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April 7, 1998 Seattle, Washington
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Statement by U.S. Senator Slade Gorton regarding Tribal Sovereign Immunity:
"Today the U.S. Senate Committee on Indian Affairs will hold its second hearing on the issue of tribal sovereign immunity. Sovereign immunity is an ancient legal doctrine protecting governments from being sued by citizens. Our federal government, as well as every state and local government in the United States, has substantially abolished sovereign immunity so that people who are wronged by government can have their day in court. Tribal governments have retained sovereign immunity and are protected from being sued.
The issue of sovereign immunity as it relates to local, state, and tribal governments can be best illustrated by the following example: Imagine that you have been the victim of police brutality by your local police officer or your county government has just backed out on a business contract with you - what do you do? If you're like most people, you claim your constitutional rights of due process and take your local government to court and sue for damages incurred.
Now imagine similar scenarios occurring on the Indian reservation. If you suffer injuries at the hands of a tribal officer or if the tribal government breaks a business contract with you, do you have a legal recourse? No. If you attempt to take your case to court, the tribal government can invoke sovereign immunity and prevent your case from even being heard by a court.
Sovereign immunity and sovereignty are two separate issues. Is it necessary for a governmental body to be free from litigation in order to carry out its governmental functions? If so, then the United States is no longer a sovereign nation because it can be sued on a wide range of issues. It should also be noted that the doctrine of sovereign immunity is not protected directly or indirectly by any Indian treaty.
I have introduced a bill, the American Indian Equal Justice Act, in an attempt to find a solution to the problems which constantly exacerbate the day to day relations among governments, individual citizens and America's 554 Indian tribes. I seek an answer to this question: How does the doctrine of sovereign immunity fit into the 20th century world of Endangered Species Act listings, private property rights, Supreme Court rulings on tribal tax evasion, and Indian Civil rights? Due to the sensitive nature of this issue, most of my colleagues prefer to take a pass and not deal with this issue. I disagree by saying the individual rights of all citizens are too important to ignore as we reevaluate the relationship among the states, the federal government, Indian tribes and individuals. As part of the United States of America, individual citizens and Indian tribes are all subject to the Constitution. We should strive for equal application of its laws.
The U.S. Supreme Court has described Indian Tribes as "domestic dependent sovereigns." The critics of my proposal have misled the public by saying the intent of my bill attempts to do away with Indian tribes altogether. Nothing could be further from the truth. I have and will continue to recognize Indian tribes as sovereign nations. This is not the issue. The issue at hand is accountability on the part of Indian tribes and a restoration of constitutional rights for both Indians and non-Indians.
The enactment of my proposal would mean that individual citizens will be able to take their grievances with Indian tribes to neutral courts.
Sovereign Immunity and Tribal Tax Evasion
In 1980, the U.S. Supreme Court ruled that on-reservation cigarette sales to non-tribal members are subject to state taxation. Although this case was decided 18 years ago, Indian tribes across the United States have consistently refused to collect the tax which the Supreme Court of the United States has said they are responsible in turning over to the states. What does this luxury of selling cheap cigarettes add up to? In 1998 the State of Washington alone will lose $64 million. That's no small change. That is $64 million which could be spent on meeting the education, health and transportation needs of all Washingtonians.
On this front, my proposal asks no more and no less than that Indian tribes be subjected to the same degree of responsibility as others are. They should not be able to evade taxation when the Supreme Court has ruled on three separate occasions that the taxes are proper. My proposal doesn't change the law at all. It simply gives courts the right to make a determination as to what that law is on a case by case basis, and then to enforce their decisions.
Sovereign Immunity and Civil Disputes
Today, the actions of a tribal official or employee that results in the loss of property, personal injury, or death can not be taken to a state or federal court without the tribe's consent. If a non-Indian becomes involved in a civil dispute with an Indian or Indian tribe, there is no guarantee that his or her case will ever be heard before a neutral court. For example:
In 1994, Jered Gamache of Toppenish, Washington lost his life when a tribal police officer, driving 68 mph, ran a red light and crashed into his truck. Because the accident occurred on an Indian reservation, the tribal government whose officer was responsible for this tragic accident is immune from any damage claims brought against it. The Gamache family could not hold accountable the Indian tribe whose police officer killed their 18 year old son.
