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Tribes abuse their sovereign immunity

More than a year ago, I had the opportunity to visit the Goshute reservation west of the Deep Creek Range in extreme western Utah. Other than the austere beauty of the place, what struck me most in that arid clime was the poverty and utter sense of hopelessness among the people that tomorrow would in any way be any different from today.

There were no jobs and no prospects for future employment. As on most reservations, alcoholism was rampant, and some tribal members suffered from various ailments associated with alcohol abuse or other lifestyle choices. The closest town where anyone might hope to find employment was Wendover - that desert bastion of slot machines and fast-food restaurants about an hour and half north of Ibapah.During the time I was researching economic development issues on reservations, I began to understand that tribes are handicapped because they are for the most part unable to raise the capital necessary for business or commercial ventures. There's a good reason for that.

Suppose you entered into a business deal with the tribe. Let's say you loaned a certain tribe a million dollars for the purpose of opening a small manufacturing concern. What if, instead of using this money for the factory, the tribal chairman decides to take the cash and go on a spending spree in Las Vegas. What do you do? You'd sue the tribal government to recover your money, right?

Wrong. Your legal recourse is practically nonexistent. You just lost your money because of a concept called sovereign immunity.

In regard to American Indians, the idea of sovereign immunity was developed in part to protect the integrity of the reservation. It prevents the tribe from mortgaging reservation lands. More important, it stops banks from fore-closing on the reservation and kicking everyone off.

Unfortunately, it's also a factor that stymies economic development, making it virtually impossible for tribes to attract any businesses outside of casinos, smoke shops, oil wells, mines and development stemming from government contracts - usually involving the Department of Defense blowing something up somewhere.

American Indian groups that have truly succeeded economically, like the Choctaw in Mississippi, are tribes who have in one way or another waived sovereign immunity rights and played the game of business and finance like everyone else. The Choctaw have done so well that they don't have enough tribal members to fill all the industrial jobs available on reservation lands. Non-Indians are actually coming to the reservation looking for work.

Indian sovereign immunity rights are also a headache for state governments. The concept establishes reservation lands as virtual kingdoms within the state, for the most part beyond judicial, executive and legislative oversight. It also makes it almost impossible for anyone - including tribal members and the media - to find out what's going on within tribal government and why.

Instead of protecting the rights of American Indians, sovereign immunity is often used as a cloak for unscrupulous tribal leaders to hide behind while they take advantage of their position for personal gain.

One of the most recent schemes involving sovereign immunity is the Skull Valley Goshutes' plan to allow a consortium of nuclear power giants to establish a atomic waste dump on their tiny reservation in Tooele County. It is shocking that even the governor of this state finds his options severely limited when he tries to stop, regulate or even find out specific details about the Goshutes' plans.

Tribal membership is apparently also in the dark. Margene Bullcreek, a Goshute who has been outspoken in her opposition to the waste dump project, has been unable to determine critical issues like how much money the tribe will receive for allowing the waste dump on its land, exactly who will get that money or what the funds will be used for.

Now, we're talking about millions of dollars here , folks. This is not just lunch money. We're also talking about a project that could conceivably affect the health and welfare of millions of people. The hard questions that need to be asked are not getting raised, and it's all because of another obvious misuse of the power of sovereign immunity.

Sovereign immunity doesn't always include the concept of sovereign accountability.

At least part of the current controversy in Roosevelt is also inundated with the murky waters of sovereign immunity. The Utes want to be able to punish their own tribal members for misdemeanor crimes alleged to have occurred off the reservation. They argue that tribal members are routinely harassed by police and can expect no justice in local courts.

On the face of it, the Ute position seems like a logical argument. We still live in a world of prejudice and discrimination. On the other hand, tribal courts nationwide have a notoriously poor record in delivering justice to tribal members for crimes committed.

A Washington state man, Bernard Gamache, recently related in the Washington Post his fruitless attempts to obtain justice for a son killed by a reservation police officer speeding in his patrol car. Gamache's son, Jered, was killed back in 1994, and apparently nothing has yet been done about the matter.

In a recent civil case in Minnesota, a woman claimed she was fired from a tribal casino because of age discrimination. The tribe invoked its immunity against lawsuits in federal court, and the woman's case was then heard and neatly dismissed in a tribal court.

Washington Sen. Slade Gorton recently tried to introduce a rider to the Interior Department's funding bill that would have required tribes to waive sovereign immunity in civil lawsuits and would have forced them to provide financial data to allow Congress to better allocate funds toward more needy tribes. Both of these are reasonable, modest steps. Gorton's measure was shot down (read: casino lobby) with a great deal of ad hominem invective aimed at the Republican senator during the debate to the effect that he is anti-Indian.

Legislation like Gorton's is not only needed, it's probably inevitable if tribes continue to abuse their powers of sovereign immunity.