On behalf of the Menominee Indian Tribe of Wisconsin, I want to thank you for the opportunity to testify today, and to bring to you
the special concerns that the Menominee Tribe has with S.1691, the "American Indian Equal Justice Act." In the name of "justice" this
proposed legislation would launch a deadly attack on long established sovereign rights of American Indian Tribes. It would expose
Tribes, who are ill equipped to bear these risks, to the vagaries and dangers of unbridled litigation.
The Menominee Tribe has had experience with this kind of "justice" in the past, and has learned bitter lessons. Because of this, I am
here to ask that you not follow a path that has proven disastrous to tribal interests, but instead to truly serve justice by crafting a
solution to the problems that exist that recognizes and protects the sovereign status of Tribes.
We propose that this Committee craft alternative legislation that would
create a specific remedy for those who have a "grievance" with a tribal
entity, and seek to recover damages as a result of a tortuous injury. The
remedy would be a compulsory tribal insurance program and waiver of immunity
as to tort liability, a draft of which is attached to my testimony as Exhibit
A, and which I will discuss in detail later in my testimony, as an alternative
to the proposed legislation.
Senator Gorton's proposed legislation -- which would almost completely abrogate tribal sovereign immunity -- ignores the lessons
of history and the promises of Treaties and adopts the simplistic view that Indian tribal governments should be treated the same
as a "private individual or corporation." Sections 4(d) and 5(a). While any attempt to reduce sovereign Indian tribes to non-government
status is deeply troubling, the Menominee Tribe hears such words from a unique perspective. This is not the first time that an attempt
has been made, through federal legislation, to eliminate sovereign rights of the Menominee Tribe.
In 1954 another Senator, Arthur Watkins of Utah, pushed the Menominee Termination Act through Congress. This Act, like Senator
Gorton's bill, provided that the Tribe and its members would be subject to state laws in the same manner as they apply to other
citizens or persons. Like Senator Gorton, Senator Watkins did not believe that 20th Century America has room for sovereign Indian
nations.
Senator Watkins and others argued that it was time "to get the Government out of the business of being the guardian of Indians."
99 Cong. Rec. S.9158 (Statement of Senator Watkins, July 18, 1953). To Senator Watkins and others sharing his views, the status
of Indians in the United States was simply: "They are no different from anyone else." 99 Cong. Rec. S.9159 (Statement of Senator
Chavez, July 18, 1953). This view was made national policy by House Concurrent Resolution 108, 83 rd Cong., I st Sess. (1993),
which provided:
"Whereas it is the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject
to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States ... ."
Like Senator Gorton's bill, H.R. Con. Res. 108 was phrased in terms of equality. However, the true purpose of termination policy was to
relieve the United States of the responsibility to protect tribal rights and property. As stated by Senator Watkins:
"For heaven's sake, let us get away from supervising the Indians as quickly as we can, because the longer we keep them
under the Indian Bureau, the longer they will want to stay in that relationship."
99 Cong. Rec. S.9746 (Statement of Senator Watkins, July 18, 1953). To accomplish this goal, the government sought to subject tribal
members and property to the full scope of state laws by effectively eliminating the sovereign status of Indian tribes, and thus, implicitly,
the federal trust responsibility. Following this policy, the Menominee Termination Act abolished the Tribe's federal rights and services,
closed the tribal roll, and transferred all of the Tribe's property to a private corporation -- which was then no different from any [state]
corporation in rights, duties and vulnerability to outsiders. The Tribe, itself, was not technically abolished -- such a formality was not
necessary, since the Act effectively took from the Tribe the power to function as a sovereign entity.
Despite assurances from Senator Watkins and others that termination was
for our own good, the Menominee's lived through unmitigated disaster during
the time termination was in effect from 1961 until it was finally repealed
in 1973. With the loss of tribal sovereignty, tribal assets were taxed to
exhaustion, and the Tribe, once the most prosperous Tribe in the nation,
became one of the poorest. The Menominee people were confounded by a host
of new laws and requirements, and the Tribe was left nearly powerless to
protect its members. As a result, the Menominee's lost what they cherish
most -- much of traditional culture and language, along with some of the
most valuable remaining tribal land which had to be sold to outsiders to
keep the private corporation afloat.
While the Menominee tribe regained its federal rights in 1973 with the passing of the Menominee Restoration Act, the memory of this
devastating experience makes the Menominee Tribe particularly sensitive when members of Congress talk of the need to terminate
tribal rights in the name of some greater good. While Senator Gorton's termination of tribal sovereignty is more limited than that
imposed on the Menominee Tribe in 1954, it both sets and follows an equally dangerous precedent.
