Mr. chairman, vice-Chairman and Senators of the Committee. I thank you for the opportunity to testify before you today in regards to Tribal Sovereign Immunity and I understand the focus today is on civil and property rights.

Mr. Chairman, In 1942 the Ninth Circuit Court of Appeals in Montana Power Co. v. Rochester confirmed tribal ownership of the bed and banks on the south half of Flathead Lake up to the high water mark. In 1982 the Ninth Circuit court again confirmed ownership of the bed and banks when the tribes moved to regulate docks and structures being built on these tribal lands. The U.S. Supreme Court denied cert thus upholding the decision.

To regulate use of tribal property the council adopted the Shoreline Protection Ordinance (64-A revised). In that Ordinance the regulatory board was designed as a 7 member board with 4 members and 3 non-members. The 3 non-members designated were the then 3 Lake County Commissioners. The Council felt this would give non-members an elected voice when they requested permitting for construction on tribal property. Those county commissioners participated for only ½ day of the first Shoreline Protection Board meeting then walked out. The Council then advertised at large for 3 nonmembers to sit on the board and today this is a very successful program with total permits issued on 1707 docks and structures with 1601 of those permits issued to nonmembers for use of tribal Property.

As we are a Steven's Treaty Tribe we have the exclusive right of taking fish on the reservation in order to protect the fishery habitat we also have an Aquatic Lands Conservation Ordinance 87A. The Shoreline Protection Board also regulates activities covered by this Ordinance. Since the implementation of Ordinance 87A there have been 891 permits issued, 267 to non-members, 156 to other tribal programs, 39 to State agencies, 48 to counties and towns and 286 to other government agencies. There is no charge for these permits.

We have a bird hunting and fishing cooperative agreement with the State of Montana which regulates all non-member bird hunting and fishing on the reservation. All non-member sportsman must buy the Tribal/State permit even if they are hunting on their private land. Tribal, State and Federal officers all enforce the regulations and the regulations are established by a joint committee consisting of 3 non-members, 3 member s and a representative from the U.S. Fish and Wildlife Service. The recommendations from this committee are then approved by the State of Montana fish and game commission and the Tribal Council. Neither the Tribes nor the State relinquished any jurisdiction claims by signing this agreement.

When we contracted under P.L. 93-638 the federal power utility which serves over 16,000 meters representing all reservation homes and businesses (and some off reservation) we established a Utility Board and a Consumer Council. Both of these entities have non-member and tribal member representatives. The Utility Board oversees management of the utility and the consumer council is the advocate for the consumer and has equal authority to the board in recommending rate changes in a public, federal rate making process.

We also have a cooperative law enforcement agreements between the Tribes, State of Montana, all cities on the reservation and within counties on the reservation except one Lake County, which refused to sign the agreement. This agreement went into effect in 1994 and provides for cross citation authority, stop-and-detain provisions and emergency powers from law enforcement officials. our Tribal officers are also cross-deputized with the Montana highway patrol. This agreement is working very well as evidenced by the enclosed article from the Missoulian of April 26, 1996. As stated by Captain Richard Chase of the Montana Highway Patrol's Missoula office "the program is working exceptionally well with us."

Mr. Chairman, knowing that government action will necessarily impact the activities permitted on the Reservation and in recognition of the fact that many non tribal members live on our reservation we have taken steps to provide everyone the opportunity to play an active role in promulgation and implementation of our governmental regulations and ordinances.

Our Tribal Administrative Procedures ordinance provides for direct public participation in the regulation process, access to governmental information similar to the Federal Administrative Procedures Act, and provides any one who believes an agency has caused them injury the right to appeal that action to an Administrative Law judge. We have repeatedly changed proposed tribal regulations because of the non-Indian input in the public review process.

We have utilized Tribal funds to greatly expand and improve our justice system by;

1. Development of an independent prosecutor's office. All prosecutors must be licensed by the Montana State Bar and currently all prosecutors are non-members.

