T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON. The simple justice referred to in this article is the death of an 18-year-old high school student in an automobile accident in the lower Yakima Valley in the State of Washington. That accident, according to the father of the boy and the police agencies, took place when a Yakima tribal policeman ran a red light in a pursuit and broadsided the pickup being driven by the young man and killed him. The Yakima Tribe, the employer of that police officer, cannot be sued because of the doctrine of sovereign immunity. In other words, there is no State or Federal court in which the father, the author of this letter, can seek simple justice. He is absolutely precluded by the doctrine of sovereign immunity. Now, if that police vehicle had belonged to the Yakima County sheriff's office, a suit could have been brought against Yakima County. If it had belonged to the Washington State Patrol, the father could have brought a lawsuit against the State of Washington--but not against the Yakima Tribal Council, the employer of that police officer. The Yakima Tribal Council states that the facts are somewhat different and that perhaps the police officer was not negligent. Neither you nor I, Mr. President, nor any Member of this body can be certain of those facts. But it is for exactly that reason that we set up courts in the United States, so that there could be a neutral body to make that determination and to reward damages where a judge and a jury felt damages were due. So when we discuss this question of tribal immunity, we aren't dealing with an abstraction, we are dealing with a very real question of justice involving very real people and involving responsibilities that are undertaken by every other governmental corporation in the United States. During the course of the debate over sovereign immunity, we have also heard, as one of the principal defenses, that it is created by these 367 treaties with Indian tribes. Unlike the debate on the previous question, a treaty-created right of financial support, I can't put a display behind me here showing a treaty and what it does to deal with tribal immunity because, bluntly, there isn't a word about sovereign immunity in any one of those 367 treaties. The reason is not surprising. Governmental immunity from lawsuits is not a concept that traces from that relationship. It is a doctrine of English common law that you could not sue the king, a common law inherited by the United States upon our Declaration of Independence in 1776, and abandoned, in most part, by the Government of the United States, by the governments of varying States, and through them by local governments all across the United States. One of the most recent statements of a Member of the Supreme Court on sovereign immunity is Justice Stevens, in 1991: The doctrine of sovereign immunity is founded upon an anachronistic fix. In my opinion, all governments, Federal, State, and tribal, should generally be accountable for their illegal conduct. And, of course, Mr. President, we never, under our system of judgment, allow the determination of whether or not something is illegal to be made by the person accused of illegality. We use an independent court system for that determination. The Supreme Court has dealt very specifically with the question of where the authority to make that determination about Indian tribal sovereign immunity is lodged. Chief Justice Rehnquist, in 1991, at the end of a series of cases on this subject, wrote: Congress has always been at liberty to dispense with such tribal immunity or to limit it. It is not a matter contained in any treaty. It is a matter that the Constitution of the United States of America lodges right here in the Congress of the United States. Now, I have agreed to the amendment that was just accepted because the Senator from Colorado, the Senator from Hawaii, and others have also graciously agreed that a subject that, for all practical purposes, has not previously been taken up by the Committee on Indian Affairs will in fact be taken up. I will, in the next few days or weeks, introduce a bill on sovereign immunity. They have agreed that there will be a series of hearings in which we will hear from victims of sovereign immunity, like the author of this letter, and from many others, and hear the justification of the various tribes for the retention of this anachronistic concept. They have also agreed that we will have a markup and a vote on such a proposal in the committee. My friend, the Senator from New Mexico, who is not here now, who vociferously and successfully argued for the removal of this section from this bill, has said, as he just did a few moments ago, that he feels that there may be real room, in connection with this doctrine, for changes, for some removal of that tribal immunity, even if not a total abandonment of it. I find that to be a most encouraging statement. I hope he reflects on others of his own view. The particular example that he has used is one that is pretty close to home, because as long ago as 1981 when I was attorney general of the State of Washington, I was involved in a lawsuit in which the Supreme Court of the United States made the judgment that Indian tribal smoke shops were required to collect the State's