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National American Indian Court Judges Association
Prepared Statement of the National American Indian Court Judges Association

Presented by Donald R. Wharton, Attorney, Native American Rights Fund and the Honorable Jill E. Shibles, President of the National American Indian Court Judges Association

Submitted to the United States Senate Committee on Indian Affairs
Economic Development Hearing

St. Paul, Minnesota

April 9, 1998

Introduction

Chairman Campbell, Vice Chairman Inouye and distinguished members of the Committee, my name is Donald R. 'Wharton. I am an attorney with the Native American Rights Fund, a non-profit law firm providing legal representation to Native American Tribes and individuals since 1970. I am here today to offer testimony on behalf of the National American Indian Court judges Association (NAICJA), an association governed by a sixteen member board of tribal judges which has for the past twenty-nine (29) years provided representation for the interests and concerns of over 240 tribal and Indian Code of Federal Regulation (CFR) courts across the nation. NAICJA appreciates the invitation to address the Committee concerning the role and place of tribal courts in economic development in Indian Country.

Economic Development Key to Future Tribal Self-Sufficiency

It is widely accepted that economic development is the future of self-sufficiency in Indian Country. The increasing role of tribal governments in providing the support for programs for their citizens and territories is closely linked to the reduction in real federal funding for many of those same programs. As tribal leaders and their constituents assume greater responsibility for economic self-determination the need for tribal governmental infrastructure support for domestic commercial development increases significantly. 'With few notable exceptions (e.g. gaming and control over certain renewable [fisheries, timber, etc.] and non-renewable [e.g. oil, gas, coal, etc.] resources) Tribes generally are not in business for themselves, but rather are creating the physical and governance infrastructure necessary to support private enterprise.

Competent Well Funded Tribal Judiciaries Are Essential to Tribal Economic Development

Strong, competent and impartial tribal courts are integral to the development of business friendly environments in Indian Country. Effective and efficient resolution of disputes arising from commercial dealings is an essential component of the governance infrastructure which tribes must provide. Businesses are keenly aware of the need to have relative certainty in the outcome of commercial litigation. Such certainty is a part of the risk assessment they do for siting business enterprises, They also take into account the availability of clear and detailed commercial laws which may be interpreted and enforced by competent judiciaries. Tribal Courts are, therefore, a focal point in the infrastructure necessary for successful economic development to take place.

Many tribes have, in fact, moved toward improving economic conditions in their communities by establishing and supporting tribal judiciaries which provide impartial and efficient resolution of commercial disputes. In addition, Tribal courts handle hundreds of cases involving torts, contracts, employment, regulatory and administrative appeals, secured transactions, and an array of criminal matters. These courts are presided over by well-trained and experienced tribal judges.

Congress has Consistently Failed to Provide the Needed Funding for Tribal Courts

Both Congress and the Courts have over the years recognized the important role of tribal courts in the development of tribal self-sufficiency and self-government. Congress in the adoption of the Indian Tribal justice Act of 1993 found that the "Congress and the Federal Courts have repeatedly recognized tribal justice systems as the appropriate forums for the adjudication of disputes affecting personal and property rights." 25 U.S.C. �3601 (6) (107 Stat. 2004, Dec. 3, 1993). The Supreme Court has observed that "Tribal courts play a vital role in tribal self-government, and the Federal Government has consistently encouraged their development." Iowa Mut. Ins. Co. v LaPlante, 107 S. Ct. 971 (1987).

Tribal judiciaries in Indian Country have, however, historically been asked to subsist on the scantiest of budgets. As an example, the Colville Tribal Court receives combined federal and tribal funding of eighty-five dollars ($85.00) per case to adjudicate its cases. By comparison, the local county court receives over five hundred dollars ($500.00) per case, and the federal district court over two thousand dollars ($2,000.00) per case. Tribal courts have, nonetheless, done and are doing an extraordinary job given the resources available to them. Some tribes have responded in this area by creating arbitration options with specific requirements for the training and experience of the presiding officers. Other tribes have created tribal courts expressly for the purpose of providing dispute resolution capability for business transactions. There is, moreover, a clear and unmistakable trend toward ever more independent judiciaries in those few cases where it doesn't already exist.

