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Termination by Appropriation:
"Keeping Our Word to the Indians"

By Ben Nighthorse Campbell and John McCain
Wednesday, September 10, 1997; Page A21
The Washington Post

Throughout our tenure as chairmen of the Senate Committee on Indian Affairs, we have worked to eliminate the outdated, paternalistic federal relationship with Indian tribes and replace it with a new one emphasizing tribal self-determination. This policy, first articulated by President Nixon in 1970, provides Native Americans with greater control over their lives by replacing decisions made by bureaucrats in Washington with decisions made by the elected representatives of each tribe.

Section 120 of the Fiscal Year 1998 Senate Interior Appropriations Bill undermines a 25-year policy of self-determination by requiring tribes to waive their sovereign immunity from suit before they can receive federal funds. Without this immunity, which is held by both the federal and state governments, tribes will cease to exist as independent self-governing people. Every decision made by every tribal government could be challenged in federal court. But Indian tribes did not sign treaties with federal judges. The Constitution vests Congress with responsibility for the nation's dealing with Indian tribes and the president with the authority to negotiate treaties with tribes. Nowhere does the Constitution indicate that unelected judges should exercise such unprecedented authority over Indian tribes. Along with four former chairmen of the Indian Affairs Committee, we object to this drastic change in policy.

Not only would this proposal take from Indian people their ability to govern themselves, it violates both the treaties with the tribes and the Constitution, which recognizes tribes as sovereign entities like states. In addition, since this proposal comes to the Senate floor attached to a spending bill, without the benefit of legislative hearings, it also creates a number of practical problems no one has begun to consider.

When the United States negotiated treaties with the Indian nations in exchange for millions of acres of land, the federal government promised to act as a trustee for Indian lands and resources and to allow tribes to manage their own affairs. This proposal does the opposite. Although Congress may amend or modify the sovereign rights retained by tribes, it must, by law, do so in a manner that serves the best interests of tribes. Requiring tribes to forfeit their immunity from suit comes nowhere close to meeting that test.

The effect of this proposal cannot be overstated. Funds that are now used by tribal governments to provide basic governmental services -- health care, education, housing, law enforcement and fire protection -- will have to be redirected to addressing the demands of increased litigation. Often those suits will involve purely internal matters, such as challenges to tribal membership determinations. At a time when the federal policy of tribal self-determination and self-governance seeks to relieve tribal governments of their dependency on federal funding, this measure will make it necessary for tribes to seek new federal assistance to address the staggering costs associated with protracted and expensive litigation.

As one federal court of appeals observed in 1895: "As rich as the Choctaw Nation is said to be in lands and money, it would soon be impoverished if it was subject to the jurisdiction of courts, and required to respond to all demands which private parties chose to [bring] against it. The intention of Congress to confer such a jurisdiction upon any court would have to be expressed in plain and unambiguous terms."

Because the federal government holds legal title to Indian lands, it will be a necessary party to many of the ensuing lawsuits, generating huge legal bills of its own. No one has assessed the impact of Section 120 on the American taxpayer, which is especially important in the wake of our recently enacted budgetary objectives. Nor has any analysis been undertaken of the effect this section would have on our already overburdened federal court system.

This proposal also preys on the neediest of tribes by attaching the waiver to federal funds targeted at addressing the most critical areas of need in Indian country. Tribes with the most limited tribal resources, the highest unemployment and the weakest economies will lose their ability to govern themselves. Those who survive by cutting basic governmental services will retain their immunity. The section also discriminates by singling out tribes. Every state receives federal funds for a variety of uses, yet none is being asked to give up its sovereignty.

Some have argued that this section is necessary because Indian tribes and their members are "completely immune" from lawsuits. This simply is not true. Indians can be sued just like any other citizen. Anyone subject to tribal taxation or regulation of any kind may bring suit in federal court to challenge a tribe's authority. Tribes, like states, are not immune from suits by the federal government. Also like states, tribes frequently waive their immunity in business transactions, or in order to allow their insurance carriers to pay claims. Tribes can be sued for civil rights violations under a law enacted by Congress in 1968.

The status of the indigenous people in American society is a national embarrassment, attributable in large part to our nation's shameful history of violating treaties with the Indians. At a time when some tribes are beginning to break the cycle of poverty and hopelessness that has traditionally characterized life on most Indian reservations, Section 120 threatens tribal governments with litigation and liability that even the federal government with its immense resources does not allow.

It is easy to treat Indians this way. They don't form large voting blocs and most cannot afford the kind of access in Washington other Americans have. They are truly the "silent minority." We call on the Senate to join us in standing up for Indian people and preserving their right to govern themselves. We made promises to the Indians; let's keep our word.

Sen. Ben Nighthorse Campbell (R-Colorado) is chairman of the
Senate Committee on Indian Affairs. Sen. John McCain (R-Arizona)
was commitee chairman in the 104th Congress.

Their letter is reprinted from the Washington Post for educational purposes.

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