened con-f isc at ion o-f road equipment used by a subcontractor o-f the county unless the county and the contractor paid an employment tax to the tribe. This trib_al lead ership even went so -far as to try to eject a cand idate -for congress from the reservation when that candidate was on private property at personal invitation. This gentleman now serves as our congressman, Jack Metcalf. While an enter at your own risk sign should be hung at the entrances of this reservation, we have instead signs that state all entering are now subject to Lummi Laws. Lummi laws, which it must be added, are near impossible to access because tribes are not subject to the Freedom of Information Act or the Privacy Act. I have been contacted by prior tribal educators who have been shorted thousands of dollars in their teaching contracts. Unable to collect, they contacted the Interior Department and were told this kind of thing occurs all the time. This tribe as wel 1 as their leaders violate Whatcom County stop work orders for building and zoning violations for land in fee status. The former Humane Society director told me it was impossible to get closure from the tribe on a service contract as it concerns tribal dogs so neighbors Are faced with marauding and nuisance dogs. Is it true residents ask that Indian owned dogs have more rights than I do? Is it true people ask that this tribe can't be held accountable for their actions? Thjis tribal counc i 1 derai Is off reservation industry by refusing to meet, discuss or demonstrate good faith negotiation on tribal environmental concerns. Yet, the tribal council violated sound environm enta l practices by building a gas station in a wet land and has sabotaged two large residential developments by drilling commercial wells 100' from the association's wells when a 1,000' distance is recommended for noninterference. As one tribal member publicly stated, "Keeping non-Indian development out requires drastic action". As well, the Lummi Council Chair, Mr. Cagey stated to a news reporter, "We'd like to shut it down temporarily, Croads] not forever. We'd like to shut it down, keep all the non-Indians out". The hostile, unfriendly action of sabotaging non-Indian water aquifers began on the Lum«i Reservation in two non-Indian residential developments on two residential lots in 1993. One of the developments happens to be in the »re» I reside, Sandy Point. Two years after the initial tribal drilling of the well which included installation of a large storage tank and pump house surrounded Page 2 219 with a chain link -fence and razor wire, the tribe began to deplete our water to danserous levels. It was memorial day weekend o-f 1995 when we were le-ft with a two week supply o-f water -for -fire protection and domestic use to serve over 600 existins homes. Whi_le tribes ars pushing to use control o-f uti 1 i ties to stop non-India n development, across the nation tribes are also push ing to col l ect taxes in violation o-f Supreme Court cases 1 ike Montana, which states taxing o-f non-Indians must be consentual . Where tax issues are boiling and -festering on open reservations, tribal courts have the issue stuck in the tribal appeal process. The requirement to access tribal court be-fore going to state or -federal court is expensive and ine-f -feet ive. With S7S petitioners, I recently attempted to address the lesality o-f the Lummi Utility Tax Ordinance and it's lack o-f proper Dept. o-f Interior authorization in tribal court. The process began at the Lummi Sewer Board level Mhere the Lummi Indian Business Council's attorney rir. Johnsen, who dra-fted the tax ordinance, is also the attorney -for the sewer board Mhich collects the utility tax -from the ratepayers. At the sewer board appeal, this same attorney acted as hearing examiner. A-fter -failing at this level, I went to tribal court. The tribal judge requested a pre-court hearing Mith himsel-f, the sewer board attorney, Mr. Johnsen and aysel-f. The judge made a request, on behalf of the tribal council, that we try to settle out o* court. The tribal attorney, stated he would try to get Dept. o-f Interior approval. Knowing this tribe had failed to honor numerous contracts and agreements and knowing that siic months earlier, to no avail, the sewer board had directed dr. Johnsen to get confirmation that the tribe's tax ordinance had been approved, I declined to consider an out of court settlement. I wanted a court determination on the facts. Ihe tribal Judae then requested to speak with me privatelv. While b£ stated I had t good arnument. he stated it appeared he would have to dismiss my case on technicalities. I didn't have my signature notarized, so perhaps he thought, I'd want to reconsider a settlement. I explained that others were willing to bring the issue forward and that the second time loop holes could be addressed. I was also told I would not be able to represent the S7S petitioners and that I could only represent myself. I then documented what had occurred at the pre-court conference and asked for leniency from the court on technical issues because no one had been prejudiced or damaged by my omissions. In addition, I stated my presence was for personal appearances only and wanted it known that I was not consenting to the court having any jurisdiction over me. The clerk stamped my statement, took it to the judge, and gave me a copy. When the court hearing opened, I was berated by the judge for taking up the court's time, asked why I had not informed him earlier of <"y feelings on the court jurisdiction issue and was also asked to be fined by the tribal attorney, Mr. Johnsen. The Judge stated he was goina to 0tsmit# th« entire case sQ. S^ refusal £o submit tfi ttie court s juris diction. The legal technicalities had now become a non-issue. Page 3 220 The attorney -follOMed up by stating he had already spent thousands o-f dollars in preparing and addressing the court that the issue was sure to rise again, and that the Judge a-fter all was there not to determine the legality o^ the tax but only whether it was appropriate and cost e-f+ective -for the sewer board not to have addressed the issue o-f the tax's legality. Now, at no time was this a consideration I had raised. I wanted the -facts reviewed, the illegal nature o-f the tax was always the -focus along with the attorney s conflict of interest and conspiring by the tribal attorney. The Judge then agreed to continue the hearing, but told me I would be subject to the jurisdiction o-f the court. To make a long story short, the good argument, recognized privately by the judge was dismissed -for lack of suf-ficient evidence. It is quite obvious that where there is no separation of power, the tai l wags the dog as it concerns tribal court. The same tribal court story can be retold as it concerns two non- Indian property owners who tried to hold the tribe accountable -for their bad faith negotiations with the city o-f Bellingham. The tribe, in purchasing o-f-f reservation water -from the city o-f Bellingham, secured a contract a-fter tribal attorney, Mr. Johnsen, told the city council members that in addition to -federal law, their own Lummi tribal policies prevented then -from discriminating with water service. Yet, non-Indians are now being denied access to this o-f-f reservation water. This is occurring even though the water lines were paid with -federal tax dollars and run past their lots. Residents feel it unjust they are required to pay stand by fees for an available sewer connection, but can't receive it's compliment the water. In addition, a tribal member recently told me members will also be denied water unless they sign a contract stating they will never sell their land to non-Indians. Residents have even been threaten with litigation should we try to bring off-reservation water in -from the city of Ferndale. It is my opinion the Justice Department and the Department of Interior contribute to policies which violate better relations within re servations and sound federal policy. Interior funds helped to finance a 1981 Lummi Water Resource Planner who made specific recommendations to the tribe which included the question of whether the tribe really should get into the water perveyorship business. Jean C. Caldwell wrote the following, "Because of the amount of platted land out of trust ownership and because the tribe cannot regain control easily over the land, the Tribe needs to think very carefully before removing this constraint to development on the reservation .... Yet, if the tribe neglects water development, it is possible a non-tribal water district will form and continue development anyway... If tribal control over water development does not look like it can be maintained then the tribe should upgrade the aqua-culture water system independently from the domestic water system and address the negative option of limiting housing development and industrial growth on the reservation through water facilities". Besides the Interior Department financially supporting consultants like Caldwell who encourage tribal management of water and zoning to be used in ways which inhibit non-Indians from utilizing their land, our Justice Department supports segregated tribal schools. As a reservation resident who must pay illegal utility taxes to the tribe, 1 wondered how my son was going to be processed when he made application to the N.W. Indian College which is located on the Lummi. Page 4 221 Reservation. For tui t ion pu rposes, they wanted to consider him a non- resid ent bec ause o-f his race. Non-member Indians -from out o-f state get the lower resident rate as do in-state tribal residents. I appealed this school policy to the Justice Department and was told tribal "political status" permits them to use di -f -ferent lal treatment. Now I can understand differential treatment spelled out -for a tribe through property rights created in a treaty, but no where have I -found a treaty that obligates maintenance o-f segregated schools or the use of preferential rates -for Indians. Our federal pol icy against segregated schools and the use of preferential rates is being violated on reservat ions a cross the nation. If the education of Indian students is to be improved and all citizens treated fairly, education of Indian students must be integrated into the public school system where the federal and state dollars are held accountable. As well, i_£ the federal tax dol lar is going to be used to encourage the education of na tive re l iflion and culture, then the choice of any school should be al lowed to al 1 American parents. A C.E.O. could spend months negotiating a contract with a tribe and invest hundreds of thousands into his business only to learn that tribal councils don't adhere to agreements made by preceding councils. With out a strong economic base, Indian tribes are left with only two ways to get money, grants and the other in our area we call enviro blackmail or greenmail. Since the Lummi tribe is locatrrl on the shores of Puget Sound and has historically been a fishing tribe, one can well imagine the environmental road blocks that can be erected for industries trying to locate in our region. Yet, its a well known fact roadblocks disappear following the payment of large sums of money. Greenmail has become so common place across the United States on reservations that we are losing our once reliable sense of civic and moral outrage. Such compromising actions are not good for the tribal people and most definitely they are not good for business. Moral, cultural, and spiritual afflictions cant rely totally on politics but while other minorities flourish we must aSk ourselves why life for members on reservations is sub-standard in spite of the billions of dollars filtered through reservations. I will start by stating that there has been no other group of American citizens who have played the role of Peter Pan like the American Indians. The first essential step to promoting maturity and personal growth is to make our Native American groups personally responsible for their actions. This can only be done by eliminating the century old pattern of sovereign immunity to tribes. Such action, along with providing justice to non-Indians with direct access to state and federal courts, will be the beginning of a new and better age on reservat ions. Mhile federal policy prevents our financing socialistic, separatist governments abroad, there is irony to the situation that we breed and feed such system within our own borders. 1 respectful ly plead, if nothing is going to be done to reverse the trend of socialism and separatism inside our boarders, at least give reservation non- Indian residents an ability to defend themselves from tribal tyranny. It is imperative our constitutional and civil rights be protected. Our due process must not be set aside to benefit another citizen group. Page 5 ^R.RdO Q7 _ a 222 Today, along with the President, even the IRS is held accoun t ab le and can be sued_^ Tribal members living on reservations sre state citizens. They are eligible to run and hold any o-f-fice within our state and are entitled to all bene-fits without discrimination. There IS no reason concerns ini tiated by non-Indians shouldn't be direct ly addressed in state or -federal court. Non-Indian citizens deserve a judicial system with checks and balances. The en-forceabi 1 ty o-f promises and contracts made by tribal councils, along with the assurance o-f good faith negotiation will depend on eliminating sovereign immunity. Until Congress ensures tribal accountability, economic development on reservations will continue to be stunted or non-existent and tribal relationships with other governing bodies con-f rontat lonal . Page 6 223 Lower Elwha - Lummi WosHingion During the 1950s, the inbe was involved in a land ctaims suit j^ainst the United Slates, from which it was eventually awarded jBout $386,000 m 1970 The IGaUam Tnbe possesses guaranteed fishing rights as a result of the 1974 Bold! Decision, which allocated 50 percent ol the commercul salmon harvest to western Washington treaty tribes (the salmon runs had been largelv decimated between 1910 and 1926 by the construction of the Elwha and Glines Canvon dams) The Boldt I>cision also allows tribes some say over outside development activities which might leopardue the salmon runs. To this end, the tnbes have assumed an acnve role in the protection and enhancement of their natural resources Additionally, the 1992 Elwha River Ecosystem and Fishenes Restoration Act was designed to fully restore the nver s ecosvstem and native fishenes. The Lower Elwha Klallam Tribe operates a number of salmon hatcheries and mnains quite active in the regions commercial fishing mdustry, which pnmaniy targets salmon, crab, and other groundhsh and shellfish. GOVERNMENT The reservation is governed by the elected Lower Elwha Tnbal Community Council. The tribal constitution was adopted on May 6. 1968 The coiuatution was established under provisions of the 1934 IRA. The council elects three of its members to two-year terms on the tnbal business committee. ECONOMY CONSTRUCTION The tnbal Housmg Authority serves as the contractor for the construction of homes and other structures on the reservaDoiv In 1994, It constructed 43 homes and an office building; m 1995 another 20 homes were slated for construction. Significant numbers of tnbal members are employed m these protects. FISHERIES The tnbe operates a salmon hatchery, which presently employs seven tnbal members. Additionally, a number of tnbal members tmd employment m the region's commercial fishing industry Fishery development and enhancement projects have been funded in the past through grants from the BIA and other agencies. FORESTRY Though the region surrounding the reservation has traditionally been a maior timber-producmg area, this industry has a negligible economic impact on the Lpwer Elwha economv It has had a negative environmental impact, too: accordmg to the tnbe. over-harvesting of timber has muddied the Elwha f^ver and reduced viability for salmon runs. GAMING The tribe operates Saturday rught bmgo at the Tribal Center, an activitv which generates significant revenues and employs four tnbal members. Additionally, the tnbe recently signed a Class 111 gaming compact with the state of Washington. Casino development plans are now m the works. GOVERNMENT AS EMPLOYER The tnbal government employs approximately 60 people, mostiv through Its administrative, health, environmental, and fishenes programs SERVICES Tribally owned or affiliated businesses are limited to a smoke shop (which employs five) and the bmgo hall; several seasonal fireworks concessions are run by a number of families within the tnbe TOURISM AND RECREATION Though the reser\alion itself offers little in the wav of lacilities for visitors, nearbv Port .Angeles is a bustling tounst coininujurv' Outdoor activities are extremely popular in the area, these include fishing and boating, and in the spectacular Olympic National Park, hiking, camping, mountain climbmg, and skimg. INFRASTRUCTURE Scenic L' S Highway 101 offers the pnmary road access to the reservation .^Jearbv Port Angeles is served by commercial air, bus, rail, and truck tmes. Commercial truck imes also serve the reservation directly. Water transportation is widely available, as the reservanon sits at the mouth of the Elwha River, directly on the Strait of Juan de Fuca. COMMUNITY FACILITIES Electnoty is provided through the Klallam County Public Utility Distnct. The tnbe mamtains its own water system, while sewage services are provided through mdividual septic systems and dram fields. A tribal health clinic and vanous health programs are funded by the Indian Health Service under a federal contract. There is also a hospital m Port Angeles. The Tnbal Center houses administrative offices and other facilities such as the clinic. As for education facilities, children attend the local public schools. Lummi Reservation Federol reservation Lummi ond Nusack Whoicom County, Washingten Lummi Indian h4ation 2616 Kwino Rood Bellingham, WA 98226 (360)734-8180 ftw. 384-4737 > yn Total orwj ^ Alloit«J j*_i h4on-lndion "^ Total lobor force ^ High school groduote or higher ,' Bocheior's degree or higher '\^ Unemployment rote ^ Per copita income vj Total re»fvotioo populotion 3,164 LOCATION AND LAND STATUS The Lunuru Reservation i5 located m northwest Washington, five miles west of the citv of BeUin^am, 100 oules north of Seattle, and about 50 miles south of Vancouver. B-C. The reservation consists of a peninsula, which forms Lummi Bay on the west and Bellingham Bav on the east: a smaller peiunsuta; and a 1.000 acre island off the tip of the mam peninsula, named Portage Island. In total, the reservation area spans approximately 13,000 acres of upland area and 8.000 acres of tidelands About 9.700 acres are currently under Indian control, the maionty bcmg allotted. The Point Elliot Treaty of 1855 marked the creation of the Lummi Reservation. In 1873, by executive order, certain portioru of the treaty boundary were redrawn, which marginally enlarged the reservation. 224 Wasnmgfon CULTURE AND HISTORY Before the Treatv or Point Elliot and the subsequent establishment of the Lummi Reservation, the Lummi occupied the northern San |uan Islands and the adjacent mainland from Bellmgham Bav to Point Roberts. Salmon was the primary source of food Many tnbal ceremonies and beliefs are centered around salmon The western red cedar also played a significant role in the tnbe s matenal and spintual life, serving as buildmg material for sacred longhouses. uter\sils. and tools- During this tune, tnba! members made frequent visits to Hudson's Bay Company trading posts. The history of the tnbe during the 20th century is inexorably tied up with fishing and treaty fishing nghts. After the treaty, the federal government expected the tnbe to adopt agnculture as its primary means of subsistence. The Lummi, however, contmued to travel to off- reservation sites for fishing and gathering, particularly to their traditional reef-net locations. As it turned out, the tribe's reef-net fishmg territory placed it at the epicenter of the budding commemal salmon fishmg mdustry of the region. Gradually, organized commercial interests squeezed the Lummi out of the mdustry by appropnating their prime net locations. This development led to a lawsuit by the tribe during the 1890s, clamung a violation of its treaty-guaranteed fishing nghts. The government was finally ordered to pay $57,000 in 1970, a settlement refused by the Lummi as insultingly inadequate. In 1974, they participated in another lawsuit over treaty fishmg nghts, this time against the state of Washington. The suit culminated in a court-ordered allocation of the state's commeraal salmon harvest. In 1988. the tribe was involved in a federal ruling which held that mcome generated from a treaty nght is not subject to federal taxation. In 1969, the tribe developed an aquaoilture project on reservation tidelands for salmon to spawn and for oyster planting The salmon are released into the Noosack River; the oysters are planted in other reservation waters. In recent years, the Lummi have attempted to diversify their tnbal economy through investment in a gaming operation, seafood processmg plants, and the development of a maruia. Development of education facilities has been an important focus for the tribe dunng recent decades as well. For instance, the tribe has actively promoted a program m the tnbal school system to keep the language and other traditions alive and strong. GOVERNMENT The Lummi Nation operates under a constitution approved on Apnl 10, 1970. It is not organized under the 1934 Indian Reorganization Act. The governing body is the Tribal Busmess Council, which consists of 11 members elected to three-year staggered terms by the General Council. The General Council is composed of all enrolled adult members of the tnbe. The Business Council organizes on a yearly basis and elects a chairman, vice-chairman, secretary, and treasurer. ECONOMY AGRICULTURE AND UVESTOCK The region surrounding the reservation has traditionally supported a number of agncultural enterprises. Seasonal berry- pickmg is the mam source of agncultural employment amongst tribal members. FISHERIES Fishing remaiiu the primary source of pnxate employment on the reservation. The tribal fishmg fleet con ists of 302 skiffs, 105 gillnetters, and 30 purse seiners. At least 550 independent busmess people within reservation boundanes make their livmgs solelv through fishing Moreover, a tnballv owned seafooj''^; processing plant, the Lummi Processing Venture (leased to'i^ private contractor), employs about 70 persons during p^^^ season. Additionally, Fish Point Seafood is a pnvateiv owned processmg plant on the reservanon (owned by a Lummi member) which also employs as manv as 70 people at anv given hme Finally, the tnbe operates both a salmon and a shellfish hatchery which repopulate area waters FORESTRY The reservation forest consists mostly of scattered stands of Douglas fir, cedar, alder, maple, and hemlock. A BlA-funded reforestation program is replanting most of the unproductive forest lands at a rate of about 75 acres per year As for local employment in the timber industry, a Georg^a-Pacihc pulp mill m the area employs a number of Lummi Indians. GAMING The Lummi Casmo features poker and black|ack, as well as a GOVERNMENT AS EMPLOYER The Tribal Busmess Council is the largest single employer on the reservation, currently employing 236 people through its vanous departments. The Indian Health Service Clinic employs an additional 33 people, the Northwest Indian College faculty and staff consists of another approximately 145 full-time employees. MANUFACTURING The tribe operates no manufacturing concerns, though members find employment m area plants, which mclude a plastics manufacturer, an airplane parts plant, and two oil reftnenes. SERVICES Aside from the vanous sea food- re la ted businesses, there are several small businesses on the reservation. These mclude two native crafts and clothing stores featurmg baskets, wool blankets, and more. Also the tribe owns the Fisherman's Cove Complex, which consists of a restaurant, grocery store, marine repair, and a boat storage facility. TOURISM AND RECREATION The region of the reservation is extremely popular with visitors. given Its beautiful waters and forests which produce excellent fishmg, boating, hiking, and the like. The tnbe also hosts a number of special events such as the Lummi Stommish (Water Festival). This is held during the second or third week of June and features canoe races, dances, arts and crafts, and salmon bart>ecues. TRANSPORTATION The tribe maintains a significant fleet of fishing vessels (see Fishenes above) INFRASTRUCTURE Interstate 5 runs north-south two miles from reservation boundaries, while State Highway 540 crosses the reservation east-west. Commercial air, bus, and train service are all available in BeUingham, five miles from the reservation. Commercial truck lines serve the reservation directly. BeUingham also features a modem deep-water harbor. COMMUNITY FACILITIES Electricity is provided the reservation through Puget Power of Washington. Gas service is provided by Cascade Natural Gas Company. The reservation gets its water pnmanly from 586 225 ^^^u/rrvrru/o \JM/x^ Appendix: The Point Elliott (Muckilteo) Treaty TREATY WITH THE DWAMISII ic. INDIANS. Jan. 22, 1855. TREATIES. Treaty htlteeen the Uniltd Slain tmd the Dtedmith, Stt^miii, and other allifd and tubordinnle TriUs of Indiont in Watliington Territory. Con- eliideil at Point Elliolt, ll'at/iinijton Territory, January 22. 18'>.i. Rati' fed by the Seiiate. March R. 1850. Proclaimed by the President of tJit United States, April 11, 1859. JAMES BUCHANAN, PRK.SIDENT OF THE UNITED STATES, TO ALL ASD BINCULAK TO WDOSI TaCSK rBEBOTS tnALL COME, OR£«TWG : J»a. M. 1«U. fntaVlte- WiiFHEAS K treaty w«s made und concluded fit MiickUte-oh, or Point EHioli, in tlie Territory of Wnshinyton, the twenly-second diiy of January, one tliousnnd eijrht hundred and fifty-fiTe, by Isiiac I. Sicven*. governor and fupcrintcndent of Indian affiiira for the said Territory, on llie part of tlie Unilud Slnte^ and the hereinafter-named chiefs hmdmen, and dele- f^xtes of the Dwiniish, Suqudmi.hinglon. on behalf of raid tribe* and duly nuthorized by lliein ; which treaty i» in the wordi and Ogure* following to wil: Articles of a;r<>cment and conrention made and concluded at lluckl- Coetnotlii( (c-6h, or Point Ellioil, in the Territory of Washington, Ihm twenty-second I«*i«fc day of January, eighteen hundred and fifty-five, by I^^nac I. Steven*, gov- ernor and superintendent of Indian atTuint for the raid Territory, on the p.irt of the United Sliile», and llie undtr-isncd chiefii, henilmen and delc- gntcj of the Dndini-h, Suqudmi^h, Sk-tdhl-mish, Sam-iihmish, Smalh- ki«ini>li, Skn|ie-ithini-h, Si-kah-mish, Snoqudlmoo, Skal-wha-mish, N'Qiienll-m:i-mi>li, Sk-l;ih-le-jum, Stoluck-whd-mish, Sno-ll«/-mi^h, Skd- pil, Kik-i-dllu'', Swin-i-mi»h, Squin-dh-miih, Sah-ku-mehu, Noo-whd-ha, Nook-«vii-«hali-mi«h, Me—ee-qua-guilch, Cho-bah-dh-bish. and other allied and I'uboiilinale tribes and bands of Indians occupying certMin lnnd.1 iitu- atcd in .-.lid Territory of Washington, on behalf of uid trilMU, and duly authorized by them. AuTici.t: I. The faid tribes and band* of Indian* hereby cede, relin- ' C«MioBof UimIs j qui^h, :nul tonvey to tlie Ui.^ied Staici all their right, lille. and intere*l5j^ "' , ' in and to the land* and country occupied by them, bounded and dcKcribedv as follows : Commencing at a point on the eastern side of Admiralty Inlet, known as Point Pully, about midway between Commencement and Elliolt Days: Ihrnce eostwHrdly, running ak>ng the north line of land* hcrelofuru ceded to the United Slates by the Niiqually, Puynllup, and oilier Indians to the summit of the Cascade range of mountains ; tlicnce norihwnnlly, following the summit of said range to the 49lh par- allel of iiorlli laliiude; thence west, along raid parallel to the middle of the Gulf of Georgia ; thence through the middle of ;nid gulf and the main cluiniiel through the Cinal de Arro lo the Stmiu of Kuca,aiid crossing the came through thr middle of Admiralty Tnlet lo Soquamiih Hrad ; Ihenea •nulhwrMrrly, tlirou»h the prnin^uliv and following the divi.je briweea llood'a Cnniil and Adminilly Inlrt lo the pona)(e known as Wilke»' Poet- age; tlicnrc norihra«lw«rJly, and following the line of land 4 livrelofore r«-ded as aforr»«id lo J'oini .Soulhwonh, on the weatem side of AilmimUy Inlet, and ihvnrc round the fool of V«.«hon"» lalantl ea*twardly and Mnjlh- 66 Beaodahib VeL z. ^ UU. '"S 226 TEEATT WITH THE DWAMISH Ac. INDIANS. Jxk. M, 1855. CHAtwartllj to thr place of brpinninp, iiirludinf; >U the iilMiiiis comprised within »*iJ bounJnries. »n4 nil the risht, title, and interest of tlie »aid iriba* and Uindn to any Und.i wilhin the territory of the United Slates. BacrraUoB. AJtTiCLK II. T1i-«en, situated in the Lummi River at the point of sopnr^tion of the mouthi emptying respectively into n«Uinslu>m Uny and the Golf of Georgia. All which tracU shall be set apart, and m far as ncce.«»or7 aurveycd aiid marked W>ilie« nni to out for their exclu.tubli>liing thereon an agTicullui|«l and industrial school, as hcrcin-ifter mentioned nnd agreed, and with a view of ultimately drawing thereto and settling tlien.-on all the Indians living west of the Ca.en and unclaimed hinds. Provided, however, that they f linll not tnkc plicll-fish from any beds staked or cuhivateil by citizen.*. r.TmenibTih. AiiTlCLK VI. in consideration of the above ceision, the United Slates tuiUd buio*. agree to |i;iy to the s:iid tribes nnd bands the sum of one hundred and fifty ihoiisiiid dollars, in the following manner — thnl is to say : Kor the Cn.t year alter the mtificntion hereoC. fifteen thousand dollars ; for the next two years, twelve tiious.ind Uuthirs each yenr ; for the next three yeiirs, ten thousand dollars each ye;ir ; for the next four years, seven thousand five hundred dolkrs each year ; for the next five years, sir now to be thous;ind dollars each year; nnd for the last five years, four thousand applitd. l^^,J |,„„Jrcil uml fifty dollars eatli yi-ar. All which snid sums of money shall be n|i|ilieil to the ii-e .-Mi'l benefit of the said Indians under lli« direction ol tlie i're>idcnlof the United States, wlio may from lime to time dclrrmine at hisdivretion npon what hencficinl object* tn expend llic same ; and th<- Superinti-ndent of Indian Affair-, or olh^r proi>er offn-cr, shall each year inform the President of the wiilies of i^aid Indians in rr-|H-ct thereto. 1 I- -. ™.. Articlf. VII. The President mny hercaflrr. when in hi* opinion the l,» r..ii...e.l to interi-st« of the Tirritory •hnll require ami the welfare nf the faid Imlians l»c rcicnration, aicprQ^oK^I^ remove them frcm either or all of the special reservations lirrc- inlieforc mmlr. In the aaid gi-neral rtservniion, or such other •uitalile place within »ni.l Terriiorr as he mny ilrcin fit, on remum-riting ihcm for tlirir improvements and the exp<-n««-s of such removal, or mny con«oliilnte them with other friendly trilics or hand* ; and he mny <'iirther nt hi< di-rretion taii*c the n Imle or any piirtiiin of the land* hereby reserved, or of such other Innd ns may be felerleil in lielves of the privilege, and will hicale on the same as i jiermnnrnt hnmr on the unine term* nml mihiect to the same regiilnlion* a* arc pro- 227 -^ TREATY WITH THE DWASnSH 4tc. INDIANS. Jaw. 2J, 1835. TideU in llic nixih anirle of llie trmiy wiili ihe Oin.ili:i<, to fur a» ilie vimc V.,L i. p. loi*. IMJ be apiilicnlitv. Any »ulMianii;<, ami p romise lo l>o frifntl lTluii^w.. wilh all cititrns therrof, anH iht-y pl^lje ibcms^lvej t o commit no J<-pn .-V dalions on the propenv of >iicli riiiu-n.v .Sliould any one or more of them Tiolale t|ii< |iied:;c, ami (he fact Nr f:iii.>farioriIr proven before tlie Mfcnt, the property tnken tball be nlurm-d. or in dcfnult tlierrof, or if lo p.* for ^ injured or de^lmyed, c ompensation m.iT Iw mmle by the ;;ot i-ri!m«nt ou t dq>t«.l»iion». of I heir annuitit-a. Nor will ilicy m;ike w:ir on any oilier tribe exccjit ^^"^ '""!*• ill ulf-<]efrni-r, but will submit all malicm of differenre bitwecn llitm aixl v ^ ""P'' *^«- the other Indian.* to the ROTemmpni of the United Siate< or iu nynt for decision, and abide tl»ereby. And if any of ilie said Indian* commit dep- rtUalions on other Induini within U>e Territory the aame rule shall prernil as lliat pre»eribed in this article in cases of.dfpredaiions A;:uin«t citizen*. And the Miid tribe* a^rce not to sliclicr or conceal oflV-nders n^iaU the lo •nircoilw laws of the United Slates, but to deliver ihem up to the authorities for «*»»<>«»• iriaL Akticle X. Tbe abore trib^ and bnnds arc desirous to exclude from ^^^^Jj,'j" I" their re9er\-attons tbe use of ardent .«pirii<, and to prevent their people ohm' wh!. dnok from drinkinf the same, and therefore il i. provided that .iny Imlian be- sie., irUeoi ionjinj; to said tribe who is guilty of l.rin^in;; liquor into SJiid rcscr^a- ''*'""• tions, or wlio drinks liquor, may have his or her proportion of the annul. tics wilhbvU from liim or ber for such time as the President may deter* mine. Articls XI. The said tribes and bands ajree to free all shvc* now ,„ .'^.V^miwi held by tlicm ami not to purchase or acquire oihers hereafter. ^ «e.|ulr» other-. Article XII. The said tribes and baiiiU further nsn-e not lo trade at n^ ioir».l«iiut Vancouver's Inland or-eUewbere out of the dominions of the United States, ^^JjJ[ ^■"•' nor sliall forei^ Indians be permitted lo reside in their reservations with. out eoaicnl of ll>e luiperintendeni or a;:enl. Article XIII. To enable the ciid Indians to remove to and settle tis.noo sppro- upon their aforesaid reservation*, and to clear, fence, and brmk np a suf- P"»'«<1 '^ «»- fidenl quantity of bind for cultivation, the United Sl.iles furthtr a^ree to ^H^ ^„i^ l»j Ilie Mira of fifteen thousand dollars lu be laid out and expended under MtilcmeoL tbe direction of the PrrsidenI and in such m.-inncr as he shall approve. Article XIV. Tbe United Stales further a^rce to establish at the Vsited Sutas general a;;ency for the district of Pugeis Sound, within one year from l^d^'llj*"-^ the r»ti6catioa hereof, aod to support for a period of tweniT years, an ,ij, uutmetorf. a»rinj|nir9l ami indu«trinl school, to I* free lo rliildri'n of the 'aid trih.-« and band< in common with llio«e v( ilic uiln-r Irilx-- of -niil district, and to provide llir>aiuii.ilil>: rn-inii inr or iiislructun. nnd itl-o lo proviilc a Mniihy and carpenit-r's ^llo|•. :iii'l fumi-li ilii-ni with the iiiTr«ary tool", aiHl employ a l>L-«k nances thai app^ at Sandy Powt usooaiMM orTtan taid ■The CDunry, we ihuik. should be b*c*in| M up," Poiiie |4,d T>.e L«mm, |„d.,„ b„^,„^ Counol _ net the councy or iiaic — has junid^iion an the retcrvi- , i»n. tribal ofTK^u ^^ -^^ .t^^ OUT own iuihonry. ■ DearborU tauJ ' Jeff Monscn_ act.n, duecior of '. ^ Whajcom Councy PubK Works Department, taid the county lacks auihonry o*er mbal weib on the reaervaiwn and plans ao aciKM •famsi the *cU "County .urad«- ! Uo« B in doubi" he u>d The inbe bu.li it. »ell near the •Mociai^n well lo fom iurisd«- twnal Mues. .»ocu.wn member. I **t^ nioac ;ncJude who fcu Nrm mwA water ,n case the csmpetui. I a^Uj wind yp dfr.m| oft each Other or depkimg the lun.ied re- •owroe. ihcy aaid Sieve Hincftey. the Ecotofy De- P^tment i reponal water resowm •upervwor. agreed •Thaii no doubt.- he ukI "Vm •irprued ti took them (ibe Lun- M) ID kmi lo purtch the w«|| " Tnbal offoah contend ihc treaty and other fcdcraj laws |raai all wiler on the rocrvainn to the "TV wiier IS our reaource." Dcardorfl ia>d "li belonp to the But Hirachey said ti a uadear •bether Indian inbes own wdj "Her oo roervatiom. "T^n a de- batable topK." he said The sxaie recently granicd ihc S4«»y Pouti asaoaation enoitgh •^water to uppty IX mra bomn. Potiic a«j. TV ^-^^- rmi •«*e» abOTU no waur laen. bul lb« ootTMBuniry has 400 more uode- veioped tots- TV inbe opposes nsie microeo- oon. UKJiKJtni um «nocutxMi'i ad- A. ,^^^, aJtotmeni. and op- at Sandy Poini. poMa Bcw Oeardorfri Otsn/rc DE^ENS: ftuor win Mop a cyclone (wet urtMnNng i ntw \jim HMoniMi tiVw laicst ponoi contman btritMn tiui and nontribal nvmtan a Sandy Pom Hu^hPottt*. ■ SarKfy Point r*sltf«n( "TV waier a our reaour* li r '■'""•' » tbe tr*e," he Mid "W* f have lold ewytedy w are gout ' lo uae all the water we Vtieve be^ k»p to us' '■TV tribal wru could ihreaien - IV aanciatnn'i abiijiy to supp^ »*'<»e Aiture homca. Po«ik said ',. "T^ ■ Mr raaio amcern - »««Bg enough water lo serve ihoae »e art oMigaicd by law lo serve" ^V S4«L -We lU be noniioni^ ow welb »rry ctoKly when they UMn purapog- Hnidiey said iV well poacs m4By thorny <}uctiK)u not yet ao- t-mvi by law. or couru. If chal- 'eofed legalty. one pots>bk owi- owse a ihai Samty poini may have I » ainaJ -aier loe. Hirachey um) ~Sandv Po.ni know, thai »ery dcarty. ■ he »,^ But Hirachey laMJ he bel>c«es the •lie hat plenty of well waier to .«eei Ihc siiied utei of both (he iribe and assooaivn. poattbty pre- •enung the need to make the Lummi well « mi cmtt The tiBie u netifytng the tribe abowi some concerns wnh ih« well. mdudmi lu neantcss to a icpiK tartk. HirtrhcT uid Merk Jefferson the tribe i natu- ral resource director, said the L«m- mts wdl took (oi other plaoi on IV retervaiKNi lo dig more veil] lo meet the tnbe i gnnnng populamn and needs TV tescrvaiion h*. 3J4(J res.- denu - 31 percent Indian and 49 pcnaai non- Indian Census csii- ••les preset annual growth ai 2 pCltCBt "As «« have new howsuig needs. •«1I *| Mw w«ih." Jencraofl sMd. 235 © ® ® Service Area Map With Zoning y-cXJ^^-^^^'^'L^ '^ .■^ Z^ ,« '^' Courthouse .'..\j>'..yii. 311 Grand Avenue Sellingham, WA 98225-4030 Dear Ms. Dawson: This is a response to your letter dated July 6, 1995 to the Attorney General regarding federally funded segregated school gyetema on Indian reservations You raise a concern as Co whether federal funding of schools for Indian children on an Indian reservation is in violation of our federal desegregation policy. The answer is no. From the earliest daya of our Republic, the United States of America has recognized Indian tribes as domestic dependent nations, Cherokee Nation v. Georgia . 30 U.S. (5 Pet.) 1, 17 (1831), and our Conetitution recognized the self-government of Indian tribes in the Supremacy Clause affirmation of Indian treaties entered into under the Articles of Confederation, which governed our Nation from 1776 until 1789. In early Indian treaties, the United States undertook a duty to "protect" Indian tribes, establishing one of the base.q fn-r our Federal trviet i.e»ponslDility to Indian tribes. Accordingly, Indian people are not considered a "racial group, " but rather are considered to be members of domestic dependent nations with whom the United States has a special "political" relationehip. Therefore, the United States (€ag ) fund schools for Indian children on Indian reservations in accordance with the Constitution. In 1834, Congress reported that: "The education of the Indians is a subject of deep interest to them and to us." H.R. Rep. No. 474, 23rd Cong., 1st Sess . 20 (1834). Unfortunately, the United States education policy towards Indians was often laced with our cultural biases. For example, in 1838, the Commissioner of Indian Affairs reported: /? J X- U ^e a/v rn. o^"*"^^ 240 Honorable Marlene Dawson Page Two The principal lever by which Indians are to be lifted out of the mire of folly ... is education ... To teach a savage man to read . . is to throw a seed on a rock. . . . Manual-labor schools are what the Indian condition callB for. Comm'r Ind. Aff r. Ann. Rep., S.DOC. No. 1, 25th Cong., 3rd SesB . 450 (1838) . Given this attitude, and the many discriminatory ] policies applied to Indian people over the years, it is not Burprieing that the Handbook of Federal Indian Law explains: ' ...Indian education was characterized by a Senate subgommittee in 1969 as "A National Tragedy -- A j National Challenge," both because of its lack of < success in preventing high rates of illiteracy and dropping out, and because it ignored the needs and , culture of Indian people. I F. Cohen, HANDBOOK OF FEDERAL INDIAN LAW (1962 ed.) at 678. | Today, the goal of Indian education ie to give Indian communities i greater control over the education of Indian children, so that these young people have an opportunity to succeed in their future endeavors and to continue the fine traditions of their people. This policy is consistent with our Nation's pledge to "protect" i the Indian tribes and our corresponding, crust responsibility. , We appreciate your concern for your constituents. If we may , be of any further assistance, please do not hesitate to contact UB . ] I Sincerely, \ w Herbert A. Becke Director 241 Tuition 1994-95 , page 2 Resident Non-Resident Resident Non-Resident Credits TuitioD Tuition Fees Total/Qtr. Total/Qtr. 1 12.00 32.00 32.30 44.50 84.30 2 24.00 104.00 65.00 89.00 169.00 3 36.00 156.00 97.50 133.50 253.50 4 48.00 208.00 130.00 178.00 338.00 5 60.00 260.00 162.50 222.50 422.50 6 72.00 312.00 195.00 267.00 507.00 7 84.00 364.00 227.50 311.50 391.50 8 96.00 416.00 260.00 356.00 676.00 9 108.00 468.00 292.50 400.50 760.50 10 120.00 520.00 325.00 445.00 845.00 11 132.00 572.00 357.50 489.50 929.50 12-18 144.00 624.00 390.00 534.00 1014.00 19 156.00 676.00 400.00 556.00 1076.00 20 add 12.00 add 52.00 add 10.00 add 22.00 add 62. 242 TUmON AND FEES 1994-95 Academic Year The cost of obtaining an education at Northwest Indian College is shared by Lummi Indian Tribe and other pa riiri paling Doithwest Indian tribes hosting NWIC classes aixl/or activities as well as the Bureau of Indian Aflfaif g which provides a per student subsidy for resident students meeting tribal enrollment criteria. Non-resident students are assessed a higher tuition to oflset BIA subsidy provided for resident students. Tuition and all fees are approved by the NWIC Board of Tr\istees and are subject to change with notice. Tuition, fees and book costs must be paid at the time of registration, unless special arrangements are approved by the Business or Financial Aid ofBce prior to registration. Unpaid tuition and fees will be deducted from financial aid awards to students. Tuition Registration and Computer Fee Non-Resident Student Resident Students: S12 per credit for 12-18credit5 Non-Resident Students: S32 per credit for 12-18 credits Tuition for credits in excess of 18 will be charged at the respective rate for each credit taken in that quarter. A fee of SIO per credit to suppoit the costs of maintaining and processing student records, including the college computer system and computer labs. A fee of S7.50 per credit, up to 12 credits, to support student government sponsored activities, for NWIC students. A fee of S13 per credit, up to 12 crediu for facility maintenance, improvement and/or expansion. A onetime fee of $25, paid by all full-time students sedcing admission into a specific degree or certificate program. Resident students are defined as those students who live on or near an Indian reservation and can d emonstrate Indian ancestry or enrollment in a federall y recognized tribe or Alaskan native cofTwralion. Spouses and/or dependents of resident students as well as employees (and/or their spouse or dependents) of NWIC and tribal (or other Indian agencies) within the NWIC service area may also be considered resident students. All students who do not meet the definition above, including members of indigenous groups from outside the United States. approved 6-21-94 243 LUMMI IMDIAIN BGSirSESS COGMCIL ?61G KWir4A RU • BELUNGKAM. WASHINGTON 98226 9298 • (206) 734 8180 I'Er-AniMENT pxt <£^^JiUxT July 14, 1993 Mr P. J. Murray- Jones South Cape fropertJeB Utd. ftio 55 Tai Hong Street Lei Kiny Wan ' Hong Kong Dear Mi'. Jones; On June 15, 1993 tlie Lunmi Indian Business Council (LIBC) reviewed your application for the pxtensioii of sewer services to your proposed development on tlie soutli cape of Sandy Point. Tlie LIBC denied approval for this sewer extension application. There are t lite'' lenson.g for this denial. First, the project hns not been approved by the Lunuiii t'lai ining Depart meiiL , as required by Section 4.011 of thp Lunuiii 'I'ribai bewer ana Water District Ordinance. Second, there is no assured supply of domestic water to your project that complies with Lunmi Nation laws and policies. And tliird, an internal review by our technical staff recommended against extending the sewer onto a laiidforiii th.TL Is uiisLabJp and Rnbjpct to ongoing erosion and flooding and is vulnerable to damage from seismic activity. You may contact us through the Planning Department if you wish to submit information In a hearing before the LIBC for a review tiiis decision. Sincerely, <^ '/ ^-' Henry Cacjey, Cliairman Lunmi Indian Business Council l.iinuiii .'^ewei Hoard I.iiiiuiil f'J.-iiMiln<| C'iMinil HsJon Liiiinnl Wal er Kcsoiii cr>R Dept Wiiatcom County Shorelines Dept 244 ii,..;.-l'.l ,1.- . ri- iin.i ■ ) ?". n;.i-.in I' I lUn Ui:>..:ul),:r \V., UJl I'lply I'o ALLli OC: jO-l'JO K^%, -3 Kg. Liiinca G. Cmil.li 7.;]C0 Leev/.itd VJay Llclliii'jli.Tm, V/JsIilnrjLon 9r.2P.o Dcjr Ms. ainith: I teceived your letter adiUesscd to Usgional Aoministrator Dana Rasmussen iiivhicli you raised concerns about the Luituni Tribal. Sawcr District's (uistrict) recent elections. Your letter raised issues rolatiny to the District's alleged failure to distributo information regarding candidates prior to the end oC the candidate sigi\-up period; to disseminata information regardiny absonteo ballots, even after such failure was brought to its attention; to allow non-tribal input into election oversight and ballot couiitiny; and to adopt election policies aivl procedures. The Eiivironiucntal Vrotcction Agency (EPA) in the late 1970 's assisted in Cundiny approximately 56 million dollars to the design and constructio*n of "a sewerage system ta serve the Lummi Indian reservation. The syutera includofl two outfalls, two treatment plants, and the associated interceptor system and puiT.p stations . to order to obtain tha EPA c2ai;G call mc -.Vc your earlicsc cotivenience al: (20G) 353- U311. I looK fot'./ard Lo ha.itrir.'j from you. Ginceroly, /J^ Sharon I. Haonsly Assistant Regional Counsel cc: Cecil Carroll, EPA V/asIiington Operations orfico Henry Cayey, Chair, Luaral Bvisinesa Council Julio JefCorsoii, Lummi Tribcvl Sewer District Election Committeo Skip Johnson, attorn-jy, I.urorai Tribal Sewer District Eucjcn.