2. We have established a separate Defenders office which includes both civil and criminal defense. This office includes six attorneys all are nonmembers and all are members of the Montana State Bar. There are also two non attorney advocates.

3. We have expanded our Tribal Appellate Court to which trial court decisions may be appealed. The full panel consists of three attorney justices, including the Chief Justice and two non lawyer justices. Currently all attorney justices are non-members licensed by the Montana Bar. Two attorney justices and one lay justice sit on each appeal. Reconsideration is heard en banc and each side in the appeal has the right to recuse one justice in each appeal without stating cause (this is also the case in our trial court). This provides additional opportunity for a fair and impartial decision. Should additional justices be needed we have an on call pool of attorney and lay justices. Further, our Tribal Judges all routinely attend judicial training at the National Judicial College, University of Nevada.

In 1995 we also adopted a Tribal Governmental Immunity Ordinance. This Ordinance provides limited waivers of immunity for injunctive, declaratory or mandamus relief for tribal government infringement of any civil or constitutional rights arising under the Tribal Constitution and By-laws or the Indian Civil Rights Act. It also provides for waiver of immunity when an officer, agents or employee of the Tribes, acting within the scope of authority allegedly causes serious personal injury or death through negligence. We also waive immunity up to the limits of our general liability insurance coverage. These limited waivers provide opportunity for individuals, governments, and other parties to obtain fair and impartial justice.

I also need to point out that any tribal governmental action that would infringe on a question of any civil rights or property rights under the Indian Civil Rights Act may be review able in the federal courts.

Mr. Chairman, we are all too familiar with the distrust, anger and fear associated with lost property or property rights. The Confederated Salish and Kootenai Tribes with the signing of the Hellgate Treaty ceded, relinquished and conveyed to the United States nearly 21 million acres that we know as western Montana. With that we reserved approximately 1.25 million acres for our exclusive use and homeland and the Treaty was properly ratified by the Senate. However, the promises made by the United States did not last long. With the western expansion the Reservation, over the strongest objections from the Tribes, was illegally US Court of Claims opened to non-Indian settlement. -Since that illegal opening the Flathead allotment Act has been amended approximately 80 times, each time over the objections of the Tribes. Each time we lost, rights and property.

Now even today with the safeguards and protections that we have built into our governmental structure to protect all rights of all individuals, it does not seem to be enough. We are asked once again to give and get nothing in return.

To move to waive any government's sovereign immunity be it 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. No government could survive the onslaught of ridiculous lawsuits this proposed move would bring.

I request the committee to carefully consider this issue and to strengthen tribal sovereignty by giving tribal government the resources necessary to build more protections into government and not to tear down tribal sovereignty by removing sovereign immunity.

Mr. Chairman, lets continue to follow President Ronald Reagan's Indian Policy Statement of 1983 to strengthen Tribes "by removing the obstacles to self-government and by creating a more favorable environment for the development of healthy reservation economies. Tribal governments, the federal government and the private sector will all have a role... our policy is to affirm dealing with Indian Tribes on a government-to-government basis and to pursue the policy of self-government for Indian tribes without threatening termination."

I have included for the record two letters of September of 1997, signed by 8 attorneys general from Western States that have Indian reservations within their States. The attorneys general opposed the waiver of sovereign immunity in the Interior Appropriation Bill at that time and state that "such action is a frontal assault on the court decisions and laws which since Chief Justice John Marshalls landmark opinion in Worchester v. Georgia 31 US (6Pet) 515 (1832) have governed relations between the national government and the nation's first citizens". They further state that "if successful this clandestine effort would drive a wedge into the heart of the doctrine of tribal sovereignty which has protected native cultures and native rights and has served as the foundation of Indian self-government in this country."

I have also included for the record a State of Montana Proclamation from Governor Marc Racicot recognizing Tribal sovereignty and the government-to-government relationship between the State and Tribes. I will close by reading the Proclamation.