Sovereign Immunity and Indian Civil Rights
A February 7, 1997 story by "The Ojibwe News" reported that Jill Gavle, a former security guard for the Mystic Lake Casino could not pursue her allegations of assault, sexual harassment, racial discrimination, and pregnancy discrimination during her employment at the Shakopee Mdewakaton Sioux Community Casino in a neutral court because of tribal sovereign immunity.
Quoting "The Ojibwe News", the Minnesota Supreme Court had ruled in a divided opinion that "tribal casinos are like a tribal government agency, not a for-profit business, and that tribal sovereign immunity prevents anyone from pressing charges against a tribal casino for wrongdoing....in effect, the Minnesota Supreme Court has ruled that the 15,000 Minnesotans who work at tribal casinos, and the hundreds of thousands who go to casinos as customers, give up their civil rights when they accept employment or step on tribal land."
A recent editorial condemned my proposal by saying there was no compelling reason to curtail sovereign immunity." I remind my detractors that the shield of sovereign immunity robs states of millions of dollars in revenue each year; the shield of sovereign immunity tramples on the constitutional rights of both Indians and nonIndian citizens. I believe our justice system can apply equally to tribal governments without inhibiting opportunities for Native Americans. But I also believe there should be no more "compelling reason" than to ensure that our justice system works for all citizens.
For copies of testimony given at the hearing:
Native American Press/Ojibwe News
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MR. ROLAND MORRIS SR.
BOARD MEMBER CITIZENS EQUAL RIGHTS ALLIANCE
BEFORE THE COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE
CONCERNING S. 1691 THE AMERICAN INDIAN EQUAL JUSTICE ACT PRESENTED ON
APRIL 7, 1998 SEATTLE, WASHINGTON
Good afternoon Mr. Chairman and Members of the Committee. My name is Roland Morris Sr.. I am a board member of the Citizens Equal Rights Alliance (CERA) and president of All Citizens Equal, (ACE). Although opposition has labeled these groups harshly, both are grassroots, multi-racial groups dedicated to the promotion of equal rights for all citizens within Indian Country.
I am also a full-blooded Anishinabe American citizen. Originally from the Leech Lake band of Minnesota Chippewa, I now live in Montana. Thank you for the opportunity to appear before you to testify on the American Indian Equal Justice Act. It is my hope you will discern the truthfulness of my message by examining both my heart, as well as my words.
I believe current federal Indian policy coupled with tribal government behavior is taking a bigger toll on tribal members then most people admit. I am Indian. When I step foot onto a reservation, State and Federal constitutional rights can be denied me. I become a second class citizen. On a reservation there is no guarantee the United States Constitution and the Bill of Rights will control. There are no guarantees the Civil Rights Acts or legislation against age or gender discrimination will be honored. There are no guarantees of the Veterans Preference Act, no Civil Service classification to protect tribal government employees, no guarantees of the Americans with Disabilities Act, no guarantees against blanket nepotism or a fair and orderly process concerning access to reservation housing, and no guarantee of freedom of the press or freedom of speech. In other words, basic human rights other Americans take for granted, that allow people to live in dignity with their neighbors, are not guaranteed on Indian reservations under the present version of "sovereignty".
Secondly, Tribes are dependent on Federal government help. Through this dependency, many tribal governments have become corrupt with unchecked power and money. Because of corruption and unwillingness to let go of power and money; tribal government themselves, in some cases, are keeping their people in the bondage of poverty and oppression.
It cannot be denied that current federal policy is such that tribal governments financially benefit from the general membership's poverty level staying just as it is. The plight of the average Native American is what keeps money flowing into the coffers of those in charge of Tribal government. Thus, tribal government needs to keep in control of its members, even to the extent of demanding from this Congress that the "tribe shall retain exclusive jurisdiction over any ...Indian child...", as is written in the Indian Child Welfare Act, which states further that tribal interests are "independent of the interests of the birth parents".\par The Indian Civil Rights Act mandates that no Indian tribe in exercising powers of self government shall violate various basic civil rights. However, when there is no separation of powers within tribal governments and tribal sovereign immunity protects tribal government from civil rights claims, tribal members are left without recourse.
