Mr. Chairman and Members of the Committee, good morning and thank you for inviting the Justice Department to testify on the important subject of tribal sovereign immunity. I am Thomas L. LeClaire, Director of the Office of Tribal Justice, Department of Justice.
Congress and the Executive Branch acknowledge the importance of working with Indian tribes within a framework of government-to-government relations when tribal self-government, tribal land and natural resources, treaty rights, or other tribal rights are at issue.(1) In our work within that framework, the Justice Department is guided by fundamental principles that have governed the relations between the United States and Indian tribes for over two hundred years.
Since the formation of the Union, the United States has recognized Indian tribes as "domestic dependent nations" that exercise governmental authority over their members and their territory.(2) In numerous treaties and agreements, our Nation has guaranteed the right of Indian tribes to self-government(3) and pledged to protect Indian tribes.(4) The Administration and the Attorney General honor the United States' commitments to Indian tribes.
Congress has recognized that "the United States has a trust responsibility to [Indian tribes] that includes the protection of the sovereignty of each tribal government."(5) Under the Federal trust responsibility to Indian tribes, the United States exercises the highest standard of care in matters of tribal self- government. Continued recognition of tribal sovereign immunity is an important part of the Federal Government's protection of tribal self-government, which furthers the long-standing federal policy of encouraging Indian self-determination and economic development.
THE DOCTRINE OF SOVEREIGN IMMUNITY
Sovereign immunity is a fundamental aspect of sovereignty, which protects a government from suit to avoid undue intrusion on governmental functions or depletion of the government's treasury without legislative consent.
Under federal law, the doctrine of sovereign immunity is well settled, and fundamental maxims guide the federal courts in cases that touch on the United States' sovereign immunity:
The United States is immune from suit in the absence of an affirmative waiver of immunity;
Only Congress may waive the sovereign immunity of the United States;
A waiver of the sovereign immunity of the United States must be unequivocally expressed; and
Waivers of the sovereign immunity of the United States are strictly construed in favor of the sovereign.(6)
Congress carefully considers any waiver of federal sovereign immunity, mindful of potential impacts on federal governmental functions and our treasury. Waivers of the sovereign immunity of the United States are usually limited to the federal courts. Where the United States has not waived its sovereign immunity, the Federal Government regularly relies on its immunity to bar suits.(7)
In regard to the states, the Eleventh Amendment of the Constitution of the United States embodies the principle of sovereign immunity and protects the dignity and respect afforded to the states in our federalist system.(8) Absent state consent or congressional abrogation pursuant to a valid exercise of power, sovereign immunity bars suits by foreign nations, Indian tribes and private individuals against the states in federal court.(9) It likewise bars suits by foreign nations, Indian tribes, and private individuals against states in their own courts absent state consent or an Act of Congress.(10) States regularly rely on their sovereign immunity to bar suits to which they do not consent.(11) States have relied on the Eleventh Amendment to bar suits by Indian tribes before the United States Supreme Court in three cases within the past ten years.(12)
When states waive their sovereign immunity, they guard state governmental functions and state treasuries and often limit their waivers of immunity to actions before the state courts. In state statutory waivers of immunity for tort actions, states reserve sovereign immunity to protect discretionary government functions from suit.(13) States also frequently limit government liability for monetary damages and bar recovery for exemplary or punitive damages.(14)
TRIBAL SOVEREIGN IMMUNITY
"Indian tribes are sovereigns" that predate the formation of the United States.(15) In the absence of affirmative tribal government waiver or congressional abrogation, Indian tribes retain sovereign immunity as an aspect of inherent tribal sovereignty. Under federal-tribal government-to-government relations, it is well settled that only Congress or the tribal government may waive a tribe's sovereign immunity from suit.(16) Like federal and state governments, tribal governments have exercised their authority to waive sovereign immunity in many circumstances. Of course, Indian tribes, like state governments, are cautious in enacting waivers of tribal sovereign immunity because overly broad waivers of sovereign immunity could undermine tribal solvency and governmental functions.
Congress has traditionally acted to protect tribal sovereign immunity and provided appropriate venues for dispute resolution which do not jeopardize tribal government functions or financial solvency. The Indian Self-Determination and Education Assistance Act (the "ISDEAA"), for example, authorizes the Secretaries of the Interior and Health and Human Services to contract with Indian tribes to perform governmental functions that their departments otherwise would perform in Indian country.(17) The ISDEAA instead of waiving tribal sovereign immunity provides that the Secretary of the Interior should assist Indian tribes in obtaining insurance and prohibits the insurers from raising tribal sovereign immunity as a defense to a covered claim. Additionally, where Indian tribes contract to perform governmental functions under the ISDEAA, the Federal Tort Claims Act system is also available in certain circumstances to redress grievances by individuals affected by the tribal performance of functions under such contracts.(18)
The Department of the Interior informs us that many Indian tribes have obtained automobile, property owners', and general liability insurance to insure against tort claims by individuals. Insurance and the ISDEAA extension of FTCA coverage preserves sovereign immunity while also providing for coverage of tort claims against tribes.
