I am Jeffrey C. Sullivan, Yakima County Prosecuting Attorney. I have been the elected prosecutor since 1974.

Yakima County is the second largest county in the state of Washington and is one and a half times the states of Rhode Island and Delaware combined. The Yakama Indian Reservation contains 1.3 million acres, one million of which are in Yakima County. The reservation has a population of approximately 30,000, 23,000 which are non-Indians. I have appeared twice before the United States Supreme Court an issues involving tribal rights and responsibilities. I currently have a case pending before the Washington Supreme Court involving Indian Hunting Rights.

I believe S. 1691, the American Indian Equal Justice Act, should be passed. General Sovereign Immunity as applied to tribal government is wrong and Congress should act immediately to correct it.

STATE IMMUNITY

Mr. Justice Traynor in Muskopf v. Corning Hospital District, 359 P. 2d 457 (1961) at pages 458, 459 and 460 states as follows:

"After a re-evaluation of the rule of government immunity from tort liability we have concluded that it must be discarded as mistaken and unjust ...

The shifting fortune of the rule of governmental immunity as applied to hospitals is illustrative of the history of the rule itself From the banning there has been misstatement, confusion, and retraction. At the earliest common law the doctrine of "sovereign immunity" did not produce the harsh results it does today. It was a rule that allowed substantial relief. It began as the personal prerogative of the king, gained impetus from sixteenth century metaphysical concepts, may have been based on the misreading of an ancient maxim, and only rarely had the effect of completely denying compensation. How it became in the United States the basis for a rule that the federal and state governments did not have to answer for their torts has been called 'one of the mysteries of legal evolution." Borchard, Governmental Responsibility in Tort, 34 Yale L.J 1, 4.

The rule of county or local district immunity did not originate with the concept of sovereign immunity. The first case to hold that local government units were not liable for tort was Russell v. Men of Devon, 100 Eng-Rep. 350. The case involved an action in tort against an unincorporated county. The action was disallowed on two grounds: since the group was Unincorporated there was no fimd out of which the judgment could be paid; and "it is better that an individual should sustain an injury than that the public should suffer an inconvenience." 100 Eng. Rep. 359, 362. The rule of the Russell case was first brought into this country by Mower v. Inhabitants of Leicester, 9 Mass. 247, 249. There the county was incorporated, could sue and be sued, and there was a corporate fund out of which a judgment could be satisfied. Ignoring these differences, the Massachusetts court adopted the rule of the Russell case, which became the general American rule.

If the reasons for Russell v. Men of Devon and the rule of county or local district immunity ever had any substance they have none today...

The rule of governmental immunity for tort is an anachronism, without rational basis, and has existed only by the force of inertia,..

None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity."

The Illinois Supreme Court in Molitor v. Kaneland Community Unit District 302, 19 III App. 2d II, 16') N. E. 2d 89 (1959) in doing away Illinois sovereign immunity stated at pg. 94 as follows:

"We are of the opinion that school district immunity cannot be justified on this theory. As was stated by one court, "The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modem age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, 'the king can do no wrong,' should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs." Barker v. City of Santa Fe, 47 N.M. 85, 136 P.2d 490,482. Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that "divine right of kings" on which the theory is based.

The other chief reason advanced in support of the immunity rule in the more recent case is the protection of public funds and public property. This corresponds to the no fund" or "trust fund" theory upon which charitable immunity is based. This rationale was relied on in Thomas v. Broadlands Community Consolidated School Dist., 349 III-App. 567, 109 N. E. 2d 636, 640, where the court stated that the reason for the immunity rule is "that it is the public police to protect public funds and public property, to prevent the diversion of tax moneys, in this case school funds, to the payment of damage claims." This reasoning seems to follow the in that it is better for the individual to suffer than for the public to be inconvenienced. From it proceeds defendant's argument that school districts would be bankrupted and education impeded if said districts were called upon to compensate children tortuously injured by the negligence of those districts' agents and employees.

