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Affairs, we have worked to eliminate the outdated, paternalistic federal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
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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