cigarette tax on the sale of cigarettes to non-Indians and to remit them to the State. It is curious that now we are debating actively just how much more we should pile on in the way of cigarette taxes in order to discourage smoking. But in the 17 years since the Supreme Court made that decision, a decision renewed in another case in the Supreme Court of the United States just a few years ago, Indian tribes have systematically and successfully ignored the judgment of the Supreme Court of the United States and have refused to collect those cigarette taxes, and sell cheap cigarettes, often to minors, without collecting the State sales tax, and to successfully defy the Supreme Court because the smoke shops are considered tribal enterprises and the State taxing authorities can't sue to enforce the collection of those taxes because of the doctrine of sovereign immunity. Just what justification we are going to get in these hearings for defying decisions of the Supreme Court of the United States and selling cheap cigarettes in the year 1997 and 1998 I am not sure about. I am going to be very interested in listening to that argument. We are talking about fairness here. We are talking about taxes that support the schools to which members of the tribe go. We are talking about a tax system that creates fair competition between sellers who hold that tribal immunity and those who do not. And, in a third area, we need to examine whether or not the ordinary forms of contract law ought to allow the enforcement of contracts, as against a claim of tribal immunity preventing a determination as to whether a contract has been violated or not. Those are three areas. I don't know that they are necessarily exclusive, and probably the considerations in each one of them may be different. Should States be allowed to enforce the collection of taxes that the Supreme Court says they have lawfully imposed? Should persons alleging violations of contract be able to go into a court to get a fair and equitable determination of whether a contract has been violated? Should the victim of negligence, or even an intentional harm in an automobile accident, or an assault, or the like, be able to seek redress in the courts of his or her State, or his or her Federal system, against an Indian tribe under pretty much the same circumstances in which they can seek that redress against any other governmental entity in the United States? The Supreme Court, Mr. President, has said the buck stops here. It is up to us to make that decision. We have not even talked about it for 20, 30, or 40 years. I think it is a major step forward that we will in fact talk about it. I suspect that it will still be a controversial issue, though it may be that the Senator from New Mexico has come up with a way for us to say, ``Well, perhaps we are not going to go all the way; perhaps we will try to deal with areas which are really quite open and shut, and see whether or not it works to the administration of justice; whether or not it does undercut any kind of tribal right of self- determination.'' That offer, as well as the generous statements from the Senator from Hawaii, and the Senator from Colorado, I greatly welcome. And I think we can deal with this in an orderly fashion of committee hearings and committee action. I now think perhaps for the first time we have some hope that we may not only be able to talk about the issue but to come to some kind of an accommodation in which we meet somewhere in the middle of the road-- hopefully we will not get hit by a car on the way--and see whether or not we can't move forward on this. So, I agree with the amendment of the Senator from Colorado which has just been agreed to. I thank him for his agreement to move forward on an issue on which he feels strongly, just as I do. But that, of course, is the way in which we deal with controversial issues, and I look forward to the next round. Mr. President, I think we have exhausted this subject. With respect to the bill as a whole, we will return I believe to the debate over the various amendments on the National Endowment for the Arts. The majority leader informs me that he in the strongest possible terms wishes to complete all action on this bill by adjournment tomorrow. Once Members who wish to speak to the National Endowment for the Arts, or any other issue, come to the floor and do so, we will have a further opportunity this evening. There is an amendment on forest roads to be proposed by Senator Bryan of Nevada, which I understand will be proposed early tomorrow, which will be highly controversial. And this will require a vote. The Senator from Arkansas, Mr. Bumpers, and the other Senator from Nevada, Mr. Reid, may well have settled the controversy involving them, and others. So I am not certain, on the Bryan amendment and the various amendments on the National Endowment for the Arts, that there are any others that will require rollcall votes. If there are, I urge Senators, or their staffs, to notify us and come to the floor and discuss them. We need to pass this bill. We need to get it into a conference committee. There are many controversial differences with the House bill. With that, Mr. President, and the request of anyone who wants to say anything tonight to say it, I suggest the absence of a quorum.