-* DeCoteciu, Ilan.v.j-ir, Lvimmi Tribal Sewer District 246 gOUTH CAPii^ PE PEQPEETIES LTlCf 25D, v;f:althy plaza 133 SIIAU KEI WAN ROAD HONG KONG Tl?:i,: 2560 0264,2560 0203 FAX: 2508 6066 Otir f<«f RCP/ "l'» 27 AUG 96 PERSONAL V S..P. fi. -^ />^- Ml- C Clarke ^ Regional Adini ni strateii- U.S. Envi ronmeiiha I Proherl.ion Age . ^ Region 10 ^ '**jP 1 700 .Sixt-.li AveniiP Knal. Mf!, WA 9H I O I :x>'^ '^1 \ce^^^y^f^^^^0^y^^^^ RE: COMPLA I N T O F HACIAL DISCRIMINATION DY LUMMT TRI B E IN VIOLAT I ON OF I T • S SEWER GRANT AGREEMENT I am very concerned ho receive the letter of 21 AUG 96 over your name, but <>igned for yoii by another, for the following reasons r- (A) Yon say- hhat my complaint was " filed untimely and could t herefore not be i nvnstiqa l :ed . " Your letter of 3 NOV 94 to which you refer, states that thi-^ 180 calendar days requirement may be ■■ w aived for qooi i c .ji is e . EPA's office of Civil Rights will dHtexjni ned i f .a_waj ver i?. just, i f ied . "' r would submit that the fact that I have been in contact and correspondence with youi- Agency for some two years, of itself constitutes a waiver, niherwise you would, of course, have informed me that I was our. of time in November 1994. (B) is Be that as it may, nni. an isolated this complaint of racial discrimination one-ofr incident, but of on-going 247 discrimination. The ?.ewHr was denied on 23 MAR ".'^ , was being denied on 9 NOV 94 and is still being denied tod.^" . Therefore, my legal advice ir. tliat l.lie 180 day rule cannot oossibly apply in tliis instance. (C) You make no mention .if the additional coinplairit about the Lummi Indian Tribe, which uas sent to Mrs Contrer.^s by courier on 17 MAY 96, concerniny r.ii;ial discrimination by the Tribe against non-Tndians on the re S'-ivation - including myself - by not supplying them with w.jt.-^i- provided by the City of Bellingham, despite earnest ns sur t nce_ to the City Council when the agreement was signe d that t here wmilc l be no such discrimination . (D) The prolonged delny in dealing with this matter - from 9 NOV 94 to 71 AUG 96. - i s I -tiii sure you will agree, unfortunate to say the least. r sf e no reason, other than reluctance to get involved, why you siioiild have waited for the Court decision before deciding th.it my application was "untimely." There appears to be no reason why the two actions could not have proceeded concurrent ly, as they concern three quite different breaches of three Jiffernnt undertakings freely given by the Lummi to three different bodies, not to practise racial discrimination . Then again your office "lost" the twenty page statement with the thirty-five enclosures I gave Mrs Contreras on 9 NOV 94, but did not let me know this until 22 AI^R 96. T received no letter from her dated 9 FEB 96. You are incorrect, by the way, in your assertion that the Judge liad s-iiuply said that ther^a was no remaining basis for exercising jurisdiction under the terms of the Consent Decree. You will see that she a i so added " with the possible excepti o n of par aoranh 24." [My attorneys and other attornays connected with thn case hnlieve the Judge should have omitted the word "possible"] Paragraph 24 states " However, f or good reason shown anti ijpon motion to the C nurt t>v any par ty , the Court may enter such f urther Clrder s as niay_ bn nece ssary or appropriate to effec:tuat e the purp oses of this Dec ree." Thi--, provision is without a time 1 imi t. 248 lliR Judge held l.hat South Cape Properties Ltd., not being a p^^rhy In the original Oficrne " accoidinqly cannot invoke paragraph 24." It is open to qiiRStion wliRtliRi' "any party" means any party to tliR Decree or any party who is affected by racial discrimination, .jHpendiny on your stance. Thn Court lliHrRfori? '^" UNITEO STATt£3 ENVIRONMENTAL PROTECTION AGBN REGION 10 J\ 1200 Sixth Avenue Seaitle, Washington 9&■\0^ A(i6 2 1 196_ Lt. conmiancler P.J- Hurray- Jones South Cape Properties, Ltd. 25B, wealthy Plaaa 13 8 Shau Kci Wan road Hong Kong RE: Complaint File #lU-94-R10 Dear Coajnander Jones: This is in response to your letter of July 22, 1996, regarding the status of your complaint in which you alleged discrimination on the basis of raoa when you were denied a sower extension by the Lummi Indian Tribe. Although you initially filed your complaint in Novombor 1994, LPA did not receive any of the documentation pertinent to the speoifics of your complaint until Hay 1996. ^ After ravleifing this documentation, va find that your complaint was filed untimely and therefore oannot be investigated. According to the records you provided, you wore denied sewer extension to South Cape at Sandy Point, Ferndale, on March 23, 1993. YOU filed yovir complaint on November 9, 199'1. This date was well beyond the 180-day time period within which a complaint should be filed. You were notified of the procedures to file a complaint in a letter (faxed to you by Cecilia Contrevaa) on November 3, i994. In December 1994 epa learned that you had made a request to reopen u consent decreee entered in 1902- regarding alleged violations of the decree. Issues related to your discrimination complaint were included in the consent decree. The decree, entered in Federal district Court, resolved litigation related to the construction of a wastewater treatment plant on the reservation. In October 1994, the court granted your request to reopen the decreee to diit-.ermine whether the decree has been viol-ited. Tor this ro^soii, EPA decided that we would await the outcome of the court's review before initiating an investigation of your complaint-.. In July 1993 the court determined that it had no remaining basis for o;:eroising jurisdiction because of the length uf time that had elapsed. EPA was informed about this determination in November 199S. 250 Due to govoriuaent fvirloughs during the period November, 1995 through Jcinuary 1996, wo were unable to pursue your complaint until the end of January 1996. At that time we asked you to reiterate tho issues raired in the complaint and to include documentation related to the issues. We received your response on May l , 1996. I apologize for the delay in advising you of our determination. However/ the delay did not affect the outcome of this complaint. This is tho final agency action regarding your complaint. If you have any questions about this matter, please contact Cecilia contraras at thu above address or at 206/553-2899. Sincerely, f^huck Clarke ( Regional Administrator cc: Mary St, Peter Office of civil Rights \ 251 WHATCOM COUNTY PLANNING AND DEVELOPMENT SERVICES 5280 Northwest Drive Sellinoham. WA 98226 MICHAEL T KNAPP. AJ. C.P. Director Co Py Directot Senate Commiaee on Indian Affairs 838 Hart Office Building Washington, D.C. 20510-6424 Aiteotioo: Nina Subject: Congressional Hearing/Senate Committee on Indian Affairs Dear Comminee Members: In so tar as Whatcom County issues buildiog permits on fee lands owned by Lummi Indians inside the boundaries Of the Lummi Indian Nation and the Tribe does not recoxnire Whatcom County lunsdicdon regarding County Zoning and enfbrceraent of County Ciides. management of Indian owned tee lands in contrast to Trust Lands is difficult if not impossible. By failing to recognize our jufis3iction. the situation creates potential liability for Whatcom County in that we may be let^ to correct health and safety problems on properties received by tribal or non-tribal members through ta» torecloxures and/or later sales to non-Indians. The Lummi Reservation is an open reservation. The roadi and ©jsem^nts are maintained by Whatcom County. In so far as the tribe manages the reservation sewer system, they must provide sewer availability slips before construction. During this process, the Tribe redirects fee land owners to their own tribal planning department for site and planning approval This situation creates confusion and often a burden on our tax assessor who uses Whatcom County Planning approvals to notify all landowners of their new tax assessments. While the solution to these issues is not easily resolved, it is imponant to consider methods and solutions that will enable Indian Nations and Counties to jointly agree on ways to insure life-safety compliance. Sincerely, Michael Kiapp, Director Whatcom County Planning and Development Services Po«i-ir Fax Note 7671 'moitLa^e. L>a,ijgW^^ KJUMZgi^CD 252 LUMMI INDIAN BUSINESS COUNCIL 26!t KWINA ROAC • B£^L'\3--r,- .VAS":'«3"0r.; oe226-C206 • (3aOl3SJ-U53 DEPARTMEN' ; ■ ■ Friday. June 7. 1996 Whatcom County Planning Commission ^^ ^f t ^C 5280 Northwest Road Co /9o Suite B % •%■ Bellingham. WA 98226 \,- Dear County Planning Commissioners. The Lummi Indian Nation urges you not to renew the County's 1972 Interim Zoning Ordinance for lands within the boundary of the Lumml Reservation Whatcom Count y has shown no legitimate governmental interest in continuing the Interim Zoning Ordinance and does not have the funds or staffing to provide planning services^to feg lands on the reservation. Furthermore, conlinuation of the Interim ironing Orainancfe perpetuates spot zoning, infnnges on the legitimate sovereignty of the Lummi Nation. and hinders the Tribal government in carrying out its responsibilities as the recognized governmental authority within the bounds of the Reservation. For land use planning to be successful and meet the goals of the community, zoning and development rules must be consistent throughout a neighborhood One set of rules for one parcel and another completely different set for the adjacent property will eventually lead to failure of both planning efforts. This type of "spot zoning" is considered poor planning, and in fact is illegal in most junsdictions. The current situation of Whatcom County attempting to apply its outdated zoning code to individual parcels of land on Lummi Reservation is a type of spot zoning, and defeats land use goals of both the Coun^y and the Lummi Nation This situation threatens the ability of the established Tnbal government to carryout meaningful land use planning for all reservation residents. Since the first adoption of the Intenm Zoninp Ordinance Whatcom County has shown no legitimate govemmental interest in continuing to apply the Ordinance to fee lands on ^m the Reservation. All individual fee parcels or groups of fee parcels are surrounded"E v ^ ■ Tribal lands, which are adversely affected by the County's outdated Intenm Zoning "" ~ Ordinance Reservation residents suffer from the confusion created Whatcom County's assertion of land use junsdiction on the Reservation, impeding economic development and residential development, and prohibiting consistent protection of environmental resources The County's application of its Shoreline Program to land within the Reservation has matenally harmed Tnbal tidelands by allowing the constoiction of shoreline structures that prevent natural shoreline process of erosion and deposition No county resources are protected or county interests forwarded by continuing the Interim Zoning Ordinance. However, important Tnbal interests and resources are ^^ 253 materially harmed by the continued imposition of the County's Intenm Zoning Ordinance. Whatcom County does not assert zoning jurisdiction over lands owned by its citizens which are located within the junsdictions of Bellingham. Skagit County, or British Columbia. What legitimate governmental interest does Whatcom County have in attempting to assert authority over lands outside its jurisdiction and within the legally defined bounds of the Lummi Reservation' The Lummi Zoning Ordinance, first a dopted in 1973 and since amended applies to all l ands within the Reservation and has~been approved by the Bureau of Indian Affairs The Lummi Zoning Ordinance provides for a variety of land use designations, residential densities, and development standards. The Tribal zoning and land use process provides for public participation, appeals and legal review of all land use decisions, regardless of property ownership status Tribal members, fee land owners, neighbors, and any interested party have the ability and nght to present their case and seek protection of property rights through the tnbal appeal system The fact that only enrolled Lummi Tribal members are eligible to vote in Tribal elections has no beanng on this issue on land use jurisdiction Canadian citizens who own property in Whatcom County are not eligible to vote in County elections just as US citizens are not eligible to vote in Canadian elections, even if they own land and live in British Columbia The fact that all residents of the Reservation have the right and ability to influence land use decisions through established legal process sufficiently protects their legitimate property rights. Not only has Whatcom County not shown any legal interest in imposing its zoning laws to lands within the Reservation, the county admits that it's funding and ability to regulate land use throughout the county, let alone the Reservation, is severely constrained by diminishing revenues Indeed, the level of staffing in the County Planning Department has been steadily reduced by the County Council since 1993 to meet revenue shortfalls. The county's inability to provide adequate planning services to fee land owners is evident in the fact that the Interim Zoning Ordinance has been hobbled together and recycled for the last 24 years. Based on the reasons stated above, the Whatcom County Planning Commission must not approve continuing the Interim Zoning Ordinance for lands within the boundary of the Lummi Reservation. To do otherwise perpetuates bad planning practices and disrespects the sovereign government of the Lummi Nation. I urge you to repeal the Interim Zoning Ordinance. Thank-you. Henry Oagey Chairman Lummi Indian Business Council 254 2a.6*334 606" LUMMI INDIAN BUSINESS COUNCIL 2B1S KWINA RO. • BELLINGHAM. WASMINQTON 9a226-B296 • (206) 734^180 OEPAHTMENT; . J.R. Kyan Building servlc«a Division iaBa9«r 5260 Horthweat Drive B«lllngham, MA 9822S I 5260 Horthweat Drive ! Re: Building Permit BtiD94-1050 3133 sungat Drive Dear Ma. Ryan; The Lunani Nation hae the following coefinentg on the above penult application: Juriadlotloa fThe Matlon does not recognize the jurledictlon of Whatcom^ County to iaevie permits on the Luanl Reaervation. _^ Btaorelanda Although this permit atates that the bluff la not eroding and therefore the setback is £rcn OHWK and not the top of the banJt, in April of this year a shorelines pemit was issued by the County for 3ii3 Sunset, several lots away, for construction of a retaining wall. In that permit, SaS94-oOOC and SK894-0003 a conditional use permit waS issued •to retard banX erosion.* Now this permit is issued that states that the bank is stable and not eroding. This is Inconsistent and we object to issuing a shoreline setback from OHWM. The Wiatcom County Shoreline Management Plan requires that setbacks be measured from the top of eroding banks (23. 90. CD, and this permit violates • the County ordinance. The setback should be measured from the top of the bank and no variance allowed. In addition, the maximum height of 30 ft violates the shorelands ordinance, as this residence Is within lOO feet of ORNM and therefore Is limited to 2S feet. The County hae been notified by the lummi Nation many times chat we object to allowing shoreline construction which later requires shoreline protection to be built. As property owners and government authority over the adjacent tidelands, we object to this process which results in damage to our tidelands and resources. Water supply The Sunset Water Association which is the w»ter supply Cor this residence is operating under a state permit based on Reservation groundwater withdrawals, mis Is water that belongs 255 to th« Lunwl Katlon under its Treacyreaerv« SjrDarj i Bfenne Turn Bfowf Martene Dawson Rob«rT A Imho' Ward Nelson Alvtn Starkenbur{: Kathv Sutter Sincerely, Marlene Dawson Council Member D«pl. '733-~<^L,'^D /'3?-(^S^^ Dana Brown-Davis, Clerk of the Council Correspondence file ^^U^a^^^Uxo 260 pjKlfSf THE COUNCIL Dana Brown-Oavis BUDGET/PROGRAM ANALYST Bob Woods WHATCOM COUNTY COUNCIL COURTHOUSE 31 1 Grand Avenue BeQinghain. WA 98225-4038 COUNCIL MEMBERS Barbara t Brenner Tom Brcywn MarHene Dawson Robert A Imhol Ward Nelson Alvin Starkenbur^ Kathy Suner April 17, 1996 Representative Jack Metcali Civic Center Builaing 322 N. Commercial Suite 203 Bellingham, WA 98225 SUBJ; SUtus oi Trital Employment Rigku Office (T.E.R.O.) Ordinance Dear Representative Metcalf : Since all ordinances adopted by the Lummi Trite affecting non-Indians must te approved by the Commissioner of Indian AffaiiB or his delegate, may we have the statxjs of the enclosed T.E.R.O. Ordinance. The Portland A "-a niiyrtnr A,-,pHc mimerous requesU concerning adoption of Irihal ordinances, has never provided any written documentation s howing his approval or disapproval. Consequently, I am ashing for a written verification of approval or denial tom the Interior Department and would appreciate your help in securing a written response. Sincerely, ^.^ Marlene Dawson Council Member Senator Slade Gorton Senator Patty Murray Jeff Monsen, Whatcom County Public Works Dana Brown-Davis, Clerk of the Council Correspondence file i:\(»uncil\iti^lcn>9d.417 261 Judge Barbara Rothstein United States District Court Western District of Washington Seattle, WA 98 1 04- 1 1 87 May 5,1995 Dear Honorable Judge Rothstein Subject: 1980 Consent Decree As you are the author of the 1980 Consent Decree in the Lummi Indian Tribe vs. Wilbur Hallauer case, I would like to draw your attention to the Lummi Business Council's violation of 1 1 d and 1 1 e. The Tribal Council has acquired through the Self-governance Act control of their tribal member's trust land as it related to real estate transactions. I am the agent for an out of the area Lummi tribal member by the name of Mrs Grace Erickson. Her two sisters had adjoining parcels of property that were transacted through the bureau of Indian Affairs and sold. Over a year ago I delivered a purchase and sale agreement, signed by both parties on Mrs. Erickson's property to the Lummi Tribal Council's real estate division. As of this time there has been no action taken after telephone calls plus letters by both myself and Mrs. Erickson. Mr. Hostlier, the manager of that division recently told me that they did not like land to be taken out of the trust. My client, needless to say, is very distraught about the situation. T he Tribe, while apparently not willing to purchase the property at market value, is holding their member economicall y hostage . Since she lives outside the area, it is difficult for her to address the problem herself In addition, she has financial limitations. As a federal judge currently reviewing the Consent Decree, you have some very important power and influence as it comes to protecting the lives and property of indians as well as non-Indian people on the reservation. Respectfully, Betty WaWace Licensed Real Estate Agent 2110 Iron Street Bellingham, WA 98225 (360)671-4624 262 CLERk OF TK£ COUNCIL /Y VV COfsCK M(MBSK> BUD^TPROCRA-M ANALYST lf^AA:^Lr?j' VUilenp OJv^-. ■ Bob woods \\ ^"V/ , ,^ c '■J'"^"'"' Robert A Imno" Mv.n Siarkenouf^ WHATCOM COUNTV COUNCIL COURTHOUSE 31 \ Grand Avenue Bellingnam. WA 98225-4038 October 17, 1994 The Honorable Slade Gorton 3206 Federal Bldg. 915 2nd Avenue SeatUe, WA 98175 Dear Senator Gorton: In so much as our State Attorney General's office will not address these questions, I am now requesting that your office help direa a response. Assuming the Lummi Tribe's tidelands are classified as Public Domain (Hagen vs. Utahl has there been any legislation to prevent recreational uses in properties under this classification? For example, is there legislation to prevent upland property owners whose land abutts Tribal tidelands from anchoring or resting their boats on them? Could you also answer whether there are present federal shoreline protection laws, or state laws that the Tribe must abide by, which would prohibit Tribal members from driving their cars on Tribal tidelands or setting up overnight or serai-permanent fish camps on the shoreline? In addition to Hagen vs. Utah, I am also aware of a 1960 Senate report stating there is no federal statute against trespass on trust land, which I assume pertains to open space and unallotted Tribal lands. Your prompt attention to this inquiry will be much appreciated. Sincerely, Marlene Dawson Whatcom County Council Member c: Shirley Van Zanten, County Executive Dan Gibson, Prosecuting Attorney Laura Eckert, Interagency Committee of Outdoor Recreation Ramona Reeves, Council Qerk AB 94-390 MD/nh g-\MD\Tidlnd.ol7 263 •^7K0F TH( COLSCIl 8U0CET/PROCRAM ANAIVST Bob Woods WHATCOM COUNTY COUNCIL COURTHOUSE 311 Grand Avenue Bellingham, WA 9822S-4038 COLSCIL M£MBCR> Kenneth R Hendersc Roben a imhof V\ard Nelson Alvin SUfhenburg September 27, 1994 Wyman Babby Assistant Secretary of the Interior United States Department of the Interior Office of the Secretary Washington D.C. 20240 Dear Secretary Babby: This is my fourth letter to you in over two months. While I have yet to receive any response, I am hoping to receive some in the near future. I am sure you are pressed for time like the rest of us. From my former letters you can tell that on an on-going basis, I have constituents who contact me about civilriglusjjwlations coming from the Lummi Reservation. These violations are being promoieaandsupported by Lummi Business Council. Who would you suggest as the best contact person in terms of addressing these problems and getting them rectified? TTie American Civil Liberties Union won't touch Tribal civil right violations. The Civil Rights Commission says they deal with only state issues. The Equal Economic Opportunity Council is a Federal agency that deals only with employment. The F.B.I, says they deal only with criminal violations. The Attorney General says they are not in a position to provide assistance. Sheri Freeman, who oversees tribes of selfgovernance, was of no help. The Bureau of Indian Affairs, an agent told me, is not to serve the general public. It is unconscionable when public officials dance around legitimate issues presented to them by citizens seeking redress. I want to help my constituents! Again, where do I go to get help as it concerns civil rights violations on a reservation? 264 Secretary Wavman Babby September 27, 1994 Page Two Enclosed is the latest letter from a constituent. In addition, I've enclosed pages from the Lummi Code Book, and a Sheriffs report which I've already copied to Attorney General Janet Reno, Senator Slade Gorton and Senator Patty Murray. Sincerely, Marie ne Dawson Whatcom County Council Member c: Slade Gorton, U.S. Senator Patty Murray,U.S. Senator Janet Reno, Attorney General Ramona Reeves, Council Clerk AB 94-390 MD/nh g;\MD\b«bby.927 265 FLOA FLYER MEMBERSHIP FEE s:o.00 Concerned* Send conrrihutioni to iht Ftt Land Chvnm Auocianon. ly^ TtltgropM Road. Suite 647, Bellmgham, WA 911226 NOOKSACK RIVER WATER RIGHTS I The following ii a j belated account of an I informative Water Rights presentation given Dy Tom Anoerson Manager of the , PUD#1, and Chair of the Noolcsack Water Usera ' Steonng Committee, I (composed of the cHles of Beillngham, Lyndon, the ' Agnculturai Preservation I Committee, and the PUD], to I the Whatcom County Council , at a special meeting on I Tuesday, Feb. 13 I The Steenno I Committee got together ' because they considered It necessary to address the I Tnbes' Intent to establish a ' senior "reaefved nghf daim to I NooksacK Basin water resources (to prepare for litigation should that be inevitable), to protect existing surface water rights, and ensure a prediaabie water supply for the future Anderson touched on many topics In his 45 minute talk Of special Interest virere nis comments on negotiations vs. Irtigatlon with the Tribes over water rights issues. The Steering Committee, he said, recommends negotiations for, several reasons An adjudication would be enormously expensive (the Yakima adjudication cost about $12 million according tc Anderson), take several years to be resolved, and while it would detenmine water rights, would not provide for enforcement of those water rights, or settle allocation issues. Anderson does not feel an adjudication woukj be permitted to happen under thi cunrent Governor and his administration. A different mind-set In the legislature and Governor's office wtfh a change at election time, might make triis more of a possibility. The Steering Committee feels that no matter what course of action is finally taken, the State should assist with funding for tne solution. Anderson said t;iat the Nooksaek Steering Committee is' committed to participating in a forum that seeks to include all the local interests and trie Tribe*. The Lummi Tribe has so far refused to attend. CunvnUy, the best forum for the purpose, he »ald. is the Nooksaek Initiative, led by the Oept. of Ecology. Most of the Steering Committee members are a'so on the Nooksaek initiative. raprasenting their constituency. Anderson encouraged anyone who does not feel rapretemed on water issues to conUd the Nooksaek Initiative and get Involved. Another iaaue Anderson touched on was the In-stream Flows a«t by the State as a way ^ to protect in-stream resources righu. The water rlghte ware dedleited to th* Tribe* ind the pfop«rty wu put In Truet for Fl«h Mitigation efTort* to an amount of about t1 mllllen. No new Industry hai built In Whatcom County ■Ince then. Some reaAioni to Anderton'e preientation follow: IS IT REALLY ABOUT SAVING WATER AND FISH? OR A MEANS TO GAINING POWER, WEALTH, AND RESOURCES? ''^ During Council \ . questioning for dartflcatJon,; and that are based on optimum i. Coundlmember Kathy Z flow rates for fish. The Steering / Suner termed the $1 million ) Committee believes they should ^ transfer 'blackmail*. y be re-eveluated and set for minimum flow rates for fish. He sak] this procass would be lengthy and costly as well An (tern of Intarest regartjlno the Tribes waa about the Tcnaska co^en plant, wherein Tenaaka asked for waur from the PUD. In order to build, Tenaaka had to go through the 8EPA proceaa. They did and ware approved to build. The Thbea appealed the daciBlon, The Tribea withdraw their objectlona and the plant waa allowed to proceed aflar Tenaaka purehaaed property on the Trtbes behalf In the South Fork Valivy that came wtth water During the question and answer period after the presentation, Jeff McKay, President of the Neptune Beach Water Association noted that he believes that the Nooksaek flsh issue is a very red hening - thet the tribe really wanu to sell the water. McKay also disagraed with Andeison aa to whether the County should forget adjudication as a solution He said that while It may be expenalve and time consuming, the adjudication on the Yakima did bring everyone to the table They were forced to come (Inelgding tribal), end ttey. or thay woula Be isff out ana not gat anything. Siup Richarai, eoniultenl to Witrington Asioeiateo Waie' Syitemt (WAWSl. »-a9»«« tnet 11 there truly it a water snoriage. exploring and invealing in long term lolutjoni. luch at a dam O' large lowland raaervoiri or lagoont to expend storag* and alleviate floods would &e a more practical u«e of fundi, and eliminet* a lot ofthadiMgreement ove- what It available now Overall. It was a very informatlva presentation to the County Council, and an enlightening evening' {BdNola: whit M/udKtien$ bring all uttn wUh wm*r ptrmDt to t/ie rap^. many current tgrleiAural uiari. including many npratanlaa ty tha afortmantionad Agnculturai Pratarvallon Commlnaa. do not hava watar parmHt and would not ba alowad at tha labia in an a ing groundwater withdrawal. If tribal control over water development does not look like it can be so main- tained, then: - serious discussion should be undertaken as to the Tribe's abilities and options for tribal control over development; - the aquaculture water system should be upgraded independently from the domestic water system; - the negative option of limiting housing development and Industrial growth on the reservation through lack of water facilities should be discussed. The question Is not whether the Tribe should develop a water supply and dellV' ery system, but whether the Tribe can maintain its chosen goals of tribal sovereignty and self-determination with a highly developed utility Infra- structure. As long as the tribal government Is connltted to enforcement of tribal (as opposed to county) land use codes, zonlno, and planning, the water system development is a possibility. If the Tribe feels that operation and maintenance of this system is Impossible, or that the side effects of increased real estate speculation on the reservation are too severe, or uncontrollable, then the negative alternative (neglect of water development) should be explored. However. If the Tribe neglects water development, It Is very possible that a non-tribal water district will fom, or continue to plan for such development anyway. 268 To SPIC Otis: 6/21/95 Tun* 09 43 49 P O 2 INTRODUCTION As part of an ongoing effort to secure tribal water rights and to plan for water resource developmentt the Bureau of Indian Affairs has been funding a water resources inventory program for the past several years. Funding and Implementation of this program have been phased: Phase I: Identification of the surface and ground water resource base for the reservation. A Groundwater ^"j'gstiqatlon of the Lumml Indian Reservation Area, Washington, USGS 1974. Surface Water Investigations of the Lunril Indian Reservation . USGS 1974. Phase II: Identification of the water resource demand on the Lutiml Reser- vation, both now and for the future. Water Resource Inventory Phase II: Proj ected Water Demand and Existing Facilities , Uuinni Planning Office. 19S0. Phase III: The discussion of alternative plans and programs to satisfy the anticipated water resource demand as identified in Phase II. This report represents a completion of Phase III of the water resources Inven- tory program. It is Intended to facilitate discussion of. and decision-making about, alternative plans to supply the water needs on the Lunini Indian Resarva* t1on. The estimation of quantities of water by use in this document in no way limits any further appropriation of water or water rights by the Lunml Indian Business Council. The Lunml Planning Office respectfully submits this Water Resources Phase III Report to the Lunini Indian Business Council. 269 T, SPIC D.l.«2i;95 T,m. 09 44 47 Pig* « ol S P C 3 POLICY QUESTIONS There 1$ a policy conflict In the development of b water system that the Tribe will have to iddress directly. Ther« are two stated tribal goals that could come Into conflict. One goal Is to supply water to the reservation in order to encourage and enable Indian families and businesses to flourish there. Another goal 1$ to minimize the growth of non-Indian land ownership and residence on the reservation. In theory, utility extensions can be used as a method of growth control. If a municipality decides that an area should not be developed, a decision limiting utility extensions in an area will partially limit development, even if it will not stop it. Similarly, if a municipality desires an area to be fully "built-up" before extensions to more rural areas are granted, utility service hook-ups can be used to enforce this. Continued reliance on groundwater for domestic use may be a partial answer to growth control on the reservation. Presently, much of the groundwater Is supplying coinnunity water systens that arc not under tribal control. One of the problems with the current water situation is that some effective non- Indian water systems, such as the Sandy Point Imprcvement Company System, is using groundwater, while the Luami Water District pays for imported water from Bellinham. Aquisitlon of these coeiminity waUr system's assets, while appropriate and fair, would be a great expense for the Tribe. While this may eventually have to happen as tfie comprehensive water system is developed, the benefits of acquiring water systems that do not serve Indian homes are questionable in the short term. The tribal planning proctts Is in the unique position of trying to maximize water available to tribal neabcrs (especially for new construction), desion a fair and impartial water supply system, and not encourage large non-Indian housing developments. The pressure exists on the reservation to develop the water delivery system. Indian and white property owners, and potential property developers, arc aware of the need for water. Whatcom County Water District #15 and #11, in spite of con^lax litigation about their rights to exist at all, arc develop- ing plans to bring nor* water (and thus more non-Indian development), to the reservation.- The Tribe, also, with conmon sense and oood planning, has based a good portibo of its case in the sewer lawsuit, Lmrnii Indian Tribe y. Hallauer . on the fact that the Tribe plans to serve all homes, Indian and non-Indian, with sewer service, to the limits of the reservation sewer system as It is designed. This Hikes it difficult, but not Impossible, for the Tribe to limit certain kinds of development by limiting other utility extensions. Like all planning or zoning restrictions, water service restrictions will be effective only if parties affected know of them in advance, and all parties are treated fairly. The Tribe may have to take steps to control growth on the reservation dircctjy, and be prepared for the inevitable legal conflict. One possible Uniting 270 OM Sni/95 Tim. M .46 18 ^'S* * ° ,om T^ SPIC P O 4 factor could bt the presently designed riewer capacity, The Tribe could define a maximum number of homes per year to be built on the sewer lines. i Within this limit, a preference schedule could be developed enforcing that I Indian housing, or low-income Indian housing, be the first priority for bu11d< 1ng>perm1ts. Any kind of development limit means that the tribal government would have to be prepared for the Inevitable legal test cases of the Tribe's ability to enforce It. Another method to control development would be to enforce the need for a trlbi building permit, as well as a county building permit. Possibly, under the Luiml Land Use Codes, building peraits could be granted on an Indian preferenc schedule. This process would also take considerable enforcement efforts, and could result In lawsuits with the County and with developers. It is Important that the reservation continue as a primarily Indian-owned land base. The Tribe can and oust tolerate non-Indian presence on the reser- vation. However. It Is crucial that In the provision of all these comprehensl services, Indians end tribal mbirs bt the primary parties that benefit. If the comprehensive services that arc being provided do not benefit these groupi the Tribe would do well to not Implenent its comprehensive water development and let partial growth control be a secondary effect of lack of water service, low water pressure, and lack of fire protection. Indian development does not have to lock like, or be like, the same develop- ment controlled by non-Indians. The problem Is how to enforce It. Economic development, and fishing opportunities are increasing the number of Indian fad lies wishing to move onto the reservation. Pressune Is increasing on the Tribe to allow more development of Indian homes and businesses, which need bet water service. On the other hand. In the past, the heirship situation and lack of sewer and water services have determined many of the' land values and land use patterns on the reservation. As sewer and water services are provide two of three fonner controls which have limited non-Indian land aquisltions ar removed. The most open way to encourage Indian preference development is to pass and enforce lawi In the Land Use Code which encourage land development along the patterns that suit the needs of the Tribe; and not to develop the water system until the other protections exist to keep the reMrvatlon pri- marily Indian owned. . I 1 i 271 , / DEPARTMENT OF HEALTH*. HUMAN SESVICZS i ' /flaT ^ ^ " ' J':.:' ^-.!... -.. '— — • . ; ■ . , .. Memorandum Data , ■; May 17/ 1989 ^r From £17165% J. Zsbem.vJrr. Assistant Regional. Covinsel Subject Lumi Payxoll Tax Ordinance To Williaa Picctte, Service Cnit Director HortLhwes-t Washington Service Unit Yott advised us that the Lumi Indian Business Council, by Resolution No. 89-56, has adopted a Payroll. Tax Ordinance requiring individuails employed on the reservation to pay 2% of their gross pay to the Tribe. The ordinance which is effective ' June 1, 1989, requires employers (business or governmental entities) operating on the reservation, to withhold the' 2% tax from their employees' pay. You have asJced whether the Tribe can enforce this ordinance against IHS employees.' In our opinion they cannot. • ' . " DIScnsSTOW " .. " !■'■»'..,■■,_ . Article VT, Section i of the Constitution and By-Laws of the Lumi Tribe provides' in perzinent part as follows: ", j./'j" Section 1 . The Lumi Business Council shall have the following powers, subject ' to any '. •_ , limitation imposed by Federal statutes or by the '•■. ~-- Constitution of the United States. " ■' ' ' ' ■''■ ***** ." -.:.. '•' T !.> (1) To safeguard and promote the peace," ' - ■-.• safety, morals, and general welfare of the Lumi .- Reservation by regulating the conduct of trade and - *" the use and disposition of property upon the reservation, provided that ordinances directly affectino nonmernbers of the tribe shall be subiec- to the approval of the Coirmissioner of ^Indian Affairs. .... .•••'■ (emphasis added} \'^,.. . You have advised us that the Payroll Tax Ordinance has not been submitted to the Department of the Interior for approval. In Merrion v. Jicarilla Apache Tribe . 102 S.Ct. 894, 903; 453 O.S. 130, 141 (1982^, the Supreme Court, while upholding a ■tribe's' right to tax nonmembers generally, noted that, "the .Tribe's authority to tax nnninoiiihoTy'^<^ '?"*^1p gt to ponstraints .. x.-''.-^^ not ■ Ijposed o n other .govcrniaental ent ities; the Federal -t,' \* .f> : 272 Page 2 - Wllllaai PicoCCe, Service Unit Direcrtor Govemnest: can take away this power, and the Trihe nost obtain the apprsrval of the Secretary [o£ the Interior] before* any tax on nonmesbers can taJce effect. These additional constraints BLinimize potential concern that Indian tribes will exercise the power to tax in an unfair or unprincipled manner, and ensure that any exercise of the tribal power to tax will be consistent wit naticnal policies." Jiearilla Aoac-e In light of the court's holding in Merrion v. Tribe , gsrira . ^dP Article VI Section 1(1) of the Tribe's Constitution and 3y-Ls.ws, it is our opinion that the tribe's tax ordinance iiiaYnotbg_,gjifo;£ced against nonmeobers of the tribe unless and uSSiT^ 'Seordlnance is approved by the Departaent of the Interior. With respect to Commissioned Officers (except members of tjie Lumi Tribe) , it is our opinion that they cannot be taxed evan if the ordinance is approved. The Soldiers and Sailors Civil Relief Act of 1940, SO U.S.C. App. 5 504, et seq. and S 574 protects nembers of the armed farces from imposition of any form of income tax when imposed by other than their state of domicile while they are on active duty. Those provisions are made applicable to commissioned officers of the Public Health Sar"/i;e by" 42 U.S.C. S 213 (e) . ' •- You may share this opinion with the Tribe. If a representative of the Tribe cares to discuss the contents of this opinion I can be reached at (206) 442-7309. 273 FLOA FLYER MEMBERSHIP FEE tliXOO Concerned* Send conrrihunons to the Fee Land O^Mters Au' 274 o o ■a c CM c CM £ E o T3 C .c C T3 O c S X (J _ c _ ffi ^ S SJ> 8. u X '5 s:3 c "1 •:: O c o Q ™ 5 E o "-■5i| ,(2 ii>o^ Q X u T3 e 3 D '- CM •a c c c o o N S S fe k* u u > SP 5 > O c c s O o _2 _2 o ^1 5 a « 5*^5 •o 2 <> E c o I 8 ^1 E ^ o ii 5 a < «o o u u B I w I § C V X 275 276 \ o- :Zo 277 STATEMENT OF JENNIFER A. COLEMAN. ESQ. September 24. 1996 At English common law, the doctrine of Sovereign Immunity derived from the idea that the "king can do no wrong." Because the acts of the sovereign were the law of the land, it stood to reason that the sovereign could not be made to answer for its acts in court. In our democracy, it has long been believed that the people are sovereign and the government answerable to the people. Thus the individual states and the United States must answer to myriad actions in state and federal courts for violations of law, enforcement of agreements, civil rights violations, infliction of personal injury, etc. Not so Indian Tribes. Somehow, Indian governments have been permitted by Congress to claim a degree of sovereign immunity from suit which grossly exceeds that of the state or federal governments and which defies the rights of non-Indians affected by the acts of Indian governments. Indian Sovereign Immunity — the inability to sue Indian tribes ~ denies due process to non-Indian U.S. citizens. This is dramatically demonstrated in the case of non-Indians residing on the Allegany reservation of the Seneca Nation of Indians in New York State. Several non-Indian, U.S. citizens, presently face eviction by the U.S. goverrxment, from homes they bought and paid for, because Indian Sovereign Immunity has barred them from enforcing land leases and federal statutes securing their property rights. In a rush to assuage guilt over past inequitable dealings with Native peoples, the U.S. has ignored and trampled on the rights of individuals whose interests are unavoidably intertwined with those of tribal 278 governments. Individual states do not enjoy the degree of immunity from suit that Indian Nations possess. The United States does not possess the degree of immunity from suit that Indian Nations claim. Indian Sovereignty and Indian Sovereign Immunity are not the same thing. The right of Indian Nations to self-determination, to self- government, to establish membership criteria, to regulate the use of land and resources, to establish courts, to exercise police powers, etc. would survive even if tribal contracts, or leases, or other legal relationships were judicially enforceable. The United States is no less a sovereign nation because it can be sued. The gross inequity of Indian Sovereign Immunity is clearly demonstrated by the situation in Salamanca, New York. It is a small city, built mostly on the Allegany Reservation of the Seneca Nation. Federal statutes created 99-year, renewable, leases which permitted and induced non- Indians to build and improve homes and businesses in Salamanca while leasing the underlying land from the Seneca Nation. By late 1990, approximately 3,300 individual leases had transferred by purchase and assumption to the then occupants. Most were elderly, retired on fixed incomes, and barely middle class. Most had paid-off mortgages. Most counted their homes as their only significant asset. Many were veterans. Their leases all expired on February 19, 1991. Everyone, including the Nation and the U.S., expected the leases would be renewed pursuant to procedures contained in the leases and enabling statutes. 279 Instead, in late 1990 Congress forced lessees to either take a lease they did not want or approve, or lose their homes if they refused. Most signed this new lease but only after four separate signing periods, and only after the courts of the United States, including the Supreme Court, refused to hear claims that the new leases violated property rights and subverted renewal expectations of all parties. Most wanted to sign the lease "under protest;" the Seneca Nation said it would treat such as a rejection of the lease. Some, however, refused to sign. They are now being evicted - not by the Seneca Nation - but by the United States Department of Justice. They are being evicted with the assistance of the same courts that refused to hear their claims. Two acts of Congress created the landlord-tenant relationship between the Salamanca lessees ("Lessees") and the Seneca Nation: the Act of February 19, 1875, ch. 90, 18 stat. 330 ("Act of 1875") and the Act of September 30, 1890, ch. 1132, 26 stat. 558 ("Act of 1890"). [Attachments 1 and 2] The Act of 1875 provided: Section 3. That all leases of land situate within the limits of said villages when established as hereinbefore provided *** shall be valid and binding upon the parties thereto, and upon said Seneca Nation for a period of five years from and after the passage of this act, except such as by their terms may expire at an earlier date; and at the end of said period, or at the expiration of such leases as terminate within that time, said nation through its counselors shall be entitled to the possession of the said lands, and shall have the power to lease the same: Provided, however, that at the expiration of said period, or the termination of said leases, as hereinbefore provided, said leases shall be renewable for periods not exceeding 12 years, and the persons who may be at such time the owner or owners of improvements erected upon such lands. 280 shall be entitled to such renewed leases, and to continue in possession of such lands, on such conditions as they be agreed upon by him or them and such counselors; and in case they cannot agree upon the conditions of such leases, or the amount of annual rents to be paid, then the said counselors shall appoint one person and the other party or parties shall choose one person, as referees to fix and determine the terms of said lease and the amount of annual rent to be paid; and if the two so appointed and chosen cannot agree, they shall choose a third person to act with them, the award of whom, or the major part of whom, shall be final and binding upon the parties; and the person or persons owning said improvements shall be entitled to a lease of said land and to occupy and improve the same according to the terms of said award, he or they paying rent and otherwise complying with the said lease or said award; and whenever any lease shall expire after its renewal as aforesaid, it may, at the option of the lessee, his heirs or assigns, be renewed in the manner hereinbefore provided. Section 7. That the courts of the State of New York within and for the County of Cattaraugus, having jurisdiction in real actions, and the circuit and district courts of the United States in and for the Northern District [now Western District] of said state, shall have jurisdiction of all actions for the recovery of rents and for the recovery of possession of any real property within the limits cf said villages, whether actions of debt, ejectment, or other forms of action, according to the practice in said court; and actions of forcible entry and detainer, or of unlawful detainer arising in said villages, may be maintained in any of the courts of said county which have jurisdiction of such actions. App. at 119a-122a (emphasis added). Subsequent to the Act of 1875, the Act of 1890 was passed; it extended the term of the leases and renewals authorized by the Act of 1875 from 12 years to 99 years. It expressly did not amend the Act of 1875 in any 281 other respect. Two essential elements are expressly established by these statutes: (1) the right to renew leases in an equitable manner through negotiation or arbitration and (2) that the lessees owned the improvements on the leased land. For more than a century the lessees, the Seneca Nation, the State of New York and the United States relied on the Acts of 1875 and 1890. The leases granted pursuant to those Acts were repeatedly enforced by the Seneca Nation in the Federal Courts. See eg. U.S. v. Fomess, 125 F.2d 928 (CA2), cert, derued, 316 U.S. 694 (1942). Congress itself relied on the renewal provisions in the Acts of 1875 and 1890 and the 99-year leases when it enacted special legislation to permit HUD to insure mortgages in the City and Villages: "A mortgage on a leasehold estate covering a one to four-family residence located on the Allegany Reservation ... is eligible for insurance if the mortgage meets the requirements of this subpart. . . . This section applies only to a mortgage which: Is on a leasehold under a lease with a termination date in February, 1991, which provides for renewal in accordance with the Acts of February 19, 1875 (19 Stat. 330) and the Act of September 30, 1890 (26 Stat. 558)." 