But Congress also found in adopting the Indian Tribal justice Act that "tribal justice systems are inadequately funded, and the lack of adequate funding impairs their operation." 25 U.S.C. �3601 (8). The United States Civil Rights Commission concurred. In its 1991 report "THE INDIAN CIVIL RIGHTS ACT: A Report of the United States Civil Rights Commission, June 1991," the Commission reported that "enforcement of the Indian Civil Rights Act today takes place solely in tribal forums," and that "the failure of the United States Government to provide proper funding for the operation of tribal judicial systems, particularly in light of the requirements of the Indian Civil Rights Act of 1968, has continued for more than 20 years." Pp 71-72.

To address this serious inequity Congress authorized in the Indian Tribal justice Act of 1993 annual funding beginning in fiscal year 1994 and running through fiscal year 2000 in the amount of fifty eight million dollars ($58,000,000.00) per year. So far Congress has yet to appropriate a single dollar under these authorizations. In addition, Congress imposed a requirement that a survey of the conditions of tribal judicial systems be done to determine the extent of the resources and funding needed for the expeditious and effective administration of justice. This information was to be updated annually by the Secretary of the Interior. For this purpose Congress authorized four hundred thousand dollars ($400,000.00). Again, there has been no appropriation. This essential and critical information about tribal judicial systems goes unprovided at a particularly important time.

Congress' Failure to Fund Tribal Courts is Used in Part to Attack Tribal Sovereignty

Any serious proposal to support economic development in Indian Country must include support for tribal courts and appropriations to make that support meaningful. But instead of support for the appropriations needed to strengthen tribal courts, Congress presently has before it legislation in the form of Senate Bill 1691 to once again diminish the sovereignty of tribal governments, and their courts. The proposal would waive a tribe's sovereign immunity to suit in federal and state courts, subjecting tribes and their treasuries to the jurisdiction of a foreign tribunal. This far reaching and drastic proposal should be based upon informed debate and carefully gathered and reliable information. Instead, it appears to be based largely on anecdotal complaints from disgruntled individuals who did not get their way in a particular tribal forum, or merely dislike a proposed tribal project. Does there exist anywhere a governmental forum--state or federal--that does not have a detractor who will complain of the denial of their rights before that forum? Contrary to the impression which the anecdotal complaints are designed to create, a recent survey conducted in February of 1998 by the University of Connecticut's Center for Survey Research and Analysis, shows that 81% of Americans agree that tribal governments should have the freedom to improve the economic and social conditions of their people, and 87% believed that Congress should assist tribes in this effort. Over half (55%) of the respondents expressly rejected placing limits on tribal sovereignty.

But having denied tribal forums--through the failure to appropriate funds for the mandated tribal court survey--the ability to generate the information so important to the present debate, and having starved these forums for decades of the resources needed to carry out the tasks placed upon them (in part by Congress) some in Congress would now forward legislation to punish tribes for the failures of the federal government to fulfill its solemn trust responsibilities expressly acknowledged in its own legislation. Is there a clearer case of blaming the victim?

The pretense that tribes are the only governments relying on sovereign immunity to suits brought against them by others is indefensible. Nothing could be further from the truth. A cursory survey of state and federal sovereign immunity cases over the past 10 years turned up nearly seven thousand (7,000) cases. The waivers of immunity in state and federal forums have, moreover, been extremely carefully crafted over two hundred years. These waivers were developed in the context of the development of the forums for the implementation of those waivers and with a wary eye toward the protection of the public treasury from unwarranted invasion. They were, moreover, developed by the sovereigns being subjected to the suits that would be brought almost always in their own courts. There is no principled reason why tribal governments should have any less right to fashion waivers of their immunity to suit in any different fashion. Indeed, many tribes have developed limited waivers of immunity to suit, tailored to their individual situations. Allowing those closest to the issue to continue to fashion the fairest remedy continues to be the best approach.

Conclusion

Tribal courts are an integral and essential part of the emerging economic development of Indian Country. Any serious effort to support economic development for tribal governments must include a component for support of the development of tribal commercial laws and the judiciaries to implement those laws. Thank you again for the opportunity to present these views to you today.