But many tribal members say nothing publicly. Cronyism, nepotism and ballot box rigging are all part of political reality on many reservations. Everyone seems to accept it as a given and because tribal government controls tribal jobs, HUD housing, tribal loans and land leases, many members are reluctant to speak out. Tribal government controls most everyone's strings, not to mention the judicial system. Getting on the bad side of the government can mean the loss of ones job or home. Some have even been threatened that their family members would lose their jobs.
Further disabling to membership outcry is the manipulation used to keep control. I have seen tribal governments pressure members to rally to their cause and political goals through misinformation, bullying, and even bribes. At a political rally two years ago, in order to portray a good show of force for the media, a tribal government gave its employees the day off and told the employees they were expected to attend the rally. In order to ensure the attendance, the tribal government offered transportation to the rally, free food, and distribution of the employees' pay checks.
At the recent Montana gatherings held by Senator Conrad Burns in reference to tribal jurisdiction, the tribal governments transported students from the colleges and high schools, offered free food and dance before the hearings, and inflamed the large group with speeches about genocide. Prior to the busses leaving one of the schools on its way to the hearing, a student was told that unless he planned to speak at the hearing, he wouldn't be allowed on the bus. Again, a show of angry force was important for this media event, and it was highly unlikely that under those conditions many tribal members would get up and say anything in opposition to tribal government dogma.
Actual bullying usually occurs on more of a one-on-one scale. In one case, a tribal member had been essentially share-cropping with a white neighbor. The tribal member shared his tribally leased land; the neighbor shared his tractors and other heavy equipment. Together, they both benefited. However, this arrangement angered the tribal government, which without warning revoked the tribal member's lease on the land in question, threatened to revoke other land he leased, and threatened him with forced eviction from his HUD home. The government eventually allowed him to keep his home and other land, but permanently revoked the land he had shared with a non-member. This tribal member, having a large family, has no intention of taking another chance of losing his home by speaking out.
In another case, a person running for office in a recent tribal election was denied, by the tribal council, the right to advertise in the local tribal paper.
I have had many tribal members come to me in confidence and relate their concerns and fears. I have even had a former tribal council member come to me to discuss these issues. I see true elders feeling defeated. Many of those within tribal government won't listen to the elders. Seeing this disrespect is hurtful to me and it pains many other tribal members that this is the way things are.
It can be no wonder that Indian people are tired and depressed. Not only do many feel alienated from the United States Government and the rest of society, but many tribal governments can't be trusted either. This situation, having become a hopeless fact of life, along with poverty and other factors, has bred depression and loss of trust.
With the current epidemic of corruption on Indian Reservations, how could tribal members be better protected? It is clear to us that something needs to change. We can't continue to sit back and watch relatives despair. Let us work together as brothers and sisters to correct the problem.
Senator Gorton's bill, The American Indian Equal Justice Act, is wonderful news for anyone, either tribal or non-tribal. By providing federal district courts jurisdiction over civil rights actions brought under the Indian Civil Rights Act, tribal governments will be held accountable for their actions. This bill will not hurt tribal members, it will only hurt corrupt tribal government.
While non-members all over the country are gathering to support this bill, this is actually one of the best things that can happen for tribal members. This bill will give members the right to sue tribal government when they deny member's rights.
If tribal government looks at the plus side of the bill, it'll see that it will improve the economy for everyone on the reservations. Industry would be willing to come and build businesses on the reservation. Our relationship with the so-called outside world would improve. If tribal government looks at the plus side of the bill, it'll see that it will provide encouragement and hope for everyone on the reservations. Not only would people begin to feel less like pawns in the chess game of politics, but they would feel strength in the knowledge that their independent thoughts mattered and could be voiced without fear of punishment. Furthermore, if industry within the reservation improved, less people would have to depend on the government for assistance.
People will not feel as useless or trapped anymore. Thank you.
Roland Morris, Sr.
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That Day in Seattle:
by Lisa Morris
The place was packed. We had to park quite a ways away. Pickets all over the place. On one side, white people carrying signs in support of Gorton's bill. On the other side, close to the entrance of the hotel, tribal members drumming and holding signs opposed to Gorton's bill.
