Tribal Sovereign Immunity

March 16, 1998

Senator Ben Nighthorse Campbell
Chairman, Committee on Indian Affairs
838 Hart Senate Office Building
Washington, D.C. 20510
Ref: Hearings on sovereign immunity, 3/11/98

Dear Senator Campbell:

The Society for Applied Anthropology wishes to submit the following written testimony for the committee's oversight hearing on sovereign immunity issues, held March 11, 1998. Please include our testimony in the hearing record.

Statement on Tribal Sovereign Immunity by Dr. John Young, President, Society for Applied Anthropology.

The Society for Applied Anthropology is an international organization with over 2,300 members concerned with the application of the social sciences to the resolution of contemporary human problems. The society is comprised of professionals from many occupations, including academia, business, law, health care, the non-profit sector, and government. Our members come from a variety of disciplines: anthropology, sociology, economics, planning, and other applied social and behavioral sciences. What unites us is a commitment to applying social knowledge for the public good, a commitment exemplified by the career of one of our founding members, Margaret Mead.

The Society for Applied Anthropology is opposed to S. 1691 and other measures that have the effect of further compromising the sovereignty of American Indian tribes.

One need identified by proponents of S. 1691 is the opportunity for non-Indians to press tort claims against tribal governments for injuries suffered on tribal lands. S. 1691 treats this problem by requiring tribal governments to waive sovereign immunity and consent to civil actions in federal or state courts. There are better solutions. For example, a number of tribes currently carry insurance to cover potential liability from tort claims. This practice could be expanded through a federally established or federally guaranteed insurance program providing tort coverage under such circumstances for all federally recognized tribes. Such an approach would address the legitimate issue without requiring tribes to relinquish sovereign immunity.

Similarly, we would encourage the Committee to explore cooperative solutions to any other legitimate policy issues involving the interaction of tribal governments with non-tribal individuals or jurisdictions that would not compromise the principle of tribal sovereignty.

As this Committee is well aware, since Chief Justice Marshall's 1831 decision defining American Indian tribes as "domestic dependent nations" in Cherokee Nation v. Georgia, the nature and limits of tribal sovereignty have been defined and redefined through both case law and statute. We do not propose to re-explore that record. Nonetheless, the history of tribal - federal relations in the United States strongly suggests, for both moral and practical reasons, that tribal sovereignty is essential to the cultural and political viability of American Indian communities. Federal Indian policy in the nineteenth and twentieth centuries has resembled a swinging pendulum, moving from the allotment era of the 1880s, through the community-oriented Indian Reorganization Act of the 1930s, the termination regime of the 1950s, and finally to the policy of tribal restoration beginning in the 1970s. The lesson of this history is clear. American Indians suffered disastrously as a result of policies that sought to undermine the shared basis of their communities: a common land base, the preservation of tribal languages, freedom of worship, and the right to political representation through sovereign tribal governments.

The Society for Applied Anthropology believes that the broad direction of congressional Indian policy over the past two decades has been appropriate. This policy is exemplified by the 1975 Indian Self-Determination and Education Assistance Act. Congress wisely sought to avoid the extremes of bureaucratic paternalism and forced assimilation. As the Committee on the Rights, Liberties, and Responsibilities of the American Indian reported in 1966, the "objective which should undergird all Indian policy" is that "the Indian individual, the Indian family, and the Indian community be motivated to participate in solving their own problems." As a result of this policy direction American Indian communities in the 1990s are engaged constructively in economic development, environmental conservation, education, child welfare, health care, and a range of other endeavors that collectively have significantly improved the quality of life of Indian peoples and the viability of their communities. Effective tribal governments stand at the center of this endeavor. The principle of tribal sovereignty is essential to their effectiveness. We urge the Committee on Indian Affairs to reject any legislation which would turn back the clock, undermining several decades of progress in the ongoing relationship between federal and tribal governments in this country.

Sincerely,

John A. Young
SfAA President