24 CFR, ch. 11, §203.43j(a)(2). See also, 12 U.S.C. §1709(q). In fact. Congress stated that a mortgagor's failure to take steps to renew his or her lease was "an event of default under the mortgage." 24 CFR §203.43j(b)(2). In The Seneca People, George H.J. Abrams, an enrolled member of the Seneca Nation and an historian and instructor of courses in American Indian History, wrote: Two separate pieces of congressional legislation were signed into law on September 30,1890. One sold the remaiiung Kansas lands of the New York Indians. The second provided for a 99-year lease, beginning in 1892 when the leases were to expire. 282 and an additional renewal period of another 99- year s. Abrams, The Seneca People, Indian Tribal Series /Phoenix (1976) (Library of Congress Catalogue No. 76-19827) (emphasis added). In 1990, Congress destroyed the renewal rights that all parties had relied upon and instead imposed a new lease on the non-Indian lessees by enactment of the Seneca Nation Settlement Act of 1990, Pub. L. 101-503, 104 Stat. 1292 ("Settlement Act of 1990"). [Attachment 3] That statute was signed by President Bush on November 3, 1990. Pursuant to the Settlement Act, the Seneca Nation has asserted ownership of the improvements on the leased lai\d. [Attachment 7] The Settlement Act of 1990 authorized payment of $60 million to the Seneca Nation to adjust "past inequities" arising from nomirwl rents paid to the Seneca Nation pursuant to the leases authorized by the Acts of 1875 and 1890. The Settlement Act was strongly opposed by the Department of the Interior which questioned U.S. liability for past inequities and which did not believe Congress had authority to fix new lease terms. [See, testimony of Walter Mills. [Attachment 4] The Department of the Interior knew that the 1990 Act upset century old expectations and property interests. [See letter dated July 26, 1985 from the Department of the Interior. [Attachment 5] [See also Attachments 6-8] The 1990 Act also ratified and thereby established the terms of new leases. Fluent v. Salamanca Indian Lease Authority, 928 F.2d 542 (CA2), cert, denied 502 U.S. 818 (1991). [Attachment 11] 283 The 1990 Act was pushed through Congress before the individual lessees had even seen the documents it purported to ratify. This expedient legislation, at least, contained a presumed safety valve. Congress expressly provided at 25 U.S.C. §1774g that the Settlement Act of 1990 could be challenged on constitutional grounds: Notwithstanding any other provision of law, any action to contest the constitutionality or validity under law of this Act shall be barred unless the action is filed on or before the date which is 180 days after the date of enactment of this Act. Exclusive jurisdiction over any such action is hereby vested in the United States District Court for the Western District of New York. App. at 139a. Prior to expiration of the leases, and within a month of the effective date of the 1990 Act., several hundred lessees commenced a lawsuit in the United States District Coxirt for the Western District of New York to compel arbitration for the terms and conditions of new leases (as required by the 1875 statute) ar\d to declare the 1990 Settlement Act unconstitutional. These claims were dismissed because of Indian Sovereign Immunity. Notwithstanding explicit language in the 1875 and 1890 statutes, the federal courts held that the lessees had no remedy for the unilateral imposition of leases by the 1990 Act. Further, even though Congress anticipated a Constitution challenge by including §1774g, the Court held that the language of that section was insufficient to waive Indian sovereign immunity. Indian Sovereign Immunity thus prevented U.S. citizens from litigating claims profoundly affecting the ownership, use and occupancy of their homes and businesses. 284 The courts ruled that the language in the statutes was not clear enough to constitute a waiver of Indian Sovereign Imnr\unity and that the claims could not proceed without the Seneca Nation as a party. The Court of Appeals for the Second Circuit stated: "[Indian] Sovereign immunity may leave a party with no forum for that party's claims. . . . The only branch with authority to provide a forum for resolution of the issues involved here is Congress." Fluent v. Salamanca Indian Lease Authority, supra 928 F.2d 542, 547. Although the courts are closed to suits by lessees against the Nation, they are wide open for the Nation, or the U.S. on behalf of the Nation, to sue lessees. [For eg. see Attachments 9-10] Indian Nations frequently avail themselves of the federal courts to enforce statutory and contractual rights agaiiwt non-Indians. No court is available to lessees. New York State courts are incompetent to adjudicate Indian land claims, see, e.g., New York Indians, 5 Wall. (72 U.S.) 761 (1866). See also, Indians, 25 U.S.C. §233 (1983). The Seneca Nation's Peacekeeper Courts do not have jurisdiction over disputes between Indians and non-Indians. New York Indian Law, §46 (McKinney's 1991 Supp.). The Courts, including the Supreme Court, have held that Indian Sovereign Immunity, unless overtly waived by Congress, may deprive individuals of constitutionally protected property and due process rights. Santa Pueblo v. Martinez, 436 U.S. 49 (1978). Power over Indian affairs is committed exclusively to the U.S. Congress. U.S. Const. Art. 1, §8. Congress has plenary power of Indian matters. Santa Clara Pueblo, supra, 436 U.S. at 56. 8 285 Chief Justice John Marshall, first and most completely announced the doctrine of Indian sovereignty in Worcester v. Georgia, 6 U.S. (Peters) 515 (1832). It was also Justice Marshall who expounded the doctrine of judicial review in Marbury v. Madison, 5 U.S. (Cranch) 137 (1813). Judicial review, deemed essential to our government's system of checks and balances, ensures that Acts of Congress comport with the Constitution. Surely Justice Marshall never contemplated the expansion of Indian Sovereignty to an immunity which prevented judicial review of Acts of Congress. But that is the current state of the matter. Effectively, unless Congress explicitly waives Indian Sovereign Immunity, Indian legislation is immune from judicial scrutiny and enforceable only by Indians, regardless of the impact of such legislation on non-Indians. This result destroys the supremacy of the United States Constitution. U.S. Const. Art. VI, cl. 2. If an Act of Congress is unconstitutional, the race or ancestry of a litigant should not decide whether a court can intervene. It is manifestly unjust and uniquely destructive of the supremacy clause, judicial review, and due process that non-Indians are barred by Indian sovereign immunity from seeking judicial review and construction of Acts of Congress intimately related to their property interests. As the Court of Appeals, in apparent frustration, recently held: "[TJhere is simply no room in our constitutional order for the definition of basic rights on the basis of cultural affiliations, even with respect to those communities whose distinctive 'sovereignty' our country has long recognized and sustained." Poodry v. Tonawanda Board of Seneca Indians, 1996 U.S. App. LEXIS 11407, 11487-88 (CA 2 1996). Yet, until Congress acts affirmatively "it: cAn n-7 An 286 and explicitly to alter the status quo, this intolerable circumstance will persist. Indian Nations will continue to "use their connection with federal authorities as a sword, while employing notions of cultural relativism as a shield from federal court jurisdiction." Id. Jenmfer A. Coleman 287 Attachment i 118a 1330] APPENDIX D(l) United States Statute (Forty-Third Congress, Sess. II, Ch. 90. Act of February 19, 1875) Feb 19, 1876 CHAP. 90. -An act to authorize the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany reservations, and to confirm existing leases. Leases of lands Be it enacted by the Senate and House of by Seneca Nation Representatives of the United States of of New York In '^ . ^ li j Tknf oil dians. for railroad /Imcnca m Congress assembled, inat au purposes. jggg^g Qf i^jj vvithin the Cattaraugus and Allegany reservations in the State of New York, heretofore made by or with the authority of the Seneca Nation of New York Indians, to railroad-corporations, ere hereby ratified and confirmed; and said Seneca Nation may. in accordance with their laws a form of government, lease lands within said reservations for railroad-purposes. Boundaries of SEC. 2. That the President of the United '/SiSany'^'r^rrva" States shall appoint three commissioners. Uon. whose duty it shall be, as soon as may be, to survey, locate, and establish proper boundaries and limits of the villages of Vandalia. Carrolton. Great Valley. Salamanca, West Salamanca, and Red House, within said Allegany reservation, including therein, as far as practicable, all lands now occupied by white settlers and such other lands as. in their opinion, may be reasonably required for the purposes of such villages; and they shall cause a return of their doings in writing, Maps of survey, together with maps of such surveys and 288 119a locations duly certified by them, to be filed in the office of the county clerk of the county of Cattaraugus, in said State, there to be recorded and preserved. The boundaries of said villages so surveyed, located, and established shall be the limits of said villages for all the purposes of this act. SEC. 3. That all leases of land situate J^-^j* -^^J; within the limits of said villages when to be valid for five established as hereinbefore provided, except ^'*"" those provided for in the second section of this act, in which Indians or said Seneca Nation, or persons claiming under them are lessors, shall be valid and binding upon the parties thereto, and upon said Seneca Nation for a period of five years from and after the passage of this act, except such as by their terms may expire at an earlier date; and at the end of said period, or at the expiration of such leases as terminate within that time, said nation through its councillors shall be entitled to the possession of the said lands, and shall have the power to lease the same: Provided, however, Th at at the expiration of said period, o r the Terminat ion^ of said leases , as hereinbefore provid ed, said leases shall be renewable for periods n ot exceeding twelve Renewal of years, and the persons who may be at such time tKie owner or owners oi improvement s erected upon such lands, sh all be entitled t o sucE renewed leases, and to continue in possession of such lands, on such conditions as may be agreed upon by him or them and such councillors; and in case they cannot leases. 289 120a Power of Seneca Nation to lease lands not owned by individuals agree upon the conditions of such leases, or the amount of annual rents to be paid, then the said councillors shall appoint one person, and the other party or parties shall choose one person, as referees to fix and determine the terms of said lease and the amount of annual rent to be paid; and if the two so appointed and chosen cannot agree, they shall choose a third person to act with them, the award of whom, or the major part of whom, shall be final and binding upon the parties; and the person or persons owning said improvements shedl be entitled to a lease of said land and to occupy and improve the same according to the terms of said award, he or they paying rent and otherwise complying with the said lease or said award; and whenever any lease shall expire after its [331] renewal as aforesaid, it may. at the option of the lessee, his heirs or assigns, be renewed in the manner hereinbefore provided. SEC. 4. That said Seneca Nation is hereby authorized, by resolution of its councillors, duly elected according to the laws and system of government of said nation, or in such other manner as s£ud nation in council may determine, to lease lands within said villages to which, by the laws or customs of said nation, no individual Indian or Indians or other person claiming under him or them, has or is entitled to the rightful possession. Survey of village SEC. 5. That it shall be the further duty of lands now leased ^^e Said Commissioners to cause all lands within such villages now leased, as 290 121a hereinbefore mentioned, to be surveyed and defined as near as may be. and to cause the same to be designated upon the maps of such villages hereinbefore mentioned and provided for. All leases of lands within said villages, whether now existing or hereafter to be made under the provisions of this act, shall be recorded in the office of the clerk of said Recording of county of Cattaraugus in the same manner and with like effect as similar instruments relating to lands lying in said county outside of said reservations are recorded by the laws of said State of New York. All leases herein mentioned or provided for shall pass by assignment in writing, will, descent, or otherwise in the manner provided by the laws Assignment, de of said State: Provided, however, That the vise, descent of rights of Indians in such leases shall descend '^^'^^ as provided by the laws of said Seneca Nation. SEC. 6. That all moneys arising from rents Rents due Scneca under the provisions of this act which shaU l'^°^Ji;p[^;'' belong to said Seneca Nation shall be paid to and recoverable by the treasurer of said Seneca Nation, and expended in the same manner and for the same purposes as are other revenues or moneys belonging to said Seneca Nation. SEC. 7. That the courts of the State of jurisdiction of New York within and for the county of ""^^' Cattaraugus, having jurisdiction in real actions, and the circuit and district courts of the United States in and for the northern district of said State, shall have jurisdiction 291 122a UwB of New of all actions for the recovery of rents and for ^'"^'' the recovery of possession of any real property within the limits of said villages, whether actions of debt, ejectment, or other forms of action, according to the practice in said courts; and actions of forcible entry and detainer, or of unlawful detainer arising in said villages, may be maintained in any of the courts of said county which have jurisdiction of such actions. SEC. 8. That all laws of the State of New York now in force concerning the laying out, altering, discontinuing, and repairing highways and bridges shall be in force within said villages, and may, with the consent of said Seneca Nation in council, extend to, and be in force beyond, said villages in said reservations, or in either of them; and all municip^ laws and regulations of said State may extend over and be in force within said villages: Provided, nevertheless, That nothing Taxation of In- in this scction shall be construed to authorize **'""' the taxation of -uiy Indian, or the property of any Indian not a citizen of the United States. Approved, February 19. 1875. 292 123a APPENDIX D(2) United States Statute (Fifty-First Congress, Scss. I, Ch. 1132. Act of September 30, 1890) CHAP. I132.-An act to authorize the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany Reservations, and to connrm existing leases. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That whenever the leases of land situate within the limits of the villages mentioned in the act of Congress entitled 'An act to authorize the Seneca Nation of New York Indians to lease lands within the Cattaraugus and Allegany Reservations, and to confirm existing leases," approved February nineteenth, eighteen hundred and seventy-five, except leases to railroad, shall by the terms of said act be renewable, the same shall; be renewable for a term not exceeding ninety-nine years, instead of the term of twelve years, as therein provided, subject to all other terms and conditions of said act. Approved, September 30, 1890. September 1890. 30, Leases of lands by Seneca Nation of New York Indians, to be renewable. Vol. 18. p. 330. Excepted leases. Term of renewal. Conditions, etc. 293 Attachment 3 25 i 1773J INDIANS (1) the t£rm "1878 Survey Area' meani the area which la wfthiA the area demariud by the high water line u meandered and the upland boondariea, u ahown on the ptat map of the 1873 Survey ot the Puyailup Indian Reaervatloa, conducted by the United Sutea General Land Office, and filed in 1874; (2) the term "Secretary" meana the Secretary of the Interior O) the tern "Settlement Agreement" meana the document entitled "Agreement between the Pnyalhip Tribe of Indiana. Local Goremmenta tn Pierce County, the State of Waahlngton, the United Statea of America, and certain private pnperty ownen', dated Auguat 27, 1988; (4) the term "State" meaaa the State of Waahlngton; (6) the term "Technical Documenu" meana the 7 document* which eomprlee the technical appendix to the Settlement Agreement and are dated Auguat 27, 1968; (•) the t«rm "Tribe" meana the Puyailup Tribe of Indiana, a tribe of Indiana raeognlzad by the United Statea; (7) the term "Vlow the mean high water tine' In reference to the iubmerg«d laodi of the PoyiUup IUveri>ed meana "below the ordinary high water mark" In that porlloD of the river not subject to tidal inftn/tu^ and "below the m>»n high wattt Una" in that portlcn of the river which !■ cubject to tidal Influence; and (8) the term "oo-reservation ftatua' meaaa a (tatua under which FederaJ lawi and ragnlatioca, treaty rigfata. uvd ngfata of toverelgnty, which define the righta and nqwiM i Wlit i ii a on truat or reetricted laada lindudlng right*-of-way and »w wT V< mti ronning through each landa wtthin a Fe« ud the Congimliiiiil VHIagea, New York, have itralned relationa between the Indian and naa-Iadian eommnnitiee and hare reauiud m adverse economic tmpacta affect- ing both eommsmtiea. (2) Soma of the aignHVant hlatoraJ fvetita which have led to the preaest (A) y>»ftrining (n the mld-iBMUcath century, several ndlroada obtainad grants or leaaea ot rigfau of way thnogh the Allegany Reaemtiao wttboot Federal anthoriiation or appewal and on terma wttieh did not adeqaate)y protMt the bstereata of the Seneca Sadoo: (B) aftar eaostroetion of theae r«iira«k. AOegany Reeervation landa were leaaed to ralIro*d employees, ptranna taaooated vtth the rallroada, reeidenta of the dQr and Cumen without Ftdertl authoniadon or approval and on termt which did not adequately protart the intereala of the Seneca Nation; (C) none of theae leaaea had FedenJ itithorixatioo or approval and, after the eourta raled theae leases invalid. Congrcas enacted the Act of February 19, I87S (18 Stat 330). confinmng ejoaong leaaea of AUegany Reeervation lands, authoridng (Mother leasing by the Seneca N'abon. and making the confirmed leases renewable for a twelve year penod: (D> the Act of September 30. inbO i2S Stat 568). amended the 1875 Act by ■u b ati tuti ug a renewal term of Tux exceeding ninety-nine year*" for the original renewal term of twelve yean, and 432 294 INDIANS 25 § 1774a (E) in 1962 the Seneca Nation (Had a claim with the Indian Claima Conunia- iion igainat the United Statea for uae of Improper leaae fees, and In 19T7 a aettlement waa reached regarding luch claim, providing for the payment of $600,000 to the Seneca Nation eovering the period beginning in 1870 to the end of 1946. (3) An analyaia of hlatoric land vahiea Indicitea that the paymenu made under the original leaae agreement and under the aettlement described in paragraph (2XE) were well below the actnal leaae vahie of the property. (4) The approaching expiration of the Ralamanra and congreaaional village leaaee on February 19, 1991, haa created dgniflcant uncertainty and concern on the part of the dty of Salamanca and a«i«m«nf reaidenta, and among the reaidenta of the congreaaional villagea, many of whose famiUea hare resided on leaaed lands for generationa. (5) The titan economic sueeeas ct the Seneca Nation, dty, and congressional villages ia tied to the aecuring of a ftitun leaae agreement (6) The Federal and State govenunenta have agreed that there ia a moral responsibility on the part of both govetrunenta to be4> aeoire a fidr and equitable aettlement for past inequities. (b) Purpose It ia the purpose of this sabehaptsr (1) to effectuate and auppoct the Agreement bif as u the city and the Seneca Nation, and bdUtate the negotiatioB at nam leaaea wtik taasaaa m the congreaaional viUagea; (2) to aaaist in resolving the past inequities isvotviiw ths 1890 leaaea and to aecure fitir and equitable compenaation for the Senses Nadoa bassd on the fanpaet of theae leaaea on the eoooomy and eohan ct the Saases Nadoo; (5) to provide a prodnetive eovinxifflent betwMB ths SsfMca Nation and l e ss e e s for negotiating the leaaea provided for under ths Agrasmcnt; (4) to provide stability and aaeoiltjr to ths dty and (hs eoag r ea sinn i l vfllagaa, their residents, snd businesses; (6) to promote ths eeoaomie growth oT ths dty sad Iks c o affsss ton sl villagea; (6) to promote economic aetf-s uffl dspe y fbr ths SsBsea Naboa aad its memben; (7) to promote coupei ativ e economif and coaunnlly l is'i si npm i nt efforts oa the part of the Seneca Nation and the dty; and (8) to avoid the potential legal UabiBtyao the part oT lbs t'oitsd Statea that could be a direct conaeqnence of not reaching a aeCtlansBS. (Pub.U 101-6(0, « t Nov. >, 1980. 10« BUL VOL) mSTOUCAL AND 8TATUT0KT NOTD SlMtt THk dtad m Ifea -jmrnt NaSos Stttkment Act of S«:tion 1 at Pnbi. lOl-fiO* pnivldad that: INOr.* Thii Act (•nactfnc this wbefaaptar] OMy bs UBBABT UrUBNCn IndiMW •>1«(S). CJ3. Indiaot I 67 « Mq. WE8TLAW IViiae No. 200. t in4a. DcfinitioiM For the purpoaea of thia subchapter— (I) the term "1890 leaas' masns a lease mads by titt Scasca Nation wfaidi ii subject to— (A) the Act entitled "An Act to authorias the Saaaea Natioo of New York Indiana to lease landa within the Cattaraugua aad AUegaoy Reaervationa, and to confirm existing leaaea' approved February 19. 1876 (chap. 90. 18 Stat 330); and (B) the Act entitled to "An Act to authorize the Seneca Nation of New York Indians to leaae landa within the Cattaraugua and Allegany Reaervationa, and 433 295 25 § 1774a INDIANS to confirm ndcting letse*" approved September 80. 1890 (eha(v 1132, 26 Sut 668); (2) the term "Agreement" meanj the doeuneot executed bj the Seneca Nation and the dty entitled "Agreement between the Seneca Nation of Indlani and the City of Salamanca". Including the appendix to the Agreement; (3) the term "dty" meana the dty of Salamanca, New York; (4) the term "leasee" meana the holder of an 1890 lewe which either expiree In 1991 or la one of the leaaea lifted In document 1 of the Technical Documenta, including any leaaee who holda an 1890 leaae by reaaon of aaslgnment. Inheritance, or other manner u provided by the Act referred to h paragraph (IKA); (5) the term "memorandum of undentanding" meana an agreement between the State and the Seneca Nadon pertaining to the payment of the flinda to be provided punuant to thia cubchapter, which memorandum of underttandiiig reflect! an agreement between the Seneca Nation and the State concerning a meehinlsm and fchedule of paymenta for the ftinda deaciibed In section 1774d(e) of thia titie; (6) the tenn "Secretary means the Secretary of the Interior; (7) the term "Seneca Natloa* meana the Seneca Nation of Indiana of the Allegany. Cattaraugua. aad 00 Spring Reservations; (8) the term "Stau" mesas ths State of New Yoriq (9) the term Technxal Dcfumeats" means ths doeoznents which eompdse the appendix to tlie AgreeracDt. tod (10) the term "congreMMoal vflkges' mesns the vUlsges of CarroIltoD, Great Valley, and Vandaha m ths Stsu ct New York. (PubX. lOl-fiOS, I t. No*, t im. IM Sua. ifll) I 1774b. New leases uti nOt^mUtautai of cUIom (a) New leases If the Seneca Nation offcn new leases in aeeordanoe with the Agreement, tha subchapter ahall apply with respect to tite Seneca Nation. The Seneca Nation thaU supply copies of luch leases to ths Sseretary and ahsQ certify in writing that it Kaa supplied the Secretary ^rxh eoftm 'ments for ftinda pursusnt to section 1774d(ci ■d this title. Such sgreement ihail rmin the offen, seeeptanees snd the rehnquishmets effective so long as the psyroMCs sn made as agreed upon by tlte Seneca Nation im the State. (Pab.L. 101-608. I 4, Nov. X 1990. 104 Am. 1294.) LIBRABT KEfEBfiNCES Indiani ^16(3). CJS. Indlaii* I te. WESTLAW Topk No. 209. 434 296 INDIANS 25 § 1774d I ir74€. RMpoMlbilitlct ud rettrictioiu (() 8«iMca Nttioa The Congrew finda that the Seneca Nation ia solely responaible for negotiation of the leaaaa under the Agreement in ita own intereat and approval of any luch leaae by the United Statea ia not required. (b) L ea aa ea The Congreaa finda that— (1) the leaaeea of leaaea with the Seneca Nation are responaible for representing their «wn int«reat in leaae negotiationa with the Seneca Nation: and (2) nothing in thla aobchapter ahall be conatrued to prevent the leaaeea from eoUectivdy negotiating with the Seneca Nation regarding nich leaaes, whether through informal groupa or aa delegationa formally aanetioned by either the State or local govenunenta. (c) United StAtaa (1) The United Statea ahaD not aenre in a capacity to approve leaaea of the Seneca Nation. (2) Federal Am be uaed for the economic and community development of the Seneca Nation, Including the dty of Sala m a n ca, which U an Inte^ part of the Seneca Nation's Allegany Reaervation. Such amount ahaU be depoaitfld by the Secretary, adminiatered, and diaburaed in accordance with aubparagraph (B). (B)(1) The turn of 12,000.000 shall be depodted in a separate Inlereet bearing account of the Seneca Nation. The account ahall be administered, and the principal and intereat thereon diaburaed, by the Seaeea Nation In accordance with a plan approved by the Cooodl of the Sen«ca Nation to promoU the economic and community development of the Seneca Nation. Until the principal is expended pursuant to such plan, the tT"^''y aoouing from such sum shall be disbursed to the treasurer of the Sfv ^ Nation on a quartarly baaia to fUnd tribal government operations and to provide for the general welfare of the Seneca Nation and tta memben. The Seneca Nation may in iU disa?etion add the accrued Income to the prlndpaL (U) The sum of $3,000,000 shall be deposited In an escrow account which ahaU be owned by the Seneca Nation. The escrow agent shaD be selected by agreement of the Seneca Nation and the dty. The escrow account shall remain in existence for a period of ten years from the date on which the principal la deposited or until all payments provided for under aectibii VD. of the Agreement have been made. The escrow account shall be held and diabursed for economic and communttjr itntia^ ment aa aet forth in section V.D. of the Agreement Upon the expiration of the ten- year pehod, the (3,000,000 principal ahall be disbursed in accordance with a pUa approved by the Council oi the Seneca Nation to promote the economic and community development of the Seneca Nation. (c) Funds to be prarided by the StaU The State, in accordance with iU lawa and regulationa shall provide the som of $16,000,000 in caah paymentu and $9,000,000 for economic or community development subject to the provlsiona of the memorandum of understanding. (d) Time of payments The paymenta required by thia section on the part of the United States shall be made within 30 days of the Secretary's determinatioo that the Seneca Nation haa complied with section lT74b of thia title, or upon the availability of the amounts necessary to carry out thk subchapter, if soeh determination haa previouaty been made If the Secretary determinea that the Soieca Nstioo haa not complied with section 1774b of this title, he shall adviae the Seneca Nation in writing of all steps it must take to comply. (e) Limltatioii The only amoonta available to carry out thia subchapter ahaU be those amoonta spedflcaUy appropriated by the Congress or the legislature of the State to carry out thia subchapter. (PubX. lOl-eOB. I «, Nov. >. 19«0. 1(M Stat 1296.) UBRABY REFESKNCIS United Statea »10B. CJ.S. UnitKl Statas H lO. 1S& WESTLAW Tdi*: Na t». i 1774e. CondKioM precedent to payment of United Statea and StAU ftuids Amounts may not be expended fh>ni — (1) the $30,000,000 and the $5,000,000 provided by the United Statea under section 1774d(b) of this title, and (2) the $16,000,000 and $9,000,000 provided by the State under section 1774d(c) of this title, until sfler the authorired ofDciala of the Seneca Nation execute new leases with sU lessees who accept the Seneca Nation's offer of a new lease, ss filed with the Secretary 436 298 INDIANS 25 § 1774k under Mction 1774bm real property tax rolls of State political subdivisions. Unless the Secretary determines within 80 days after the comment period that sneh lands should not be subject to the provisions of section 177 of this title, such Isnds shall be subject to the provisions of thst section and shall be held in restricted fee sUtus by the Seneca Nation. Baaed on the proxbnity of the land acquired to the Seneca Nation's reaervstions, land aequirsd may become a part of and expand the boundaries of the Allegany Resenrstion, the Cattarau- gus Reservstion, or the Oil Spring Reservation in accordance with the procedures established by the Seeretary for thia purpose. (PubX. 101-609, 1 8. Now. a, 1990. 104 Stat 1296.) UBBABT REFERENCES IndUos »« et a*}. J.S. lodiaa* I 6T at i«|. WESTLAW To|)fe No. £09. I 1774r. Limitatioa of action Notwithstanding any other provision of Isw, any action to contest the constitutioaslity or validity under law of this subchapter shall be barred unless the action Is filed on or before the dste which is 180 days after November 3. 1990. Exclusive Jurisdiction over any such action is hereby vested in the United Sutes District Court for the Western District of New York. (Pub.L. 101-601 1 9, Not. i, 1990. 104 StaL U9T.) LIBRABY REFEaE.NCES Unitad State* •>iai CJS. Unitad StatM I 192. WESTLAW Topic No. 898. 437 •ruSCAIttS SuppPimiMwiS 299 25 i 1774h INDIANS ( I774h. Authorlutioii of appropriatioiu There !■ authorized to be ippropriated luch gums u may be neceasary to carry ogt thli lubchapter. (Pub.L. 101-80>. I 10. No*. I, 1980. 104 SUL 1297.) SUBCHAPTER DC— MOHEGAN NATION (CONNECTICUT) LAND CLAIMS SETTLEMENT I 1775. Findinci and purpoaea (a) Findiiia Congreaa flnda the following: (1) The Mohefan Tribe ot ladlaiM of Coooecticat received recognitioD by the United Statea puranant to the idininiatradve proceas onder part 83 of title 26 of tht Code of Federal Regularinna (2) The Mohegaa Tribe al ladiaoa ot Coeneetinit la the aueeeaaor in intereat to the aboriginal entity Imown aa the Mohcfan Indian Tribe. (3) The Mobegan Tribe haa esiaud ta the geographic area that ia comotly tht State dii« befcri the United Statea District Coart for tht Soothera District of Connectkuii rtlatea to the ownerthip of certain landa within the State of CoonectictiL («) SodiaetioBWIDUketyreaBktaacoaoafehardahipaflarreaidentaoftheStatt of Connectieot, indnding tmUmtM of the town at MoatrlDe, Conneetictit bj eneamberiag the tide to landa ta the Slata. iaefaiding landa that are not eurreottf the sohject of the action. (7) TIm StaU of Cooneeticat and the Uohegan TMbe have exeented agreemcBta for the parpoaea of raaolviag aU diapiiia between the State of ConneetieBt and tht for the aedoa ratered to In pangnfik retered to in paragraphs (6) and (6) lattara oT Joriadietion with respect to fDambera of the Uohegan Tribe sad of gaoing-ralatad davriopmaBt, it k Uohegan TMba and providing a (6). (8) In order to implemant the of aeetioB 1776a of thia titla thai eeitaln oflhnaea miinilllad by aa other I'M*!*"* la imliao euuaiiy a aeeeaaaiy for the Congreaa ts (!) na town at MontviDa. CoBaactieat. wiD— (A) be affected by the loaa of a tax baaa from, and jtniadietion over, Isodi that wiU be held in tnHt by the United Statea on behalf of the Uohegan IMbc and (B) aerr«M the boat eoaaauHty for the gaming oparatlaoa of the Uohspa Tribe. (10) IIm town of UootviDe and the Uohegan Tribe have entered into ■ , to reeolve taaoaa anatt tifasa them and to eatabUah the basis fvi (b) the State of Coonadicat by tkt "Hie puipossa of tUa snbehaptar are ta feOowK (1) To focittate the aeCtlcnMnt of dataa i Uohegan Tliba. (2) To bdUtaU the removal of any tncnafaranee to any title to land in the SUM of Connoctknt that would have reauttadfrna the aetloB retered to tanbatrtiMid) ofthtoi (PubX. io»4rr. 1 1 Od. II, itM, loi SIM- laot > 438 300 to negotiate new leases with leaseholders and to relinquish claims against the federal guvei iiuieiit. Coat to Stat* and local government* 8. 2896 would reauire that the State of New York pay |26 mil- lion to the Seneca Nation. |16 million as a cash pevment, and $9 million Tor community ana economic development. Tnese payments would be subject to a memorandum of understanding to do agreed to by the state and the Seneca Nation. The bill also provides that any land subsequently acquired by the tribe may be held in re- stricted fee status or become oart of the Nation's reservation land. If the Nation buys additional land, this could result in loss of prop- erty tax revenue to local governments, since the land would become nontaxable. The Nation currently has no plans to purchase large amounts of taxable land, and we estimate that these costs would not be significant. If vou wish further details on this estimate, we will be pleased to provide them. The CSO ataff contact is Maria Morgan, who can be reached at 226-2860. Sincetwy, ROBEKT D. RkUCHAUKB. Director. KSQULATOKT DtPACT STATKMBIfT Paragraph 11(b) of rale XXVI of the Standing Rules of the Senate requires each report accompanying a bUl to evaluate the regolatorr and peperwonc impact that would be incurred in carry- ing out the bOL The- Committee believes that S. 2896 will have a mniimal regulatory or pa p e i w o i k impact kzBCunva ocnnnnncATiONs The only oommonication l e cel te d from the Executive Branch on a 2895 waa ia the form ofte tlm on y from witnuesw for the Depart- ment of the Interior. The pt ep ai e d ■tatetu e ut of Walter R. toilla, Dspoty to the Aasittant Secretary— Indian AfTairB, Department of the Interior foliowK gTATamafT or WAi;m m. mua, uapuii to tiib AssierANT ■ccaKTAKT — rniMAM hTTAOM, DaPAanoMT or TRB i wiaaioa I Good morning. Mr. Chairman, aitd m e m bers of the Com- ' mittee. I am p l e as ed to be here to present the views of the | Department on S. 2895, the "Seneca Nation SeUlement | Act of 1990". ' S. 2895 seeks to address past inequitiea. to extinguish all prior daima of ttie Seneca Nation by making it whole, and I to allow lease renewals. I want to eommend the Seneca I Nation, the City of Salamanca, and m e iiib e i e of the New ! York Cong ie a al enal delegation for their efTorta to develop a oonsanus solution to the leasing of Seneca lands. While we support efforts to resolve the issues betwe e n the Seneca Nation and the Gty of Salamanca. New York, the Admin- istration strongly opp oa ta & 2895. 301 89 — fh^^^^ V*" ^'^ °l '■^"'"'Z 19. »»76 (18 Stat 330) authonasd the leasing of certain Seneca lands within the A""^G''s^r^t*°"- "".If " J^ amendment tTthi I8?5 wAISTk'^mV"'^ 2^ 99-year leases of Seneca lands iT^thS'tlTe i^;^^';''"*"^ ""t*"- »*15 '875 act (primari- ly withm the Citjr of Salamanca. New York) will expire in ^ n^^S5 **""'* i''*'^""'.**'' '«"• """^ lum,«um payments are now bem? made by the City directly tothe "rtibe oui- suant to the Act of August 14. ij)50 (64 Stat 442) ^ TTie purpose of the proposed Act aopeare to be to settle ^r™^.".!!'^*"^ "^'•^ **^ ^^"^ Nation result- to tSS ml ^^ Ater ?PPT^ '^ Congress pursuant NalJoS -S .h- .^* egalation. the l.-ssor Seneca Sh^ ?„ f the non-Indian leasee* will have to go to art*- - «^t-l «?^ ^"^VL*^^ ri^tfallT demand fair marS g» thPn^lIL H ■"** th« "rbi^tor ooafd not fairly allow any- 8 could afford to pay fair market rental. •♦ l«-]^^!£r!I!^"'*'^ rtrongly opposes a 2895 for the fol- JP iowingreasuiiK S heinl\LTL"r** "*** ?^e"™?7?**"y- *»* UnJ^ States is g Sb;a?A'^cf^'^-™'^«-"'-PP--^»«0^n' ? S onrfL .^^*^ ''•'^ iVS** ^«^"^ government is liable ^ ^fy Itt^T;:: pJ*^ *** .TTBngement. S 2895 incor- S fV^ii l^^ the Federal goremnjent is potenUally liable •* for ita action in thia matter. Z, eoSUIJl^oJf J!L^2!!^!2**^ for how the $60 million in P {fc/?S5. ^ "'•^ ^****' "^ "* Stato of £ tW^ rf^^ "^"'^ adequately address the market sensi- I^ Sd^,2^iSf''T.'*^ »'?X?*"*" •**'■'*«»"* Seneca Nation «« .tir^ """^ Execulire Bnindi was not a party to the neeoti«- S2m^ !^ ^",«t«nentof rtgnlficant federal funds. TT^« eouldwrt an adrerse precedent for addressing other Indian wlSJhi?SllTr«!i-!l^'1 •* understood that it is not clear thTloTril^-V *^ ?*■*? «*"'«* •* »»^<> 'egally liable for 302 40 propurly." We are, of course, aware of the Stlglitt Report which the Nation submitted to Mr. Houghton on October 26, 1989. Professor StigliU provided an abundance of fig- ures with regard to rental values. The Department has always sought to establish some concrete basis for pay- ment such as ronlul or sale value per acru at o given time In order to reach a total figure (or a land claims settle- ment Here, we And none. Tliia should be clarified for the record. In addition, the bill does not establish the basis upon which the proportiunatc (Inancial burdens of rtiaponsibillly have been divided between the United States and New York. We are also confused over the language of section 2(aX2XE) which states that the Seneca Nation Tiled a claim aguinst the United States "for uae of improper lease 9 fees. . . ." We are unclear aa to th« purpoee of this sub- g» •ection. We recommend that this subsection be deleted or B reworded for the sake of clarity. B' Finally, 8. 2895 does not provide for a conclusive settle- B nient of the imuoe butwoon the Bencca Nation end the City of Salatnanca, New York. For example, the bill does not }C address the ownership of improvementa at Salamanca. g This concludes my prepared testimony, and I will be 2 jv happy to respond to any questions the Committee Boi^t " P have. W '^ CHANGES IN EXISHNQ LAW In compliance with subsection 12 of role XXVI of the Standing Rules of the Senate, the Committee states that enactment of B. 2896 will not result In any changes in existing law. r 303 Attachment s United States Department of the Interior OFFICE OF THE SOLICITOR WASHINGTON. DC 20240 BIA.IA.0603 July 26, 1985 Honorable Morris K. udall Cha i rman Committee on Interior and Insular Affairs U.S. House of Representatives Washington, D.C. 20515 ••Jf.'ft^Dear Mr. Chairman: • This is our response to your April 25, 1985 request for an opinion on the nature of the rights, if any, created by legislation authorizing the Seneca Nation to lease land in Salamanca, New York on its Allegany Reservation. There are approximately three thousand leases which come up for renewal in 1991. Our conclusion is that the Secretary of the Interior has no responsibility for approval or renewal of these leases. The pertinent legislation, however, provides a method for resolving disputes which arise over the renegotiation of the renewal terms. The United States acknowledged certain land in New York to be the property of the Seneca Nation by the 1794 Treaty of Canandaigua. 7 Stat. 44. It also guaranteed the Senecas unrestricted "use and enjoyment" of what, through later treaties, became known as the Allegany and Cattaraugus Reservations. In the mid-nineteenth century, railroad companies and settlers leased certain parts of these reservations from the Senecas, and these leases were purportedly ratified by New York State. A New York court 'subsequently found them invalid. On February 19, 1875, in response to the court decision. Congress enacted the first legislation dealing with leasing on the Allegany Reservation. 18 Stat. 330. Section 1 of the act ratified leases to railroads which had been made in accordance with Seneca law. in addition, it authorized, without conditions, further leases for "railroad purposes". Section 2 of the act required three presidential commissioners to survey and establish boundaries for six villages within the Allegany Reservation. Leases within these villages, including Salamanca, were declared valid and binding on the parties for no more than five more years. After that time, in 1880, the leases terminated except for a right of renewal in the owner(s) of any improvements for no more than twelve years. In 1890, Congress ' amended the 1875 act to provide a renewal term of no more than 99 years. 26 Stat. 558. 304 -2- The act provides that the owners of the improvements on the parcels, who in this case are generally the lessees, shall have the right to the renewal option. This implies that they must make it known that they desire to renew their leases. Once this occurs, the lessee and the Seneca Nation must agree on new terms for the renewal period. if the parties cannot agree, each shall appoint a referee to work together to set the terms. If the referees cannot agree, they shall choose a third referee and the three shall, by majority decision, set the terms. The act places no restrictions on the terms except that the leases shall be renewable for a period not to exceed 99 years. 25 Stat. 558 There are no provisions for Secretarial approval or involvement in the process of setting the terms for renewal leases. It is noteworthy that an amendment was offered and rejected by the Senate in 1875 which would have required that "all leases now made or hereafter to be made pursuant to this Act shall be subject for their validity to the approval of the Secretary of the Interior". 3 Cong, Rec. 919. Originally, the monies received for these leases were paid directly to the Seneca treasurer. in 1901, as a result of irregularities in the accounts of the treasurer. Congress authorized payment of the lease income to the U.S. Indian agent for the Seneca Nation. 31 Stat. 819. The agent was required to report annually to the Commissioner of Indian Affairs. In 1950 the responsibility was transferred back to the Seneca Nation treasurer. 64 Stat. 442. Consequently, it is our opinion the United States currently has no responsibility with respect to these leases. The 1950 legislation also provided that the City of Salamanca, if authorized under New York law, could make annual payments on behalf of all lessees within the city to the Seneca Nation. This was to avoid the cancellation of individual leases for non- payment of rent. The city is continuing to make a lump-sum payment for all leases within the city each year. With respect to the 50-year leases issued in recent years and referenced in your letter, we have no specific information about such leases. The 1950 amendment to the original legislation authorized the Seneca Nation to issue leases to all areas within their reservation even if outside the villages "for such purposes and such periods as may be permitted by the laws of the State of New York." As indicated above, however, there is no requirement for approval by the Secretary of the Interior or the Bureau of Indian Affairs. If^you have any further questions, please feel free to contact Sincerely CC ^ f^-C^i/c— Marian Blank Horn Principal Deputy Solicitor 305 AttacljTOcnt 6 W HEPIY Mia. TO; BCCO #2079 United States Department of the Interior BUREAU OF INDIAN AFFAIRS EASTERN AREA OFFICE 19SI Conitltution Avenue ^fW. Wuhlogioo, D.C. 20245 JUL ' Mrs. Candace M. Brown 35 Wlldwood Avenue Salamanca, New York li»779 Dear Mrs. Brown: TMs office has been requested to respond to your June 12 letter to President Reagan dealing with the future of the town of Sfidamanca. fjn attempting to respond to your concern, a brief explanation of our relationship with the Seneca Nation Is needed. The United States does not hold title to the land (in trust) for the Seneca Nation. Since the United States Is not the trustee of the Seneca lands, our role In their administration arises throu^ the power of the Constitution and through general statutes such as the Non-Intercourse Act of IBS'*. •nie Congressional Act of August 1^*, 1950 permitted the Seneca Nation to directly exercise certain functions Including the leasing of lands. This legislation was viewed as furthering the policy of enhancing tribal control of their resources. Further, the Act of September l^l, 196I removed federal control over rl^ts-of-way on the Senecas' lands and removed a fiscal limitation on distribution of rentad Income. The Acts of August 195O and September I96I have sharply reduced federal control and supervision of these leases and has placed their administration upon the Seneca Nation. We are awau:^ of the problem now being experlaiced by the Tribe and the residents of Salamanca and we sympathize with the situation that currently exists. We are confident that the Seieca Nation and the residents of Ssilamanca through their representatives will be able to resolve the Issues before them to the best Interests of all parties and to Insure the continued prosperity of the Area. Sincerely, 1/ B. D. Ott Area Director Eastern Area Office 306 Attachment 7 Tbe BenGca Nation of Indians 1490 Rt 438 IRVING. NF.W YORK HOPl Phono 1716) S32.4<»rKl Phont 1716) 532 4907 lox •I7161S32 913^ P Bc« 231 SALAMANCA. NEW YORK 14779 Phon« (7161 9451790 Ftx "17161945 3917 PRESIDENT • CaMi Kdl/ Jo»m. Ri 4J7. PO flox 213. Sitombwa. KY J47R? CLERK • MoriM P'iniup. PO Hex .S.M. Sotomoncu. .NY 14779 TREASURER • Peonl.