Good morning. Today the Committee on Indian Affairs is holding the third in a series of hearings on tribal sovereign immunity, and S. 1691, immunity-related legislation introduced by Senator Gorton. So far, we have looked at contracts, taxes and civil and property rights as they are affected by tribal immunity from lawsuits. Today we will focus on torts alleged against tribal governments.

By removing tribal discretion and decision-making regarding waivers of immunity, S. 1691 would step in and force tribes to accept what states and the federal government have done voluntarily. This is inconsistent with state and federal waivers. Suits against states are usually heard in state court. Suits against the federal government are heard in federal court. Under S. 1691, however, suits against tribes would not be heard in tribal court.

Think what this could mean in an era when plaintiffs lawyers can simply threaten to file a lawsuit and force a lucrative settlement. I am against such tactics whether aimed at small 'Mom and Pop" businesses or Indian tribes, and I very much fear that they would be employed to bankrupt tribes in cases that may be weak.

There are other factors at play here. Last week, I introduced a bill to help tribes revitalize their economies through regulatory reform and other means. Just when we ought to be encouraging the development of tribal economies and governments, S. 1691 would step in and I believe cripple them.

How have states addressed tort liability issues? Some state governments have waived their immunity from civil suits --- but have put a 'cap" on the amount recoverable. Other state governments have set up an insurance or 'managed risk pool" to manage the claims without throwing open the courthouse doors. The key is that it is critically important to know that states have defined what kinds of actions they can be sued for and have set limits on the dollar amount of their liability. For instance, the State of Oklahoma has a statutory limit of $100,000 per claim. This may or may not be seen as 'reasonable' by all but the State of Oklahoma was allowed to decide what its liability would be. It was not forced upon them by Washington, D.C.

S. 1691 is unprecedented in what it would do to the continued vitality of tribal governments. It would not allow them to set the limits states have. In this time of returning power and policy-making to local governments, I hesitate to employ federal strong-arm tactics to override local control.

One thing everyone here should keep in mind is that we are also discussing the purpose of our civil courts. Is justice served when the victims are compensated for their losses? Or do civil courts need to punish those at fault?

This Committee will consider S. 1691 later this month, and I do not believe the bill will be approved --- nor should it be.

However, opponents of this bill should not misinterpret its likely failure as an indication that all is well with tribal governments and their neighbors. Tribes must understand that there are problems out there that will not go away, especially if we just vote this bill down and put our heads in the sand.

Problems left unanswered will continue to fuel support for bills like this one. We must work together to come up with solutions, perhaps something as simple as buying or requiring liability insurance. If we cannot come up with reasonable proposals that do not involve blanket waivers of tribal immunity, I fear we will see this bill in one form or another, again and again.