Mr. GORTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GORTON. The Senator from Florida is correct. The legislation before us today allows the Secretary to use this funding to assist the State of Florida in acquiring land in Stormwater Treatment Area 1-- East, should he determine it appropriate and deemed necessary by the Secretary.

Mr. GORTON. The Senator is correct. The Secretary may use the funding in this provision to improve and restore the hydrological function of the Everglades watershed. Nothing here prevents the Secretary from providing park acquisition funding to assist the State of Florida in the purchase of land for the project you described.

Mr. GORTON. Mr. President, this amendment has been cleared by the managers on both sides and is noncontroversial. I recommend its adoption.

Mr. GORTON. Mr. President, I send an amendment to the desk sponsored by the junior Senator from Alaska. I ask unanimous consent the pending committee amendment be set aside and we proceed to the consideration of the Murkowski amendment.

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON. Mr. President, the amendment has been agreed to by both sides.

Mr. GORTON. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 1203 (Purpose: Technical amendment clarifying provision allowing TPA funds to be used for repair and replacement of school facilities)

Mr. GORTON. Mr. President, I send a further amendment to the desk sponsored by myself and Senator Byrd. It is another technical amendment clarifying the provision allowing TPA funds to be used for repair and replacement of school facilities.

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON. Mr. President, the amendment is technical. In response to the growing backlog of unmet need for replacement and repair of BIA schools, the committee recommended that tribes be allowed to use their Tribal Priority Allocations funds for replacement and repair of schools if they wish. The technical amendment we are recommending today would clarify that, if a Tribe decides to use its TPA funds for the improvement, repair, or replacement of a school, that work must be preapproved by the Secretary of the Interior. In addition, future work must be completed with TPA or non-Federal Tribal funding. The Bureau correctly noted after the committee included the original language that, absent such conditions, it cannot currently meet the needs as they exist now. We are attempting to give Tribes some options; however, we do not wish to simply add to the need.

Mr. GORTON. Mr. President, I move to reconsider the vote.

Mr. GORTON

Mr. GORTON. But I ask the Senator from New Mexico, there is nothing there that mentions any specific project?

Mr. GORTON. I thank the Senator from New Mexico.

Mr. GORTON. The Senator is correct.

Mr. GORTON. I thank the Senator from New Mexico.

Mr. GORTON. Why don't you make the relevant page of the bipartisan agreement a part of the Record.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GORTON. Mr. President, what is the order of business?

Mr. GORTON. Mr. President, I understand that the proponents of the Ashcroft-Helms amendment are not willing to vote on that amendment today and wish that vote to take place tomorrow so that they have a greater opportunity to discuss it both here on the floor of the Senate and in public. I am firmly of the opinion, because that is the amendment that deals with the National Endowment for the Arts in the most radical fashion, that it should be voted on first, because if it is defeated, there are other amendments, including one sponsored by the Presiding Officer, that may get a fairer and broader view if they are voted on in an appropriate sequence. So I intend, and I believe the majority leader intends, to try to see to it that all Members who wish to speak on the National Endowment for the Arts and any of the four amendments that have been offered and spoken to so far have the opportunity to do so and that, at an appropriate time tomorrow, we vote first on the Ashcroft-Helms amendment, second on the Abraham amendment, third on the amendment of which the Presiding Officer is the sponsor, fourth, the amendment of Senator Hutchison of Texas, with I hope relatively small or short debate times in between the amendments, hoping that people will have had the ability to say all they wish to say about them in the course of discussing all of them together. There is no agreement at this point that this will be precisely the procedure, but I think it is likely. In the meantime, for the remainder of the afternoon, we are open for business. There are two controversial provisions relating to Indian matters. I am attempting to get the other Senators, in addition to myself, to the floor as soon as possible to consider those. They will not require a vote but will take a certain degree of discussion. I have been told that Senator Bumpers will be willing to present one or more amendments this afternoon, to have them debated and perhaps to have a vote by early this evening. Assuming that he and/or his staff are within hearing, I hope that he will come to the floor as soon as possible and present his amendment and will notify his opponents or ask us to notify his opponents of the fact that he is doing so, so that we can talk about them. We should not waste this afternoon, Mr. President. If we get some business accomplished today, there is still a very real possibility that we can finish debate on the Interior appropriations bill by tomorrow evening and go on to other questions. The debate so far has been healthy. I look forward to any Member who wishes to come to the floor and propose an amendment. With that, I yield the floor.

Mr. GORTON. Yes, I will be happy to.

Mr. GORTON. I asked, or caused to be asked, Senator Campbell, chairman of the Indian Affairs Committee, Senator McCain, yourself, Senator Stevens, and Senator Inouye to gather together as soon as most of us can make it. I think the lead in that is Senator Campbell as chairman of the Committee on Indian Affairs. As soon as we can arrange that, even if we are on something else, I will see if we can interrupt and get this part of the bill completed.

Mr. GORTON. For the time being, Mr. President, I suggest the absence of a quorum.