- M, iay. P.O. Sox 26. Mile Block Ruoii. Lav-lum,. NY 14091 October 21. 1991 CERTIFIED HAIL - RETURK RECEIPT REOUESTEO Mr. and Mrs. Dayrll V.'etherby Korth Nine Hile Rd. Allegany, NY 14706 RE I VANDALIA LEASE NO. VA-050e2 (Old Lease No.i G 259. G) Dear Mr. & Mrs. Wetherbyi On Monday, April 29, 1991, your present lease was signed and executed by both reepectlve parties. The above document has since been filed and recorded also at the Office of the Secretary of the Interior in Washington, DC. We are now in the process of complying with the provisions as set forth in the Seneca Settlement Act of 1990. In response to your removal of the house recently from the above leased premises, the Nation considers that action to be in violation of federal law, as well as in violation of your lease. Under fundamental principles of property law, improvements attached to land -- like a home — belong to the owner of the land, unless there is an express agreement to the contrary. We are also informed that you removed the house without securing any required permits regarding crossing bridges, electrical safety and the like. This demonstrated your disregard for the law, as well as for the safety of the community at large. In addition, your removal of the house left a hole in Nation lands which has not been adequately filled in by you. This, too, endangers the Reserva- tion population. 307 Mr. & Mrs. Wetherby October 21, 1991 Page 2 Since you are In default of the lease, you are hereby given written notice to coirjnence within 30 days actions to cure that default by restoring the premises to their original condition, usefulness and value. Failure to commence actions to cure your default within 30 days of this notice, and to complete the cure within 90 days of this notice, will result in termination of your lease by the Nation. Until that time, no transfer of property can be made. Sincerely, Calvin John President 308 Attachment 8 DINNIB OlCONCINI. AflllONA outtfnw N tuuMCc. NonrH oakota THOMAC A. OaCCHLI COLITX DAKOTA V MtAlC6 KAMCY LANOOK K>kl||AUU hANCAt tiOU MfCtUI OKLAHOMA vATRiciA u nm ^1AFF Oin[CTO«/Ch'Cf COUNtlL OANItL N IFM^ M'NOmTT JTAft DlHtCOM lanitd 3tatEB Senate SELECT COMMITTEE ON INDIAN AFFAIRS WASHINGTON. DC 20610-6460 February 21, 1992 The Honorable Alfonse M. United States Senate Washington, D.c. ' 20510 Dear Al : D ' Aroato I am vrriting in response to your letter requesting that the Select Committee on Indian Affairs conduct a hearing on the rights and obligations of the parties under the Lrcase Agreement between the Seneca Nation and the City of Salamanca. As you know, at the request of the parties, this Agreement was ratified by the Congress in Public Law 101-503 as a part of a settlement package involving significant payments by both the United States and the State of New York in compensation for losses sustained by the Seneca Nation over the past 100 years. The Agreement that was entered into by the City of Salamanca and the Seneca Nation was fashioned as a result of several years of very intense and at times acrimonious negotiations. There was hard negotiating on both sides of the table, and the Agreement that was reached was regarded by both sides as the best that could be achieved. Unfortunately, not every issue between the parties could be resolved. One issue that was left open was the question of ownership of improvements on the land. That was an intentional decision which is reflected in the Agreement and in the lease terms. In the course of the negotiations, the Seneca Nation asserted ownership of the improvements and sought a rental rate based on such ownership. The negotiators for the City would not agree to the claim of ownership, when it became clear that the rental rate sought by the Seneca Nation was beyond the capacity of the City to pay, the Nation agreed to a lease (or leases) based only on the value of land. In effect, the Nation agreed to defer its claim to ownership of the improvements during the term of the lease. While there may be some unhappiness and unease with the terms of these leases and the Agreement entered into between the City and the Nation, it is my understanding that 96% of the former lessees have signed new leases. Transactions involving real estate are taking place; home equity loans are available;. the leasehold interests have been deemed eligible for insurance 309 under the National Housing Act, and funds are available for the purchase and sale of these properties. I believe that the request for a hearing ia based on the notion that Congress can undo the Agreement between the City and the Nation — that Congress can unilaterally impose its will to declare or alter property relationships or nullify contracts. Congress simply does not have such power. The Agreement between the City of Salamanca and the Seneca Nation and the passage of Public Law 101-503 represent the beginning of a healing process that muet now take place. I believe a hearing would raise false hopes and would be counter- productive to the positive steps that are currently taking place. I encourage all parties in this matter to be patient with each other, and to discuss with each other their matters of mutual concern. The recent funding of the Joint Leasing Commission is a positive step in the right direction. For my own part, I would be pleased to work with you and other merabers of the New York delegation to assist in improving the economic circumstances that presently prevail in this area of your state. I believe the Settlement Act provides a basis for the Seneca Nation and the City of Salamanca to work together in economic development in this region. ely. aEL K. INOUYE Chairman 310 Attachment p 310 Scmca [Nation oj Dndians JUSTICE DIVISION Robert B Porter Justice Commissioner September 3, 1994 VIA CERTIFIED MAIL Dear Former Lessee: On August 20, 1994, the Council of the Seneca Nation of Indians passed a resolution authorizing and directing Nation President Barry E. Snyder, Sr. to execute a new lease with any former lessee of lands within the City of Salamanca and the Congressional Villages who is currently without a valid lease (•"Former Lessee"). The resolution was passed contingent upon the United States filing an action in the United States District Court for the Western District of New York against all Former Lessees for (i) ejectment from Nation territory, (ii) trespass damaaes based upon fair rental value and (iii) punitive damages for wilful and malicious refusal to deliver possession. Enclosed are the following documents: 1. Policies and Procedures Governing the Fourth and Final Opportunity to Execute a New Lease with the Seneca Nation of Indians ("Policies and Procedures"); and 2. List of Former Lessees, parcel addresses and payment due. The Nation offers you a new lease in accordance with the terms and conditions set forth in the Policies and Procedures. In order to avail yourself of this opportunity, you must provide proof of your status as a Former Lessee. Suoh proof may include a deed indenture, a land contract, a mortgage document, a survey, a title opinion or any other document evidencing status as a Former Lessee. If any leasehold is subject to a mortgage, evidence of such must be provided. Corporate Former Lessees must produce a certified resolution of its board of directors authorizing its designated officer to execute a new lease. 311 Lett«r to Former Lessee September 2, 1994 page 2 The Nation and the Qity of Salamanca are taking several steps to asslBt Former Lessees in the process of securing a new lease. Former Lessees within the City are requested to deliver required documentation to City officials no later than September 9, 1994. said officials shall then transmit such documentation to the Nation. Former Lessees residing within the Congressional Villages are requested to deliver required documentation to the Nation Lease Administration Department, Plumser Building, Jimersontown, Allegany Reservation, also by September 9, 1994. Payment must be made at the time of execution of a new lease. Item number 2 above sets forth the payment due by any Former Lessee seeking to obtain a new lease. If you have any questions regarding any aspect of this lease signing opportunity, please first consult the Policies and Procedures, otherwise. Former Lessees within the City of Salamanca should contact the City regarding questions relating to proper documentation. All other questions by any Former Lessee may be directed to the Nation Lease Administration Department (945-1790). Robert B. Porter Justice Commissioner and Acting Director, Lease Administration Department 312 United States Department of the Intel ior ()FFI(> OF rilh M)l Id For SEP \ '^9^^ TO: ALL PERSONS ON ATTACHED DISTRIBUTION LIST RE: Notice of Intent to File Complaint in Federal District Court This office represents the United States Department of the Interior (Department) and its agencies, including the Bureau of Indian Affairs. The Department is charged with protecting the possessory interests of a Indian tribe in its land and ensuring that Indian lands are not conveyed without the consent of Congress. The Seneca Nation of Indians has informed the Department that you are in possession of one or more parcels land located in either the City of Salamanca, New York or the congressional villages of Carrollton, New York and Great Valley, New York, each of which are in turn principally located within the exterior boundaries of the Nation's Allegany Reservation. We are also informed that you are occupying the subject premises without a valid lease or sublease. The City of Salamanca and the congressional villages of Carrollton and Great Valley are located on lands owned in fee by the Seneca Nation of Indians, a federally recognized Indian tribe. The Nation holds the Allegany Reservation under the Treaty of November 11, 1794. 7 Stat. 44. Under the Act of February 19, 1875, Stat. 330, as amended. Act of September 30, 1890, 26 Stat. 558, leases held by non-members of the Nation were renewed, all for a term which expired February 19, 1991. Pursuant to the Agreement between the Seneca Nation of Indians and the City of Salamanca executed on July 12-13, 1990 and federal legislation ratifying the Agreement, the Seneca Nation Settlement Act, P.L. 101-503, the Seneca Nation has offered new leases to all existing lessees of Seneca lands in the City of Salamanca and the congressional villages. The Seneca Nation of Indians has provided all affected lessees three separate opportunities to execute new leases: February 15-19, 1991; April 15-29, 1991; and December 2-6, 1991. Records received from the Seneca Nations of Indians indicate that you have not entered into a valid lease or sublease authorizing your possession of the Seneca lands you are now holding. You have been provided ample opportunity to enter into a new lease as provided for in the Agreement and Act but have failed to do so as of this date. You are hereby advised that continued possession of Seneca lands without a valid lease or sublease is an act of trespass on tribal lands. This is notice that you must take appropriate measures to either enter into a new lease with the Seneca Nation of Indians or vacate the premises and deliver possession to the Nation on or before September 16, 1994. If you fall to execute a new lease or deliver possession of the premises on or before September 16, 1994, we will 313 request that the United States Deportment of Justice file suit against you In federal district court for ejectment from the Seneca Nation of Indians lands you now hold and for trespass damages based on fair rental value of the subject land. We may also seek punitive damages for wilful and malicious refusal to deliver possession. Please notify this office, office of the Solicitor, Division of Indian Affairs (202) 208-4361 if you have executed a new lease with the Seneca Nation of Indians, or if you are no longer in possession of the premises or intend to vacate the premises on or before September 16, 1994. Sincerely, Hichael Jv^^derson Associate Solicitor Division of Indian Affairs Attachment: Distribution List 314 542 928 FEDERAL REPORTER. 2d SERIES CONCLUSION We have reviewed appellant's remaining argumenU and find them to be without merit Baaed on the foregoing, the judg- ment of the district court is affirmed. # KtTittMMimnM^ JoMph FLUENT. IndlrlduaUy and aa a rcpreaentaUTC of the Claaa of Salama». ca Lesseca holding W-year l«a«« fro« Seneca Nation of Indians; Jan»«« V Monfillo, IndiTidiully and a« a refrt- sentatiTC of the claaa of Salamanca \f- teca holding 60-year leases from iW Seneca NaUon of Indians and K«Hh McClain. IndiTidually and aa a n^t*- sentaUTC of the class of con g r e sito— I Tillage leasees holding W-year \f»m from the Seneca NaUon of IndiaM Robert Adamic. IndiTidually and on ka- half of the claaa of leasees who stcMtf the "40/40 Leaae- Tendered by iha Seneca Nation of Indiana on or abo« September 4, 1990; Marilyn Adamic In- diTidually and on behalf of the claaa «f lesaees who signed the "40/40 Laaaa" Tendered by the Seneca Nation of !■«• ana on or about September 4. 199^ S*- Umanca CoaliUon of United Tazpayata. Int, IndiTidually and on behalf of Ha membership. Plaintifra-Appeilanta. T. SALAMANCA INDIAN LEASE At- THORITY; DaTid Frani. Indlrklnally and as Attorney for the City of Sal^ manca Indian Lease Authority: Anc*- nl;; Carbone, IndiTidually and aa May- or of the City of Salamanca and alM aa member of the Salamanca Indian L«aaa Authoritr. City of Salamanca: Patrick Callaghan. IndiriduaMy and as Chair- man of the Salamanca Indian Leaaa Authority: Unda Rychdk. Individually and aa a member of the Salamanca Indian Leaae Authoritr. Henry Stefan- sl(i. Indiridually and aa a member of the Salamanca Indian Lease Authority; Owen K. PhllUps, Individually and as a member of the Salamanca Indian Lease Authority; Dann Colvln. Individually and at a member of the Salamanca Indian Lease Authority: Paul Taylon Penny Buckley; Seneca NaUon of Indi- ans. Defendanta-Appellees. No. 1300. Docket 91-7086. United States Court of Appeals. Second Circuit Argued Feb. 19. 1991. Decided March 16, 1991. Lessees of tribal land brought action »cainst Seneca Nation to compel 99-year >aa« renewal and challenged conatitution- iiity of Seneca Nation Settlement Act of 1990. The United SUtes District Court for the Western District of New York, Richard J Afcara, J., dismissed action on grounds of sovereign immunity. Appeal was taken. The Court of Appeals, Miner, Circuit Judge, held that (1) 1875 Act vaUdating '>ngujal leases to settlors did not waive :seneca Nation's sovereign immunity, and ,2) dismissal of lessee's claims that 1990 .\ct waa unconstitutional was appropriate line* Seneca Nation waa indispensable par- ty and was also immune from suit Affirmed. I. Indians «»27(1) Although Indian tribes have common- 'Aw immunity from suit, tribal sovereignty « subject to Congreaa' plenary control, and Uius Congress is always at Uberty to dis- pense with or limit that immunity. Act Feb. 19. 1875, 9 8, 18 Stot 330. r Indians «=»27(1) Waiver of tribal immunity cannot be implied but must be unequivocaUy ex- pressed. 3. Indiana o-tld) The 1876 Act validating tribal property leases did not unambiguously express Con- gress' intent to subject Seneca Nation to lawsuits concerning disputes over lease ol 315 FLUENT T. SALAMANCA ciuMtia fjd tribal land. Act Feb. 19, 1876. ( 7, 18 Sut 330. 4. Indiana «>I6(2). TUl) Overriding purpose of 1875 Act vali- dating lease of Seneca Nation lands was to validate existing leases voluntarily entered into between Nation and settlors and did not unmistakably and clearly waive Na- tion's sovereign immunity from lawsuits. Act Feb. 19, 1875, § 7, 18 SUL 330. 5. Indians 27(5) Seneca Nation was indispensable party to action by lessees to declare Seneca Na- tion Settlement Act of 1990 approving ^?Kement for renewal of leases unconsti- tational; as party to agreement negotiated ^er two decades. Natim'a interest in valid- ity of lease agreement was significant fed.Rule8 CivJ»rt)C.Ruye 19(a. b), 28 U5. C-A.; Seneca Natioo Settlonent Act of 1990, § 2 et seq, 25 US.CJL ) 1774 et seq. *• Indians «»«(1) District court did not abase its discre- tion in dismissing action by lessees to hold ^«°«ca Nation Settlement Act of 1990 un- ^ostitutional after concluding that Seneca Nation, which was entitled to sovereign unmunity, was also indispensable party; **>«mi88al turned on fact that society con- *^U8ly opted to shield Indian tribes from ^it absent congressional or tribal consent ^neca National Settlement Act of 1990, * 2 et seq., 25 U.S.C.A. $ 1774 et seq.; Jed.Rul«, Civ.Proc.Ruk 19(a. b). 28 U.S. NDIAN LEASE AUTHORITY 543 S«l (ZadClr. IMI) Jennifer A. Coleman (Iris B. Schifeling, Damon &. Morey, Buffalo, NY., of coun- sel), for plaintiffs-appellants. Douglas B.L Endreson, Washington D.C. (Reid Peyton Chambers, Sonosky Chambers, Sachse &, Endreson, Washing ton, D.C, Michael Brady, Hagerty & Bra dy, Buffalo, N.Y., of counsel), for defen dant-appellee Seneca Nation of Indians. R. William Stephens (David M. Franr, Raichle, Banning, Weiss & Stephens, Buf- falo, N.Y., of counsel), for defendants-ap- pellees other than Seneca Nation of Indi- ans. Before FEINBERG, TIMBERS and MINER. Circuit Judges. MINER. Circuit Judge: Plaintiffs- Appellants Salamanca CoaJn tion of United Taxpayers, Inc. ("SCOLTV representing nearly 600 lessees, and fivr individual lessees (collectively "Apr«l lants") commenced this action against ihtir lessors, the Seneca Nation of Indians ( Sa tion"), tnd against the Salamanca Indian Lease Authority ("SILA"), the City of Sala manca ("City") and various City officials to compel the Nation to renew their leases f»r up to 99 years. Other relief was sougM. including a declaration that the agreement negotiated by SILA, the City and the s* tion for renewal of the leases was null and void. The Appellants also challenged 'h» constitntionality of the Seneca Nation Se< tlement Act of 1990, by which Congrwa approved the agreement for renewal of ts« leases and appropriated $35 million towaH the rental payments. The district court dismissed all claims against the Nauo«t finding that the Nation was immune from suit It also dismissed two claims against the remaining defendants on the ground that an abjudication of those claims in ih« absence of the Nation would impede (h« Nation's ability to protect its interest in \M subject of those claims. We hold that Om district court correctly found that the .S'a- tion was immune from suit under the doc^ trine of sovereign immunity and properly dismissed the other two claims against the remaining defendanta under Fed.R.Civ P 19. 316 544 928 FEDERAL REPORTER. 2d SERIES BACKGROUND The dispute giving rise to this action involves the renewal of leases to tribal lands within the City and outlying villages, known as the Congressional Villages. The tribal lands were leased by the Nation m the mid-nineteenth century to various set- tlers and railroads. The leases were vali- dated by Congress in the Act of February 19, 1875. ch. 90. 18 Stat 330 rirrr, An i When they were about to expire, the if as*- s were renewed in accordance with thf lerms of the 1875 Act, first in 1880 for a ; J- year term, then in 1892 for a 99-year term. <«•? Act of September 30, 1890. ch li:{2. IS Stat 558 ("1890 Act") (amending the \erated by the Act over which the court shall have jurisdiction." Section 7 pro- *^e« in material part [tjhat the . . . circuit and district courts °' the United SUtes in and for the north- ern [now western] district of [New '"fit], shall have jurisdiction of all ac- ^na for the recovery of rents and for the recovery of possession of any real property within the limita of said vil- lages, whether actions of debt eject- ment or other forms of action, according to the practice in said courts; and actions of forcible entry and detainer, or of un- lawful detainer arising in said villages, may be maintained in any of the courts of said county which have jurisdiction of such actions. The Appellants interpret this provision as authorizing actions by both lessors and les- sees. Likewise, they point to section 3 of the 1875 Act, which provides that persons who are the "owners of improvements erected upon such lands, shall be entitled to such renewed leases, ana to continue in possession of such lands," to support their contention that since lessees are entitled to possession upon renewal. Congress intend- ed to waive the Nation's immunity and to provide a forum for the resolution of dis- putes pertaining to possession. We dis- agree with Appellants' construction of the statute. [1-3] "Indian tribes have long been rec- ognized as possessing the common-law im- munity from suit traditionally enjoyed by sovereign powers." Santa Clara Pueblo V. Martinez, 436 U.S. 49, 58, 98 S.Ct 1670, 1677, 56 LEd.2d 106 (1978); see Oklahoma Tax Comm 'n v. Citizen Band Potawatomi Indian Tribe, — U.S. , HI S.Ct 905, 908, 112 LEd.2d 1112 (1991). However, tribal sovereignty is subject to Congress' plenary control, and thus "Congress [is] always ... at liberty to dispense with . . . tribal immunity or to limit it" Id, 111 S.Ct at 910; see, e.g., Martinez, 436 U.S. at 58, 98 S.Ct at 1677; UniUd States v. Unit- ed States Fidelity & Guaranty Co.. 309 US. 506, 512, 60 S.Ct 653, 656, 84 LEd. 894 (1940); Turner v. UniUd States, 248 U.S. 354, 358, 39 S.Ct 109, 110, 63 LEd. 291 (1919); John v. City of Salamanca, 845 F.2d 37, 40 (2d Cir.), eert denied 488 U.S. 850, 109 S.Ct 133, 102 LEd.2d 106 (1988). It has long been the rule that waiv- er of tribal immunity cannot be implied but rather must be "unequivocally expressed." Martinez, 436 U.S. at 68-69, 98 S.Ct at 1677 (citations omitted). We agree with the district court that section 7 fails to \ .A' \ 318 928 FEDERAL^^B«0RTEllK2d SERIES that Ck)n immunity re marks the 187 unarotiipiouBly express Congress' intent to S.Ct. at 2 subject the Nation to lawsuiu concerning iegislaU"- disputes over the lease of tribal lands. See United States v. Charles, 23 F.Supp. 346. 348-49 (W.D.N. Y. 1938) (action to set aside deed held barred by sovereign immunity of the Seneca Nation of Indians). Section 7 enumerates actions typically brought by lessors, including actioiw " the recovery of rents and of possession of real property and actiops-ftrt^ebt, eject- _jj^Sjit^jQISi^M-.erctefBJid detainer and un- lawful detainer. Each enumerated action provides a remedy for the Nation against defaulting lessees. The fact that only a strained reading of the statute might per- mit specific forms of actions to be brought by tenants against their landlords serves to underscore the absence of a clear expres- sion of a waiver of the kind urged by the Appellants. Cf. Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct 2397, 2401. 105 L.Ed.2d 181 (1989). When Ck)ngress has chosen to limit or waive the sovereign immunity of Indian tribes, it has done so in clear lan- guage. See. e.g., Act of July 22. 1958. Pub.L No. 85-547, § 1, 72 SUt 403. 403 (authorizing Navajo and Hopi tribes "to commence or defend ... an action, against each other"); Act of December 22. 1974, Pub.L No. 93-531. § 8(a). 88 Stat 1712. 1715 (Either the Navajo or Hopi "tribe{ ] is hereby authorized to commence or de- fend ... an action against the other tribe."). Because a congressional waiver was not "unequivocally expressed." we may not hold that the sUtute relied upon by the Appellants waives the sovereign im- munity of the Nation. See Martinez, 436 U.S. at 68-59, 98 S.Ct at 1677. [41 Regarding the Appellants' conten- tion that the legislative history supports their position that Congress intended to provide a forum for all lease disputes, the need to resort to legislative history similar- ly highlights the deficiency of the Appel- lants' position. "If Congress' intention is 'unmistakably clear in the Unguage of the statute,' recourse to legislative history will be unnecessary; if Congress' intenuon is not unmistakably clear, recourse to legisla- tive history will be futile." Dellmuth, 109 1. Nevertheless, we think the history clearly demonstrates IS never intended to waive the j'f the Nation. The following . Senator Ingalls. a proponent of indicate the basic purpose of the .ct "[The 1875 Act] simply proposes ^«.v the leases which have been made by these Indians themselves, by their own con- sent shall be ratified and confirmed, and held to be valid and binding upon the par- ties who have voluntarily made these con- tracts." 3 Cong.Rec. 909-10 (1875). The legislation was proposed in light of a deci- sion by the New York Stote Supreme Court, in which the court found the leases to be invaUd because they were executed without the authorization of the United Sutes. See Fomess, 125 F.2d at 930-31 & n. 1. Thus, the overriding purpose of the 1875 Act was to validate the existing leases voluntarily entered into between the Na- tion and the settlers. Even assuming we were to agree with the Appellants' contention that the 1876 Act unmistakably and clearly waives the immunity of the Nation, we would affirm the district court's judgment on the ground that the renewal provisions of 1875 Act applied only to the original renewals and do not extend to the present renewals. Sec- tion 8 of the 1875 Act vaUdated leases existing at that time for a five-year term and authorized a term of renewal "not ex- ceeding twelve years." The 1875 Act also provided that "whenever any lease shall expire after its renewal .... it may, at the option of the lessee, his heirs or assigns, be renewed in the manner hereinbefore pro- vided." The 1890 Act amended the 1875 Act to aUow renewal for "a term not ex- ceeding ninety-nine years, instead of the term of twelve years." Thus, the leases that expired on February 19, 1991 are leas- es that previously were renewed a second time for a term of 99 years. The 1875 Act does not authorize a perpetual renewal, and without clear language to that effect we will not construe the sUtute to confer such a riirht See Winslow v. Baltmore «i?Tuby Appellants. [lY The arz'jment that the court erred in/uismissinK from the complaint claims in /hich '.he Appf Hants sought a judicial dec- laration hat the Agreement was null and void in.) -^M the i'J90 Act was unconstitu- tional • * ■'■•.I iny merit. The Nation mov'i •■• • -miN* these claims (the eighth an«r\ '• 'hf<«e claints. As a party to an Aifr^*"'"! neirotiated for over two dec- ades •*■■* ^ «i.* ik'rrrment is significant See Crou*fH<^u «*') I- InterNorik, Inc., 634 F 2d '>'*•» ■ 'I ■.■<1 Cir 1980) (citing Lomay- akteti-a. ."'i F Jd it 1325 ("[n]o procedural pnncipi* « ""re ileeply imbedded in the common «• •^an that in an action to set aside a ^kf* -r a contract all parties who may ^* tI'•'^Med by the determination of the ic'.K>n it* riiispensable")); MeClendon V. l-^reH -•iirt. -^SS F.2d 627, 633 (9th Cir IJ***' •«m#t Additionally, as the bene- ficiarv ' t - ..ntiantial sum of money from the f«^lrr»i i.f.emment it is manifest that the Niijon nu«a viul interest in the consti- tutionaluv .f the 1990 Act (81 xri*T ieiermining that joinder un- der rule '.'>ai. while desirable, was not feasible because of the tribe's sovereign immunity, the district court considered the rule 19(bi factors. ■•[T]he [r]ule allows courts to determine the emphasis to be placed on each consideration according to 'the facts of [the] given case and in Ught of provide right of perpetual renewal); Mc- Uan V. United States, 316 F.Supp. 827. 829 (E.D.Va.l970) ("[t]he intent to create a perpetual lease must appear in clear and unequivocal language"); McMillan v. Mal- vern Gravel Co.. 136 F.Supp. 567, 574 (W.D.Ark.l955) (same); 50 AmJur.2d Landlord & Tenant § 1171 (1970). The Appellants contend that the 1875 Act "stands ready to resolve this lease dispute in a fair and equitable way. It provides for/ renewal and then negotiation or binding arbitration for the rent and conditions the renewal lease." Undoubtedly, the 181 Act provided for the validation of leases and for arbitration in the event the parties could not agree to the terms of the renewal leases. The Appellants, however, already benefitted from the renewal and arbitration procedures set forth in the 1875 Act, first in 1880 and then in 1892. That is all the statute requires. [S] Nor do the terms of the exbired leases provide that the Nation must accede to the Appellants' proposals for renewal. The expired leases allow for the parmes to agree on terms of renewal. The Natuon did not agree to a 99-year term of renewal. Instead, it agreed, along with the Cicy and SI LA, which represents about two! thou- sand lessees, to a forty-year rental term with a forty-year right to renew The 40/40 leases provide that dispute! "con- cerning any party's compliance with or obli- gations under any of the terms" of the lease can be submitted to arbitratioi. The new leases satisfy the requirement) of the statute and the expired leases in th at they represent an agreement by the pa -ties. [6] The Appellants' contention, that tiibal immunity does not bar feder J juris- diction when no other forum is a ailable for the resolution of claims, must fa 1. The l&ck of a forum does not automatically prevent dismissal of the claims asserted. Makah Indian Tribe v. Verity, 91B F.2d 555, 560 (9th Cir.1990). "Sovereign immu- nity may leave a party with no forim for [that party's] claims." Id. (citing Domay- aktevm v. Hathaway, 520 F.2d 1324] 1326 (9th Cir.1975), cert denied, 425 U.9, 903, 96 S.Ct 1492, 47 LEd.2d 752 (1976)).\ The only branch with the ability to provili 320 548 928 FEDERAL REPORTER, 2d SERIES the governing equity-and-goo OF CONFLICT 0\ ER THEIR RIGHTS AND POWERS, [ndkin uribcs n(j\\ increasingly make and enforce their own iaus. orren answerable co no one in the United States go\ ernmenr. Is this the rebirth ot their ancient independence or a new kind ot legahzed segregation? Indian Country ing. The rribe's police chief, Marvin LeCompte, rold Hutchinson that she was in contempr of tribal court. Of- ficers ordered the morning breakfast crowd away from their fried eggs and coffee. Then they went back into the pine-pane!ed bar and confiscated Hutch- inson's stock of beer and liquor — "con- traband," as LeCompte described it — and drove off with it to the tribal gov- ernment's offices at Eagle Butte. A few days before I met Hutchinson, I had interviewed Gregg J. Bourland, the youthful chairman of the Cheyenne River Siou.x Tribe. Bourland is widely reckoned to be one of the most effec- tive tribal chairmen in the tegion and, with a degree in business from the state college in Spearfish, also one of the best educated. "Let them talk about taxation without representanon,"' Bour- land told me dismissively. "We're not a state. We're a separate nation, and the only way you can be represented in it is to be a member of the tribe. And they can't do that. They're not Indi- ans. These folks are trespassers. They are within reservation boundaries, and they will follow reservation law. They've now had one hundred years with no tribal authority over them out here. Well, that's over." More than Micki Hutchinson or than any of the other angry whites in jULYMUCUST 1996 .VMERIC.A.N HEiUT.\CE 35 328 their declining prairie hamlets, it was Bourland who understood that what was at stake was much more than small-town polincs. The tax, the osten- tatious convoy, and the lawsuit were pan of a much larger political drama that was unfolding across the inland archipelago of reservations that make up modem Indian Country. Thev sym- bolized the reshaping of the American West, indeed of the United States itself. By the 1990s, almost unnoticed by the American public or media, a genera- tion of legislation and court actions had profoundly remade Indian Coun- try, canonizing ideas about tribal au- tonomy that would have shocked the lawmakers who a century before had seen the destruction of the reservations as the salvation of the American Indian. If Bour- land was right, Micki Hutchinson and the white residents of Isabel were living in a sovereign tribal state. They were tolerated guests with an uncertain future. Until the 1870s, reser- vations were established throughout the Dakota Territory and other parts \-^ ^ tribal StatC, gUCStS with of the West with the " promise that they would an uncertaiii future. be reserved in perpetuity for the Indians' e.xclusive use. Those promises were broken al- most everywhere when reservations were opened to homesteading at the end of the cenrury, usually with only perfunaory consultadon with the mbes or none at all. As I listened to Gregg Bourland, it was easy to sympathize with the tribe's striving for some kind of control over forces that were felt to have invaded their land and under- mined their culture. Bourland justitied the tax as a means both to raise rev- enue for the tribe and to control alco- hol consumpdon on a reservadon where more than 60 percent of the adults were unemployed and 53 percent were active alcoholics. But promises that had been made a century ago to the ancestors of setrlers like Micki Hutchjnson were now beini; liCKi Hutchinson and her white neighbors were told they were living broken too. From the 1880s until the 1930s, the cornerstone of federal In- dian polio' had been the popular pro- gram known as allotment, the system- atic breaking up of most of the narion's reservations into private holdings. In its day allotment seemed the perfect panacea to resolve at a single stroke the perennial problems of white setders' in- satiable desire for new land and Indi- ans' growing dependency on the fed- eral government. Sen. Henry L. Dawes, the idealisric architect of the Allotment .\ct of 1881, which set the pattern for a generation of similar legislation, nng- ingly proclaimed that as a result of al- lotment, the Indian "shall be one of us, contributing his share to all that goes to make up the strength and glory of citizenship in the United States." The means of the Indian's salvation was to be the family farm, which most people of the time had been taught to regard as the ultimate reposi- tory of American individual- ism and the democratic spirit. Each Indian allottee would receive 160 acres of land and eventual United States citizen- ship, along with money for seed, tools, and livestock. The "excess," or leftover, land would be offered for sale to white settlers, who would be free to form their own munici- pal governments. The promise of the allotment policy was twofold: that the nanon would integrate Indians into white society and that non-Indian settlers would never be subject to tribal regimes. At the time, the Commissioner of Indian Affairs dismissed notions of separate Indian nationality as mere senrimentality: "It is perfectly clear to my mind that the treaties never con- templated the un-American and ab- surd idea of a separate nationality in our midst, with power as they may choose to organize a government of their own." To maintain such a view, the commissioner added, was to ac- knowledge a foreign sovereignty upon American soil, "a theory utterly repug- nant to the spirit and genius of our laws, and wholly unwarranted by the Constitution of the United States." As I LEFT Isabel, I wondered who really was the victim here and who the victimizer. Behind that nagging question lurked sail more difficult ones that occupied me for many months, from one end of the United States to the other, in the course of researching what was to become Killing the White Man's Indian, an investigation into the political and cultural transformation of modern Indian Countty. Are Na- tive Americans so fundamentally dif- ferent from other Americans that they occupy a special categoty to which conventional American values and laws should not apply? Or are they simply 3« .AMERIC.\.\' HERrT.\CE JLLY'.VUCLST I"-'-. 329 one more .\jTiencan group, whose spe- cial pleading is funher evidence char the Umred States has become a balkan- ized tangle ot ghettos and ethnic en- claves." Do we discriminate against In- dians by railing to blend them more effectively into the nanonal mainstrearr..- Or is the very notion of ''mainstream- ing" Indians so Inherently racisr that it should not even be contemplated as a component of national policy? Are Indian resen-ations and the way of lire they preserve a precious national re- source that must be maintained with- out the taint of contact with white America? Or is tribal self-determina- tion creating a new form of segrega- tion that merely freezes decayed tribal cultures like ghettoized versions of :nc annihilation of Caster's command. Pov erty shaded almost every experi- ence. Staving vvith friends often meant wir.a nngering its way through gaps in :."!e walls, a cheese and bologna sandwich for dinner, sleeping three or tour m a bed with broken springs. It seemed there was always someone taikin;: about an uncle who, drunk, had rrozen to death on a lonely road or about a cousin already pregnant at sixteen. .More generally those years left me with a sense of the tremen- dous diversity of the lives and com- munities that lay submerged within the catchall label of "Indians" and a recognition that Native .Americans were not mere vestiges of a mythic pas: but modern men and women Colonial Williamsburg? Who, ulti- mately, are Indians m the 1990s? VCTiat are they to other .Americans, and the others to them? Kilting the White Man's Indian rep- resented a return to fa.miiiar country. As a youth in the 1950s and early 1960s, I often accompanied my moth- er, who was the e.xecutive director of the .Association on .American Indian Affairs, in her travels around reserva- tions, part of her tireless effon to prod the federal government into improv- ing tribal economies, education, health care, and law and order. Vivid experi- ences were plentiful; panicipating in a nightlong peyote rite in a tepee on the Montana prairie; a journey by pirogue deep into the Louisiana bayous to meet with a forgotten band of Houmas who wanted Washington to take notice ot their existence; walking the Little Big- horn Battlefield with an aged Cheyenne who, as a small boy, had witnessed struggling to solve f\ventieth-century priibiems. In the colrse of folr ye.\rs' research on my book. I visited reser- vations from upstate New York to southern California and from .Missis- sippi CO Washington State, meeting witli tribal leaders, ranchers, farm- ers, educators, and hundreds of ordi- nary men and '.vomen, both Indian and white. In .Michigan I sailed Lake Superior with waterborne Chippewa police, searching for poachers on trib- al hsheries in the lake. In Oregon I hiked the Cascades with professional foresters from the Warm Spnngs Tribe, which with its several hydroelectric JaiTis and thriving timber industry is one 4 if Indian Country's great success st.>rics. I sweated with a group of re- Cincring N'avaio alcoholics in a tradi- tiiMiai ■.weat lodge in the New .Mexico dc^cr:. I also -.pent .many a night in dust-blown reservation towns where, as an old Soutii Dakota song puts it, "There's nothing much to do e.xcept walk up and down." In a few places, as a result of childhood connecnons, I was welcomed as a friend. More fre- quently I met with suspicion rooted in the widespread belief that curiosity like mine was just a form of exploita- tion and that whites are incapable of writing about Indians with objectivity and honesty. iMy original intention had been to use the lives of several men and wom- en whom I had known in the 1950s as a microcosm, and through them to chart the changes that had been wrought in Indian Country durmg the intervening years. But I soon realized that such a focus would be far too narrow, for it had be- come clear to me that a virtu- al revolution was under way that was challenging the wotn- out theology of Indians as losers and victims and was transforming tribes into pow- ers to be reckoned with for years to come. It encompassed virtually every aspect of Indi- an life, from the revival of moribund tribal cultures and traditional religions to the develop- ment of aggressive tribal governments determined to remake the relarionship between tribes and the United States. The ferment was not unalloyed, how- ever. .A.longside inspired idealism, I also found ethnic chauvinism, a crip- pling instinct to mistake isolation for independence, and a habit of inter- preting present-day reality through the warping lens of the past. In the 19~0s, in a reversal of long- standing policies based on the con- viction that Indians must be either per- suaded or compelled to mtegrate them- selves into mainstream America, the United States enshrined the concept of tribal sovereignty at the center of its policy toward the nation's mote than three hundred tribes. In the watershed words of Richard Ni.xon, federal pol- icy would henceforth be guided "by Indian acts and Indian decisions" and would be designed to "assure the In- 38 .VMESIC.^N HERrr.\CE JULY .M.(;',.>r : 330 dian that he can assume control of his own life-without being separated from the tribal group." In 1975 the Indian Self-Determi- nation and Education Assistance Act amplified this principle, calling for a "transition from Federal domination of programs for and services to Indi- ans to effective and meaningful par- ticipation by the Indian people." This has been reflected in a national com- mitment to the strengthening of tribal governments and to more comprehen- sive tribal authority over reservation lands. More ambiguously, it has also led to the increasing development of a new sphere of political power that rivals, or at least claims to rival, that of the states and the national govern- ment and for which there is no foundation in the Constitution. In the mid- 1990s I found tribal offi- cials invoking "sovereign waste facility on their reservation out- side Alamogordo. In Wisconsin and in Washington State, recurrent vio- lence had accompanied the judicial- ly mandated enlargement of Indian fishing rights in accordance with nine- teenth-century treaties. In Nevada farm- ers found themselves on the brink of failure as the Paiutes of Pyramid Lake gained political leverage over the water- shed of the Truckee River. In some states Indian demands for the return of sacred lands posed sig- nificant threats to local economies, including, most prominently, the Black Hills region of South Dakota. Nor was science exempt. Tribal claims on ancestral bones and artifacts were depleting many of the most valuable HIrii RIBES WERE INVOKING right" in debates over everything from highway ^ pj-inclplc of SOVereigntV maintenance and nsning r r o / quotas to law and order unknowii to thc avcragc toxic-waste disposal, and o the transfer of federal set- Americail 111 Ordcr tO SCt UD vices to tribal admmistra- ^ tions, not to mention the ^asino opcrations. rapid prolireration or tnb- a ally run gambling opera- tions. Reflecting the sentiments of many tribal leaders, Tim Giago, the publisher of Indian Country Today, the most widely read Indian news- paper in the United States, likened state legislation that affeas Indians to "letting France make laws that also become law in Italy." To people like Micki Hutchinson, it often seemed that Indians were playing an entirely new game, and that no one but the Indians un- derstood the rules. In Connecticut, and elsewhere, tribes were exploit- ing a principle of sovereignty un- known to the average American in order to build casinos that sucked colossal sums of money from neigh- boring regions. New Mexicans found that they were equally helpless in the face of the Mescalero Apaches' determination to establish a nuclear- anthropological collections in the country. Strangely enough, these con- flicts — widespread, often bitter, and with profound ramifications for Amer- ican institutions — seemed to be hap- pening beyond the ken of most Amer- icans, for whom Indians largely remain a people of myth and fantasy. Like no other inhabitants of the United States, Indians have nourished our imagina- tion, weaving in us a complex skein of guilt, envy, and contempt; yet when we imagine we see "the Indian," we often see little more than the distorted reflection of our own fears, fancies, and unhappy longings. This was viv- idly brought home to me on a visit to the reservation of the rwo-hundred- member Campo Band of Mission In- dians, in the arid hills an hour's drive east of San Diego. This reservation landscape is a profoundly discourag- ing one. It offers nothing to comfort the eye, produces nothing of value, and provides almost nothing to sus- tain life as it is enjoyed by most Amer- icans today. The single resource that the Campos possess is wasteland. In 1987 the band learned that the city of San Diego had named the reservation as one of several potential dump sites for the city's refuse. "We just need this one little thing to get us started," the band's chairman, Ralph Goff, told me as we walked through the redshank and yucca and ocher sand where the first trenches had been cut for the new landfill. "With it we can create our own destiny." Goff, a formidably built man with little formal education, grew up in the 1940s, when the only work available was as a cow- hand or day laborer for whites. When there was no work, peo- ple went hungry. "You just had to wait until there was some more food." In the 1960s most of the unskilled jobs disap- peared, and nearly every Cam- po family went on welfare. "We needed it, but it reallv wrecked 40 AMERICAN HERITAGE • JULY/AUGUST 1996 331 us as people. It created idleness. People didn't have to do anything in order to get money." If the Campos have their way, by the end of the decade daily freight trains will be carrying loads of mu- nicipal waste to a three-hundred-acre site on a hilltop at the southern end of the reservation. For the privilege of leasing the band's land, a waste-man- agement firm will pay the Campos be- tween two and five million dollars a year. Goff argued that the dump would put an end to the band's dependence on federal largess. It would cre- ate jobs for every adult Campo who is willing to work, provide long-term investment capital for the band, supply money for full college scholarships for every school-age member of the band, and finance new homes for the families that now live in sub- standard housing. The dump would, in shon, give the Cam- pos financial independence for the first time in their modern history. 