got off so easily in the tribal courts with the types of fines that were set for their sentences, rather than appealing them.

Senator MELCHER. If you had a Federal magistrates system enacted on the Quinault Reservation, does it follow that the appeal from the Federal magistrate to the U.S. district court would be a reasonable procedure?

Mr. DELACRUZ. Yes. We do have a magistrate-and this is since I have been chairman of the Quinault, going on 12 years at Port Angeles which is 125 miles from Quinault. Various types of hunting and fishing trespasses are very definitely under the Code of Federal Regulations, but we have only been able to get them to look at one case. Senator MELCHER. Thank you very much.

Mr. DELACRUZ. Thank you, Mr. Chairman.

Senator MELCHER. Our next witnesses are Alan Parker and Gilbert Hall, representing the American Indian lawyer training program. Please come forward.

STATEMENT OF ALAN PARKER AND GILBERT HALL, AMERICAN INDIAN LAWYER TRAINING PROGRAM

Mr. PARKER. Mr. Chairman, I would like to express our appreciation for the invitation to present testimony to the committee.

The American Indian lawyer training program is a nonprofit corporation founded in 1973 and devotes its attention primarily to the development and strengthening of Indian tribal government institutions. A major emphasis of our organization has been in the area of training, research, and support activities directed at tribal courts.

My colleague, Gil Hall, will present testimony that describes our organization's understanding of the needs of the tribal courts and the relationship of those issues to the issues before the committee.

I would like to present for inclusion in the record the complete text of our testimony, and both Mr. Hall and I will summarize from this text.

Senator MELCHER. Without objection, your complete statement will be made a part of the record at this point.

[The prepared statement follows:]

PREPARED STATEMENT OF ALAN PARKER AND GILBERT HALL, THE AMERICAN INDIAN LAWYER TRAINING PROGRAM

Mr. Chairman, members of the Committee: The American Indian Lawyer Training Program (AILTP) is a non-profit corporation founded in 1973 and concerned with the development and strengthening of Indian tribal government institutions. A major emphasis in our training, research and support activities has been encouraging the development of effective tribal courts.

It is fortuitous for us that these hearings are being conducted now so soon after a three-day meeting on essentially the same subject, sponsored by AILTP in Phoenix, Arizona, January 3-5, 1980. That meeting was conducted similar to a hearing and the panel consisted of representatives from The White House, the House Committee on Interior and Insular Affairs, Department of Justice, Department of the Interior, Department of Health, Education and Welfare, the Legal Services Corporation, the National Center for State Courts, tribal attorneys, and AILTP staff. The purpose of that meeting was to provide a forum for tribal and federal officials to examine the problems involved in the administration of justice in Indian country and seek solutions to those problems. Presenting testimony were 16 witnesses, including tribal chairmen and judges, attorneys, tribal court advisors and staff, tribal police officers, and

others concerned with the administration of justice. AILTP is currently preparing a report on those proceedings, a copy of which we would be glad to submit to this Committee at a later date. In the meantime we would like to report to you our analysis of the testimony presented in those proceedings and how it bears on the issues being considered today by this Committee.

As this Committee is aware, there are presently some 289 Indian tribal governments recognized by the federal government and exercising varying degrees of governmental power over 268 federally-protected reservations comprising some 51 million acres of land. Without exception those tribal governments today are in a state of great transition, struggling to adapt to the demands which modern life imposes on them and at the same time retain a sense of their historical Indian identity. It is an extraordinarily difficult task which few people fully appreciate. Because there is so much diversity among the various tribes the pace of the changes which they are undergoing, and indeed sometimes the path of the changes, differ considerably.

This means, of course, that tribal problems and needs are not always uniform in either nature or scope. One can compare but not meaningfully equate the problems facing, for example, the tribes on the Flathead Reservation, a large reservation which has a high percentage of non-Indians living and owning land and considerable economic development, with one of the small Pueblos in New Mexico which is almost 100 percent Indian in terms of resident population and land ownership. The studies of the American Indian Policy Review Commission in 1977 revealed clearly that many of the mistakes in federal policy in the past have resulted from attempts by Congress to resolve the related problems of all the tribes with one inflexible legislative solution. The General Allotment Act (25 U.S.C. §§ 331-358) is one example of this type of sweeping measure which left little room for adaptation to the particular requirements of specific tribes. Public Law 280 (18 U.S.C. § 1162, 28 U.S.C. § 1360, 25 U.S.C. §§ 1321-1326) is another example.