We do not believe that in this present day and age, when public education constitutes one of the biggest businesses in the country, that school immunity can be justified on the protection-of-public-funds theory."

The Supreme Court of Florida led the way in judicial abolishment of sovereign immunity. In an opinion authored by Justice Thornal, the Court in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (1957) which as a case involving a jailer who left a prisoner unattended while the cell filled with smoke, resulting in the prisoner's death. The trial court, following prior Florida law, dismissed the suit based on sovereign immunity, The Florida Supreme Court realized this was unjust and stated at page 131 as follows:

"We are here faced squarely with an appeal to recede from our previously announced rule which immunizes a municipal corporation against liability for torts committed by police officers. The rule against municipal liability for torts has been the subject of thousands of pages of learned dissertations. We are told that since 1900 well over two hundred law review articles alone have been written on the subject. Innumerable textbooks have made their contribution, most of them adversely critical.

Immunization in the exercise of governmental functions has been traditionally put on the theory that the "king can do no wrong but his ministers may". In applying this theory the courts have transposed into our democratic system the concept that the sovereign is divine and that divinity is beyond reproach. In preserving the theory they seem to have overlooked completely the wrongs that produced our Declaration of independence and in the ultimate resulted in the Revolutionary War. We, therefore, feel that the time has arrived to declare this doctrine anachronistic not only to our system of justice but to our traditional concepts of democratic government.

The immunity theory has been further supported with the idea that it is better for a individual to suffer a grievous wrong than to impose liability on the people vicariously through their government. If there is anything more than a sham to our constitutional guarantee that the courts shall always be open to redress wrongs and to our sense of justice that there shall be a remedy for every wrong committed, then certainly this basis for the rule cannot be supported."

In the State of Washington, this issue was dealt with by the legislature in 1961. RCW 4.92.090 Chapter 136 91961) The State of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortuous conduct to the same extent as if it were a private person or corporation."

In 1967, this principal was extended to all local government entities. RCW 4.96.010.

FEDERAL IMMUNITY

On August 2, 1946, after nearly thirty years of congressional consideration, drafting and redrafting, a federal tort claims act of general applicability was adopted. In basic outline, this act is simple. It subjects the United States to liability in the federal courts for money damages ... for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

Mr. Justice Jackson, writing for The United States Supreme Court in Feres v. United States, 71 S. Ct. 153 (1950) states at page 156 as follows:

"The Tort Claims Act was not an isolated and spontaneous flash of congressional generosity. it marks the culmination of a long effort to mitigate unjust consequences of sovereign immunity from suit. While the political theory that the "king could do no wrong" was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented was involved on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown. As the federal government expanded its activities, its agents caused a multiplying number of remediless wrongs-wrongs which would have been actionable if inflicted by an individual or corporation but remediless solely because their perpetrator was an officer of employee of the governments.. The primary purpose of the act was to extend an remedy to those who had been without..."

Mr. Justice Frankfurter in Indian Towing Company v. United States, 350 U.S. 61, 76 S. Ct. 122, 1 00 L. Ed 48 (1958) at page 68 and 69 stated:

"The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of government activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws."

It should be noted that England in 1947 passed the Crown Proceedings Act which was similar in scope to the Federal Tort Claims Act passed in 1947.

TRIBAL IMMUNITY

The only places where this archaic, unjust and totally indefensible legal maxim exist are on Indian Reservations. While the U.S. Supreme Court could abolish this doctrine it has been reluctant to do so. In Thebo v. Choctaw Tribe of Indians, 66 Fed. 372 (1895) the S' Circuit held hat "It may be conceded that it would be competent for congress to authorize suit to be brought against the Choctaw Nation upon any and all the causes of action in any court it might designate"

However, the court determined that congress had not done so and therefore the tribe could not be sued.

In United States v. U.S. Fidelity and Guaranty. Co. 106 F.2d 804, the I Oh Circuit Court of Appeals stated at page 810: "...The Indian tribes like the United States, are sovereigns immune from civil suit except when expressly authorized."