1 HE UiVDITLL WOULD BE ONI of the most technically advanced in the United States; to regulate it, the Campos enacted an envi- ronmental code more stringent than the State of California's. Nevenheless, the dump gener- ated fierce opposition in towns near the reservation, where thou- sands of non-Indians live. Geol- ogists hired by the dump's opponents have suggested, but not proved, that seepage from the dump might con- taminate the water supply of ranches beyond the reservation boundary. Environmentalists accused the band of irresponsibility toward the earth and charged that the Campos had been targeted in an "assault" on reserva- tions by "renegade" waste-dumping companies. A bill was even introduced in the California legislature that would have made it a crime to deliver waste to the Campo landfill. Goff shrugged away the protests. "It's a sovereignty issue. It's our land, and we'll do what we want to with it." "How ,;jn vou jav rhat the •.•connm- ic developmcnc of f.vn liur.Jred peo- ple is more :mportar,t :ha.-. :he heait.-. and welfare of ail rhe pe-.iple ;n the surrounding ar;a.-" an ang.-v and rrus- trated rancher, -.vhoie land lay just nr: the reservation, aslced me. "It- harj making a livm^ 'ler:. The r.)-.urss wii! carry chat stufr righ: through here. We'll have all that stuff in our water and blowing Joun on as oft the hills. If our water is spoiled, then eventhing's spoiled." There were predn;table elements to tnat :■-- fecomina as rair.ilia.- :i> Amer- ;c.'.r. -,.hoolchildren as ^••."^c or the Cetf. srurg .\ddress one; A:r--: "How can •■iv,; buy or sell the >k;.. tr.: '.varmth of trie land? " Here. :n >ij:h- or the Jump, the so-called testament or Chief Seattle -.v js a reproach to :'r,z Campos. .\n .ir;.;ment rooted '.n '.vnat :."e ranch- er prei^mably believed to 3e Indians" proto'jndest values. "Betore ail this I had this ideal about Indian people and all they've been through." she told me. "I used to think thev had this special feeling about the land. " her rage: the instinctive resista.tce or most .Americans to any kind of waste dump anywhere near their homes and the distress of many white .\me.-icans when thev realize the implications or tribal jovereignn for the first time and find themselves subject to the will of a government in which thev ha\e no say. But there was something more, a sort of moral perplexity at Indians' having failed to behave .iccordinu; to i\pec- tation, an imputation that thev were guilty ()( lelfinter^.^t. Rjveal:n'4lv. 1 thought, on the wall ot the rancher'- trailer there was a poster dcciratCil with Indian niotirs. Er.fiied "(..hie: Seattle Spc.ik-. " it 'r'v.t.r'.. 'i; -.vord- .More than any other single docu- ment. Seattle's n.ve!ve-hundred-word "testament" lends support to the ;n- creasi.niiy common belief t.nat to "teal ' Indiar.s any disruption or conimcrc:al- izatior. of the earth's natur.i! order is a kind of sacrilege and that the tr.ost moral, the most truU "Indian" re- lationship with the land i- .i kind of poetic passivity. Havini; been trans- lated nto dozens of lancaaites and «ide'- .-eproduccd in ichoi'l :e\t-. tne "test.i.f.cnt" has attamc.i i prop.':etic stati;-.- anion;; environ:;'e:itaii.-tM In 1'"' • 1 ircviipw.icc '.i-cd :t .1- t:'.c .ntro- di:..f ■•: til a -k.ir'.f'.iiv.; -;.■:'• t: .'i; toxic ,.'.:■■■- ■■:.. calii:!;; it ■fhc n.'-t hc.u.tinal ii. 332 and profound statement on the envi- ronment ever made." Unfortunately, like much literature that purports to reveal the real nature of the Indians, the -testament" is basically a fiction. Seattle was indeed a historical figure, a slave-owning chief of the Duwamish- es who sold land to the United States in the mid-lS50s and welcomed the protection of the federal government against his local enemies. However, the "testament," as it is known to most Americans, was created from notes al- legedly made thirty years after the fact bv a white doaor who claimed to have been present when Seattle spoke, and which then were extravagantly em- broidered by a well-meaning Te.-cas scriptwriter by the name of Ted Perry as narration for a 1972 film on the environment, produced by the South- T HE SINGLE resource that the Campo Indians possess is wasteland. The dump would give them financial independence for the first time. em Baptist Radio and Television Com- mission. How is it, I wondered, that Americans have so readily embraced such a spurious text, not only as a sa- cred screed of the ecology movement but also as a central document of "tra- ditional" Native American culture? Increasingly it became clear to me that to be able to describe the realities of modem Indian life and politics, I would have to strip away the myths that whites have spun around Native Americans ever since Columbus arbi- trarily divided the peoples he encoun- tered into noble Arawaks and savage Caribs, conflating European fantasies with presumed native reality and ini- tiating a tradition that would even- tually include Montesquieu, Locke, Hobbes, and Rousseau, as well as a vivid popular literature stretchmg from .\.MES1C.\.N- HERrr.\CE JULY/.\UCfST 19« 333 The Ljst of the Mohtcjns to Dances Wi:h Wohes. Untamable savage, child of nature, steward of the earth, the white man's ultimace victim: each age has imagined its own mythic version of what the historian Robert F. Berkhofer, Jr., termed the "white man's Indian." Typically the Denver Post could de- clare, not long ago, in an editorial at- tacking the University of Arizona for a plan ro build an obser\"atory atop an allegedly sacred mountain: "At stake is the very survival of American Indi- an cultures. If these sacred places are destroyed, then the rituals unique to those places no longer will be per- formed and many tnbes simply may cease to e.xist as distinct peoples." Such logic implies both that only Native Americans who profess to live like prc- Columbians are true Indians and that Indians are essentially hopeless and helpless and on the brink of extinc- tion. Apparently it never occurred to the paper's edironalist that the religion of the great majority of Indians is not in fact some mystical form of tradi- Donalism but a thriving Christianity. In keepcc with our essentially mythic approach to the history of In- dians and whites, .Americans were gen- erally taught until a generation or so ago to view their national srory as a soaring arc of unbroken successes, in which the defeat of the Indians reflected the mevitable and indeed spir- itual triumph of civilization over bar- barism. More recenrly, but not so dif- ferently, numerous revisionist works like Kirkpamck Sales The Conquest of Pjradiic: CInistopher Columbus and the Columbian Legacy and Richard Drinnon's Facing West: The Meta- physics of Indian-Hating and Empire Building have tended to portray the settlement of North .\merica as a pro- longed story of unredeemed tragedy and failure, in which the destruction of the Indians stands as proof of a fundamental ruthlessness at the heart of American civilization. Such beliefs have steadily percolated into the wider culture — to be embodied in New Age Westerns like Dances With Wolves and popular books like the best-selling Indian Givers: How the Indians of the Americas Transformed the World, which purports to show how practi- cally every aspect of modem life from potatoes to democracy derives from the generosity of .\merican Indians — and into the consciences of journal- ists, clergy, and others who shape pub- lic opinion. On the whole the comple.x and in- tricate relationship between whites and Indians has been presented as one of ir- reconcilable conflict between conquer- or and victim, corruprion and inno- cence, Euro-.American "materialism" and nanve "spirituality." The real sto- ry, of course, is an often contradictory one, disfigured by periods of harsh discrimmation and occasional acts of genocide but also marked by consid- erable Indian pragmatism and adapt- abilit>- as well as by the persistent, if sometimes shortsighted, idealism of whites determined to protect Indians from annihilation and find some place for them in mainstream America. For instance, in contradiction of the notion that Indians were innocent of even the most elementary business sense, it was clear durmg negotiations over the Black Hills in the 1870s that Siou.x leaders had a perfectly good grasp of finance and that indeed they were determined to drive the best bar- gain they could. "The Black Hills are the house of Gold for our Indians," Chief Little Bear said at the time. "If a man owns anything, of course he wants to make something out of it to get rich on." Another chief. Spotted Tail, added: "I want to live on the in- terest of mv money. The amount must JULY/AUGUST 1996 A.MERICA.N HERITACE *3 334 was found that of those who had re- ceived patents to their land at Chey- enne River, 95 percent had sold or mortgaged their properties. When the Allotment Act was passed in 1881, there were 155 million acres of Indian land in the United States. By the time allotment was finally brought to a halt in 1934, Indian Country had shrunk by nearly 70 percent to 48 million acres, and two-thirds of Indians either were completely landless or did not have enough land left to make a living from it. In the mid-1990s Indian Coun- try as a whole is still a daunting and impoverished landscape whose inhab- itants are twice as likely as other Amer- icans to be murdered or commit sui- cide, three rimes as likely to die in an automobile accident, and five times as likely to die from cirrhosis of the liver. On some reservations unemploy- ment surpasses 80 percent, and 50 per- cent of young Indians drop out of high be so large as to support u?." Similar- ly, in contrast with the popular belief that the United States government was committed to a policy of e.xterminat- ing the Indian (no such policy ever ex- isted, in fact]. Senator Dawes public- ly described the history of Indians in the Uruted States as one "of spoliation, of wars, and of humiliation," and he firmly stated that the Indian should be treated "as an individual, and not as an insoluble substance that the civilization of this country has been unable, hitheno, to digest." Indeed, the impulse behind the al- lotment of tribal lands and the na- tional commitment to Indians was dra- matically (and, with the benefit of hindsight, poignantly) acted out in a rite of citizenship that after 1887 was staged at Timber Lake, in the heart of the Cheyenne River Sioux country, and at many other places in the freshly allotted lands of other tribes. In the presence of representatives of the federal government, new allottees stood re- splendent in the feathers and buckskins of a by- gone age. One by one, each man stepped out of a te- pee and shot an arrow to symbolize the life he was leaving behind. He then put his hands on a and accepted a purse that indicated that he was to • i ^ r j ■ save what he earned. Fi- WlthOUt E tOUndatlOn. nally, holding the Amer- ican flag, the Indian re- peated these words: "Forasmuch as the President has said that I am worthy to be a citizen of the United States, I now promise this flag that I will give my hands, my head, and my heart to the doing of all that will make me a true American cirizen." It was the culminating, transformarive moment of which Senator Dawes had dreamed. It is true enough, however, that, as so often in Indian history, reality failed to live up to good intentions. Unscrupulous speculators soon in- fested the allotted reservations, offer- ing worthless securities and credit in return for land. Within a fesv years it \ UR PEOPLE LIVE IN A limbo culture that is not quite Indian and not quite ?aZ white either. ... a house school, despite progressively increased access to education. Is THE TRBAL-SOVEREICNTY .MOVE- ment a panacea for otherwise intract- able social problems.' In the cultural sphere, at least, its importance cannot be underestimated. "Our people live in a limbo culture that is not quite In- dian and not quite white either," said Dermis Hastings, surrounded by books, gazing out toward the Iowa plains through the window of the sky blue trailer where he lives in a cow pasture. Hastings, a burly former Marine and the tribal historian of the Omaha Na- tion, which is in northeastern Nebras- ka, has almost single-handedly led an effort to recover tribal history as a foun- darion for community renewal that is probably unmatched by any other small mbe in the United States. "It's like liv- ing in a house without a foundarion. You can't go back to the old buffalo days, stop speaking English and just use our own language, and ignore whites and everything in white cul- ture. If we did that, we'd become stuck in history, become dinosaurs." Teasing small grants and the help of volunteer scholars from institurions around the country, Hastings has ini- tiated an oral-history project to col- lect memories of fading tribal tradi- nons. "We go into each family, get an anthropologist to record everything nght from how you wake up in the morning," he said. Hundreds of his- toric photographs of early reservation life have been collected and deposited with the State Histori- cal Society, in Lincoln. A friendly scholar from the Universiry of Indiana re- covered a trove of forgot- ten Omaha songs record- ed in the 1920s on wax cylinders. Another at the University of New Me.xico undenook a collective ge- nealogy that would trace the lineage of more than five thousand Omahas back to the eighteenth cen- tury. Hastings explained. A.MERICAN HERfTACE JULY/.\LCUST 1996 335 ■ "Until now everything was oral. Some people knew the names of their an- cestors, and some knew nothing at all. There was a loss of connection with the past. Now people can come back and find out who their ancestors were." In sharp contrast with the com- bative chauvinism of some tribes, the Omahas invited scientists from the University of Nebraska and the Smith- sonian Institution to examine repatri- ated skeletons to see what they could discover about the lives of their an- cestors. In 1989, astonishing perhaps even themselves, tribal leaders brought home Waxthe'xe, the True Omaha, the sacred Cottonwood pole that is the living embodiment of the Omaha peo- ple, which had lain for a hundred years in Harvard's Peabody Museum; at the July powwow that year, weeping hun- dreds bent to touch it as if it were the true cross or the ark of the covenant. "We want the benefits of modern society," Hastings told me in his nasal Midwestern drawl. "But America is still dangerous for us. The question is then. How do we take the science that America used against us and make it work for us? The answer is, we try to build on the past. It's like a puzzle. First you see where the culture broke and fragmented. Then you try to build on it where people have been prac- ticing it all along. Then people start to think in a healthy way about what they were in the past. If you can get each person to be proud of himselt, lit- de by little, you can get the whole tribe to become proud. We're going to dream big and be consistent with that dream." In its broadest sense the tribal sover- eignty movement is demonstrating that the more than three hundred Indian tribes in the lower forty-eight states (more than five hundred if you count Alaskan native groups) are distinct communities, each with its unique his- tory, traditions, and political environ- ment, for whom a single one-size- fits-all federal policy will no longer suffice. Greater autonomy will surely enable well-governed and economical- ly self-sufficient tribes — mostly those located near big cities and those with valuable natural resources — to man- age their own development in imag- inative ways. For many others, how- ever, far from airports and interstate highways, populated by ill-trained workers and governed, in some cases, by politicians who do not abide by the most basic democratic rules, the future is much less assured. 1 HERE IS NOTHING ABSTRACT ABOUT such concerns in Timber Lake, South Dakota, which lies a shon drive east from Isabel across the rolling plains of the Cheyenne River Sioux Reser- vation. Like Isabel, Timber Lake has been battered by the general decline of a region that is hemorrhaging jobs and people. Timber Lake is one of the relatively lucky places, kept alive by the presence of the Dewey County of- fices, the rural electric co-op, the cen- tral school, and a cheese factory. Even so, one hundred of the six hundred people who lived there a decade ago have moved away to places with better prospects and more hope. Isabel's pop- ulation has dropped by half, to three hundred. Trail City has shrunk from three hundred and fifry to thirty, Fire- steel to a single general store, and Lan- deau has disappeared completely. En- tire towns have lost their doctors, banks, and schools. From a certain angle of vision, Sioux demands for the resto- ration of the reservation to its original nineteenth-century limits are simply an anticlimax. The peopie of Timber Lake — the mechanics, the teachers, the co-op clerks, the men who work at the grain elevator, the retired farmers — are the human fruit of allotment, the flesh- and-blood culmination of the cultur- al blending that Senator Dawes en- visioned. "Everyone here has relatives who are Indian," said Steve Aberle, a local attorney whose Russian-German father married into the Ducheneaux, a prominent clan of Cheyenne River Sioux. Aberle, who is thirty-five, is one- eighth Sioux; he is a voting member of the tribe and served for two and a half years as chairman of the tribal police commission. Nevertheless he shares the uneasiness of non-Indians who feel themselves slipping toward a kind of second-class citizenship with- in the reservation's boundaries. "It would be better to be in a situation where everybody works together and deals with people as people, but it's hard to do that when people know they pay taxes but are excluded from benefits and services," Aberle told me. "When my grandparents came from Russia, the United States government told them that they would be full cit- izens if they moved out here. Now I see people being told that they can't even take part in a government that wants to regulate them. Something is inher- ently wrong when you can't be a citi- zen where you live because of your race. It just doesn't fit with the tradi- tional notion of being a U.S. citizen. At some point there has to be a colli- sion between the notion of tribal sover- eignty and the notion of being United States citizens. Anytime you have a group not represented in the political process they will be discriminated against. There's going to be more and more friction. It's going to hurt these communities. People start looking for jobs elsewhere." 1 HE Sioux were the victims of nineteenth-century social engineering that decimated their reservation. But the descendants of the adventurous emigrants who settled the land are also the victims of an unexpected histori- cal prank, the trick of the disappearing and now magically reappearing reser- vation. Reasonably enough, the rhet- oric of tribal sovereignty asks for tribes a degree of self-government that is tak- en for granted by other Americans. However, the achievement of a sover- eignty that drives away taxpayers, con- sumers, and enterprise may be at best but a Pyrrhic victory over withered communities that beg for cooperation and innovation to survive at all. With little debate outside the pa- rochial circles of Indian affairs, a gen- eration of policymaking has jettisoned the long-standing American ideal of racial unity as a positive good and replaced it with a doctrine that, seen from a more critical angle, seems dis- turbingly like an idealized form of seg- JULY/AUGUST 1996 AMERICAN HERITAGE 45 336 regarion, a fact apparently invisible to a nation that has become accustomed to looking at Indians only through the twin lenses of romance and guilt and in an era that has made a secular reli- gion of passionate ethnicir>-. Much of the thinking that underlies tribal sov- ereignty seems to presuppose that cul- tural purity can and ought to be pre- served, as if Indian bloodlines, econ- omies, and histories were not already inextricably enmeshed with those of white, Hispanic, and black .\mericans. Such concerns will be further exac- erbated in the years to come as Indian identity grows increasingly ambigu- ous. Virtually all Indians are moving along a continuum of bio- logical fusion with other American populations. "A point will be reached . . . when it will no longer make sense to define Amer- ican Indians in generic terms [but] only as tribal members or as people of Indian ancestry or ethnic- ity," writes Russell Thorn- ton, a Cherokee anthropol- seCmS tO DreSUDDOSe ogist and demographer at r r r the University of Southern that cultural Duritv Can and California, in American In- ■*■ ■' dian Holocaust and Sur- should bc Drescrved. i/ii/al, a study of fluctua- ^ dons in native populadons. UCH THINKING TI-L\T underlies tribal sovereignty Statistically, according to Thornton, Indians are marrying outside their eth- nic group at a faster rate than any oth- er .\mericans. \Iore than 50 percent of Indians are already married to non- Indians, and Congress has estimated that by the year 2080 less than 8 per- cent of Native Americans will have one-half or more Indian blood. How much ethnic blending can oc- cur before Indians finally cease to be Indians? The question is sure to loom ever larger for coming genera- tions, as the United States increasing- ly finds itself in "government-to-gov- emment" relationships with tribes that are becoming less "Indian" by the dec- ade. Within rwo or three generations the nation will possess hundreds of "tribes" that may consist of the great- great-grandchildren of Indians but whose native heritage consists mainly of autonomous governments and spe- cial privileges that are denied to other Americans. Insofar as there is a political solu- tion to the Indian future, I have come to believe that it lies in the rejection of policies that lead to segregation and in acknowledgment of the fact that the racially and ethnically variegated peoples whom we call "Indian" share not only common blood but also a common history and a common fu- ture with other Americans. The past generation has seen the development of a national consensus on a number of aspects of the nation's history that were long obscured by racism or shame; there is, for instance, little dispute to- day among Americans of any ethnic background over the meaning of slav- 4« A.V1E.=UC.\.V HERrr.\CE JULVALCUST \9-'>, / 336 ery or of the internment of Japanese-Americans during the Second World War. There is as yet no such consensus, however, with respect to the shared history of Indians and whites, who both still tend to see the past as a collision of irreconcilable opposites and competing martyrdoms. 1 HAT HUTORY WAS .VOT only one of wars, remov- als, and death but also one of calculated compromis- es, mutual accommoda- tion, and deliberately cho- sen risks, a story of Indian communities and individ- uals continually remaking themselves in order to survive. To see change as failure, as some .kind of cultural cor- ruption, is to condemn Indians to soli- tary confinement in a prison of myth that whites invented tor them in the first place. Self-determination gives In- dian tribes the ability to manage the speed and style of integration but not the power to stop it, at least for long. Integradon may well mean the eventual diminishing of conventional notions of "tribal identity," but it must also bring many new individual opportu- nities, along with membership in the larger human community. "People and their cultures perish in isolation, but they are bom or reborn in contaCT with other men and women, with man and woman of another culture, another creed, another race," the Me.xican nov- elist Carlos Fuentes has wtitten. Tnbes will survive, if anything, as stronger entities than they have been for many generations. The question is whether they will attempt to survive as isolat- ed islands or as vital communities that recognize a commonality of interest and destiny with other .\mericans. * Fergus M. Bordewich's book Killing the White Man's Indian was published in February by Doubleday. He is also the author of Cathay: A Journey in . Sirfrch of Old China. 337 Before the United States Senate Committee on Indian Affairs Statement of James M. Johnson Hearing Subject: Waiver of Tribal Immunity September 24, 1996 Thank you for the invitation to appear before you to address this very important issue. My name is James Johnson, and I am an attorney now in private practice in Olympia, Washington. I have attached a resume to my original testimony, from which you can see I previously was a Senior Assistant Attorney General for Washington and head of that State's Special Litigation Division. I represented Washington for nearly twenty years from the time I left the Army in Fort Lewis, Washington in 1973, until entering private practice in 1993. Altogether I have participated in nearly a hundred cases in federal and state appellate courts to and including the United States Supreme Court. 1 also did (and do) much of the trial work for all these cases myself. Although only approximately one-third of those involved issues of tribal law, many have involved the issue before you today. I shall briefly explain some of those cases, and the claims involved. Others testifying will give examples of abuses and the result of tribal assertion of "sovereign immunity" — often leaving an injured party with no remedy. When Tribes act more like gangs than governments, there must be a remedy. An unexpected secondary effect is that persons and companies which could do business adding to reservation economic development choose not to do so. 338 A last problem is that federal agencies now use the Tribes' absence because of immunity to block review of these federal bureaucrats' actions. Several examples will be given of federal | agencies' selective use of this defense in the face of explicit act of Congress providing for ] judicial review. ■ Finally, I shall briefly review the history of the issue to show that an act of Congress | providing judicial remedy against Tribes is consistent with much historical precedent, as well as dictated by principles of fairness and constitutional due process. The very short notice for this hearing has made impossible an exhaustive research project j here. I largely rely below on two pre-eminent scholars in the field of Indian law history: Felix I Cohen and Father Francis Paul Prucha. ] TRIBAL IMMUNITY LEAVES MANY WITHOUT REMEDY In one very recent case, I am counsel for private property owners in the state of Washington who own tidelands in that state on which clams and oysters grow (United States v. Washington, et al. . Ninth Circuit Court of Appeals No. 96-35014. In 1989, 16 Washington Tribes, supported by the United States, brought a claim to the tidelands' clams and oysters, based on treaties executed in the middle 19th Century. Note that of the over 64,000 property owners represented by the United Property Owners of Washington, most of the private property is off- reservation, often far remote from the reservations. We are largely talking about peoples' homes here which are located on the beautiful, and formerly peaceful, shores of Puget Sound. In holding that the Tribes had a right to go on these private lands and take up to 50% of these shellfish, the federal court made a relevant observation as to the fact these private owners were totally innocent purchases in good faith: The . . . Private Property Owners are, effectively, innocent purchasers . . . (who) reasonably believed the land to be free of encumbrances and servitudes. Their belief was reinforced by the Tribes' failure to formally assert the Treaty right until over 100 years after the Stevens Treaties were signed. Page 2 339 United States v. Washington . 898 F.Supp. 1453, 1457 (W.D. Wash. 1995). The judge further noted: Fault for creating this controversy lies squarely with the State of Washington and the United States, for selling the tidelands and not objecting to the sale, respectively. Supra , at 1459. In part, in recognition that some protection should be afforded such innocent home owners, the federal court imposed conditions on tribal harvest. Those conditions included day- time only harvest, generally limited to five days per year, and required sanitary facilities and limits on the number of diggers, etc. (All found supra , at 1472-1473). The judge also included a dispute resolution system, which included a enforcement provision that private property owners could invoke in the event of damages to their property through Tribes' commercial clam harvesting: If during any harvest, the Tribe damages the property of a Tideland Owner or in any way fails to harvest as stated in the notice provided to the Owner, the Owner may submit the issue to the Special Master as set forth in this Plan. Supra , at 1473. The most important protection to private owners was the specific inclusion of a damage remedy against the Tribes. The Special Master may, however, order that the Tribe pay damages or may implement some other appropriate remedy. Supra , at 1476. A provision for payment from tribal funds for damages to property of citizens was explicitly included in the treaties relied on to support the tribal claim. Notwithstanding that, the United States and Tribes brought a motion to amend the court's decision, asking the judge to delete this remedy. The United States and Tribes argued that tribal immunity barred such a Page 3 340 remedy, even in an action where the Tribes had brought the suit. It is worthy of note that at an early stage in the litigation not only did the Tribes and United States not name the private owners whose property they will be taking (clams) and entering, but even opfX)sed their intervention. I had to appeal to the Ninth Circuit on behalf of the private landowners just to be allowed in the court to try to protect their interests. The judge did amend the decision to delete the damage remedy against the Tribes. The decision, as amended is at United States v. Washing ton. 909 F.Supp. 787 (W.D. Wash. 1995). Note that the remedy left — actions against individual Indians— is in some regard worse than no remedy at all. The outrage prompted by this case is more understandable if you remember that in the four treaties in question the United States and Indians agreed not only that all Indian "right, title and interest in and to the lands" were "ceded, relinquished and conveyed" but further expressly agreed: The said tribe and bands . . . promise to be friendly with all citizens thereof, and they pledge themselves to commit no depredations on the property of such citizens. Should any one or more of them violate this pledge, and the fact be satisfactorily proven before the agent, the property taken shall be returned, or in default thereof, or if injured or destroyed, compensation may be made by the Government out of their annuities. . . Art. 9, Treaty of Point Elliot. These Northwest treaties were based on model treaties the United States executed with Tribes in the Nineteenth Century. (There were 43 "Manypenny" treaties around the country.) Such a treaty provision is common, and is one precedent for the proposition the Tribes were historically expected to be responsible, and liable for damages to citizens. Indeed, the Tribes agreed to do so. Ironically, the Tribes and United States are much less enthusiastic about enforcing treaty provisions which benefit or protect others than those which benefit Tribes. The court's amended order requires the private owners to force a possible confrontation on their beaches if they wish to identify the Indian commercial clammers— who are damaging their property. Page 4 341 The removal of the remedy agjunst the Tnbes will itself increase the probability of confrontations occurring, since it reinforces the unfortunate perception of both tribal and other citizens that the Tribes are somehow above the law. That, of course, is illustrative of an important policy consideration for you in deciding if it is time the Tribes be like others in this society— fully accountable in court for their actions. Lest this potential for confrontation on private property be argued as speculative, testimony before that same judge is instructive. During trial, testimony was given about losses suffered on private lands on which owners had planted clams. This occurred even while the litigation was pending in the district court . One shellfish farmer heard of plans to conduct a tribal commercial clam harvest on public beaches adjoining his property and contacted the Tribes to be sure tribal enforcement would be present. He wanted to avoid confrontation over boundaries. He then made sure the boundary between the public beach and his private land was well marked. It was marked both by comer survey posts ("metal stake with plastic cap stating the company name") and then with PVC stakes at 20-25 foot intervals placed to assure there was no question of the boundary. Note this was a cultivated shellfish farm; the private tidelands had been graveled and clams seeded. When the tribal harvest occurred, some of the boundary stakes were pulled out, and the tribal commercial diggers went from 70 to 100 feet onto the private property taking clams (which are also private property under Washington law). Over a ton of clams were taken with a wholesale value of $ 1 . 65 per pound — or thousands of dollars. Something over 50 com mercial diggers were involved. Tribal enforcement officers , presumably paid with federal funding, were present when this occurred. Tribal representatives later said they would pay for his losses; but later refused to do so: Q. Did they say they would pay you for the clams? A. Yes. Q. Have you been paid yet? A. No. Q. What concerns has this incident raised for you as a grower operating under the tribes' plan? A. I don't know when I'm going to get paid, and I don't know how -- how to ~ yeah, I have no recourse. United States v. Washington . Transcript of Proceedings, May 10, 1995, p. 619, lines 12-19. Page 5 342 Adding insult to injury, the Tribe's counsel later elicited in cross-examination what was an explanation of the Tribe's nonpayment. The shellfish farmer had declined to execute an agreement that he wouldn't tell the federal court judge (the Tribe required such written agreement) as a condition of getting paid. United States v. Washing ton. Transcript of Proceeding, May 11, 1995, p. 649, line 21 through p. 650, line 6. Smaller losses to home owners are cumulatively equally important, when there is no remedy. One of my witnesses was a waterfront home owner at Suquamish just down the beach from that Tribe's tribal headquarters. In the 1980s, the Tribe and United States had brought an action to claim ownership of the beach in front of her home. They lost; the case is United States and Suquamish v. Aam reported at 887 F.2d 190 (9th Cir. 1989). Adding insult to injury, the Tribe then brought the "shellfish" case to assert the Tribes could take half of any shellfish that grow there. In the interim the homeowner suffered trespass, cutting of holes in their fences to make a shortcut to the beach, firearms shot across their property. Transcript of Proceedings, Vol. 11, p. 2164, lines 10-25. The Tribe continued clamming on the beach. By the time of trial she testified: "[T]here are no longer any clams." Testimony of Cynthia Rasmussen, Transcript of Proceedings, Vol. 11, p. 2163, lines 16-17. As previously testified "there is no recourse." Other witnesses testified as to similar problems, and futile attempts to get tribal or other assistance, e.g. Transcript of Proceedings, Vol 11, pages 2142-2444. As a professional appraiser, the Suquamish owner testified the losses of property value to private owners as a result of loss of control of access and commercial clamming in front of their homes was up to 40 percent. Transcript, Vol. 11, p. 2158, lines 26 - p. 2166, 1. 21. Neither the U.S. nor the Tribes cjm be sued nor will pay for such losses. PRIVATE INVESTMENT AND ECONOMIC DEVELOPMENT IS DETERRED BY TRIBAL IMMUNITY A more general point is raised by the above testimony especially that of the clam farmer who is the largest commercial shellfish grower and marketer in Washington. It is difficult or impossible to do business with someone with whom you "have no recourse" when problems arise or an agreement is not fulfilled. The fact of enforceability in a court is most often an important consideration in assuring it will not be necessary. Page 6 343 This observation with respect to commercial dealing with Tnbes has been recently put before this committee by Professor Joseph Kalt from my alma mater who testified on September 17 of this year about problems surrounding efforts to increase economic opportunity on reservation(s). My Harvard degree was in Economics; his was in international development, but 1 can generally agree with his statement of the problem: The central problem is to create an environment in which investors — whether tribal members or outsiders — feel secure and therefore are willing to put energy, time, and capital into the tribal economy? Testimony at 6. We agree too, as to the need for "independent judiciaries (which) promote economic well- being." Testimony at 9. I strongly urge the Committee to recognize that the "fundamental reform" called for is simpler than Professor Kalt's suggested reform of the judicial systems of each of the hundreds of Tribes in the United States. The lack of inter-tribal uniformity would then be a separate problem. This is "balkanization' at an extreme. "Fundamental reform" of the system is only accomplished by making the decision-makers accountable and assuring confidence in the integrity of the process. As to economic investment decisions, at least those by what Professor Kalt calls "outsiders," the perception that the forum is unfair or biased is as bad as the fact (and other testimony both before this Committee and others have addressed the fact). Congress should act to make normal federal and state judicial forums fully available in disputes with Tribes. The thrust of much other testimony today is that it is fundamentally unfair to deprive citizens of the United States of judicial forums — especially where those same forums are available to their adversaries. For both reasons, the appropriate "fundamental reform" is a waiver of immunity so as to continue to allow Tribes access to al! judicial forums, but also allow those contesting with them to hold the Tribes accountable in such forums. Page 7 344 FEDERAL AGENCIES USE OF TRIBAL CVIMLTSITY AS A SHIELD AGAINST COURT REVIEW A frequently overlooked, but increasing problem is the use of tribal immunity by federal agencies to avoid judicial review of their actions. Ironically, this shield has even been used against tribal efforts to hold federal agencies accountable. One example of the latter is Makah Indian Tribe v. Verity . 910 F.2d 555 (9th Cir. 1990). In that case an act of Congress (the Magnuson Act for management of ocean fisheries, 16 U.S.C. 1801-1882) specifically provides for judicial review of regulations by the Department of Commerce. When sued by one Tribe, the federal agency claimed that other Tribes were, or could be affected, and thus were necessary or indispensable. Since the other Tribes could not be sued or joined because of their immunity, the district court was persuaded by the United States to dismiss the case. The circuit court reversed, but only in part, holding that the relief available, even to an affected Tribe, was limited to prospective procedural remedies. (See also Chehalis Tribe v. Luian . 928 F.2d 1496 (9th Cir. 1991). A more recent example of the United States' selective use of this defense is presented by several challenges to Commerce' 1996 adoption of regulations to govern the harvest of whiting in the Pacific Ocean. (The 1996 harvest is over 450 million pounds off the Washington, Oregon, and California coasts.) I represent the fishermen and processors of this new industry which has only developed in the last 30 years as technology was invented to process a fish which was historically viewed as useless because it deteriorated so quickly. (Now, the fish are caught using sophisticated electronics and deep water gear.) The fish are immediately nearly frozen and anti-enzymes utilized so as to process whiting into products such as surimi, from which seafood products such as artificial crab are made. This is a new industry which was developed under, and as a consequence of, the Magnuson Act provisions which removed foreign fishing from our coasts, and allowed the Pacific Council to adopt a long-term management plan. During the 1996 season Commerce adopted a regulation overruling the Pacific Management Council, which had found there was no treaty entitlement to a special fishery since Indians had never fished whiting historically. Commerce allocated over 33 million pounds of harvest to one Tribe, prospectively promising four Tribes such an allocation. We filed suit Page 8 345 noting violation not only of the Magnuson Act. in refusing to follow the Pacific Council's Management Plan, but also violation of ESA. (The fear was that harvest off the Washington coast would take larger numbers of chinock, some of which are endangered. (Preliminary results have borne out this fear.) The State of Oregon has joined our action, since the new industry is an important main- stay of the Oregon coastal economy given that many other fish stocks, such as salmon, have so declined. The United States has moved to dismiss our lawsuit (and Oregon's), Midwater Trawlers, et al. V. Commerce . No. 96-6170 (D.C. Or.). The U.S. argued that the federal agency cannot be sued where the subject affects absent Tribe(s) (which cannot be joined because of immunity), notwithstanding the Magnuson Act provides for APA, judicial review of Commerce regulations. The United States has not similarly moved to dismiss the separate action filed by one Tribe, which wants a higher allocation, even though three Tribes are absent (and not sued). Indeed, the United States has filed a response generally agreeing with and "joining" the tribal request. Nor has the United States moved to dismiss the separate action filed by the State of Washington (which had supported the United States and Tribes when the issue was argued before the Pacific Council). In that case, no Tribes are present. The argument advanced by the United States in this and many other cases is that a federal agency may not be sued over its actions if "the requested relief in (the) case would directly affect . . . Indian tribes.'" Fed. Defs. Memo in Support of Motion to Dismiss Midwater Trawlers. Note that under this theory Commerce can immunize its regulations from review by including Tribes' interests in discretionary rules. These cases indicate the waiver of immunity is appropriate to allow adjudication not only with Tribes, but to avoid the use of the immunity by federal agencies as a shield to avoid review of their own alleged misconduct. Page 9 346 BACKGROUND: HISTORICAL TRIBAL STATUS A brief discussion of history is important to rebut several myths which are oft repeated as mantras to ward off reform. The two primary sources are studies by two esteemed scholars in this area, Felix S. Cohen, Handbook of Federal Indian Law (1942) and by Francis Paul Prucha, American Indian Treaties . University of California Press (1994). It is often claimed that Tribes are like separate or even foreign nations over which state or federal courts may not exercise jurisdiction. It is even claimed this status is conferred by treaties with the United States. Neither is historically accurate. As an important prefatory note, the number of "Tribes" in the United States, as "recognized" by the List prepared by the present Assistant Secretary of Interior for Indian Affairs has climbed to over five hundred which she characterizes as entitled to: [Tlhe same privileges, immunities , responsibilities and obligations as other Indian tribes under the same or similar circumstances including the right, subject to general principles of Federal Indian law, to exercise the same inherent and delegated authorities available to other tribes. 60 Fed. Reg. 9250 (Feb 16, 1995)(foot note omitted) The omitted footnote addresses the Alaska Native Villages, some 226 of which were added to this list by the Assistant Secretary. Their history and prior Congressional Acts, including ANCSA (43 U.S. C. 1601 « seq.) should dictate different special status. Two important points should be noted. The list of "Tribes" has been growing — in part based on BIA determinations to add to the list of their constituencies. Also, those "Tribes" now include entities not historically recognized as "Tribes" at least through treaties. Indeed, most of the Tribes as currently listed by the BIA are "non-treaty;" the United States government never entered into treaties recognizing such entities. There are a total of 367 ratified treaties entered into between 1778 (Delaware) and 1868 when the last with the Nez Perce was entered. Of that number, numerous were entered into with the same Tribe or Tribes. See Prucha at 448-500. In that number are not counted the treaties entered into by the Confederacy. The oft-quoted provision that Indian lands would be held in common and not be part of States "so long as grass shall grow and water run" were found only in these Confederacy treaties which Page 10 347 also guaranteed slavery — not in any treaty betv xn the United States and Tribes. S^ Prucha at 262. Second, the treaties themselves generally recognized and specified that any tribal sovereignty was reduced (to control over their own members) as the Tribes all became the "dependent nations" of which Chief Justice John Marshall spoke. Prucha notes that the assumption that the Indian Tribes were not independent sovereigns was reflected in the treaties through "some such phrases as the following: [T]he said Indian nations do acknowledge themselves and all their tribes to be under the protection of the United States ... (or later) admitted that they resided within the territorial limits of the United States (and) acknowledged its supremacy." At 5-6. From pre-revolutionary times, the Indians were not treated as equivalent to foreign sovereign nations. Under the Articles of Confederation, Article VI provided for foreign treaties, and Article EX provided for Congress to regulate trade and manage all Indian affairs and other domestic matters. (Prucha at 39.) Even during the Revolutionary War, Indian affairs were treated as a domestic and military matter, not as foreign or diplomatic questions. The Treaty of Pari: (1783) recognized the transfer of sovereignty from Great Britain to the Colonies to western lands reaching to the Mississippi. The Tribes were not mentioned, though they had largely sided with the British in the war. (Prucha at 41.) Later major additions of land to the United States were made by treaties with other nations, e.g., the Louisiana Purchase from France, the Treaty of Guadalupe Hidalgo from Mexico, Alaska though the Treaty of Cession from Russia. In some of these areas treaties were made with Indian Tribes. In Alaska and California, they were not. In 1871, Congress passed an Act providing that: [H]ereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty. Page 11 348 Act of March 3, 1871, ch. 120, 16 Scat 544, 25 U.S.C. § 71 (1988). The Supreme Court jurisprudence from early on distinguished Indian Tribes from such foreign "nations." Chief Justice John Marshall had written Johnson v. Mcintosh in 1823 speaking of the Tribes rights to sovereignty as "necessarily diminished" in concluding the Indians could not even convey lands. Marshall's Cherokee Nation v. Georgia . 