By contrast, the successes in federal Indian legislation have most often been those measures which were either very specific in application and tailored to particular tribes or areas or quite limited in what they were designed to accomplish. Probably the most important key to those successes may be found in the degree of flexibility which the federal statute permitted tribes. A good example is the Indian Child Welfare Act of 1978 (25 U.S.C. §§ 1901-1963). That act authorizes a retrocession of all or partial jurisdiction over Indian child custody matters to the tribes in Public Law 280 states (25 U.S.C. § 1918). It also authorizes tribes and states to negotiate agreements for a specific allocation of jurisdiction between them. The significant point here is that the Indian Child Welfare Act authorizes but does not require either retrocession or tribalstate agreements. Generally the initiative for acting under the statute rests with each tribe. It is this feature which has been important to the overall favorable response which the Indian Child Welfare Act has received so far from tribes and states alike. In addressing the other jurisdiction problems facing Indians today, we recommend that this factor of maximum flexibility serve as a guiding principle.

AILTP's analysis of the testimony in our Phoenix meeting supports the premise implicit in these proceedings today that there are serious inadequacies in law enforcement in Indian country. This is especially true since the Supreme Court decision in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). The result of that case, of course, is that tribes can no longer prosecute non-Indians for violation of tribal law. It means that tribes cannot enforce their traffic regulations, hunting and fishing regulations, or ordinances designed to control public nuisances such as disorderly conduct, against non-Indians. Generally, the states do not have the interest or the resources to prosecute these minor offenses and federal authorities seem to be most reluctant. The problems which this has created have apparently been a nuisance but to date have been relatively noncritical. The potential, however, for far more serious and more widespread problems looms larger as the situation remains unaddressed. Several tribal judges and law enforcement officers who testified in Phoenix alluded to a feeling of helplessness in the face of non-Indian crime on the reservation. The criminal jurisdiction problems which create, or at least contribute to, this situation are vexing, enormously complex, and demanding of congressional attention. It is a tribute to this Committee that it has undertaken this initiative in an attempt to identify solutions. While acknowledging the problem, the participants at our Phoenix proceeding would disagree with the analysis of this Committee in its preliminary character

ization of the causes for law enforcement problems and some of the solutions proposed. As we read the correspondence to tribes from the Committee, the federal magistrate concept as proposed implicitly rests on the judgment that tribal institutions cannot insure adequate law enforcement on the reservation (except perhaps among tribal members) and that a greater and permanent federal presence will be necessary to do the job. Our analysis suggests that virtually every one of the 16 witnesses at our Phoenix hearing would disagree with that premise. There are currently approximately 120 Indian courts in the nation of varying sophistication and effectiveness. Some exercise a full range of civil and criminal powers effectively and fairly. Some have grave shortcomings and serve principally as an arbiter of domestic disputes and a forum exclusively for minor offenses. I might add that this same dichotomy may be observed among many county courts in rural areas throughout the land. Despite the operational handicaps, however, tribal courts, like their companion institutions in tribal government, are improving steadily and adapting to the responsibilities being placed on them. Positive signs of improvement can be seen in a number of areas. In recent years there has been a significant increase in the level of funding allocated to tribal courts by councils. The money has come from tribal funds and federal funds subject to the Bureau of Indian Affairs' Band analysis which reflects tribal council priorities. This is a clear indication of the increasing importance being placed by tribal government on the strengthening of their judicial systems. Another such example may be found in the Northwest Intertribal Court System where 21 small tribes in the State of Washington have created a unified court system with trial and appellate functions.

This can serve as a model for other small tribes where the case load and economies of scale do not justify individual court systems. We understand that some 12 petitions for reassumption of jurisdiction under the Indian Child Welfare Act have been filed with the Bureau of Indian Affairs by tribes wishing to improve the ability of their tribal courts to adjudicate matters concerning the welfare of their children. The recent creation of Courts of Indian Offenses in Oklahoma and the increasing use of judges from other tribes to resolve tribal election or other internal government disputes also indicate progress being made in Indian judicial systems. The positive response from tribes which AILTP has received to the publishing of a quarterly Tribal Court Reporter demonstrates an interest in improving the record-keeping of tribal courts. And the great interest we have seen in AILTP's training programs for tribal court prosecutors and defenders and courses in the Indian Civil Rights Act and Indian Child Welfare Act also suggests a determination by many tribes to upgrade their judiciaries. All of these improvements suggest that tribal courts are assuming an increasingly important role and being accepted in the community in that role as a permanent institution of tribal government.