TRIBAL ECONOMIC DEVELOPMENT AND COMMERCIAL TORT COVERAGE
Historically, American Indian and Alaska Native peoples had economically self-sufficient societies based on hunting, fishing, and gathering, agrarian and pastoral endeavors, and trading. As the 1928 Merriam Report documented, however, the loss of the vast majority of tribal lands and natural resources left most Indian peoples destitute.(19) In the allotment period from 1887 to 1934 alone, almost 100 million acres of land went out of tribal ownership, with Indian land holdings dropping from 138 million acres to 48 million acres during that period.
Despite federal programs to rebuild tribal economies, most Indian reservation economies lag far below the national average. As President Nixon explained to Congress in 1970:
Economic deprivation is among the most serious of Indian problems. Unemployment among Indians is ten times the national average; the unemployment rate runs as high as 80 percent on some of the poorest reservations.(20)
In response to the President's message, Congress established a national goal of promoting economic development for Indian tribes. 25 U.S.C. §§ 1451 et seq. Pursuant to that policy, a few Indian tribes have made gains in economic development.
Most reservation Indians, however, continue to live in poverty. For example, the 1990 Census reports that 43 percent of American Indian and Alaska Native children continue to live in poverty, and Shannon County on the Pine Ridge Indian Reservation in South Dakota continues to be the poorest county in the Nation, as measured by per capita income. Unemployment on some of the larger Indian reservations continues to be several times higher than the national rates, according to B.I.A. labor statistics. There is a broad-based need to improve reservation financial infrastructure to promote economic development for Indian tribes.(21)
At the same time, as tribes work to develop their economies through tribal commercial activities, tribal enterprises need access to insurance for commercial activities. The Committee may wish to consider whether it is advisable to improve access for Indian tribes to affordable insurance for tribal commercial activities. A federally chartered intertribal insurance corporation would improve access for Indian tribes and tribal organizations to affordable insurance while at the same time providing needed financial and institutional infrastructure for Indian country.
Congress may with to consider whether it is advisable to improve tribes' access to insurance for tribal commercial activities by chartering an intertribal insurance corporation to provide insurance for tribal commercial activities, with insured Indian tribes voluntarily participating as shareholders. With this type of entity, insured Indian tribes and tribal organizations would pay premiums to the intertribal insurance corporation and obtain insurance, and elect the Board of Directors to govern the corporation in accordance with industry standards. Covered tort claims could be made directly against the intertribal insurance corporation, rather than against the insured Indian tribes. The intertribal insurance corporation could be barred from raising sovereign immunity as a defense to a covered claim (as under the ISDEAA) and recovery against the insurance corporation could be limited to the relevant policy limits. Punitive damages could be barred. Independent audits might be required in accordance with industry standards with annual audits made available to an appropriate federal agency. Such legislation would build on the existing models, without impairing tribal sovereign immunity, and would provide a new avenue to redress for claims arising out of tribal commercial activities.
CONCLUSION
The Justice Department respectfully submits that, to the greatest extent practicable, legislation dealing with tribal sovereign immunity should be developed based on consultation and consensus with Indian tribes. In our view, legislation in this area should preserve tribal governmental solvency, authority, and functions, including tribal court authority and tribal sovereign immunity.
Thank you for inviting the Justice Department to present its views on this important
matter today.
1. See e.g., 25 U.S.C. §§ 3601, 3701; Executive Memo. on Government-to-Government Relations with Native American Tribal Governments, 59 Fed. Reg. 22951 (1994); Proclamation of American Indian Heritage Month, 57 Fed. Reg. 56801 (1992); U.S. Dept. of Justice Policy on Indian Sovereignty and Government-to-Government Relations with Indian Tribes, 61 Fed. Reg. 29424 (1996).
2. In Oklahoma Tax Comm'n v. Citizens Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991), the Supreme Court explained that "Indian tribes are 'domestic dependent nations' that exercise inherent sovereignty over their members and their territory." Id. (quoting) Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
3. In Ex Parte Crow Dog, 109 U.S. 556, 568-69 (1883), for example, the Supreme Court explained that under the Treaty of 1868 with the Sioux, "among the arts of civilized life, which it was the very purpose of all these arrangements to introduce and naturalize among [the Indians], was the highest and best of all, that of self-government." Earlier, in the seminal case Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Court had ruled that the Treaty of Holston "recogniz[ed] the national character of the Cherokees, and their right of self-government."