30 U.S. 1 (1831), expressly held the Cherokee were not a "foreign state" and so not entitled to sue the State of Georgia for diversity jurisdiction purposes under Article HI, Sec 2. He referred to them as: [D]omestic dependent nations (whose) relation to the United States resembles that of a ward to his guardian (and) so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility. Supra , at 17-18. Even these notions of limited sovereignty found in some of these early decisions were later referred to as "platonic notions of Indian sovereignty" by the Supreme Court in decisions this Century (County of Yakima v. Confederated Tribes . 112 S. Ct. 687, quoting McClanahan V. Arizona State Tax Comm'n : "modem cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes . . . ." 411 U.S. 164, 172 (1973). Those treaty provisions, as noted above (citing Prucha) assumed, and often expressly provided that the Tribes were not fully "sovereign." South Dakota v. Bourland . 1 13 S.Ct. 2309 (1993), refers to modem "reality after Montana , tribal sovereignty over non-members cannot survive without expressed Congressional delegation (450 U.S. at 564) and is therefore nQl inherent." (Emphasis in original.) Under the United States Constitution, of course, there are only two sovereigns: the United States and the States, which formed that Union. Authority over Indian affairs is vested in Congress as one of its Article 1, Section 8 powers through the Indian Commerce Clause. Page 12 349 Unlike the XI Amendment providing for the States' immunity from suit in federal courts, there is no such express prohibition with respect to the Tribes. Indeed, historically both in statute and treaty, there has frequently been specific provision for such actions against Tribes. As noted in the original Handbook of Federal Indian Law , by Felix S. Cohen (1942): [T]here are a number of statutes which authorize suits against Indian tribes . . . (some) authorized suits against Indian Tribes and allowed, in effect the execution of judgment upon the tribal funds in the United States treasury. (Cohen, at p. 269.) (He then refers to previous chapter, sections 1 and 3 which include numerous such statutes.) As only one example, a general provision for Court of Claims jurisdiction over "all claims for property of citizens . . . taken or destroyed by Indians belonging to any band. Tribe, or nation" he refers to as "an outgrowth of the collective responsibility imposed by early statutes and treaties for the torts of their members." (n. 14 at 269.) That, and the accompanying text and footnotes recount an extensive list of cases brc .ght against Tribes under such authorizations by Congress. In a later section Cohen further noted Congress' historical practice of passing Acts authorizing suit which were specific to a Tribe or Tribes: "Congress has from time to time authorized various other suits against Indian Tribes by private citizens." (at 283.) Examples follow. The quoted example allowed judgments to be paid either from funds in the United States treasury for the Tribe or from any annuities. Many of the statutes Cohen discussed are no longer in effect. They do give a more realistic idea of the historic practice which included jm evolution from a treaty-period practice of providing for paying claims directly from tribal funds held by the United States to allowing suit in courts. This moderate approach protected tribal assets, allowing recovery up to the amount of funds the United States provides the Tribes. Notwithstanding that the Q-eaties limited such payments, generally to 20 years, today the United States still provides millions to the Tribes. Thus it is an added source of friction that persons harmed by Tribes feel (correctly) their own tax dollars fund the problem source, where Page 13 350 the actions are by tribal agents or employees. Additionally, many Tribes are in the casino gambling business. The millions thus derived add to federal funding, making them relatively wealthy, taking away the major historic argument for shielding Tribes by immunity: the fear that Tribes would be impoverished. CONCLUSION The general authorization in Acts of Congress allowing Tribes to bring suit or the United States to sue on their behalf must be made reciprocal. Tribes of today should be viewed as responsible for their acts and fully subject to suit. This will also allow full consideration and resolution by the same court of counterclaim and cross-claims when Tribes bring suit. Justice Blackmun stated over 15 years ago: I entertain doubts . . . about the continuing vitality in this day of the doctrine of tribal immunity. ... I am of the view that the doctrine may well merit re- examination in an appropriate case. Puvallup Tribe v. Department of Game 433 U.S. 165, 178-79 (1977). An ironic postscript to this comment is that after it was written, on remand, the Puyallup Tribe asserted its immunity and refused to further participate in that case. Having litigated three times to the United States Supreme Court, the Tribe took the benefits of those issues on which it had prevailed, but left the Court rather than accept the burdens and responsibilities (which could be enforced only against individual members). As previously noted, this practice continues to the present. It is time it be ended by Congress' adoption of a waiver of immunity for all Tribes. Page 14 351 James M. Johnson Office: Capitol Court, Suite 225 Home: 3042 Oldpon Lane 1 1 10 S. Capitol Way Olympia, WA 98502 Olympia. Washington 98501 (360) 866-2370 (360)357-3104 1993 - Present: In private practice, I continue to apply the expertise in major litigation I developed as Chief of Special Litigation for the State of Washington. In United Sutes v. Washington . Washington's (in)famous treaty fishing case, the tribes are attempting to extend their claim to shellfish and public and private lands. My clients are private landowners, parties only after I won a Ninth Circuit appeal of an order denying them intervention. In the Washington Supreme Court in Walker v. Munro , 124 Wn.2d 402 (1994), I successfully defended Washington's tax-limitation Initiative 601 (for the taxpayers, sponsors of the Initiative). In Mille Lacs Band of Chippewa v. Minnesota . I represent nine intervenor counties and work with the State of Minnesota to defend that Indian treaty case. In California, I represent sports and commercial fishing interests and coastal communities in Parravano v. Babbitt , challenging federal ocean regulation. I also authored an amicus brief for Wyoming and Montana counties in the United States Supreme Court in Hagen v. Utah . No. 97-6281, and participated in a NAAG moot court (as a "Justice") in preparing the Utah Attorney General for argument. On February 23, 1994, the Court ruled for us 7-2. 1983-1993: Until April of 1993, I was the Chief of the Special Litigation Division, in the Washington State Attorney General's Office, representing over twenty-five client agencies, and litigating "special" cases for the Sute. I enjoyed being the team leader for much of the State's important litigation at the state and federal trial and appeal levels, including the United States Supreme Court. I was also national affairs liaison to the National Association of Attorneys General (NAAG) and the Conference of Western Attorneys General (CWAG). I know personally and have worked with nearly every states' Attorney General, and top staff. I was contributing editor for the CWAG on American Indian Law Deskbook (March 1993, University of Colorado Press). Recent major cases included the "Ninth Congressional District' litigation cases to retain Washington's 9th U.S. House seat (the last awarded after the census). This included four federal district court cases, and two United States Supreme Court cases. I also authored a brief amicus for twenty-two states in the successful effort to uphold states' election protection statutes last term in Burson v. Freeman . United States Supreme Court No. 90-1056. I have handled nearly one hundred appellate cases in the federal courts of appeal, Washington Supreme Court and United States Supreme Court. Some of these cases are listed on the attached Appendix A. Other Experience: 1970-71 Counsel to Washington State Legislative Joint Committee on Banking Insurance and Transportation. 1971-73 United States Anny Lieutenant (Chief of Administrative Services for Ninth Infantry Division). 1973-1983 Chief Attorney for Fisheries/Game Division of Washington State. Interests: I enjoy running (including marathons), sailing, fishing, hunting, and opera. Education and Bar Admissions: Harvard University, B.A. 1967 (Economics); University of Washington, J. D. 1970. Admitted to Washington Bar 1970; also admitted to practice in the Washington State Supreme Court; federal district courts of Washington and California, Eighth Circuit, Ninth Circuit and District of Columbia Circuit Federal Courts of Appeals; United States Supreme Court. I have also practiced on a pro hac vice basis in federal courts in seven other states. 352 Attachment A LITIGATION EXPERIENCE/LEGAL ACCOMPLISHMENTS JAMES M. JOHNSON I. TRIAL AND APPELLATE EXPERIENCE My experience includes hundreds of trials in both the federal and state systems and nearly one hundred appellate cases up to, and including, the United States Supreme Court. Most of the appellate work involved cases I personally tried. In federal court alone, I have tried over two hundred cases. Most cases have been civil trials, but my trial experience has also included criminal trials in Washington State Superior Courts involving environmental and hunting and fishing cases. This extensive litigation and appeal practice has extended to each of the courts of which I am a bar member. I have appeared pro hac vice in another six states' federal courts. Some noteworthy cases-my favorites-illustrating the variety of my experience are the following: A. United States Supreme Court 1 . I personally briefed and argued Munrov. Socialist Workers . 479 U.S. 499 (1986) successfully upholding the constitutionality of Washington eleaion ballot restriaions. 2. Hagen v. Utah . (No. 92-6281, decided February 23, 1994). I wrote the brief for similarly- situated counties in Wyoming and Montana. 1 helped prepare the Utah Attorney General for argument (as a 'justice") in moot court sessions. 3. Montana v. U .S Dgi't of Commerce. 112 S. Ct. 1704, 503 U.S. 997 (1992). The -Equal Proportions" method of allocating U.S. House seats was upheld, saving Washington's ninth seat from one challenge. I briefed at both the three-judge district and United States Supreme Court and was a justice at the moot court preparing Solicitor General Starr who argued. 4. Franklin v. Massachusetts . 112 S. Ct. 3056, 503 U.S. 929 (1992). The Census' inclusion of U.S. military-overseas on the census day was upheld, saving Washington's ninth seat from another challenge. I briefed at both three-judge district and United States Supreme Court. At the Supreme Court level, this was coordinated with the U.S. Solicitor, whom I helped prepare for argument (again as a moot court justice). 5. Burson v. Freeman . United States Supreme court No. 90-1056. I authored a brief amicus for twenty-two states. The Tennessee law, like that of Washington, proscribes activities such as campaigning around the election polls. Our brief was especially important since one justice adopted our arguments in his concurring opinion. The case was won five to three so this vote was critical (four to four would have upheld the unfavorable lower court). 6. Idaho V. Washington. Ore£on . 444 U.S. 380 (1980); 462 U.S. 1017 (1983). An original action between states, challenging regulation and harvest of fish runs in Columbia River and tributaries. I tried the case to the special master appointed by the Court and participated in briefing and argument preparation for the two United States Supreme Court hearings. 7 The treaty Indian "fish cases." Department of Game v. Puvallup . 414 U.S. 44 (1973); Puvallup Tribe v. Washington Deo't of Game. 433 U.S. 165 (1977); Washington v. Washington Comm'l 353 Passenger Fishing Vessel . 443 U.S. 658 (1979) involving fishing regulation and Indian treaty law. I was a participant in briefing and argument preparation. 8. Antoine v. Washington . 440 U.S. 194 (1975). This deaJt with Indian reservation boundaries and hunting. I was a participant in briefing and argument preparation. B. Washineton Supreme Court and Washington Court of Appeals I have personally handled and/or argued approximately 35 cases, more than half in the Washington Supreme Court. Some recent examples include: 1. Walker v. Munro. Washington . 124 Wn.2d 402, 879 P.2d 920 (1994), upheld an initiative limiting tax and budget increases in face of constitutional challenge. 2. Ellensburg v. Washington . 1 18 Wn.2d 709 (1992). held the State is not required to pay full funding for fire protection services for Central Washington University. I participated in writing the briefs and argued the case before the Supreme Court. It was decided in our favor on January 16, 1992. 3. Schrempp v. Munro . 1 16 Wn.2d 929 (1991), involved a challenge to the Secretary of State's acceptance of initiative. I briefed and argued this case. The court held in favor of the Secretary- allowing the voters to decide. 4. Vanpor v. Munro . 1 15 Wn. 2d 536 (1990), involving a challenge to the Secretary of Sute's processing of an initiative. I briefed and argued this case, which upheld the Secretary. 5. Rains v. State . 100 Wn.2d 660 (1983), upheld the Sute's immunity from suit for alleged civil rights violation under 42 U.S.C. § 1983 (briefed and argued). 6. Snyder v. Munro . 106 Wn. 2d 380 (1986). Washington legislative redistricting, including two 'split' districts, upheld as constitutional (briefed and argued). 7. Nuxoll V. Munro . 104 Wn.2d 456 (1985). Election process for superior court judges upheld (briefed and argued). 8. Washington v. Crown Zellerbach . 92 Wn.2d 894 (1979). The stream protections of the hydraulics code and enforcement through criminal prosecution for violations was upheld (briefed, argued, and won criminal jury trial on remand). 9. The Indian Treaty Fishing Cases : Numerous cases and trials at the Superior Court (Washington's trial court) led to Washington Supreme Court cases of Puget Sound Gillnetters v. Moos . 88 Wn.2d 677 (1977); Sute Comm'l Passenger Ass'n v. Tollefson . 89 Wn.2d 276 (1977); Purse Seine Ass'n V. Moos . 88 Wn.2d 799 (1977). All held the sute must treat citizens the same, and could not regulate for special Indian fisheries. After the United States Supreme Court review (see A-6, above). Fishing Vessel Ass'n v. Tollefson . 92 Wn.2d 939, (1980) upheld the sute's authority to regulate fisheries. 354 C. Federal Courts of App eal 1 have personally handled and/or argued approximately SO cases in the federal courts of appeal. Examples, indicating the breadth of experience are: 1 . Federal Energy Regulation Conmiission appeals (FERC appeals). The Federal Power Act (16 U.S.C. 825(L)) allows appeals to either the circuit for the District of Columbia or the circuit in which the owner resides or does business. Among significant appeals, I have participated in both circuits, are: (a) Rock Island (Confederated Tribes v. FERC . 734 F.2d 134 (9th Cir. 1983); (b) Lewis River-Merwin Dam (relicensing). Clark-Cowlitz JOA v. FERC . 826 F.2d 1074 (D.C. Cir. 1987). (Argued) (c) Ross Dam (Seattle Light) 2. Indian Treaty Fishing cases. United Sutes v. Washington . 384 F. Supp. 319 (1974), is the "Boldt" case on Indian treaty fishing rights (which predates my tenure; I inherited the case one year later). Over 200 mini-trials ensued, involving implementation from one day to one week. Thirty-seven decisions (selected by the judge) are published seriatim, beginning 459 F. Supp. 1020 (1978). Dozens are separately reported. Approximately 30 appeals resulted from the first five years' implementation. One anecdotal illustration; four cases are found seriatim in 573 F.2d 1117, 1118, and 1121 (9th Cir. 1978). The latter was, itself, five separate proceedings. I argued this case and most of the others. On November 2, 1993, I won an appeal granting private landowners party status in the Ninth Circuit (No. 93-35324) Phase III (shellfish and private beaches) case in time for the 1994 trial. United States v. Oregon . 302 F. Supp. 899 (1%9). (The Indian treaty fishing rights case on the Columbia River predated "Boldt." Washington only intervened in 1975). Here, too, there were dozens of hearings and trials (under a week). There are six separate reported appeals. Most important are: 657 F.2d 1009 (9th Cir. 1981) (our injunction against Yakima fishing, including on reservation, was upheld in face of tribal immunity argument) and 529 F.2d 570 (9th Cir. 1976) ("Boldt" 50 percent formula need not apply to Columbia). I briefed and argued both. 3. Confederated Tribes of Colville v. Washing ton. 649 F.2d 1274 (9th Cir. 1981). Sute has jurisdiction over non-Indians within boundaries of Indian reservation. (Argued) 4. Sandidpe v. Washington . 813 F.2d 1025 (9th Cir. 1987). National Guard officer inunune from civil rights suit by subordinate. 5. Herald v. Munro. 758 F.2d 350 (9th Cir. 1984) and 838 F.2d 380 (9th Cir. 1988). ABC, CBS, NBC, and the New York Times challenged the Washington Sutute prohibiting "exit-polling" around election area. The statute was upheld— first decision, invalidated by second). (Argued both) My client did not authorize U.S. Supreme Court review, but see Burson v. Freeman, supra , p.l. 6. Williams v. Dolliver . (Our client. Justice Dolliver, was then Chief Justice of Washington's Supreme Court) 894 F.2d 321 (1988). Washington courts* practice of dividing military retirement pay in divorce proceedings upheld. (Argued) -3- 355 7. SociaJist Workers' v. Munro . 765 F.2d 1417 (9th Cir. 1985) challenged Washington's election restrictions on ballot access for minor parties. The unfavorable decision was reversed by the U.S. Supreme Court, supra , which upheld Washington's law. (Argued both) 8. Columbia Gorpe United v. Yeutter . 960 F.2d 1 10 (9th Cir. 1992) upheld the constitutionality of the Gorge Act (briefing was cooperative; Oregon Attorney General Frohnmayer argued this case). 9. Broughton Lumber v. Columbia Gorge Comm'n. State of Washington . Ninth Circuit Court of Appeals No. 91-35183 (Sept. 15, 1992). Sute sovereign immunity was not waived by the Gorge Act; state may not be sued in federal court for actions of the Gorge Commission. (Argued) D. Administrative Proceedings: FERC and EFSEC Specialized practice before such agencies has included: 1. FERC (Federal Energy Regulation Commission) Hydroelectric dam cases. Trials of licensing, relicensing, jurisdiction, and sub-issues, including: (a) Skagit River; "High" Ross Dam (Seattle City Light) (b) Lewis River-Merwin Dam (Pacific Power & Light competing with Clark-Cowlitz JOA) (c) Elwha River, Glines & Elwba projects (Crown-Zellerbach Corporation) (d) Nisqually River - proceedings involving each project • Yelm diversion (City of Centralia) • Alder Dam (City of Tacoma) • La Grande Dam (City of Tacoma) (e) Columbia River - all five mid-Columbia projects • Rock bland Dam • Rocky Reach Dam • Wanapum Dam • Priest Rapids Dam • Wells Dam (f) White River - (Puget Power & Light) 2. EFSEC (Washington State's Energy Facility Site Evaluation Council) provides and enforces licenses for major power facilities. I participated in trial proceedings involving: (a) WPPSS 11 (Hanford Nuclear Plant) (b) WPPSS 4 and 5 (Satsop Nuclear Plant) (c) Northern Tier Pipeline (d) Fish Kill supplemental proceedings in WPPSS II resulted in award of a hatchery facility 356 II. TEACHING CREDENTIALS AND PUBLICATIONS (chronological listing with sponsoring organization) A. CLE's (Continuing Legal Education courses taught to Bar members) 1. Indian Treaty Hunting and Fishing, Washington State Criminal Justice Training Commission, 1977. 2. Indian Fishing Rights. Governmental Lawyers Association, 1978. 3. Anadromous Fish Management and Protection, Environmental Law Review, Northwest School of Law, 1979. (1) Federal Energy Regulatory Commission Practice, Fish and Wildlife Protection; and (2) Indian Fishing Rights (two separate presentations), Lewis and Clark Law School, 1980. 4. Enviromnental Law, Current Trends in Natural Resource Law, Office of the Attorney General, 1981. 5. Attorneys' Fees Awards Under the Civil Rights Act, Office of the Attorney General, 1982. 6. Federal Trial Practice (new Rule 16), Office of the Attorney General, 1984. 7. Constitutional Law; "EXIT-POLLING" Debate. Washington Bar Association, "Today's Constitution and You" (Bicentennial Program). 1986. 8. Appellate Practice (Argument), Office of the Attorney General, 1987. 9. Columbia River Legal Issues; Fish, Water, Power and Competing Users (U.S. and international). Western Association of Attorneys General, 1991. B. Publications James M. Johnson, Indian and Aboriginal Hunting and Fishing Claims (including marine mammals). International Association of Fish and Wildlife Commissioners, Toronto, Canada, 1978 (published proceedings). Kenneth 0. Eikenberry, James M. Johnson, David M. Driesen, Enforcing Washington Judgments in Canadian Courts: Taking the Dams out of the Stream of Commerce: U.Puget Sound L. Rev. 491 (1990); Washington State Bar News 4S (1991); B.C. Sup. Q. R. S4<2). Conference of Western Attorneys General, (James M. Johnson, contributing author/editor) The American Indian Law Deskbook (U. Colorado press 1993). 357 CONFEDERATED SALISH AND KOOTENAI TRIBES TRIBAL SOVEREIGN IMMUNITY AND CIVIL JURISDICTION TESTIMONY BEFORE THE SENATE INDIAN AFFAIRS COMMITTEE SEPTEMBER 24, 1996 Good morning Chairman McCain, Vice-Chairman Inouye, and Members of the Committee. I am honored to represent the Confederated Salish and Kootenai Tribes of the Flathead Reservation in Montana in presenting testimony to you today concerning Tribal sovereign immunity, how it affects the rights of non- Indians residing on and off Indian reservations, and the fair and impartial resolutions of the legal conflicts involving those individuals and Indian Tribes. I am accompanied by the Tribes' Managing Attorney, Daniel Decker and we will offer some of the many examples of how an inclusive, creative approach to Tribal protection of the rights of all citizens living on and near Indian reservations and implementation of successful dispute resolution mechanisms, offer alternatives to unnecessary legislation intended to correct a perceived problem. Perception is one of the major limitations of all of us legislators. We focus on a complaint, dispute or problem based on our personal experiences, our knowledge, and our feelings. This Committee is attempting to deal the perception that non-tribal members living on or near reservations have no civil remedies because of tribal sovereign immunity. Nothing can be further from the truth. I will share with you our Tribes' perspective of the rights of all people living on or near an Indian reservation and the resolution of conflicts among those people and a Tribal government. Tribal governments all over the nation, whether traditional or "reorganized" forms of government, are all too familiar with the distrust, anger, and fear associated with lost property or property rights. For example, my forefathers, by agreement made in good faith with the federal government, ceded, relinquished and conveyed to the United States, property outside an area reserved for the exclusive use and benefit of the Flathead Nation's members. As with every treaty made, the United States government broke nearly all promises made in that treaty, including the right to use the reserved area exclusively. By 1934, only 75 years after the treaty ratification, the Tribes of the Flathead Nation had lost approximately 66% of the 1,250,000 acre reserved land base. Today, while we own about 60% of the land, we represent only about 30% of the total Reservation population. Realizing that the traditional ways of protecting our property and property rights had not worked, the Flathead Nation turned to innovative, progressive means of protecting, preserving, and enhancing our homeland. Our approach benefits all the residents of the Flathead Reservation, which provides all types of civil remedies and opportunities for governmental participation by non- tribal members. A primary responsibility of any government is to regulate the conduct and activities permitted within the government's jurisdiction. A tribal government is no different. On the Flathead Reservation we have taken steps to protect the health and safety of persons on the 358 Flathead Nation Testimony September 24, 1996 Page 2 reservation and to encourage productive enterprise while protecting natural resources. Such government action will necessarily impact the activities permitted on the Reservation. In recognition of the fact that many non-tribal members live on the Flathead Reservation, the Tribal government has taken many steps to ensure that non-members have an opportunity to play an active role in the promulgation and implementation of government regulations and ordinances. Let me tell you about some of the things we've done and are doing. 1. Shoreline Protection Ordinance - As environmentally sensitive Tribes we realized that then uncontrolled growth of residential and commercial developments along Flathead Lake threatened the near pristine water quality. Tribal challenge of the development of one large earth-filled commercial breakwater and dock resulted in a 9th Circuit Court decision affirming the Tribes' ownership of the beds and banks of the south half of Flathead Lake, the determination that the Flathead Reservation had not been disestablished, and the determination that the Tribes rightfully exercised regulatory authority over structures extending below the high water mark of the lake. The Tribes' regulatory authority is exercised by a seven member Board consisting of Tribal members and non-Tribal members. Board vacancies are advertised and members selected by the Tribal Council. 2. Aquatic Lands Conservation Ordinance - The Aquatic Lands Conservation Ordinance exercises regulatory authority (in conjunction with the Army Corps of Engineers/Environmental Protection Agency Dredge and Fill Permitting Program) over construction taking place in riparian and wetlands on the Reservation. The Shoreline Protection Board referenced above, containing both non-Tribal members and Tribal members, exercises the regulatory authority of the ordinance. 3. Flathead Lake Fisheries Co-Management Plan - The Tribal Fisheries Program and the Montana State Department of Fish, Wildlife and Parks co-manage Flathead Lake fisheries pursuant to a plan approved by both the State of Montana and the Confederated Salish and Kootenai Tribes. 4. Hunting and Fishing Cooperative Agreement - This litigation settlement agreement regulates non-member hunting and fishing on the Flathead Reservation. All non-member reservation residents must buy a Tribal permit to hunt and fish the Tribal resources allowed for harvest. Tribal, State and Federal officers all enforce the regulations, citing violators into courts of appropriate jurisdiction. Neither the Tribes nor the State relinquished jurisdiction by signing this agreement. 5. MVP Utility Board and Consumer Board - We manage an electric utility serving over 16,000 meters representing most Reservation homes and businesses. When taking over operation and management of the 359 Flathead Nation Testimony September 24, 1996 Page 3 utility from the Bureau of Indian Affairs pursuant to a Self -Determination Contract, the Tribes instituted an independent utility board to manage the utility and a consumer council to represent consumer interests. Both entities contain non-member and Tribal member representatives. The consumer council was a "first" for the utility and has equal power to the utility board in recommending rate changes to the Tribal Council for consideration in a public, federal rate making process. Local operation of the utility by the Tribes has much improved customer service and public relations. 6. Tribal Administrative Procedures Ordinance - This administrative appeals ordinance sets forth a process by which administrative decisions may be challenged by any affected party. The administrative law judge hearing most cases is a non-member attorney. 7. Criminal Misdemeanor Retrocession from Concurrent Jurisdiction and Accompanying Tribal Court Expansion - Several years ago the Confederated Salish and Kootenai Tribes withdrew from concurrent criminal misdemeanor jurisdiction with the State of Montana over tribal members committing offenses on the Reservation. The extremely high percentage of Salish Kootenai Tribal members incarcerated in the State prison prompted this action by the Council. The cooperative agreement between the Tribes and State and local governments implementing the retrocession, provides for cross-citation authority, stop-and-detain provisions and emergency powers. 8. Tribal Court Improvement and Expansion - In anticipation of the increased workload connected with exclusive criminal misdemeanor jurisdiction, the Tribes utilized Tribal funds to greatly expand and improve our court system. The improvements are outlined below: a. Development of an independent Prosecutor's Office. All prosecutors must be licensed to practice law. Currently, all prosecutors are non-members. b. Establishment of separate Defender's Office. This office represents all people facing a criminal charge in Tribal Court. All attorneys working in this office are non-members . c. Expanded Legal Services Program. This program provides representation in civil cases to individuals meeting representation guidelines. Office staff currently consists of four attorneys and one advocate. Three of the attorneys are non-members. d. Adult and Juvenile Probation Services and Community Service Placements. 360 Flathead Nation Testimony September 24, 1996 Page 4 9. Tribal Appellate Court Organization and Expansion - The Tribes established and then expanded an appellate court to which trial court decisions may be appealed. The full panel consists of three attorney justices and two lay justices. The three attorney justices (including the Chief Justice), have been non-members and the two lay judges Tribal members. Two attorney justices and one lay justice sit on each appeal. Reconsideration is heard en banc. Each side in the appeal has the right to recuse one justice in each appeal without stating cause. This provides additional opportunity for fair and impartial decisions. 10. Regulation Development Comment Process - Whenever regulations asserting civil jurisdiction over non-Tribal members must be adopted or updated pursuant to a Tribal Ordinance, a fully inclusive public comment process is conducted. Regulations developed pursuant to this process, which includes notice and hearing, are those such as Tribal Water Quality Standards; Hunting, Fishing and Recreation Regulations; Migratory Waterfowl Regulations; Shoreline Protection Regulations; Aquatic Lands Conservation Ordinance Regulations; Request for Class I Air Quality Redesignation and many others. 11. Environmental Initiatives - The Tribes developed many environmental initiatives over the years including: establishment of a 90,000 acre wilderness; minimum instream flow protection; establishment of water quality standards; closures for grizzly bear, bull trout, nesting waterfowl, elk, big horn sheep, and reintroduced native species protection; and redesignation of air quality to Class I status. All these initiatives protected and improved the quality of life for all Reservation residents, everyone benefited. 12. Governmental Immunity Ordinance - The Confederated Tribes adopted a Tribal Governmental Immunity Ordinance in 1995. Section 2 of the ordinance contains limited waivers of immunity for injunctive, declaratory or mandamus relief for Tribal government infringement of any civil or constitutional right of an individual arising under the Tribal Constitution, Bylaws, or the Indian Civil Rights Act; for specific waiver of sovereign immunity by resolution or ordinance, or for judicial review of governmental implementation of the resolution or ordinance; when the Council authorizes intervention as a party in a lawsuit (except for counter-claims); in the case of agreements with the United States which require the Tribes to purchase liability insurance, and thereby consent to waiver up to the policy limit; when the Council enters into an agreement expressly waiving immunity, setting out procedures for remedies in a default or breach situation; and when an officer, agent, or employee of the Tribes, acting within the scope of authority, allegedly causes serious personal injury or death through negligently breaching a duty of care owed to another. These limited waivers provide opportunity for individuals. 361 Flathead Nation Testimony September 24, 1996 Page 5 governments, and other parties, to obtain fair and impartial decisions. Where we have chartered tribally owned businesses, those businesses operate pursuant to direction given by an independent board of directors (including non-members). All articles of incorporation include "sue and be sued" provisions. While there are many more stories we could share, we believe the examples given indicate that an inclusive rather than exclusive approach to Tribal civil jurisdiction works. Additionally, our experiences show that Tribal civil jurisdiction is not something that needs to be fixed. More to the point, the "solution" proposed by Section 329 could virtually eliminate all these creative and inclusive methods that work. This would occur because there would be no incentive for non-tribal members to work within our administrative and judicial processes. A waiver of any government's sovereign immunity - be that government tribal, state or federal - would result in judicial chaos by authorizing any one person or entity to file frivolous lawsuits that would virtually bring justice to a standstill. Although it is possible to find anecdotal stories that seemingly justify extreme remedial responses, we hope that through the cooperative examples cited in our testimony the Committee can see that tribal and federal laws as they presently exist already provide sufficient authority to protect the interests of all concerned parties. We appreciate the efforts of this Committee to fully examine allegations and to hear from tribal witnesses and we look forward to working with you on this and future matters. Thank you very much for the opportunity to present these comments today. We will be submitting more detailed testimony for the record, Resp^c^^fully Submi^ed, SiTED SALISH & JCOOTENAI TRIBES -tf^f^^^ ;^^J7^-^^r?'2i^i londa R. Swaney, Chairwoman ["ribal Council 362 LUMMI INDIAN BUSINESS COUNCIL 2616KWINARD • 8ELLINGHAM. WASHINGTON 98226-9298 • (360)384-1489 DEPARTMENT EXT TESTIMONY OF THE LUMMI INDIAN NATION at the Senate Committee Hearing on "Tribal Sovereign Immunity" Tuesday, September 24, 1996 Submitted by Henry Cagey, Chairman Good Morning Vice Chairman Inouye and Honorable Members of the Committee. My name is Henry Cagey and I am Chairman of the Lununi Nation I am here to address the concerns expressed by this Committee regarding procedures available to individual Indians and non-Indians to be heard in a tribal form on the Lummi reservation This hearing is more than a simple question on due process It is a much older question of whether Indian People and Nations can be considered "competent" enough to govern themselves, their territory, and all who access their borders We can trace this conflict over Indian capacity and competency to the Pope's legal opinion of 1537 The non-Indian accusation that Indians lack self-governing capacity is 460 years old This whole problem is based on the government's reliance on the doctrines of conquest and discovery, which are legal fictions created for the benefit of the non-Indians Speaking in a more contemporary vein, we would like to submit for the record four key points on the legal and historical foundations for jurisdiction on and off reservation First, our rights began, not with the treaties, but with the historical fact that the Lummi people have never been conquered nor have they even relinquished their inherent sovereignty Second, the treaties are bilateral agreements between Indian Nations and the United States and cannot be unilaterally altered Third, the govemment-to-govemment relationship between the Indian tribes and the United States is embedded in the United States Constitution Permit me to refer to Senate Concurrent Resolution #76, in which it states, "the Congress. .hereby affirms the constitutionally recognized govemmenl-to- govemment relationship with Indian tribes which has historically been the cornerstone of this Nation 's official Indian policy ". Lastly, I would like to quote fi-om the Treaty of Point Elliot that "the reservations were set apart for the exclusive use of the Indians"... "nor shall any white man be permitted to reside upon the same without permission of the said tribes and the Superintendent or his agent. " The Lummi Nation is not insensitive to, nor unaware of the needs of non-tribal members on the reservation The Nation has put in place mechanisms which ensure due process in tnbal forums for non-tribal members on the Lummi reservation A good example of this is 363 the Lummi Water and Sewer Boards The five-member Lummi Sewer Board has two non-Indian members elected by all State registered voters on the reservation The appeal process for the Lummi Water and Sewer Boards includes • forma] hearings before the Boards and the right of legal counsel • formal findings of fact, with any appeal to LIBC limited to issues of fairness • fiirther appeal to tribal court • appeal to an arbitrator • a waiver of sovereign immunity to enforce any final decision There have been only two appeals to the Boards in the last fourteen years on our Water and Sewer Ordinance In both cases, including one brought forward by Marlene Dawson, a non-Indian resident and Member of the Whatcom County Council, the appellant stipulated that the hearings were fair and in accordance with due process. I would also like to cite procedures now in place in the area of natural resources where the process includes • permitting procedures and licensing • a hearing in tribal court for citations • availability of the Tribal Court of Appeals for a de novo trial In the area of zoning on the reservation, we have in place comprehensive procedures that include a permitting process, open public hearings, and a process of review and appeal based on the written record In contrast we can cite examples of the failure by County, State, and Federal authorities to enforce laws and regulations on the reservation A case in point occurred on the reservation in 1995 A non-Indian fee landowner cleared his land, cutting down trees without a permit, destroying known bald eagle roost and nesting trees, devastating a fish- bearing stream, and disrupting a registered archaeological site To date, no criminal prosecution has been pursued and no civil penalties have been levied as provided by law, and, as have been assessed in similar cases in adjacent jurisdictions by Federal or State authorities Of course, no system is perfect The Lummi Nation has, however, made great strides, especially with the advent of self-governance, in updating and improving our codes and ordinances It is, in fact, a major goal of the Lummi Nation to revise our codes and ordinances to be more responsive to the needs of tribal and non-tribal members on the reservation We understand the significance of this hearings on due process for non-Indians in tribal forums We too, have concerns for due process In the past year, we have witnessed Congressional legislation that directly and adversely affects our ability to exercise treaty rights on the reservation. We were never consulted nor were any public hearings held on this matter We view such unilateral actions as a violation of the principle of due process and an abrogation of the multilateral agreements set forth in the Treaty of Point Elliot. 