If this is true, as we believe it to be, then a significant conclusion naturally follows. The most promising, most appropriate, most permanent, and probably most economical solution to many of the problems of law enforcement in Indian country lies with the tribal courts themselves. Dollar for dollar it is probably a more efficient use of federal funds to upgrade the tribal judiciary rather than expand the federal system, as is contemplated by the federal Indian magistrate concept.

Improving existing local institutions, i.e. tribal courts, is an approach consistent with the developing trends in government today of encouraging local solutions for local problems. And, more importantly, it is also directly supportive of the federal policy which Congress has repeatedly stated in recent years, that of encouraging Indian self-determination. Not only would the creation of another layer of federal magistrate courts probably be inconsistent with this federal policy, it might lead to the ultimate dismantling of tribal courts. This would follow if the magistrate courts started hearing a broad range of cases involving Indians as well as non-Indians. In such a situation the two court systems would be essentially competing with each other in terms of jurisdiction and availability of federal funds. It is unlikely that the tribal instrument could survive that competition.

TRIBAL COURT NEEDS

Many Indian tribal courts presently do an adequate job of fairly and efficiently trying criminal offenses which occur on the reservation. Others need significant help, far more than they are now receiving from the federal government. Most of those needs have been previously identified by studies done by

the American Indian Lawyer Training Program, the Bureau of Indian Affairs, and the National American Indian Court Judges Association. (See Indian SelfDetermination and the Role of Tribal Courts, AILTP, 1977; Indian Courts and the Future. NÄICJA, 1978).

These studies demonstrate that tribal judicial systems are in great need of better court facilities, more and better training for judges, prosecutors, and court personnel, more research and law interpretation services, better record-keeping systems, more effective appellate systems, and a list of other improvements. In AILTP's survey, nearly two-thirds of the tribal court judges who responded indicated a need for increased training. They also expressed a need for at least rudimentary law libraries, resource materials, and more readily available legal advice. It was to address this range of needs that AILTP has proposed creation of a federally-assisted Tribal Justice Center. It would serve as a centralized support facility for all tribal courts, offering technical assistance, research support and training for all elements of the tribal court system. Its objective would be the upgrading and long-term support of the tribal judiciary as a permanent institution in tribal life.

In addition to federal support for improvements, it is clear that for tribal courts to function effectively they must have cooperation from the states. Except for what is required by the Indian Child Welfare Act, many state courts still do not grant full faith and credit or comity to tribal court judgments. Likewise, in some cases, tribal courts refuse to honor state court judgments. And the overlapping and confusing jurisdictional lines between tribal and state authorities often render it impossible to provide uniform, rational law enforcement. It is in this context that the Tribal-State Compact Act which this Committee is proposing could prove to be an important mechanism for improving cooperation between the state and the tribes. The key to its effectiveness in resolving criminal jurisdiction matters rests, however, upon acceptance by all participants to any tribalstate compact of the proposition that tribal courts are viable institutions which are here to stay. Similarly, tribes must be willing to cooperate with one another as well as the states in resolving the practical problems of exercising jurisdiction. In this regard cooperation in devising inter-tribal judiciaries and law enforcement entities should be encouraged by the federal government. The InterTribal Court System in Washington could be a model for such cooperation.

TRIBAL COURT SENTENCING POWER

In 1968 when the Indian Civil Rights Act was enacted by Congress, the sentencing authority of Courts of Indian Offenses (CFR courts) as established by federal regulation was a maximum of six months imprisonment and a $500 fine. Although CFR courts are instrumentalities of the federal government and tribal courts are not, the same sentencing limitation was applied to tribal courts in the Indian Civil Rights Act. Nothing in the legislative history of the act suggests a serious consideration of that limitation by Congress. So despite the fact that tribal courts have the power to try serious offenses (see United States v. Wheeler, 435 U.S. 313 (1978)), they are restricted to essentially misdemeanor sentencing power. In light of this history and the severe restriction which this sentencing limitation places on the ability of tribal courts to effectively deal with criminal activity on the reservation, the Indian Civil Rights Act should be amended to permit tribal courts more flexibility. The sentencing power should be expanded to permit at least one-year imprisonment and a $1,000 fine.

