Mr. Chairman and Members of the Committee, I'm Darrel Smith and I ranch near Mobridge, South Dakota on the Standing Rock and Cheyenne Indian Reservations. I'm a third generation reservation resident and one of over three hundred and seventy thousand non-Indians that live on Indian reservations in this country. Both my Grandparents moved to the Cheyenne River Indian Reservation near Eagle Butte in the mid 1920's. Both Grandparents were farming when my parents met and were married in the early thirties. My Parents bought our present ranch in 1946. I inherited part of the ranch, bought some from other family members, and am buying the rest from my Mother.
I live in an area that was opened up to homesteading by a 1908 Surplus Land Act. A phrase in this Act refers to "the respective reservations thus diminished." Based on Surplus Land Acts and the Dawes Act, early homesteaders did not think that they lived on reservations. Based on the Dawes Act, they expected even neighboring reservations to cease to exist within a short time. They couldn't have anticipated or imagined the problems their descendants face. Over the years, non-Indians have slowly and methodically been put back on reservations and subjected to tribal taxes, licenses and regulations without the right to vote, or participate in tribal government. A controversial Supreme Court decision put me back on the reservation in 1984. Both tribes and the BIA have the right to legally discriminate and since tribes are governed by federal law, governmental powers that are granted to one tribe generally can be adopted by others.
In contrast, tribal Members can rightly participate in county and local governments. Because of the reservation boundaries, the tribes and their Members are exempt from paying the taxes or obeying the laws they make as participants in city and county government. This threatens non-Indians in towns and counties on reservations. Thus non-Members are being forced to pay taxes, obtain licenses, and obey regulations of a government that they are excluded from, while tribal Members can participate in local governments that they may not have to support or obey.
Tribes are asserting the right to collect many different kinds of taxes from non-Members. I pay a tribal tax that tribal Members are exempted from paying. What limits taxes that can be discriminately collected from people that are excluded from the political process? How do these taxes differ from the British tax on tea imports prior to the Revolutionary War? Tribal taxation also results in double taxation and raises business costs for non-Member reservation businesses.
A neighboring tribe has required that non-Indian businesses, even those located on non-Indian land, must have tribal business licenses. License applicants must agree to comply with tribal laws, including tax and preference laws. Applicants also must consent to the jurisdiction of tribal courts over any business conducted on reservations. Inherent in the power to license is the power not to license. These powers can be used to intimidate or force non-Members off reservations. Few reservation businesses can afford effective legal remedies.
Contracts with tribes or tribal members can only be enforced in tribal court and sovereign immunity protects them from being sued. Recently a tribal casino was built near me. Two contracts were entered into by the tribe and unilaterally canceled after considerable money was spent by the non-tribal party before a third contract was honored. This risk greatly reduces commerce with tribes.
Non-Indian communities, and whole counties, can't enforce their regulations against tribal members. In a neighboring community, four Indian youths vandalized the public school. Protected from effective prosecution by their immunity, several of them vandalized a business a few months later - leaving behind Polaroid pictures of themselves. Less than two months later they desecrated a church spreading excrement on walls and also on floors with a buffer. Available chemicals were dumped everywhere and again they left photocopies of their faces and genitals. Law enforcement is severely impaired on reservations.
Economic prosperity requires certain conditions and is difficult in rural areas in the best of circumstances. These added problems and uncertainties resulting from the inability of non-Indians to sue a tribe because of sovereign immunity and other uncertainties related to tribal court devastate the economies of many reservations, negatively affecting everyone. It is no accident that my county is one of the poorest in the country. In addition, many potential purchasers of reservation assets are simply not interested when they find out they will be confronted by these problems. When purchasers can be found, asset prices are regularly discounted about twenty-five percent. These facts make it difficult for non-Indians to either stay or leave.
I have a beautiful ranch that is close to town and has miles of shoreline along Lake Oahe, but I have considered selling it just to avoid these problems for myself and my children. I heard about a potential ranch purchaser that was looking for a ranch like mine. When I contacted the realtor involved, he said that the "word was out about reservations" and that he didn't feel it would be ethical to even talk to this potential purchaser about my ranch. I estimate that if my ranch were sold, I would have to discount it at least four hundred thousand dollars, making it very difficult for me to replace it somewhere else.
It is time to end the sovereign immunity of Indian tribes and at least make them subject to suit for violation of constitutional rights, for torts and for breach of contract.