4. For example, the 1786 Treaty between the United States and the Shawnee Nation proclaims, "The United States do grant peace to the Shawanoe nation, and do receive them into their friendship and protection. . . ." 7 Stat. 26. The 1785 Treaty with the Cherokee Nation extends federal protection and recites that "the Indians may have full confidence in the justice of the United States." 7 Stat. 18. These treaties are exemplary of Indian treaties of that period. The United States also pledged that Indian reservations would be preserved as the "permanent homes" of the Indian peoples. See Treaty with the Sioux, 1868, 15 Stat. 635. Consistent with these treaty pledges, the Supreme Court has held that Indian tribes retain essential rights "necessary to make their reservations livable." Montana v. United States, 450 U.S. 544, 566 n. 15 (1980).
5. 25 U.S.C. § 3601(2); see also 25 U.S.C. §§ 450, 1451, 1601, 2501-2502, 3701, and 4101.
6. See generally Lane v. Pena, 518 U.S. 187 (1996); United States v. Nordic Village, 503 U.S. 30 (1992).
7. See e.g., Smith v. United States, 507 U.S. 197 (1993) (widow of employee of government contractor was barred by sovereign immunity from asserting wrongful death claim for accidental death occurring in Antarctica); Lane v. Pena, supra (merchant marine's claim for money damages arising out of wrongful termination barred by sovereign immunity).
8. Idaho v. Coeur d'Alene Tribe, 117 S.Ct. 2028, 2033 (1997).
9. Monaco v. Mississippi, 292 U.S. 313 (1934) (Eleventh Amendment bars suit by foreign nation against a state in federal court); Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) (Eleventh Amendment bars suit by Indian tribe against a state in federal court); Hans v. Louisiana, 134 U.S. 1 (1890) (Eleventh Amendment bars suit by private citizen against a state in federal court).
10. See e.g., Ashland Equities Co. v. Clerk of New York County, 493 N.Y.S.2d 133 (N.Y.App.Div. 1985).
11. For example, under the related doctrine of legislative immunity, the Supreme Court held on March 3, 1998 that local legislators enjoy absolute legislative immunity for their actions as legislators. Bogan v. Scott-Harris, ___ S.Ct. ___ (1998).
12. Idaho v. Coeur d'Alene Tribe, supra; Seminole Tribe v. Florida, 116 S.Ct. 1114 (1996); Blatchford v. Native Village of Noatak, supra.
13. Everett v. Willard, 468 So.2d 936 (Fla. 1985) (sheriff's decision to permit intoxicated motorist to drive on after stop involved an exercise of a discretionary function shielded by state sovereign immunity, and sheriff's department was immune from a tort action brought by an innocent third party after a subsequent collision with the intoxicated driver).
14. For example, the State of Nevada limits its monetary liability in tort actions to $50,000 and bars recovery for exemplary and punitive damages. N.R.S. § 41.025. The State of Colorado generally limits the monetary liability of public entities in tort actions to $150,000 for an injury to one person arising out of a single incident. For injuries to two or more persons arising out of a single incident, the monetary liability of public entities is generally limited to $600,000, and punitive damages are generally barred. C.R.S.A. § 24-10-114. The State of Texas has granted permission to sue the state for certain claims, but "permission to sue does not waive to any extent [the state's] immunity from liability," so a subsequent legislative appropriation may be necessary to satisfy resulting judgements. V.T.C.A. § 107.002; cf. Federal Sign v. Texas Southern University, 951 S.W.2d 29 (Tex. 1997) (contractor barred from suing state university for money damages without consent).
15. Blatchford v. Native Village of Noatak, 501 U.S. at 779; see Worcester v. Georgia, 31 U.S. at 558-561.
16. Oklahoma Tax Comm'n v. Citizens Band Potawatomi, supra; Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Puyallup Tribe v. Department of Game, 433 U.S. 165 (1977); United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506 (1940).
17. 25 U.S.C. §§ 450 et seq.
18. 25 U.S.C. § 450f.
19. Institute for Government Research, Studies in Administration, The Problem of Indian Administration (1928).
20. President of the United States, Recommendations for Indian Policy, H.R. Doc. No. 363, 91st Cong., 2d Sess. 7 (1970).
21. Thus, the Department of Justice and the Department of Treasury cosponsored a conference on "Banking in Indian Country, in July, 1997. In addition, the Civil Rights Division of the Department of Justice has worked cooperatively with the Office of the Comptroller of the Currency to enforce fair lending laws in Indian country.