TRIBAL COURT JURISDICTION OVER NON-INDIANS

In AILTP's 1977 survey of tribal courts (Indian Self-Determination and the Role of Tribal Courts) approximately 85 percent of the surveyed courts indicated that they were exercising, were planning to exercise, or wanted to exercise criminal jurisdiction over non-Indians. Since the Oliphant decision, of course, no tribal court may exercise such jurisdiction although many tribes have seen a need to do so. Others conceivably may never desire to.

In order to account for these differences, we recommend a flexible mechanism for delegating criminal jurisdiction over non-Indians. A federal delegation to tribes of criminal jurisdiction could be authorized by Congress and effectuated on a case-by-case basis upon request of the tribe, patterned after the reassumption mechanism established in the Indian Child Welfare Act. Criteria could be established by statute to insure the tribe's capability of exerting jurisdiction.

For example, upon request by a tribe the Department of the Interior could examine the tribe's particular circumstances, size and condition of the tribal court, proximity to federal and state facilities, crime rates on the reservation and the percentage attributable to non-Indians, and other factors. Upon certification that specified criteria were met, the Department could issue an authorization, pursuant to statute, and publish it as a regulation. The statute should perhaps also specify criteria upon which the regulation would be subject to rescission. The delegation of jurisdiction could be a blanket authorization, limited to a certain area, or limited to a certain subject matter depending upon the capabilities and status of the petitioning tribe.

INTERIM MEASURES

While witnesses at AILTP's Phoenix hearings uniformally endorsed tribal courts as the best vehicle for resolving the jurisdictional uncertainties in Indian country created by Oliphant, it was recognized that there was room for improvement on the part of tribal courts. A dramatic strengthening of their capabilities is for most courts at least a medium-range goal and some tribes may never sustain a court system exercising the total range of potential jurisdiction. Therefore, there are some measures which the Congress could take in order to alleviate current problems and provide effective law enforcement where tribes are unable to do so with present resources.

Implicit in the federal magistrate concept as being considered by this Committee is the judgment that law enforcement over non-Indians is deficient at least partially because of an insufficient number of courts with jurisdiction to hear the cases. The proposal to place a federal magistrate in Indian country before whom United States Attorneys could prosecute minor offenses by nonIndians and Major Crime Act offenses, apparently springs from this judgment. This analysis of the problem may be accurate in some locales but we doubt that it addresses the actual problem experienced on most reservations.

Aside from the legal inability of tribes to try non-Indians, the principal problem appears to arise from the reluctance on the part of many United States Attorneys to fill the gap left by Oliphant and vigorously prosecute the minor offenses previously handled by tribal courts. This reluctance stems partly from the emphasis which most United States Attorneys place on the prosecutions of felonies and white collar crime. The day-to-day misdemeanors creating problems in Indian country are simply not considered important. This orientation along with a lack of sufficient staff, transportation and communication difficulties, and an apparent insensitivity towards law enforcement problems generally in Indian country suggest an overall subpar performance of United States Attorneys in Indian country. To address this problem and acquire some sense of its magnitude it might be appropriate for Congress to conduct a series of oversight hearings for the purpose of determining how responsive United States Attorneys are in those western states where most of the reservations are located. If those hearings should reveal a need for additional magistrates in certain locations and a desire by the affected tribes to have them, then we suggest that existing statutory authority would probably prove sufficient to provide them.

Pursuant to the Federal Magistrates Act of 1968, federal district judges may appoint federal magistrates and delegate a broad range of power to them, including the authority to try petty offenses and sentence a maximum of six months imprisonment and $1,000 fine, issue arrest and search warrants and subpoena witnesses. It appears that this authority alone would be sufficient to place magistrates in Indian country where necessary. This, however, may not significantly affect the law enforcement problems in Indian country. Unless criminal complaints are processed before the magistrate by the United States Attorney. the magistrate has no case load. Also under present law criminal defendants can refuse to have their case heard by a magistrate and thus have it transferred to federal district court for trial. These factors could result in the magistrate's duties consisting primarily of pre-trial conferences, reviewing requests for arrest warrants, arraignments and other such matters. While this could be helpful on those reservations where a heavy criminal case load is handled, we doubt that it would be a significant advancement in law enforcement for most tribes.

Regardless of what measures, if any, are taken by Congress to implement a magistrate concept in Indian country, it should logically include an amendment to the Assimilative Crimes Act, 18 U.S.C. § 13, which would enable federal courts