364 We feel it is vitally important that this esteemed Body be provided the fans and legal background that will truthfully explain the roots of sovereignty, the rights of the Indian Nations, and the treaty obligations of the United States We look forward to the day that we can work together in an atmosphere of mutual trust and respect I would like to close my testimony on an historical note with the words—and the promises- . -of Isaac Stevens, the Governor of Washington Territory, as recorded in the minutes of the signing of the Treaty of Point Elliot of 1855: "There will be witnesses. These witnesses will be tides. You Indians know that the tide goes out and comes in, that it never fails to go in or out: you people know that streams that flaw from the mountains rwver cease flowing, flaw forever: you people know the sun rises and sets and never fails to do so. Those are my witnesses and you Indians, your witnesses, and these promises will be carried out aruj your promises to me and the promises the Great Father made to you will be carried out as long as these three witnesses continue... " May the sun never set on this Body and the promises be kept, now and into the fiiture. Hys>qa. Thank you. 365 EVOLUTION OF CLAIMS TO JURISDICTION OVER INDIAN AFFAIRS by J.P.W. James, LTPTF Coordinator, 1996 STATEMENT OF CONCEBM OVER CURREKT CIVIL JURISDICTION BEARINGS We, as Indian Nations, do not accept the doctrine which states that our nations and people lack the capacity to govern ourselves and all who enter our territory. We do not accept the "legal fictions" that have been created to deprive us of jurisdiction over all transactions transpiring inside our exterior boundaries. We see current attempts to remove civil jurisdiction and deprive our nations of sovereign immunity as a direct attack upon our capacity to self-govern. The United States should not vacate its commitments to Indian self-determination and self-government and should not allow piece-meal legislation to erode the "trust responsibility" owed to the tribes. The Indian Nations of the United States have witnessed a constant erosion of their powers of self-government over their territories, natural resources, and people. In place of self-government, it has been claimed that Indians are a part of the United States, as citizens with special rights and status beyond the average citizen. Of course, these "super-citizen" claims always arise amongst those who are after Indian lands and resources or seek to develop properties located inside reservation boundaries. However, behind this stated concern for the "poor non-Indian inside Indian Country" are centuries of erosion of Indian sovereignty primarily through subtle acts of foreign governments (external to the Indian tribes) . And, the average citizen rarely understands the unique government-to-government relationship between the tribes and the United States. In addition, the national government, with state support or initiatives, have been constantly cutting back Indian sovereignty. This iiqslicit divestiture (so named by the Rehnquist Court) has been accon^lished not on a government-to-govemment basis, in which Indian nations sought to unambiguously become a political subdivision of the republican governmental system of the United States; but, rather, it has been implemented by unilateral acts of legislature or court decrees, or because Indian nations entered treaties of peace and friendship with the United States- who sought to avoid war (See: U.S. v. Wheeler , 435 U.S. 313(1978). Today, the anti-Indian elements present Indians, and the tribal governments, as part of the political subdivisions of the state, subjected to overview by local non-Indian counties and municipalities. This "incorporation" into the local political fabric is not legal under canons of construction of written constitutions of the state or nation, and most definitely cannot be justified at the local level. One nation cannot simply pass an act 366 of legislature and disband a foreign (Indian) nation. One nation cannot enter peaceful relationships with another nation, by treaty, and then declare the treaty had destroyed the inherent sovereignty of the other nation and subject them to the complete authority (plenary power) of the first nation. And, nine supreme court justices cannot conquer several hundred Indian nations by judicial decree. These are legal fictions drafted for the convenience of the non-Indian governments. If this is true, then, why is it that Indian Affairs is sub- jected to the "plenary power" of the United States to the extend that congressmen (Senators/Representatives) feel free to introduce legislative acts to deprive the tribes of the sovereign immunity so needed to prevent an onslaught of frivolous lawsuits waged by individuals and citizens groups to the complete financial ruin of Indian country, or to remove the civil authority of the tribes over interior matters and business practices. We know the current demands for this legislative solution are based on the non-Indians inability to capitalize and speculate on land and natural resource development within Indian Country, due to the inherent authority of the tribal governments. They see Indian governance rights as a impediment to progress and development, on and off-reservation. But, this is a historical ploy. There have been more laws passed about the American Indians than any other politically and racially identifiable group in the United States (See: Kapplers, Indian Affairs, Laws, and Treaties, Volumes I-VII, 1904) . There is i saying that goes, "the road to hell is paved with good intentions." There is an American Indian legal hell currently operating as the death knell of Indian governance nationwide; and, most of the laws were secured for the "best interests" of the Indians- who are viewed as lacking the capacity for self- governance. Removal of our civil jurisdiction or sovereign immunity is not for "our" best interests. The proposal is submitted for the enrichment of the non-Indian special interests. Indian governments are constantly sued, for everything possible, in city, county, state, and federal district courts. In these lawsuits the non-Indians always claim the Indian courts are inferior and do not provide due process (again, a "capacity" arg\jment) . Often the lawsuits against Indians are multiparty, complex litigation that could take years to work through the court systems {e.g.. Winters v. United States , 207 U.S. 564, 1908, per Indian water rights) . The costs In" time and finances are tremendous. The cause is always tied to some non-Indian who has entered Indian Country of his own free will, and then decides he does not want Indians to govern over his behaviors while he is in Indian Country. Most often he represents a special interest after natural resources, land speculation and development rights and takes offense with Indian zoning and civil jurisdiction. Our Nation believes that the U.S. Congress owes a duty to the 2 367 Indian Nations to not further erode Indian self-governance by the removal of sovereign immunity or civil jurisdiction. In fact, the United States should begin a deep analysis of the many legal fictions that have been created, by the congress or court, to continue to hold that Indians, and their native governments, do not have the legal and intellectual capacity to govern over actions of non-Indians entering Indian Country, criminally or civilly. Indian nations have ceded 3,787,425 square miles of land and natural resources to the United States, through more then seven hundred treaties, of which 367 were ratified by the Senate ( Indian Affairs, Laws, Treaties , by Kappler, Vol. II, 1904). This land has been the foundation to the success of the most powerful constitutionally defined democratic, representative, republic in the world. From this, the individual states received governmental jurisdiction over portions of the ceded Indian territory, minus the lands reserved to the Indians or federal government, issued to settlers under federal homestead laws, or set-aside to finance public education and local government. The wealth derived from the lands, more often than not, have been used to sue Indians for more natural resources or to remove them from impeding non- Indian expansion. It would be a continuation of this gross injustice to allow this wealth to buy the influence needed to secure a federal enactment for removing tribal sovereign immunity or civil jurisdiction, simply to enrich local political subdivisions of the state (s) and land speculators. It is crucial to review the historical development of the legal fictions that are frequently resorted to for justifying another congressional enactment to weaken Indian self-determination and hinder self-governance. The formation of this legal fiction foundation is reviewed below- from discovery, to creation of the United States, to regulation of Indian Affairs within the Union, conflicts with the states, and their citizenry. GOO BLESS AMERICA- A FICTION OF BISTORT We have witnessed, in the past couple of centuries, and especially in the last couple of decades, a development of great credibility given to the fabricated doctrines of "Conquest and Discovery." In God's Name whole nations have been destroyed, their populations enslaved, and their natural resources converted into personalized wealth of citizens, "colonial" states, and enriched the church treasury. The Church, in its early formation, learned quickly to "bless" the emperor- if it expected a share of the wealth. The "Donation of Constantine" (by Constantine the Great of Rome, 306 to 337 AD) was the first endowment of land and territory made for the enrichment of the church. Constantine bestowed the known Roman Empire to the jurisdiction of the Church, as well as "our bounty in India, 368 Greece, Asia, Thrace, Africa, Italy, and divers islands." This laid the foundations for the Church's claim to jurisdiction over discovered lands, in the name of God. Since then, the Church has always been well-endowed by the conquering Christian sovereigns in exchange for receiving the sanctions of God (through Papal Bulls) . This "Donation of Constantine" was the foundation for the authorization and sanction of the Church given to Henry the II of England- who could, thereafter, invade and conquer Ireland. Under Pope Adrian's Papal Bull {"Laudiabiliter") , Henry II was given hereditary right to Ireland, and could legally overcome all perceived powers secured by his vassal Strongbow- who conquered the Irish in the King's name (See: A History of Ireland , P.Sommerset Fry, 1988, at 69) . This same type of "sanctions of God" were received by Portugal when she successfully sailed around the Southern Cape of Africa. By Papal legal opinion (Papal Bull), Portugal had the right to discover, invade, conquer, and enslave the pagans, heathens, and infidels of Africa, with the blessings of the Christian Church. Then, when Columbus discovered the New World, Pope Alexander VI issued the Papal Bull "Inter Caetera" (May 1493), securing rights to all the lands in the New World to Spain. In resolution of the conflicting claims of Portugal and Spain, the Pope mediated the Treaty of Tordesillas (June, 1494) dividing the sovereigns conflicting claims, effectively giving Brazil to Portugal and the rest of the western hemisphere to Spain. (See: Documents of American History by H.S. Commager, 1963). The utilization of Papal Bulls to support discovery claims by Christian Kings combined to eventually justify the wars against the Indians; who were considered heathens, pagans, not hvimans, not of the family of Adam & Eve. The wars waged by the Conquistadors were savage, brutal, and uncivilized .actions of such unchristian magnitude that it forced the Church, through Pope Paul III, in 1537, to issue the Papal Bull "Sublimis Deus" in defense of the Indians. Thus began the debates over the power of God (through the Church) and King (through discovery) to develop and implement laws to the defense or destruction of the subjected Indians. Needless to say, the development of modern American Indian law, within the United States, is tied to the very debates asso- ciated with the "justness of war against the Indians" versus peaceful resolution through negotiated treaties, as governed by the laws of nations, guided by international standards. The U.S. Supreme Court, today, continues to base its legal reasoning, in questions of Indian law, founded upon the doctrines of Conquest and Discovery by Christian Nations. In Johnson v. Mcintosh, 21 U.S. (8 Wheat) 543 (1823), the Court found Indians to be savage occupants dependent upon the forest and warfare, and gave legal credence to the "discovery 369 doctrine" in U.S. law. This legal fiction was a subject of convenience, a matter that U.S. Supreme Court Chief Justice Marshall makes a remarkable confession to at 591-92, as follows: Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pratanslon of conyarting the discovery of an Inhabited country Into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So too, with respect to the concomitant principle, that the Indi an inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice. Marshall continued to address the substance of "discovery" by the European powers, and their relationships to the natives, in Johnson as follows: In the establishment of [the relations of discovery] , the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rigfats to cooplete sovereignty, as Independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made It. While the different nations of Europe respected the rights of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. The fiction of discovery, and rights secured under the sanctions of the Christian God, has worked to justify the early 370 development of legal fictions in the deliverance of "justice" to the Indians. With the successful Revolution (1776), the new United States would continue, in place of the King, to enter relationships with the Indian tribes, by treaties. But, it was the regulation of the "citizens" of the states and nation that would lay foundations for the evolution of the "trust responsibility" owed to the Indians. In the beginning, it was the subject matter of regulating trade and commerce between the nations, as F.P. Prucha, in The Great White Father , at 92 (1984) stated: The trade and intercourse laws were necessary to provide a framework for the trade and to establish a licensing system that would permit some control and regulation, but this was merely a restatement of old procedures. The vital sections of the laws were in answer to the crisis of the day on the frontier, and the provision is pertained to the trilies of Indians with vhcm th« nation dealt as independent bodies. Neither president Washington nor Congress was concerned with the remnants of tribes that had been absorbed by the states and had come under their direction and control. The laws sought to provide an answer to the charge that the treaties made with the tribes on the frontiers, which guaranteed their rights to the territory behind the boundary lines, were not respected by the United States. The lavs vere not primarily "Indian" laws, for they touched the Indians only indirectly. The legislation, rather, rras directed against lawless whites and sought to restrain them from violating the sacred treaties. In the beginning, the discovering foreign sovereigns respected each others claims to first Christian discovery, as required in the laws of nations, and supported by the Papal Bulls. A violation of such first claim could, after all, lead to "excommunication" by the Pope. These were the days when kingly men feared God and the loss of heaven. However, within the United States, it was soon realized that the laws of God were not enough to restrain unscrupulous whites from doing wrong to the Indians, and in consequence laws were enacted to place limits upon the actions of the whites themselves, as noted by Prucha. But, over time, we will find that the enactment of laws are only tools of greedy speculators and private enterprises, just as the enslavement of the Indians by the Conquistadors for the encomienda system was essential to its success. Just as the discovery and conquest doctrines led to legal impediments to Indian tribal self-government, we witness "trade and intercourse" laws creating legal impediments to the individual Indian's natural rights of reason and self-determination. In their place was the "trust responsibility" (guardianship) doctrine, as devised by Marshall in the Cherokee Nation v. Georgia , 30 U.S. (5 Pet) 1 at 17 (1831) . 371 It has been presented that the Indians were subject to the laws of the United States as a result of "conquest" which went hand-in-hand with discovery. But, conquest of the Indians was a recent legal fiction created by the Court in Tee-Hit-Ton Indians v. United States , 348 U.S. 272 (1954). Marshall, in Cherokee Nation (1835) and Worcester (1832), confirmed the independence of the Indian Nations, he did not find they were conquered by or incorporated into the United States. The Indian nations were self-governing over their lands and people, without permission or supervision of the United States or other foreign nations. The Marshall Court, in Worcester , at 553-554, addressed the Treaty of Hopewell with the Chero)cee Nation, in which a treaty provision (Article 9) was alleged to have surrendered tribal control over its internal affairs. The court rejected this pretention as follows: "To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade; the influence it gave, made it desirable that congress should possess it.... Is it credible, that they should have considered themselves as surrendering to the United States the right to dictate their future cessions, and the terms on which they should be made or to compel their submission to the violence of disorderly and licentious intruders? It is oqu^lly Inconcaivablo , that tbay could har« supposed tbamselvas , by a phrasm thus slipped Into an mrtlcla, on another and most IntQrastlng^ subject, to baTa di^rastad themsalvas of tha right of salf-govammant on subjects not connected with trade. Such a measure could not be "for their benefit and comfort," or for "the prevention of injuries and oppression. " Such a construction would be inconsistent with the spirit of this and all subsequent treaties; especially those which recognize the rights of the Cherokees to declare hostilities, and to make war. It rould con-rert a treaty of peace, covertly, into an act a nnih ilating the political existence of one of the parties. Had such a result been intended, it would have been openly avowed. " We witness the transition from "conquest and discovery" in the name of god, to the development of judicial lies for the convenience of the nation, to the evolution of arguments that the Indians had given up their "self-governance" by treaty provision. The Marshall Court developed the foundations for the "trust doctrine" but did note that the Indians never gave up "self- government" and to use deception through a treaty, claiming this to have happened, was not justifiable in law. 372 HISTORICAL FOUNDATIONS TO THE QUESTION OF INDIAN SELF-GOVERNMENT The question of Indian capacity, otherwise referenced as self-governance, is not a new construct invented by American Indian jurisprudence. The question extends as far back as first contact in 14 92 and the subsequent Papal Bulls, and has gradually found precedence built up to justify its (the challenge or our capacity) acceptance. However, it is a question that has not been answered fully. But, recent Congresses have attempted to enact government-to-government relationships with the Indian tribes that reinstates their self-governance (See: P. L. 93-638, Title I, of 1975; P.L. 100-472, Titles II i III, of 1988; P.L. 102-184 of 1991; P.L. 103-413 of 1994), as founded upon the U.S. Constitution itself. Still, during this transition in federal legal relations with the Indian tribes, there are congressmen who would rather exterminate the Indian from American history, law, and politics. They, of course, are self-serving with vested interests beyond simple loyalty to a constituency or duty under the constitutional republican government. Today, we hear debates, still, on the capacity of the American Indians to be self-governing, to self-determine their own destines. Within the U.S. Congress we see the reflections of the noble Bartolome* de Las Casas ( In Defense of the Indians )- who defended the rights of the Indians and the ignoble Juan Gines de Sepulveda ( On the Just Causes of War )- who slanderously attac)ced the human qualities of the Indians and denied their capacity to exercise self-governance and to competently assume jurisdiction over their own destinies, both as individuals and in society. Today, we hear congressmen argue that there still exists an incapacity of Indian tribes to be self-governing, let alone having the capacity to rule over non-Indians who enter Indian Country. Bartolome' de Las Casas wrote his historical treatise in reaction to the slanderous attacks perpetrated against the Indians by Juan Gines de Sepulveda before Charles the V of Spain (1550) . Las Casas came to the New World as a "Conquistador" (conqueror) , on the third voyage of Columbus (1502) . He converted to become the first bom-again Christian in the New World (1514), and became the ultimate protector of the Indians rights for the next several decades, vintil his death, 1474-1566. ( See: The Discoverers , by Boorstin, pp. 631-35, 647 and Las Casas by G. Gutierrez, 1993) . Sepulveda, who never came to the New World, argued that the Indians were pagans, savage, apelike, only worthy of death and hell. Las Casas, in return, held the Indians to be citizens, capable of nobility, admired and never to be killed or enslaved. Sepulveda sought to justify the enslavement of the Indians for the Conquistadors' enrichment (through the Encomienda slave system), based on Aristotelian grounds (theory of natural born slaves), and held that a war against the Indians was "just" in the eyes of God. Las Casas completely defended the Indians based on natural law and 8 373 biblical foundations (See: also, All Mankind is One , by L. HanKe, 1974) . He argued that the Indians were totally capable of "self-government" and that they had the natural capacity of reason as citizens of their ovm societies (See: In Defense of the Indians , by Las Casas, 1552) . Chief Justice Marshall had to address this transition in the status of the Indian "Nations" in one of the first cases with Indians as party to the action, Cherokee Nation v. Georgia , 30 U.S. (5 Pet.) 1, at 17 (1835). Therein, he proclaimed that: India/) nations may more correctly, perhaps, be denominated doaastlc dapandant nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile, they are in a state of pupilage. Their ralation to tba Unitmd States resembles that of a v^rd to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. Herein, we find the complete shift of the paradigm, in that Indians are finally, in U.S. jurisprudence, legally transformed into the "incapacitated" Indians. Thus, defeating Las Casas' defense that Indians have complete capacity of reason to self-govern themselves within the laws of Christian nations. We find, instead, the arguments of Juan Gines de Sepulveda carrying the day, nearly three centuries after his death; federal laws that allege Indians to be legally incapacitated to govern their own affairs, and denied self-government without federal permission. We, the Indian Tribes, as noted in the modern day constitution of the United States, as addressed in various legal opinions of the U.S. Supreme Court, as treatied with by the joint powers of the President (s) and Senate (s), and who have maintained commercial relationships with the various states and national governments in compliance with trade laws enacted by the Congress, recognize that the question of our inherent sovereignty has been clouded by those who believe they have a natural, God-given right to enslave us, to deprive us of our inherent rights to self-government, and who justified the taking of our lands and natural resources under the Doctrines of Discovery and Conquest (See: Johnson v. Mcintosh , 21 U.S. 573), disguised today as the "Plenary Power" (See: UTs". v. Kagama , 118 U.S. 375) of the United States over Indian Affairs. We find this totally unacceptable, since it is founded on legal fictions rather than truth and justice. It is our legal belief and political position that the American Indians, in tribal societies, have as much right to exercise inherent sovereignty, and the maintenance of immunity from 374 frivolous lawsuits by foreign citizens as do any other qualified, representative government. We have the same endowed, inherent rights to establish our governments based on popular sovereignty just as the citizens of the various individual states and the Union have. This is not a new concept. Indian tribal leadership has always been associated with qualified leadership based on the laws, customs, and traditions of the tribal societies, with the right of the tribal people to not follow leadership if it was not in the peoples' best interests. Tribal governance is derived from the willingness of the tribal community to follow, it is the people that power is derived from. The Iroquois Confederacy, as was the Choctaw Confederacy, were great examples of democratic, representative, and reptiblican governance subjected to checks and balances for cause ( See: The Iroquois , by D.R. Snow, 1994 at Ch.4 and The League of the Iroquois , by lTh. Morgan, 1851, at 71) . FOUNDATIONS TO THE MODERN NATIONAL PONERS OVER INDIAN AFFAIRS In the Albany Plan of Union (1754), drafted by Benjamin Franklin, as pertained to the intended powers of the proposed Grand Council chosen by the People of the several colonies, control over Indian Affairs was addressed in Articles 11 and 12, as follows: 11. That they make such laws as they judge necessary for regulating all Indian trade. 12. That they make all purchases from Indians, for the crown, of lands not now within the bounds of particular Colonies, or that shall not be within their bounds when some of them are reduced to more convenient dimensions. Of course, this was in line with the Proclamation of King George- which declared it a matter of the king's sovereignty to regulate Indian Affairs, to the exclusion of the individual colonies. Franklin, in his plan of union, was attempting to address how the united colonies could avoid having one colony endanger all others by acting inappropriately toward the Indians, who were, then, capable of warring upon the colonies. In 1776 the Colonies secured their liberty from the oppressive tyranny of the British Monarchy. By November, 1777, as ratified in March, 1781, the Articles of Confederation were entered into by the individual colonies; which transformed into the thirteen sovereign states of the United States of America. Under Article II 'Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." Each of these "sovereign" states saw the necessity of union and enumerated powers to the federation, with a retention of those not delegated. It is noteworthy that a majority of the new states believed they inherited sovereignty directly from the king's charters, now that the king was forced out of America. In their 10 375 minds popular sovereignty was not the foundation of their (state) powers. However, these sovereignties were plagued with interstate problems of currency, trade, land speculation, a multitude of citizen lawsuits, revolutionary debts and many other conflicts leading toward a disruption of the Union, and very likely war. Under Article IX, it was provided, "The united states in congress assembled shall also have the sole and exclusive right and power of. . . . regulating the trade and managing all affairs with the Indians, not members of any of the states, provided that the legislative right of any state within its owns limits be not infringed or violated-. . . .", reserving Indian Affairs as a national concern was a crucial belief of the Confederation. By the 1787, the concept that "Indian Affairs" shall be a power of the national government was completely realized by the Framers of the Constitution. The Founding Fathers were very much aware of the Indian question, during the Convention. The pacification of the Indians, through peaceful means, was the key to stability of the new Nation. The United States was still threatened by powerful foreign sovereigns seeking to maintain their foothold in America, in competition with the Union; and, alliances with the Indian tribes were beneficial to all concerned, even though the revolutionary crisis was over. In reflection upon the era, two hundred years after the Constitutional Convention, the 100th Congresses enacted Senate Con. Res. #76 (1987), and its counter-part House Con. Res. #331 (1988), which were congressional declarations in celebration of the Constitution. The resolutions proclaimed the intent "To acknowledge the contribution of the Iroquois Confederacy of Nations to the development of the United States Constitution and to reaffirm the continuing government-to-government relationship between the Indian tribes and the United States established in the Constitution." In history, we know that the King of Great Britain believed Indian Affairs was a power of the Sovereign. We know the emerging colonies recognized the threat the powerful Indian Nations posed to the individual colonies and the need, in the Plan of Union, to assure the Grand Council (as a national governmental structure acting with delegated powers) exercised jurisdiction over Indian Affairs. We know that this was incorporated in the Articles of Confederation as a national power of the new United States in federation. Finally, we know the control of Indian Affairs was most definitely incorporated as a national power under the 1787 Constitution, contrary to the special interests of a few individual state designs at the Convention. With the developing Constitution, it was inyportant for all the "states" to devise a plan to govern the territory of the United States northwest of the Ohio River, during westward expansion. This plan came in the form of the Northwest Ordinance (July, 1787) . 11 376 It designed the "territorial" government that would model for the new territories that formed prior to statehood, from thereafter. The policy guaranteed freedom of religion. It guaranteed the admission of new states, provided they were structured as "republican" (i.e., power derived from the people) in form. In addition, as pertains to the Indians, it provided: "The utmost good faith shall always be observed towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for prasarvlng poaca and friandsh ip vltb them. " This policy was carried forward with the new 1787 U.S. Constitution (See: The Great Father- the U.S. Government and the American Indians , by F.P. Prucha, Volumes I and II, 1984, p. 47). It was enacted during the transitional period between the Articles of Confederation and the Constitutional Convention. What is ironic, is that there were those "Founding Fathers" at the Convention that hoped to secure "treaty powers for the states" with the consent of the Congress (See: The Foundation of the Constitution , by D. Hutchison, 1975, p. 153) . But, this proposal was aBsolutely rejected, because Indian Affairs, and the treaty power, were national powers, not belonging to the individual states. It is not surprising, then, for us to find that the Northwest Ordinance was not only important to the original states, and their land speculations, but to the emerging states- who would all equally find themselves limited in their ability to exercise jurisdiction over Indian Territory. Treaties with the tribes would be negotiated before enough settlers ever entered the lands ceded and reached a number in population to qualify as a territorial government, which was the step prior to statehood. After the ratification of the national constitution, the various individual territories that formed and moved to statehood, were limited by congressional and judicial interpretations of the relationship with the Indian tribes. The Congress ratified and the President proclaimed the transition from territorial government to statehood, indicating the qualifying new state had successfully complied with the constitutional requirements for a republican form of government. It was during the drafting of these state constitutions that each new state had to proclaim it, like its older peers, did not have jurisdiction over Indian Affairs (in their organic documents or constitution) . THE COMSTITUTZONAL SCHEMATIC OF THE DMZTEO STATES 12 377 It is extremely difficult to explain the government to government relationship that exists between the Indian Tribes and the United States, if the reader does not have a general knowledge of the U.S. constitutional government. So, before reviewing this relationship, we will address the general constitutional construct. The Constitution is intended to prevent "tyranny" like that of the monarchy from ever re-surfacing in the United States. In pursuit of democracy and representative government, the republic was created by breaking up the King's sovereign powers (which originally derived from the people, until it became a hereditary position) . The power to make laws were enumerated to the Congress (Senate & House of Representatives, Article I) . The power to enforce the laws were enumerated to the Chief Executive (Presidency, Article II) . The power to interpret the laws were enumerated to the judiciary (Judiciary, Article III) . Included in the constitution were the noted Separation of Powers and the Checks & Balances. Each branch of government became the peoples' insurance that neither of the other two, individually or jointly, could conspire to dominate the people and their government in tyranny. During the earlier federation of sovereign, individual states, under the Articles of Confederation, we witnessed sovereignty based upon the state sovereignty that emerged in lieu of the king, whose powers were originally delegated through charters of colonial incorporation. This type of sovereignty was primarily discarded and replaced by the popular sovereignty found in the Preamble of the Constitution, "We the People of the United States." As a part of their inherent powers and interests in maintaining their union, the "People" assured that new states would be admitted into the Union. This was secured under Article IV of the Constitution. However, it is important to note that the source of sovereignty and powers of governance derived from the people and not some foreign king; thus, those persons that argue state sovereignty as superior to popular sovereign do not understand the transitional history between the 1776 Revolution and the Constitution Convention of 1787. This is especially important in light of the constitutional amendments that made the republican form of governance ever more popular; in that the amendment guaranteed greater equality or modified the system to assure it was the people who chose their leadership (Amendments IX, X, XII, XIV, XV, XVII, XIX, XXIV, XXVI) in state and national government. Of course. Senators still represent "state sovereignty" but the state sovereignty is popular based by constitutional mandate (the conservatives of 1787 checkmated the radicals tha*: favored state sovereignty over popular will of the people) . "We the People of the United States" recognized that there are times that the government may not reflect the best interests of the governed. Thus, in order to secure popular sovereignty indefinitely, it was provided that the constitution can be amended, 13 378 to assure that tyranny does not resurface in the new United States. The Amendment provision is a primary distinguishing feature between the Articles of Confederation (which could not be amended) and the Constitution (which could be amended) . Article V (Amendment power) of the Constitution was, and is today, the peoples guarantee against such tyranny. This power has been exercised successfully twenty-six times since 1787. The first ten amendments were immediately added in 1791 in order to secure the Bill of Rights to the People. The first eight amendments set out or enumerate the substantive and procedural individual rights, and the 9th and 10th are general rules of interpretation of the relationships between the people, the State governments, and the Federal Government. Article VI is important as a matter of "popular sovereignty" in that it makes the U.S. Constitution the supreme law of the land. State constitutions, as a source of state sovereignty based on the original concept of it deriving from the King's delegation, has talcen a back seat in importance, since it applies to only those states that had charters before 1787. The State Constitutions, since 1789, have been primarily in light of the U.S. Constitutional scheme, with the separation of powers (Governors, Legislatures, and Judiciaries) and Checks & Balances systems. Common to all are the guarantees secured to the people (the power of amendment) to check tyranny. But, essential to all is the power of government originating from the "People" (Popular Sovereignty- the Republican form of governance) . It is the people who delegate powers of government to both the state and national governments. All people of all newly admitted states have acknowledged the U.S. Constitution as the supreme law of the land, withstanding anything in state constitutions to the contrary. In siommary, "the Framers of the Constitution agreed to some basic constitutional principles: 1) That all States would be equal. The National Government cannot give special privileges to one State; 2) That there would be three branches of Government- one to make the laws, another to execute them, and a third to interpret them; 3) That the Government is a government of laws, not of men. No one is above the law. No officer of the Government can use authority unless and except as the Constitution or public law permits; 4) That all men are created equal before the law and that anyone, rich or poor, can demand the protection of the laws; 5) That the people can change the authority of the Government by changing (amending) the Constitution; and, 6) That the Constitu- tion, Acts of Congress, and the treaties of the United States are the highest law in the land ( Our American Government , H.Doc. 102-192, 1993). COMSTITUTZOHAL REIATZOHSHIPS WITH THE INDIAN TRIBES 14 379 Before we can understand the application of the U.S. Consti- tution to the relationship with the Indian tribes, we need to understand the significance of Marshall's opinion in Johnson v. Mcintosh , 21 U.S. at 573, in that the "Discovery" doctrine was reviewed and upheld, as relates to the rights of the United States in place of Great Britain, after the Revolution. The doctrine governed the competing relationships between the foreign sovereigns, with superior rights belonging to the first in time to discover the "non-christian" lands. While the doctrine limited the competition rights of foreign sovereigns between each other, it had a spill-over effect in that the Indians could only sell their lands lawfully to the foreign nation first discovering them. Thus, the United States assumed this right to first purchase, as a part of their claim to absolute title {Id. at 590, 591, 592) . Marshall recognized that the Indians were formidable enemies, too powerful and brave to not be dreaded, and this meant the necessity of preservation of the peace, a security of friendship that rested the Indians concerns for their lands. So, restraining claims by the whites, or their governments, as through national treaty-making or development of laws applicable thereto, was an absolute necessity of the day {Id. at 594) . Marshall believed the Indians could not be incorporated into the U.S. political fabric, but that non-Indians could be incorporated into the Indian Nations {Id. at 593) . Marshall ruled that the lands and territory of the Cherokee ( Worcester v. Georgia , 31 U.S. (6 Pet.) 515 {1832) at 542-561, were extraterritorial to the state of Georgia. It was true, in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 {1835), Marshall would rule that the Indian nations were not constitutionally covered the same as foreign nations but were more appropriately termed "domestic de- pendent nations" {at 17) . This gave room for Marshall to ration- alize in jurisprudence the "discovery" doctrine, and still recog- nize Indian nations were not incorporated into the U.S. political fabric, and maintain the separation of states and Indian nations within the constitutional framework, as shall be noted below. The U.S. Constitution is famous for its Separation of Powers and Checks & Balances system. "We the People" delegate our "self-governing" inherent rights to a system of government that will not be oppressive. We hold the government to be one of laws and not of men. In this light, the government acts in our place, on our behalf. However, very rare indeed is the individual citizen that understands the application of the constitution to the govern- ment-to-government relationship between the Indian tribes, the individual states, and the national government. Our goal, here, is simply to explain that relationship as concisely as possible. Article I of the Constitution establishes the Congress, divided into the Senate and House of Representatives. The House of Representatives reflects "popular sovereignty." Excluded from those who the "House" represents are "excluding Indians not taxed" 15 380 (Article I, Section 2, Clause 3) . The Senate reflects "state sovereignty" and represents the state through two senators (Article I, Section 3, Clause 1), and such representation was never intended to extent to the Indian tribes. Through the joint passage of legislation, the Congress can regulate trade & commerce between the Indian tribes and the citizens of the United States (Article I, Section 8, Clause 3- "Indian commerce clause") . The states do not have this legal capacity to regulate trade and commerce with the Indians, except through Congress Assembled. And, the individual states could not directly treaty with the tribes, for that was a power enumerated to the national government (Art. II, Sec. 2, Cl.2 treaty-making powers, forbidden to the states by Art. I, Sec. 10). Neither the Senate or House are representative of the Indian tribes and people. Indians were considered separate from the United States, "although born within the boundaries of the United States, it is as if they were born outside the boundaries, the same as ambassadors or ambassadors children." (See: Reconstruction Debates , 39th & 40th Congresses, 1866-1868) . This is why Section 1 (by the words "subject to the jurisdiction thereof") and Section 2 (by the words "excluding Indians not taxed") of the 14th Amendment were written in that manner- to assure that Indians were not citizens of the United States or the individual states, respectively. Thus, the original constitutional language was kept intact after the civil war, and did not include Indians as many lawyers have alleged. The President (as Chief Executive, Commander in Chief, etc.) shares the "treaty-making powers" with the Senate (Art. II, Sec. 2, CI. 2) . The Presidents have exercised this power, from 1787 to 1871, several hundred times, with at least three hundred and sixty-seven (367) treaties being ratified with the "advise and consent" of the Senate. The treaties reflect a sovereign to sovereign exchange of governments. Almost every one of the treaties were treaties of peace and friendship, rather than treaties of surrender after conquest (See: American Indian Treaties , by F.P. Prucha, 1994; and, Indian Affairi, Laws, and Treaties , by Kappler, Vol. II, 1904) . Like the Congress and President, the Judiciary has a function in the question of Indian Affairs. Under Article III, Section 2, Clause 1, the Judiciary can address laws of the United States, and treaties-made, or which shall be made, under their Authority;...". The Supreme Court, theoretically, has the power to check the other branches of government through its interpretation of legal federal (treaty) questions. However, as Milner Ball has elaborated in his 1986 article Constitution, Court, Indian Tribes (ABF Research Journal, Vol. 1987, Winter, No . 1 ) , the Supreme Court has created "legal fictions" to justify the taking of Indian rights, lands, and resources, in violation of the treatied word of the United States and the constitution. At times, the Court does what is right and occasionally returns a fair decision in resolution of Indian claims of wrong done to them. More often, though, the Indians are further 16 381 victimized in the Courts by being depicted as the "bad Indian" who demands to have his stolen property returned from the unscrupulous whites who held it under color of state law for two or more generations ( U.S. v. Dan, 470 U.S. 39 (1985), Oneida Indian Nation V. Count y of Oneida , 414 U.S. 661 (1974), Joint Tribal Council of Passa maouoddv Tribe v. Morton, 528 F.2d 370 (1975) ), or his treaty rights reinstated (e.g., fishing rights in the U.S. v. Washington , 95 S.Ct. 513 (1974), Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n , '3^ a.Ct. 3055 (1979)). Article III, Section 2, clause 1 must be understood in the light of Article VI, Clause 2, which holds that "the judges in every state shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding." This means the state courts are bound by the decisions on "treaties" and other federal questions once decided by the Supreme Court. This is especially true under the power of Article VI, Clause 2, which holds "treaties" are one of three sources of supreme law of the land, the other two being the constitution and national statutes. Popular sovereignty prevailed over state sovereignty at the Constitutional Convention of 1787 (See: The Federalist Papers No. 9, No. 31, No. 62, No. 63). The most important change in the new constitution was the additional precaution reserved to the people through the power of "Amendment" under Article V ( The Federalist Papers , No. 43, No. 49, No. 85). More than two dozen amendments have been added to the Constitution since 1787. The Fourteenth Amendment covered all races, but excluded the Indians in its assumption of jurisdiction, through the guaranteed equal citizenship, created by the amendment (See above) , The 1924 Indian Citizenship Act (8 U.S.C.A. Sec. 1401(a)(2)) did not properly amend the U.S. Constitution (Art. I, Sec. 2, CI. 3 and 14th Amendment, Sec. 1 & Sec. 2) . It was nothing more than political psychology to pacify the demands for Indian religious freedom under the First Amendment (to overrule Department of Interior Circular #1665- Religious Crimes Code) . This generic Indian citizenship, in light of constitutional language to the contrary, is another legal fiction. Article IV, Sections 3 and 4 are important in the understanding of the constitutional relationships between the Indian tribes, the states (starting with Manifest Destiny, and during the Colonialization of the American Indian Era implemented by the Department of Interior, 1848-1871), and the United States. One of the great compromises of 1787 was for the large states, with Charter Grants from the King that extended their western boundaries to the South Seas (as discovered and named by Balboa in 1513, now the Pacific Ocean) to surrender their claims to the undefined western lands. Virginia was one of the large states that surrendered her claims, provided the lands would be used for the creation of new states. This plan resolved many of the large state versus small state conflicts existing in the debates over (re) structuring the Confederated government. 17 382 Article IV, Section 3, Clause 1 provided for the admission of new states, as was previously guaranteed under the 1787 N.W. Ordinance. Section 3, Clause 2 gave the congress power to rule over and regulate the (ceded) lands, as secured by treaty with the Indian tribes. However, before the new state could be admitted into the Union it had to have an acceptable "republican" form of government. Thus, the President and Congress reviewed and finalized the admission of new states based on their successful development of republican state constitutions, with the separation of powers, checks & balances, and reservations for amendments by the people when needed. For examples of Admission Proclamations of the states of North Dakota (at 20-21), South Dakota (at 22-24) see Messages and Papers of the Presidents , Vol. IX, 1889-1897, By jTdT Richardson, 1897. Included in many of the states constitutions west of the Mississippi and Missouri Rivers were "Compacts with the United States" disclaiming jurisdiction over the Indian tribes, rights, and resources. This assured the Union that the new states would not try to claim jurisdiction over Indian Affairs, for that would contravene the enumerated powers delegated and reserved to the national government. Elntering the Union with a claim of jurisdiction over Indians Affairs, a type of jurisdiction eniamerated to the nation and not reserved to the individual states, would have resulted in some of the new states being more than equal to their older peers, and that was constitutionally unacceptable. We must note that Indian Affairs has always been a subject of national power; but, much of the powers enumerated to the President, the Congress, and the Courts have been (ab)used to the detriment of the Indians rather than used toward the protection and enrichment of the Indian tribes. The United States is composed of nearly 3,787,425 square miles, secured by treaties with the Indian Tribes. Even with all the modified treaties, the Indians still held 138 million acres in protected status by 1887. However, under the Dawes Act (1887-1934) ninety Billion of these remaining acres were legislatively alienated from Indian oimership for the enrichment of, once again, the new settlers moving into Indian territory. These lands have never been returned, even though there are legitimate treaties protecting and reserving the landa for the Indians exclusive use. The United States is su^^Msed to be a government of laws and not of men, under the tnritten Constitution. However, the laws have been changed by statute or court decision to the deprivation of the Indian tribes, regardless of canons of construction of written constitutions and treaties, ffe can only say that the best review article written on the legal fictions created by the Supreme Court, to justify this illegal taking, is that tnritten by Constitutional lawyer Milner Ball (ABF Research Journal, Constitution, Court, Indian Tribes . Ninter 1986). 