Over the centuries, federal Indian policy has repeatedly swung between extreme positions. Federal Indian treaties in the middle to late
19th century had the declared purpose of "protecting" the surviving tribal groups. That preservation strategy ended with the allotment
period, when Congress sought to "detribalize" Indian holdings, allocating tracts of land to individual tribal members, and incidentally
dispersing millions of acres of "surplus" lands to non-Indian settlers. The Indian Reorganization Act of 1934 suspended allotments, and
had a stated goal of encouraging strong tribal governments. That policy was repudiated by Congress in the termination period, when the
Menominee Tribe was among others that lost sovereign rights.
In the 1970's, a new Indian policy was implemented pursuant to the Indian
Self-determination Act. (25 U.S.C. § 450 et seq.) That legislation, still
being implemented, encouraged tribes to strengthen self-government and economic
determination. It has encouraged Tribes to enter into broader interaction
with outside interests. Not surprisingly, conflicts occasionally occur,
and must be dealt with. But any problems that exist should not be used as
an excuse for another fundamental reversal of federal Indian policy.
The foundation of Senator Gorton's proposal to eliminate tribal sovereign immunity is that Indian tribes should be treated like everybody
else, without "special" rights. Thus, he would treat the Menominee Tribe once more, as nothing more than a "private individual or
corporation." If this argument is accepted for tribal sovereign immunity, it seems that the argument will be applied equally to other
"special" tribal rights, such as hunting and fishing rights, civil jurisdiction, tax status, among others. By the time all of these special
rights have been removed, tribes will be reduced to nothing more than voluntary associations -- in effect, termination, one step at
a time.
Senator Gorton, like Senator Watkins before, apparently believes that Indian tribes are an anachronism -- a holdover from another age
that should be abolished so that the Indians can be fully assimilated into the larger culture. As Senator Gorton recently stated in an
interview quoted in the Seattle Times:
"After a while, get over it. No wrongs have been committed against the [Indian] people who are living here now, or by the people
who are living here now."
"I don't think a society is helped by grievances that are 150 years old, things that happened to our great-great-grandfathers.
I'm sure if I knew what happened to one of my great-great-grandfathers, I could find some grievance."
The reality, however, is that tribal sovereignty was recognized by the government of the Senator's great-great-grandparents, and is
no more an anachronism than the sovereignty the United States achieved as a result of its separation from the British Empire. The
difference is that our tribal sovereign nations were engulfed by a new, larger sovereignty, but not one that extinguished ours, except
in the recurring episodes of "detribalization" policy. As I have already stated, the Menominee have had experience with termination
already and are facing a new onslaught in Senator Gorton's Bill and in others that threaten the core existence of Indian tribes. Once
again, the tribes face a deadly new attack, led by people who may have laudable goals, but are using means that would destroy
Indian people.
Even though we reject both the rhetoric and the provisions of this legislative proposal, we recognize that, as our interaction becomes
more extensive and complicated, we will need to take a constructive approach to society at large, and particularly those who do
business with us on the Reservation. Therefore, we have proposed a significant change that would address concerns that have
been advanced in favor of the pending legislation, while giving due deference to our sovereign status and need for continuation of
our immunity from suit. Our proposal would solve the problems that exist without destroying tribal governments by exposing them
to unlimited liability in tort.
Senator Gorton has himself recognized the high cost of uncontrolled tort
litigation. As cosponsor of "The Product Liability Fairness Act of 1995,"
he spoke at length about the economic cost of tort litigation, including
failed companies and resulting job losses. 141 Cong. Rec. S-3982 (March
15, 1995). The answer should ensure that tribal governments are not destroyed
because necessary funds have been ravaged by unlimited liability. The answer,
however difficult it may be for tribes, is to establish a tort claim procedure
that coexists with Tribal insurance, so that relief is available, but not
crippling. Tribes can bear the cost of insurance, but not the full exposure
risk. Plaintiffs will have a defendant available, but not for a treasure
hunt.
If there are grievances to be addressed, then the practical issue is to
address the grievances of today, and to find a means to do justice, fairly,
when tribes are involved. To that end, I have brought with me a proposal
for legislation that would establish a remedial process that could provide
relief for tortuous acts inflicted by tribal entities, but without endangering
the existence of those entities. The remedy is to set up a compulsory tort
claims remedy based on insurance, a fundamental principal of commercial
enterprise. The insurance program would be administered by the BIA and funded
by participating tribes. Participation in the program would be enforced
by making it a condition of continued TPA funding. Insured tribes would
then waive immunity to the extent of insurance coverage, with exclusive
jurisdiction over tort claims lying in federal district court.
We offer to participate in a constructive dialogue to produce a framework in which preservation of tribal sovereign immunity and
protection of the broader public interest are not inconsistent objectives. We have proposed a program that joins insurance coverage
with specified remedial process that serves both goals. We hope to work with you to refine and perfect this or alternative legislation.
We must ask, however, that you reject S.1691, which is fundamentally wrong and would repeat, rather than learn from the mistakes of
the past. Please do not begin a new era of termination, but rather work with us to resolve problems for all our people.
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