[Congressional Record Volume 143, Number 114 (Wednesday, September 3, 1997)]
[Senate]
[Pages S8721-S8722]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       TRIBAL SOVEREIGN IMMUNITY

  Mr. GORTON. Mr. President, on October 25, 1994, Jered Gamache lost 
his life, and his brother, Andy, was seriously injured on their way 
home from school when a Yakama tribal police officer, driving at 68 
miles per hour, ran through a red light and crashed into their truck. 
Jered was 18 and Andy was 16. Despite the loss of Jered's life and the 
injuries to Andrew, the Gamache family has been totally unable to seek 
damages against the Yakama tribal government for the actions of its 
police officer.
  Now, let us compare this situation, Mr. President, to the case of 
Abner Louima, the Haitian immigrant who was brutalized a few weeks ago 
by New York City police officers. According to the New York Times, in 
addition to the ongoing criminal investigation, Mr. Louima's attorneys 
are planning to file a $465 million civil damage suit against New York 
City.
  Now, Mr. President, what makes the case of Jered and Andy Gamache 
different from the case of Abner Louima? The answer is simple: Tribal 
sovereign immunity. Unlike New York City, the Yakama tribal government 
can claim immunity from any civil lawsuit, including suits involving 
public safety and bodily harm, in both State and Federal courts. As a 
consequence, the lawyers retained by the Gamache family have told them 
it is pointless to bring any kind of lawsuit. They have no recourse.
  New York City does not have sovereign immunity, and thus, of course, 
is subject to a lawsuit in any amount of money on the part of victims 
of malfeasance, on the part of members of its police department.
  A few weeks ago, up until the present time, the New York Times has 
run articles and editorials showcasing the Louima case as an example of 
police brutality and the need for permanent reform. While that case has 
sparked outrage from editorialists in New York and elsewhere, last 
Sunday the New York Times vilified my efforts to provide exactly the 
same avenue for relief to the Gamache family as the New York Times 
eloquently advocates for Mr. Louima. The New York Times has decided 
that while it is unacceptable for New York City to brutalize a person, 
it rejects non-Indians' right to bring similar claims against tribal 
police agencies in the U.S. courts. So we have 18- and 16-year-old 
victims who have no recourse.
  Enormous injustices can be done whenever a technical claim can 
prevent the adjudication of a just claim on the part of an individual 
against a government. It is for exactly that reason that the doctrine 
of sovereign immunity was long ago dropped by the Federal Government 
and the State government in cases of this nature.
  Let us consider another case, Mr. President, the case of Sally 
Matsch. When she was fired from an American Indian casino in Minnesota 
she felt that she was a victim of age discrimination, so she sued the 
Prairie Island Indian Tribe. The tribe, however, invoked its sovereign 
immunity against lawsuits in State or Federal courts, and her case was 
heard by an Indian court on the second floor of the casino and was 
dismissed amid the sounds of slot machines by a judge who served at the 
pleasure of the tribal council that ran the casino.
  Seventeen years ago I was attorney general of the State of 
Washington. I brought a lawsuit that asserted the right of the State of 
Washington to tax the sale of cigarettes in Indian smoke shops to non-
Indians. The Supreme Court of the United States upheld our position 
that those sales were taxable. For all practical purposes, however, in 
the 17 years since that time, States have been unable to enforce a 
right that the Supreme Court of the United States said they had because 
they cannot sue the tribe or the tribal business entities in order to 
collect those taxes or to enforce their collection. Why? Tribal 
sovereign immunity.
  Barbara Lindsey, Mr. President, is president of an organization of 
Puget Sound beach property owners in Washington State. In 1989, 16 
Indian tribes sued those property owners in the State of Washington 
claiming that ``treaty rights'' gave them the right to enter private 
property to remove clams and oysters. A Federal district court in large 
measure has accepted that claim, but Barbara Lindsey and the thousands 
of property owners she represents, Mr. President, cannot sue the Indian 
tribes for violations of their property rights, even in cases when 
those violations are obvious and open. The problem? Tribal sovereign 
immunity.
  So, Mr. President, this body will debate next week when it debates 
the Interior appropriations bill a provision that for a period of 1 
year, as a rider on the appropriations bill, requires the waiver of 
tribal sovereign immunity on the part of those tribes--and I believe

[[Page S8722]]

it is all of them--whose governmental entities, whose police forces, 
are being funded by money appropriated by the Congress out of the taxes 
collected from all of the American people. The proposal does not change 
any substantive laws. It simply says if, in fact, the law has been 
violated, there should be a remedy in a neutral Federal court--we have 
not extended it to State courts--but in a neutral Federal court.
  Is it fair to prevent a family from seeking justice for the wrongful 
death of their son? Is it fair that a claim of age discrimination 
cannot be made or decided in a neutral court? Is it fair that a 
decision of the Supreme Court of the United States on taxes cannot 
effectively be enforced? It is not, Mr. President, and claims that 
sovereignty is somehow undercut by saying that the sovereign is subject 
to the laws is simply not the case.
  The claim of those who believe we should make no change is a claim 
that an Indian tribe can act in a totally lawless fashion and not be 
held responsible in any court of the United States for those lawless 
actions.
  It can be dressed up in whatever fancy language about sovereignty 
that one may propose, but it comes right down to that proposition: Is 
it fair that if you are injured by a New York City policeman you can 
sue New York City, but if you are injured by a Yakama tribal police 
officer, you may not sue its tribe. The doctrine is one that stems from 
the kings of England. It is an anachronism in today's world. Under 
constitutional guarantees of due process to every American citizen, 
every American citizen should be granted the opportunity to bring his 
or her case in a neutral court and get an answer as to whether or not 
crimes have, in fact, been committed. The only issue that will be 
involved in this case is, Should any government be permitted to act in 
an entirely lawless fashion and not be called to account for its acts? 
The answer to that question is ``no''. We should not be involved in 
that kind of action, and the only body with constitutional authority to 
make that decision across this United States is the Congress of the 
United States. The buck stops here.

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