In 1968 with adoption of the Indian Civil Rights Act many people through congress had provided that authority. The right to redress wrongs in court. However, the United states Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 L. Ed 106, 98 S. Ct. 1670 (1978) ruled otherwise.

"Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. Turner v. Unites States, 248 US 354, 358, 63 L. Ed. 291, 39 S. Ct 109 (1919); United States v. United States Fidelity & Guaranty Co. 309 US 506, 512-513, 84 L. Ed 894, 60 S. Ct 653 (1940); Puyallup Tribe v. Washington State Department of Game, 433 U.S. 165, 172-173, 53 L. Ed.2d 667, 97 S. Ct 2616 (1977). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But "without congressional authorization," the "Indian Nations are exempt from suit." United State v. United States Fidelity & Guaranty Co., supra at 512, 84 L. Ed 894, 60 S. Ct 65'3.

It is settled that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. Teston, 424 U.S. 392, 399, 47 L. Ed..2d 114, 96 S. Ct 948 (1976), quoting, United States v. King, '395 U.S. 1, 4, 23 L. Ed.2d 52, 89 S. Ct 1501 (1969). Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. Moreover, since the respondent in the habeas corpus action is the individual custodian of the prisoner, see, e.g,, 28 USC § 2243 (28 USCS § 2243], the provisions of § 1303 can hardly be read as a general waiver of tribe's sovereign immunity. In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit."

It has been 52 years since Congress passed the Federal Tort Claims Act. It has been over 30 years since governments at all levels in this state have been responsible for their wrongful acts. In other states it has been over 40 years since this archaic legal maxim has been nullified

During that time none of dire consequences predicted by those govenunents has come to pass. None of them have ceased to exist and while they may have had to buy liability insurance, so has everyone else. In fact, as stated in Molitor v. Kaneland, supra., "The public's willingness to stand up and pay the cost of its enterprises carried out through municipal corporations is no less than its insistence that individuals and groups pay the cost of their enterprises. Tort liability is in fact a very small item in the budget of any well organized enterprise."

Additionally, the advent of liability has made all of us in government more responsive and accountable. Frankly, as an attorney who represents local government in this era of shrinking budgets, I would love to have sovereign immunity back, however, that would not make it right.

In my experience, the tribal governments of this state ask to be treated as an equal government. They ask that they be dealt with on a government to government basis. However, they want all of the rights and none of the responsibility. In every interlocal agreement executed by political subdivisions in this state there are indemnity agreements to hold each other harmless, The tribes will not agree in most instances to this clause because they don't want to waive immunity.

Whether you are a Native American or a non-native, having a government whose decisions cannot be reviewed first by a disinterested magistrate and then by the Courts of Appeal can only be described as unjust. If a tribal government decides to build a slaughter house next door to your home, the county or state ought to be able to challenge that decision in court. If the tribe will not issue you a well permit, you ought to be able to challenge that decision in court. If the tribe builds a casino next door to your home, you ought to be able to challenge that decision in court. If the tribes builds a casino and doesn't make provisions for the traffic problems it causes, you ought to be able to take them to court.

Whenever the county is considering a land use decision on the Yakama Indian Reservation, the tribe is given notice. They participate fully in all hearings whether its before the planning department the planning commission, the hearing examiner or the Board of County Commissioners, They are consulted as are other units of government within the county. If they don't agree with the decisions that are made, they challenge those decisions in Court which is their right to do. Yakima County has been sued more than one by the Yakama Indian Nation because of its land use decisions. On the other hand, the tribe gives no one notice of it's land use intentions.

I find it inconceivable that the Congress of the United States stands by its inaction authorizes the tribal governments to blatantly destroy the civil and property rights of United States citizens. The "king can do no wrong" has no place in the 21st century. The Congress should pass The American Indian Equal Justice Act, S- 1691 and recognize the value and rights of all its citizens.