18 383 If there was a simple method to depict the constitutional provisions balancing the relationships between the Indian Tribes and the individual States, with the United States in pivotal control of Indian Affairs, then the following diagram would be appropriate: United States of America I TRIBES STATES Art. 1 I, Sec. 2, CI. 3 Art. I, Sec. 8, CI. 3 Art. II, Sec. 2, CI. 2 Art. III, Sec. 2, Cl.l Art. V, 14th Amd, Sec.l Art. VI, Cl.l and CI. 2 Art. I, Sec. 3, Cl.l Art. I, Sec. 10, Cl.l Art. Ill, Sec. 2, Cl.l with Art. VI, CI. 2 Art. V, 14th Amd, Sec. 2 Art. IV, Sec. 3, CI. 1 Sec. 3, CI. 2 Sec. 4 What we must understand is that the tribes and the states were separate sovereign jurisdictions under the U.S. constitutional plan, each deriving their governmental powers from the inherent rights of their citizens /members. The tribes were not incorporated into the political fabric of the individual states. This is why the original state constitutions kept "Indians not taxed" separate from the qualified citizens. The U.S. Constitution, still, mandates keeping the Indian tribes, and excluding Indians not taxed (tribal Indians), separate from citizens, contrary to legislative acts. In the diagram, the United States is the balancing sovereign that is bound, by canons of construction of treaties and constitutions, to assure that this separation of states from tribes is not violated. However, in the review of court cases we find that violations were believed to be justifiable in the states' legal defense in the first Indian cases to reach the Marshall Court in the 1830s. This reasoning has continued ever since. But, the erosion of tribal governance has been supplemented by the erosion of tribal membership by granting Indian citizenship. Contrary to legislative intent, this status has simply became another means to deprive Indians of more rights or resources, to the enrichment of local governments and special interests. Citizenship has led to the incorporation of the individual Indian into the national political fabric, and has resulted in the application of the Internal Revenue Code to almost all income entering Indian Country today. But citizenship has not been the only vehicle used to take powers from Indians and their native governments. In United States v. Kagama , 118 U.S. 375, 155 (1886), the Court found that there was no constitutional basis for Congress to 19 384 enact a code of criminal law for Indian country. The Court reasoned that neither the language of Article I, Section 2, Clause 3, "excluding Indians not taxed" (as addressed in the drafting of the Fourteenth Amendment), or the Indian Commerce Clause (Art. I, Sec. 8, Clause 3) were foundations for the exercise of "plenary power" over Indian Affairs. Neither clause could uphold the application of a criminal code of jurisdiction over Indian Country; although the commerce clause could be the foundation for a code related to trade and commerce (Id. at 378-79) . This legal fiction on criminal jurisdiction was given evev greater credibility by the ruling of Oliphant (1978) that held that Indian governments do not have the (legal) capacity to criminally prosecute non-Indians, as well. While attempting to understand this maze that has been written into the national laws governing Indian Affairs, we should remember the words of Felix Cohen: "Like the Miner's Canary, the American Indian marks the shift from fresh air to poison gas in our political atmosphere; our treatment of the Indian, even more than our treatment of other minorities, marks the rise and fall in our democratic faith." There must be a lesson inherent here for the United States as pertains to its constitution. In this light we can reflect on Milner Balls words (Id. at 61) : "Because we say we have a government of laws and not men, we hold our government to be limited and to have no unlimited power. If the federal government nevertheless exercises unrestrained power over Indian nations, then what we say is not true, and we have a different kind of government than we think we have. And if our government is different in fact in relation to Native Americans, perhaps it is not what we believe it is in relation to other Americans, including ourselves. The Court is regarded as the institution of restraint and a protector of rights. If the Court restrains neither Congress nor itself in taking away tribal rights, then we are confronted by a fundamental contradiction between our political rhetoric and our political realities. " RASHIMGTOM STATZ GOVERMMEMT- EXAMPLE OF h COMSTITDTIOMAL EMIGMX Washington State has been allowed to violate its constitution just as the United States has in regards to Indians. This should not be surprising for in doing so both governments secure great contributions to their treasuries through the application of tax codes to income or lands and natural resources. Both governments have supreme courts that were willing to classify the matter as a "political question" and ignore its implications to the canons of construction of constitutions nationwide. This section will address those errors. To understand the relationships of states to the national government we need to reach a concise understanding of " Our 20 385 American Government " (93d Cong., 2d Session, House Document No. 93-341, p.l), as follows: ...we have at the local, state, and national levels a democratic, representative, republican form of government. It is "democratic" because the people govern themselves; "representative" because they do so through elected representatives chosen by ballot; and "republican" because the government derives its powers from the people. All new states, admitted to the Union after 1787, were secured this guarantee by the N.W. Ordinance of 1787 and Article IV of the Constitution, provided their choice of government was "republican" in form. Thus, a new state derived its governmental power from the people- founded on popular sovereignty first and foremost. Yes, there were constitutional radicals of 1787 that held that "state sovereignty" was in place of the king, who previously delegated his authority through the colonial charters. This was acceptable under the Articles of Confederation but did not survive the constitutional rewrite. Now state sovereignty was popular in its originating source (U.S. Constitutional Preamble & Article IV). We will review the relationship between the United States and the Indian tribes, as relates to the qualifications for statehood and membership of emerging territorial governments. Our example, herein, is primarily the State of Washington. But, its history is fairly generic to many of the new states (at least 12) west of the Mississippi and Missouri Rivers. What is conclusive is that Indian Country {reservations within the borders of the State) is still extraterritorial to the state; based on canons of construction of written constitutions, although ignored due to the use of legal fictions to justify state jurisdictional expansions in the Rehnquist Court (See: U.S. v. Wheeler , 435 U.S. 313 (1978); Oliphant v. Suquamish Indian Tribe , 435 U.S. 191 (1978)). The State of Washington joined the United States in 1889, more than one hundred years after the formation of the Union. The State Constitution begins with the Preamble: "We, the People of the State of Washington, Grateful to the Supreme Ruler of the Universe for Our Liberties, Do Ordain this Constitution." This is an important source directly confirming "popular sovereignty" as the foundation to state governance. State governance did not derive from replacement of the "King's sovereignty" as was the case with some of the first of the thirteen original states (those with Charters of Incorporation) . Under the "Articles of Confederation" individual state sovereignty was believed to be in lieu of the King versus the "social contact" theory of popular sovereignty. Instead, we find a direct modeling on the "We, the People of the United States" popular sovereignty. This is confirmed in the Washington State Constitution, Article I- Declaration of Rights, in Section 1, which provides: "All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are 21 386 established to protect and maintain individual rights." Here, it is evident, the same popular sovereignty that was held supreme to individual state sovereignty in the 1787 U.S. Constitutional Convention, as incorporated in the ratified constitution, is found instituted at the state governance level. The U.S. constitutional model famously separated the sovereignty exercised by the King into its logical segments: 1) the legislative powers were vested in the Congress (Article I), to make the laws; 2) the Executive powers were vested in the President (Article II), to enforce the laws; 3) the Judicial powers were vested in the Supreme Court (Article III), to interpret the laws; 4) the new states could be admitted into the Union (Article IV), with a guarantee of a republican form of government; 5) the People, as the source of governmental powers, had powers to secure Amendments (Article V) , to prevent tyranny from over-coming government and people; and, 6) the constitution, treaties-made, and acts of Congress are supreme law of the land. We find direct parallels in the Washington State constitution, which had followed the recommended structure of republican governance. Article I - Declaration of Rights assured inherent rights of the people would not be trampled by over-zealous government. Article II vested the "legislative powers" in the state Senate and House of Representatives, to make the laws. Article III vested the "executive powers" in the Governor, and his various subparts, to enforce the laws. Article IV vested the Judicial powers into a State Supreme Court and various lesser judicial forums, to interpret the laws. The power to amend the constitution, in order to assure that tyranny does not prevail over the democratic populace, was secured as well in Article XXIII- Amendments. Like other new states, Washington had to recognize the U.S. Constitution was supreme; thus, under Article I- Declaration of Rights, in Section 2, it was provided: "The Constitution of the United States is the supreme law of the land." This important statement was only second to the declaration on popular sovereignty found in Section 1 (noted above) . It, also, was in line with the U.S. constitutional requirements found under Article VI. Like the United States, Washington simultaneously had, and continues to have, a separate population of inhabitants that are different politically and legally from "state citizens" and are called "tribal Indians." In respect to the original, unamended language of the Washington State Constitution, under Article VI- Elections and Elective Rights, Section 1 provides: [All male persons of the age of twenty-one years or over, possessing the following qualifications, shall be entitled to vote at all elections. They shall be cltizans of the United States; they shall have lived in the state one year; and in 22 387 the county ninety days, and in the city, town, ward, or precinct thirty days immediately preceding the election at which they offer to vote: Provided, That Indimns not taxed shall never be allowed the elective franchise; ... " The State of Washington did amend this section (Amendment 2) of its constitution in November of 1896; but, still, the language dealing with the "Provided, That Indians not taxed shall never be allowed the elective franchise.." was retained. Nor was it changed by the svibsequent enactment of the female franchise qualification (Amendment 5), or age quantification. It must be noted that the definition of "excluding Indians not taxed" in the U.S. Congress Reconstruction Debates specifically addressed the fact that "taxing" an Indian does not change his constitutional status. An Indian qualifying to exercise the franchise, state or national, was not a simple matter of taxation or wealth. The reference to the phrase in the state constitution is a confirmation of the national constitutional standard. In conclusion, the Indians were not state or U.S. "citizens" based on the 14th Amendment. We must remember, that the State of Washington (1889) came into the Union after the Civil War. The Fourteenth Amendment was already a part of the U.S. Constitution. Section 1 of the U.S. Constitution provided that Indians not taxed were not "subject to the jurisdiction" of the United States, that is why the U.S. entered treaties with the tribes or regulated commerce with them; nor, in Section 2 were Indians subject to individual state jurisdiction, as exemplified by reiteration of the words "Excluding Indians not taxed" in the section (See; Minutes of the Reconstruction Debates , 39th t 40th U.S. Congresses, 1866-1868) . Thus, the Washington State Constitution, in Article II- Legislative Department, restricted the ability to count the "tribal Indians" living within the exterior boundaries of the states as amongst those represented by State government. It provided, therein, as follows: Section 3. The legislature shall provide by laws for an enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five, and every ten years thereafter; and at the first session after such enumeration, and also after each enumeration made by the authority of the United States, the legislature shall apportion and district the anew the members of the senate and house of representatives according to the number of inhabitants, Mceludlng Tndiana not taxmd, ....". The United States, during the "Colonialization of the American Indians," from 1848 to 1871 (See: Federal Indian Policy , by F.P. Prucha) , was sifflultaneously expanding ever westward, west of the 23 388 Mississippi and Missouri Rivers, formerly the exclusive Indian Territory. The U.S. federal Indian treaty policy shifted under the Administration of George Manypenny, Commissioner of Indian Affairs, then located inside the Department of Interior {as transferred from the War Department, 1848) . Indians, by treaty, were to be relocated to the new "Indian Reservations." In return for treaty commitments from the United States, to guarantee retention of inherent and "reserved rights" of the tribal people and their governments (See: U.S. V. Winans , 198 U.S. 371, at 381 1905), the U.S. secured millions o? square miles of ceded lands from the tribes by treaties. The tribes never gave up their rights to self-determination and self-government or jurisdiction over their interior affairs under those treaties. The newly emerging states (after 1848, more or less) were obliged to develop state constitutions under the requirements in^osed by the U.S. Constitution (Article IV, Section 4); that is a "republican form of government." At the same time, the United States, based on the treaty cessions of land, and under the powers to rule t regulate such lands, issued territorial entitlements to the new states under authority of Article IV, Section 3. The United States continued to exercise the national powers over the control and regulation of "Indian Affairs" above and beyond the powers of the individual states. The State of Washing- ton, lilce many of its peers, was required to acknowledge this restriction in its constitution. Thus, Article XXVI- Compact With The United States provides, still, today: The following ordinance shall be irrevocable without the consent of the United States and the people of this state: First Second, That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Tndimn or Indian tribma; and that, until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the CAiited States, and that the lands belonging to citizens of the United States residing without the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof, and that no taxes shall be iaposed by the state on lands or property therein belonging to or which may be hereafter purchased by the United States or reserved for use: Provided, That nothing in this ordinance shall preclude the state from taxing, as other lands are taxed, any lands owned or held by any Indian who baa amrmrmd his tribal rmlatlon, and has obtained from the United States or from 24 389 any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long as and to such an extent as such act of congress may prescribe. " It is important to take historical note of the two important sources of information available to define "excluding Indians not taxed" and "tribal Indians" at the time this constitutional compact was drafted. The first source was found in the U.S. Constitutional Debates on Reconstruction, during the 39th and 40th Reconstruction Congresses (1866-1868) . It was made very clear the Indians who have maintained their "tribal relations" were otherwise known constitutionally as "excluding Indians not taxed." And, they were not "subject to the jurisdiction" of the United States (Section 1, 14th Amendment), nor were they subject to the jurisdiction of the State (s) (Section 2, 14th Amendment). This whole constitutional construct of the language was reviewed in the case of Elk v. Wilkins (112 U.S. 94, 1884), which confirmed this constitutional separation of tribal Indians from the general citizenship and the jurisdiction of both state and national governments. This case was five years old when the State of Washington was admitted into the Union. Tribal Indians were separate and had their own governance over tribal internal affairs, and external government-to-government relationships (as in treaty relations) . Another case. Won Kim Ark preceded this definition, in dicta, but indicated its correctness of interpretation at the time. For a more indepth review of the status of the Indians (as "excluding Indians not taxed") the reader should see the Department of Interior Solicitors Opinions (November 7, 1940 and November 22, 1940. pp. 990-1000) ; however, beware, while the opinions are historically correct, the author was obviously forced to conclude the Indian Citizenship Act overrode the 14th Amendment. It is important to take notice that, over time, there were individual Indians that had separated themselves from the tribes to become non-tribal (just as John Elk, the Omaha Indian did, per the ElK case), as anticipated in Article XXVI, Section 2 of the Washington Constitution. Such Indians were no longer considered as covered by the language of "Excluding Indians not taxed." Such individuals, when new states emerged from territorial status, could become classified as non-tribal Indians by their separation from their tribal people. They could, as delineated in Elk , become citizen Indians. Many individual Indians refused to move to the treaty-established reservations. Instead, they separated from the tribes and became owners of "Indian homesteads" under various acts of Congress (e.g., Dawes Act of 1887 and Indian Homesteads with trust periods) . In the State of Washington many Indians became non- tribal and lived on such homesteads. They form the modern day 25 390 Nooksack, Stillaguamish, Upper Skagit, and other "tribes" (e.g., the Samish) most recently recognized by the Department of Interior. Today their "reservations" are actually remnants of old Indian homesteads that were secured under an Act of Congress and placed into "trust" for twenty-five years, unless extended in time. The difficulty for state governments has been the inability to distinguish, over time, between those Indians that have always maintained their tribal relationships and identity (for example, the Lummi, Swinomish, Tulalip, Suquamish, Nisqually, and other treaty tribes of Washington State located on treaty established reservations) and non-tribal Indians that refused to relocate upon a reservation but lived on family homesteads, separate from tribal communities. This is why the State of Washington Constitution addresses "tribal Indians" and "excluding Indians not taxed" as a means to qualify those who it does not have jurisdiction over. Individual Indians with homesteads, of course, eventually qualified as U.S. Citizens and thereby became a state citizen, capable of exercising the elective franchise, once their period of trust protection expired over their homesteads (originally 25 years) . Now, today, Washington State has exercised the power to amend its constitution seventy-five times successfully, with an additional eight amendments still pending proper ratification. And, it is noteworthy, that the State never once addressed the limitations imposed by Article XXVI, as pertains to the Indians and the lack of state jurisdiction over the same. Washington State was not the only newly emerging State to join the Union with a restriction on jurisdiction over Indian Country. Of the dozen, or more, states with constitutional disclaimers there have been different approaches to reacting to the "constitutional amendment" requirements imposed upon those states when the issue of P.L. 280 surfaced sixty-four years later. There were several new, earlier mid-western states admitted into the Union without "constitutional" disclaimers; but, their enabling legislation did disclose their legislative disclaimers of jurisdiction over Indian Affairs. However, as pressures for westward expansion increased, the restrictions upon jurisdiction became more pronounced and constitutional disclaiaers were a mandated part of the legal price for Union admission. The States of Washington, Montana, Arizona, North Dakota, Utah, Wyoming, Alaska, Idaho, South Dakota, Colorado, New Mexico, Oklahoma, and Hawaii, for exaaple, are "constitutional disclaimer states." But, states that were admitted into the union closer in time to the federal Indian policy shift that transpired in the late 1840*8, at the beginning of the colonialization of the American Indian, ended up with enabling act (legislative) limitations and not constitutional prohibitions. Washington, Montana, Arizona, Idaho, North Dakota, Utah, and 26 391 South Dakota all represent the conflict over whether or not state constitutional amendments were mandatory for these states to assume jurisdiction over the Indian reserves under authority of Public Law 280. These states had/have constitutional disclaimers. The people of Wyoming voted down the proposed constitutional amendment to remove the disclaimer. The State of North Dakota was sued and forced to submit the question as a matter of amendment to the people. South Dakota, like the State of Washington, simply sought to ignore canons of construction of written constitutions and superimposed their claims to jurisdiction by legislation. The South Dakota Supreme Court inviolated the state's legislative assumption of partial jurisdiction. The Supreme Courts of Arizona, Washington, and Montana upheld the legislative assumption, even though it was contrary to the state constitutions. These states manifest a dangerous cancer growing in the U.S. constitutional republic. For those without the background on Public Law 280, a review may be appropriate. From 1948 to 1974, the United States shifted its federal Indian policy and began to "terminate tribal Indians." There was popular support, in the Terminationist Congress of 1953, to enact the proposals for state assumption of criminal (25 U.S.C.A. Section 1321, and 18 U.S.C.A. 1162) and civil jurisdiction (25 U.S.C.A. Section 1322, and 28 U.S.C.A. Section 1360) over any and all... offenses or causes of action respectively within the borders of the Indian reservations, and the mentioned states. In 1968 (See: Indian Civil Rights Act, and 25 U.S.C.A. Section 1321, 25 U.S.C.A. Section 1326), the tribes, and their allies, were able to convince the U.S. Congress to take a step backwards and to assure the tribes' "consent" would first be obtained before the non-mandatory states attempted to apply Public Law 280. However, the consent issue aside, section six of Public Law 280 provided: "Notwithstanding the provisions of the enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assiunption of civil or criminal jurisdiction in accordance with the provisions of this subchapter. The provisions of this subchapter shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes, as the case may be (25 U.S.C.A. Section 1324, originally enacted as Act of Aug. 15, 1953, Ch. 505, Section 6, 67 Stat. 590). This section did not authorize the violations of canons of construction of written constitutions. Those states with constitutional prohibitions should have had to remove the offending language by amendment, to determine if it was the will of the people (the source of governmental power) . The choice of the people of Wyoming as "No" to the amendment. South Dakota had to be sued and forced to retreat from the legislative route. But, the other 27 392 mentioned state supreme courts ignored the constitutional requirements. The U.S. Supreme looked that other way, under the claim that this was a matter of "state law" and not a federal question. But, it is a federal question under Article IV, Section 4, in that it erodes the value of the "guarantee to every State of this Union a Republican Form of Government." In retrospect, some states began to realize, after assumption of criminal and civil jurisdiction, that there always is a cost to the tax payers whenever governmental jurisdiction is expanded. Therefore, states, like tribes that were dissatisfied with state unilaterally assuming jurisdiction over Indians, sought the establishment of federal retrocession processes to reverse the assumption. Thus, 25 U.S.C.A. Section 1323 was enacted to authorize an orderly retrocession, although not all states have been willing to retrocede some have (e.g., Arizona). Even with retrocession as a possibility, this does not excuse the violations of the republican form of government so cherished in America today (although current militias indicate a backlash) . It has not been a simple question of which state lawfully assumed jurisdiction, when addressing the differences between states that had constitutional disclaimers, like Washington for example, versus states that had organic document (legislative) dis- claimers, like Minnesota. The Supreme Court had the opportunity to address and apply a uniform canon of construction of written constitutions to all states, in light of the "Amendment" powers written into the republican forms of state government mandated in the U.S. Constitution and N.W. Ordinance. One such opportune case to address this as a federal question was Washington v. Yakima Tribe (439 U.S. at 484, in 1979). The effect of the Court decree equates acts of legislature equal to constitutional amendments; which is a legal fiction that undermines the soundness of constitutional republican governance (at both the state and national levels) . It makes a mockery of the retained powers of amendment belonging to the populace, a power that is the checloaate against tyranny in popular based governments. Such a frivolous review by the Supreme Court reminds us of the Radio Address of President Roosevelt in which he stated, "I want what all Americans want, a United States Supreme Court that shall adhere to the canons of construction of written constitutions, and not amendment by judicial sayso." Legal fictions that make legislative enactments the equivalent to constitutional amendments are directly manifest of the fear that confronted the President. It must be recognized that Washington State, as an example, makes a revenue windfall by exercising illegal taxation jurisdic- tion inside the boundaries of the Indian Reservations. The federal court ruled that P.L. 280 gave the state this jurisdiction when in fact it definitely was silent on taxation powers. This assumption of taxation jurisdiction made a mockery of the constitutional 28 393 amendment process, nationwide. It has been implemented as a cheap means to secure state jurisdiction over Indian Affairs for the enrichment of the state treasury, contrary to national law. In addition, the state has had the support of the Supreme Court in cases that effectively were a " looking- the-other-way" review; in order to allow the states to collect (otherwise illegal) taxes on the sales of cigarettes, alcohol, or any other commercially valued goods of commerce and trade sold in Indian Country by Indians to non-Indians. These judicial interpretations have been founded upon legal fictions- there are no federal tax enactments that extended this taxation power to the states over Indian Country. Neither of the respective provisions of delegated authority found under the criminal or civil portions of Public Law 280 authorized any type of taxation authority to the state (s) over Indian commerce; but, the Supreme Court "legalized" this exercise of jurisdiction by alleging the enactment did extend this type of jurisdiction to the state(s). The U.S. Congress did not purposely exercise the powers of the Indian Commerce Clause (Art. I, Sec. 8, CI. 3) and give the states this taxing jurisdiction under P.L. 280 (this assumes the clause reaches into Indian internal affairs) . It is an established doctrine that such actions must be expressly done in clear and unambiguous terms to be legal; but, the Rehnquist Court has ignored this doctrine to the convenience of state governments. This type of legislative power (i.e., legislation by judicial decree) is not delegated to the Supreme Court under the enumerated powers or the implied powers of the constitution. The whole construct violates the separation of powers and checks & balances doctrines of the U.S. Constitution. The Supreme Court has simply followed the popular state politics of the day and terminated an exclusive area of jurisdiction reserved by the tribes- as a natural extension of their inherent power. The Court held that such powers are secured to the United States by its exercise of the "Commerce Clause" power (Article I, Section 8, Clause 3, as its source of "plenary powers" over Indian Affairs), when the nation chose to exercise this power. Originally this clause was intended to govern the actions of non-Indian citizens and not the internal affairs of the Indian tribes; thus, another legal fiction of convenience (See: U.S. V Kagama , 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) has gained ground. There are no constitutional justifications for the U.S. Supreme Court to violate the "separation of powers" doctrine. But, whenever the court reads into the law that which is not there and never intended by the congress, then it legislates by judicial decree. The Court should leave it to the congress to exercise the "commerce clause" in its own time. We, the tribes, of course, prefer the congress to use the enumerated power to regulate their citizenry and not the internal affairs of the tribes. 29 394 Neither the language of the U.S. Constitution, or the various state constitutions, empowers or authorizes the Congress to "waiver the tribes sovereign immunity" or remove "civil jurisdiction" from the control of the tribes. Such power cannot be found in the treaty-making power, the commerce power, nor the exclusion of Indians from representation in the republican government. We have seen that the doctrine of "discovery" had given the foreign sovereigns, in international law, the rights of first purchase to the exclusion of all others, if the Indians chose to sell. The doctrine of "conquest" is a legal fiction given great weight in the Tee-Hit-Ton Court (1954), as more then seven hundred treaties of peace and friendship attests to the contrary. The tribes were never incorporated by either the state or U.S. governments, according to Chief Justice Marshall. Justice Rehnquist had created a fictional incorporation to justify the destruction of tribal governance since 1978, and in contravention to Marshall's precedential rulings. This conflict continues to influence the underlining debates over Indian self-governance, as secured by national legislation since 1988. As noted, this self -governance issue reflects the old "capacity" debates of five hundred years ago. It is a shame after the passing of centuries, there are still ignorant politicians and special interests that perceive themselves as superior to Indian people and governments as much as the "Conquistadors" did under the "encomienda" system. The attempts to take away tribal civil jurisdiction can only be branded as racial politics in its greatest manifestation... the abuse of the power of "We the People," in a form of governmental tyranny (plenary power) over Indian Affairs, is used like the sword of Juan Gines de Sepulveda to the detriment of all tribes. In the beginning, the United States had used the "Indian commerce clause" to limit the actions of unscrupulous whites when they entered Indian Country. However, the protective use of this power has been used very infrequently. The most recent controversial use of the p>ower has been the Indian Gaming Regulatory Act. The power could have been exercised to provide a strong "Indian Tribal Government Tax Status Act" that would have effectively let Indians participate in the national economy; but that dream was killed because of a few dissatisfied congressmen. The list of protective use of the power is not to great. There are so many non-Indians that claim the reservations are not conducive to business development. Much of the confusion is the result of weak, antiquated federal laws in trade and intercourse. The Congress can easily exercise this power to mandate the development of a "Uniform Commercial Code" that would alleviate the business communities' fears of doing business in Indian Country. Remember, it took half a century, or more, for the draft UCC to be completed in a form acceptable for all the members of the Union. 30 395 The "Guardian" has not chosen to help the "Ward" develop to a level it can compete and survive on its own. If "plenary power" is based on the "Indian commerce clause" then that power should be used to the enrichment of the ward, not the guardian. Indian gaming and other commercial enterprises have always had a great "multiplier" impact upon the surrounding non-Indian communities, in increased jobs and dollar marketability, as can other ventures. The Indian reservations have the highest infant mortality, shortest life-expectancy, poorest housing, highest poverty, lowest educational/vocational attainment, and highest unemployment and underemployment. In addition, the federal policies, over time, have destroyed the Indian family, extended family, sense of community and the correlating trational and ceremonial values & religions, as well as purposely undermined tribal self-governance. All Indian lands and natural resources had been in the complete control of the Bureau of Indian Affairs, and has resulted in a significant portion of the reserved lands being sold to non-Indians for pennies on the dollar. When the states made it illegal for Indians to hunt, fisn, or gather then starvation set in and public assistance was only available if the Indians immediately sold all interests in tribal land. Any business or industrial developments planned for Indian reservations are immediately challenged by local government and the resultant lawsuits drive away the investors. Any income entering the reservation is then taxed by the federal government based on the current application of the Internal Revenue Code to tribal Indians based on tax court decisions, not legislative enactments. This is why the current hearing is offensive to the tribes! The United States should exercise power with honor not disgrace. 31 396 Testimony of Bin Anoatubby, Governor of the Chickasaw Natkm Senate Committee on Indian Afiairs September 24, 1996 Mr. Chairman, on behalf of the people of the Chickasaw Nation, I extend otir appreciation for being given the opportunity to provide comments before the distin- guished members of this Committee. My name is Bill Anoatubby, and I am the governor of the Chickasaw Nation. One of the Five Civilized Tribes, the Chickasaw Nation encompasses more than 7,648 sqtiare miles of south central Oklahoma. According to the 1990 Census, the Chickasaw Nation is the 13th largest Indian tribe in the United States. We are pleased that the Senate Committee on Indian Afiairs is allowing us this opportunity to provide input regarding the overall issue of tribal sovereign immunity. We are also pleased to acknowledge, with gratitude. Vice Chairman Daniel Inouye's commitment to hold this hearing regarding the concerns included at Section 329 of the Senate's Fiscal Year 1997 Interior Appropriations bill. The Chickasaw Nation has been blessed in many ways. Among those blessings, we count the excellent working relationship that our tribal government has with many members of the Congress. It has been our honor and privilege to have also worked closely and well with ntmierous federal departments and agencies. That working relationship has been fostered by— and founded upon— the govemment-to-goverhment dealings which have been mandated throughout the history of the United States of America. 397 That mandate has been contained in every single treaty between our two nations. Between 1787, the year of the first treaties between the United States and tribal governments, and 1 871 , the year in which treaties were no longer entered into between the federal and tribal govrmments, hundreds of treaties were condudcd. In virtually every one of those treaties, each tribe gave up its lands in exchange for promises by the federal government. Those promises have amounted to and are considered to be the trust obligations which the United States has for the tribes and their citizens. When considering the entire history of American-tribal rebtions, it is easy to see that those obligations have not always been totally and faithfully upheld by the federal government. Scrutiny of those obligations is required every day by the challenges and demands placed upon both our governments. That scrutiny often leads to the removal of more and more of the powers and authorities of the tribes, and those are powers and authorities which ought to be exercised by and reserved to iiny government. As the trustee for the tribal nations, it should be the responsibility of the federal government to make sure that the sovereign powers and authorities of the tribes are not only protected, but expanded to at least equal those of other governments insofar as regulatory powers within the tribe itself are concerned. In the beginning of the history of the United States, treaties between America and the tribes were agreements between equals, one sovereign to another. Tribal governments were accorded the same significance and respect as any foreign nation. Because of the -tenuous condition of the new United States of America, every effort was made to seek and obtain the tribes as valuable and important allies. 398 Aa one of the first tribes on this continent to befriend the fledgling Americans in their efforts to found the United States, the Chickasaw Nation has been a staunch friend and reliable ally. When the call to arms was issued by the Continental Congress, the Chickasaw Nation responded with a force under the leadership of one of our great war chieB, Piomingp. Piomingp and his party of Chickasaw warriors walked more than one thousand miles to respond to General George Washington's call for help. Fifty years later, our tribal leaders were presented with the demand from the nation's capital that we surrender the lands our ancestors had called home for thousands of years. And that was just the beginning of the long and convoluted evolutionary process of the United States governments' dealings with the tribes, constituting what amounted to federal Indian policy. The Chickasaw Nation was one of the subjects of a move in Congress to terminate the tribal governments of the Hve Civilized Tribes and end the status of each of those as tribal nations and governments. Operating under that belief from the time of Oklahoma statehood in 1907, it was not until 1969 that we, ourselves, found out that, despite the intentions of Congress, the Chickasaw Nation and the others of the Rve Civilized tribes were not terminated in law. In 1 971 , we reinstituted our tribal government and are now making progress like our tribe has not seen since before the American Civil War. We have so for stirvived all sorts of attempts to restrict our sovereignty, attempts which amount to direct threats against the very eidstence of our tribal nation. Those threats have been mounted fitim— it seems— all directions. In the earliest days of the United States, the tribes were courted because they were powerful and becatisc they 399 coQtTolled the lands. Those lands were later desired and needed hr the expansion of the United States, so they were taken. Then, when the tribes had learned to survive— if not benefit and prosper— on their 'new* lands, the demands came that even those lands were needed in the national interest of expansion. Having been herded onto lesser and lesser desirable lands, the tribes made do with what they had, at least ontil it became time to, once again, take those remaining lands away from them. Year by year, treaty after treaty was negated, ignored or abrogated. In the history of the United States, the Congress formulated federal Indian policy which evolved hand-in-hand with the perceived needs of the cotmtry. At first, the policy was to treat with the tnLv~ as governmental equals. Then the policy shifted to one of removing the tribes from their lands and resettling them in areas which would not be under immediate threat or demand. The policy then changed to one of termination or, failing that , assimilation. Finding that neither one of those worked very well, the emphasis shifted to a more grandfatherly manner of dealing with the tribes, through which everything was done for the tribes by the federal government, in what was at that time determined to be the "best* method of providing for the tribes and their citizens. That period was followed by the period in which we now find ourselves, that of self- determination and self-governance. Through the urging and strong support of the Congress, the White House and other federal agencies, the tribes have more or less accepted the challenge of devismg and developing their own tribal economies, of aggressively seeking through business development, unique methods to generate their own revenues to lessen their dependence 400 on federal funds and to provide through their own mechanisms the services and programs needed by the Native American population. The tribes were suddenly expected, and asked, to perform and function like 'normal' governments. 'hJormal* governments have the ability to generate the revenue they need to operate through methods such as taxation. One of the primary considerations not often given to the development of tribal economics is that, although tribes do indeed have their own governments, their land base upon which to rely for the generation of taxation revenue for their governments (like virtually every other government in America) is practically, for taxation purposes, nonexistent. Without that source of revenue to rely on like states, counties, municipalities and even the federal government, the taxing base for most tribes is so limited as to be extremely impractical as a consideration as a primary source of governmental revenue generation. In the last two decades, the tribes have managed to work with what they have determined to be their assets. For many tribes, that has meant taking advantage of every single opportunity to provide for their citizens. They have developed tribal enterprises to augment and supplement the dwindling federal dollars— dollars which the United States was obligated through its trust responsibility— to be used to meet the ever-growing and changing demands and basic needs of our people. They have taken advantage of the congressional mandate to practice self-governance, to determine and define their destinies as tribal nations. In accepting that challenge, the tribes have relied not only upon the 'traditional' methods of generating governmental revenue (taxation, regulation, etc.), but they have responded to the challenges to provide for themselves in tmique and clever ways. 401 The Chickasaw Nation, which only 25 yean ago was totally dependeat upon fedcial fiinds to provide services and programs for its people, today pays for the cost of its core government entirely from the revenues it generates through its btisinesses. Now, only about 40% of the annual budget of the Chickasaw Nation comes frtrni the federal government. We have risen to Congress' challenge to be self-governing, and those eflForts, now restating in true progress for many tribes, mtst be protected. Some of the tribes, through their efforts at self-governance through business development, have prospered tremendously and, in that prosperity, they have managed to somewhat unnerve the observers of Indian Country. Utilizing their remaining powers and authorities, the tribes have developed at phenomenal rates in creative ways. Use of state-of-the-art technology in developing reservation and non-reservation tribal economies, coupled with the tribes' abilities to practice self-governance and somewhat limited self-regulation, have stirred jealousy and contempt. It is a brand of jealousy and contempt not unlike that which the early settlers had for the Indians; they merely wanted what the tribes had— their lands. Today, the tribes have been able to take what little they have at their disposal and work with it to bring some measure of success. That success has resulted in several attempts by members of Congress to attack, limit or even remove tribal sovereign autonomy. The language of the proposed— and now withdrawn— Section 3 29 of the Interior Appropriations bill is not as comprehensive in its effort to limit or restrict the sovereign powers of tribal governments as some attempts have been. Nevertheless, it represents 402 what is perceived to be a threat to remove an attribute of sovereignty which has long been reserved to non-tribal sovereign governments in this country, and that is the right to be immune from suit. It abo contains a provision which would subject a tribe to the jurisdiction, orders and decrees of the a pprop r ia te state court of general jurisdiction.* Subjecting the tribes to the jurisdiction of any state court for any reason-is not only an abrogation of tribal governmental power and authority, it creates a poor precedent by forcing tribes and states into a relationship which has never before eidsted. No treaties have been entered into between tribes and state governments (states are forbidden from doing so by the United States Constitution), so there is no basis for any state to give any credence to tribal authority or self-governing powers. Given the treatment of tribes in state courts in other matters, and knowing that there are no trust obligations or even govemment-to-govemment relations between tribes and states, it should be clear that such a move would be disastrous. It would challenge the very progress that tribes have been making in the last 20 years by subjecting them to the controlling authority of a state government— a government which has absolutely no obligations to a tribal government and has no history for such dealings. Such a measure will surely re*'ilt in placing yet another different range of obstacles before tribal development and the practice of tribal autonomy. It would also create other problems which we believe have not been given adequate review or consideration, and for which no input from tribal governments has before now been sought. 403 Several federal agencies deal with tribes and treat them as states (the U^. Environmental Protection Agency and the U.S. Department of Agrioilttire treat tribes and work with them on the same level as they do with the various state governments). The language of Section 329 would not only have made tribes subject to state government (at least in the instances included in Section 329), it could also have placed into jeopardy the relationships which tribal governments have and cultivate with federal agencies. Because tribes are, for many instances, treated the same as states, would Gmgress propose subjecting the control or regulatory authority of one state to another? Another consideration is the fact that governments, ranging from municipal to county to state and federal, have the rights, powers and authorities to make decisions affecting lands over which they ezerdse jttrisdiction. That, too, is a basic tenet and principle of sovereignty. As dependent nations, tribal governments should have the same power and authority as any other gofvemment to exercise full jurisdiction over lands