Scattered in among the tribal members were some white people, wearing khakis and handing out "Free Leonard Peltier" literature to passers by. But we saw no tribal members who, like Roland, allied with the majority of whites in support of Gorton's bill.
Getting to Roland's seat was difficult. We tried to make it through the standing crowd, but couldn't get far. We had to go around through the kitchen. There was a guy with a small listening device in his ear blocking the door. After being told Roland was a witness, and he opened the door and let us pass. All kinds of tall men with things in their ears were back there. We made our way in, about ten feet from the Senators, and another guy stopped us and tried to herd us back behind a velvet rope. We him Roland was a witness, and he notified a staff member.
Roland was then seated.
There were two sections of witness panels. The first was about property rights, primarily dealing with current non-member property right issues within the State of Washington, such as the shell fish controversy and the amphitheater controversy.
The second was about civil rights; primarily tribal government abuse of such.
Roland was the second to last witness. He was still somewhat nervous, standing for two governments and speaking against what he was raised with, and got a little bit tongue tied, but people came up to us afterwards and congratulated him for his bravery.
Three others; a tribal elder, a Minneapolis lawyer that has been dealing with tribal civil rights abuses, and Bill Lawrence, the publisher of the "Ojibwe News" were also seated with Roland and gave very powerful testimony.
However, the Seattle papers only wrote about the property rights issues between members and non-members. While it is true that much of the media had left before the last panel was seated; the media had been given complete witness statements of all official witnesses. Perhaps the Seattle papers, having limited space, concentrated on issues of most concern to the people of its State. Hopefully papers from other areas gave some coverage to the civil rights issues.
I had heard one person say a few months ago; "if the United states Government began to recognize the civil rights of tribal members on the reservations, the property rights issues of non-members would fall into place. After all, the government couldn't go ahead and recognize the rights of tribal members, and at the same time continue to ignore those of the non-members, could it?"
I made a foray out to the picket line while I was waiting for Roland to speak, and actually tried to explain this to some of the "property rights" pickets outside. I was a little taken aback by some of them, to say the least. While sharing some of the CERA information, some of the pickets tried to share with me their bumper stickers "Save a dollar, shoot a buck".
These statements were not only hateful, irresponsible and offensive, but dangerous and stupid. People are put in danger by such rhetoric. What if someone in the woods really felt that way? The picketers were told this. They were also advised that when the media sees those signs, they will focus on them and any truth that is being told will be disregarded
Two of the men were like bricks. Their hearts were hard. They couldn't hear a word I was saying. One of them said; "Signs like these get the point across." and then with a laugh added, "If the moccasin fits, wear it."
One man, I could see in his eyes, did hear me. Just a flicker. He turned his sign around in his hand and looked at it again. Then he saw his friends eyes, and quickly returned the sign to its original position.
But one of the men down the sidewalk a ways said "I was trying to tell them that myself." We spoke for a few minutes about what the real problems are, and where they originate. I told him, "My husband isn't in there testifying because he's afraid someone wants to shoot a buck, he's in there because he loves his family." The guy said he understood. He took my information and said he had stuff he would send me.
Another man stood leaning on a car, listening. He never said a word, but as I was leaving, he smiled and gave me a wink of encouragement.
You know, some people make it hard for you to be on their side.
Sometimes Roland and I go home thinking we aren't on anyone's side. We have to go at this whole thing, knowing what we know and determined to stand up for it, no matter what anyone else on either side says or intends.
But we know that those that we work closely with are not hateful; they are good, honest people, easy to stand next to. And so we continue.
By the way, a tribal member did approach Roland and Bill after the hearing and was so glad to see them. Having suffered abuse on her Washington state reservation, she and her husband had come on their own in support of Gorton's bill. She's even made signs to hold up. To stand alone, amidst and in opposition to your very own reservation members. Very, very gutsy.
Roland and I had to go, but Bill and Julie stayed to talk to them.
There are tribal members out there that know this is right, it is just so hard to stand up and say so. We have people come in our shop all the time and say that they agree, but are afraid to speak up. This is exactly the point of Roland's testimony and support of Sen. Gorton's' bill. . It's hard for members to stand up to tribal government when the tribe holds all the strings ( control of your housing, jobs, etc.,) but can't be held accountable. It amazed us to see this couple do it.
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