JURISDICTION ON INDIAN RESERVATIONS

TUESDAY, MARCH 18, 1980

U.S. SENATE,

SELECT COMMITTEE ON INDIAN AFFAIRS,

Washington, D.C.

The committee met, pursuant to recess, at 10:10 a.m., in room 1224, Dirksen Senate Office Building, Senator John Melcher (chairman of the committee) presiding.

Present: Senator Melcher.

Staff present: Max Richtman, staff director; Peter Taylor, special counsel; Jo Jo Hunt, staff attorney; Tim Woodcock, staff attorney; Susan Long, professional staff member; and Doris Ballard, secretary. Senator MELCHER. The committee will come to order.

This morning we will continue our hearings on S. 1181, Section 161 (i) of S. 1722, and the Federal magistrates concept. All three have to do with jurisdiction on Indian reservations.

The first witness this morning will be Rick Lavis, Deputy Assistant Secretary for Indian Affairs, Department of the Interior.

STATEMENT OF RICK LAVIS, DEPUTY ASSISTANT SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, ACCOMPANIED BY HANS WALKER, ACTING ASSOCIATE SOLICITOR, DEPARTMENT OF THE INTERIOR; RALPH REESER, CHIEF, LEGISLATIVE LIAISON OFFICE, BUREAU OF INDIAN AFFAIRS; AND GENE SUAREZ, CHIEF, LAW ENFORCEMENT AGENCY, DEPARTMENT OF THE INTERIOR

Mr.LAVIS. Thank you, Mr. Chairman.

Mr. Chairman, I would ask that my statement on S. 1181 be made a part of the record.

Senator MELCHER. Without objection, it will be made a part of the record at the end of your testimony.

[The statement appears on p. 131.]

Senator MELCHER. You may proceed.

Mr. LAVIS. Before I proceed, let me indicate that Mr. Hans Walker, Acting Associate Solicitor for Indian Affairs is to my left, and to my right is Mr. Ralph Reeser, who is the Chief of our Legislative Liaison Office.

Mr. Chairman, I am pleased to testify in favor of S. 1181, the Tribal State Compact Act, with certain amendments which are more fully set out in our report to this committee on the bill.

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S. 1181, would authorize the States and Indian tribes to enter into agreements and compacts respecting jurisdiction and governmental operations in Indian country. Title I would authorize jurisdictional agreements and compacts for periods of up to 5 years between States and Indian tribes. It would also permit the Secretary of the Interior to provide financial assistance for the implementation of such agreements and compacts.

Title II would direct the Secretary to encourage the establishment of joint tribal-State organizations to confer on jurisdictional questions existing between the parties.

Title III would grant Federal district courts jurisdiction over civil actions brought by the parties to enforce agreements and compacts authorized by the bill.

The U.S. Supreme Court has consistently held that State jurisdiction over tribal members or infringement on the self-governing power of a tribe is permissible only with the consent of the Congress. A tribe may not unilaterally grant a State any jurisdiction over tribal members.

The bar to State jurisdiction on Indian reservations has, however, been modified by the Court where essential tribal relations are not involved and the rights of Indians are not jeopardized thereby. Thus, suits by Indians against non-Indians have been permitted in State courts and those courts have been permitted to try non-Indians who commit crimes against each other on a reservation.

However, if a crime is committed by or against an Indian, tribal jurisdiction or jurisdiction expressly conferred on another court by the Congress has remained exclusive. Absent governing acts of Congress, the decisions in the cases set out in our report on the bill indicate that the question has been whether State action infringes on the right of reservation Indians to make their own laws and be ruled by them.

Enactment of S. 1181 would provide clear authority for jurisdictional agreements between Indian tribes and States. We believe that such agreements would lead to the more effective and efficient discharge of governmental responsibilities in Indian areas.

S. 1181 would not enlarge or diminish the governmental powers of States or Indian tribes. It would simply allow these entities to allocate between themselves certain governmental responsibilities.

Thus, agreements would vary as the circumstances demand and the participants determine to be best. Allocation of responsibilities by the involved parties would be consistent with the policy of Indian selfdetermination and is, we believe, preferable to the allocation of such responsibilities by the Federal Government.

S. 1181 would not provide that agreements and compacts must be approved by the Secretary of the Interior. Many agreements, however, would undoubtedly involve tribes with constitutional provisions requiring departmental approval of any tribal resolution relating to the administration of justice. Where such a requirement applies to a tribal resolution implementing an agreement or compact, that resolution would, of course, be subject to departmental approval.

Agreements involving tribes that have no such constitutional requirement would not be subject to such approval. Appearance of the

Secretary's signature on an agreement or compact for purposes of publication in the Federal Register, as required by section 101 (c) of S. 1181, would not constitute departmental approval of such agreement or compact.

Title I of S. 1181 would also provide, upon agreement by the Secretary, for Federal financial assistance for the implementation of agreements and compacts authorized by the bill. We note that agreement by the Secretary cannot carry with it any obligation for funding beyond those funds available to the Secretary under the appropriations acts for the year in which the Secretary's agreement is given. Title II of the bill would authorize the payment of expenses for the activities of individuals involved in addressing jurisdictional

issues.

As already stated, we support a congressional grant of authority for State and tribal governments to enter into compacts. However, we do not support the authorization of financial assistance, as provided by section 102, to pay for personnel, administrative, and indirect costs resulting from such compacts.

Since the bill does not involve any shift of Federal responsibilities to the parties but is rather a redistribution of existing responsibilities among the parties, we see no justification for Federal funding of strictly State and local activities. At a time when both Congress and the administration are striving to curb Federal financial obligations, we believe the enactment of this additional financial assistance would both set a costly precedent and be unwarranted.

However, we would not object to the retention of the provisions of section 102(d), which would facilitate funding of compact functions through existing agency programs, if amended by adding before the period at the end thereof the following: "in accordance with statutes and regulations governing the use of such funds." This would make clear that the funds could not be used for activities other than those intended by other authorizing and appropriations legislation.

With respect to title II of S. 1181, we believe that the authorization of appropriations for the subject activities should be made under the Snyder Act-the general BIA appropriations authority-and accordingly we urge deletion of the appropriations authorization for title II. Our report on S. 1181 includes some additional suggested amendments to S. 1181 including amendments which were also suggested to the committee by the Department of Justice. We believe that the enactment of S. 1181 with the amendments suggested would provide an effective means for Indian tribes and States to resolve their jurisdictional conflicts.

This concludes my statement on S. 1181.

Concerning S. 1722, we strongly support the premise of section 161 (i) that Indian tribes should have a decisive voice in determining which governmental entities are to have, and the extent to which they shall have, civil and criminal jurisdiction over the reservations of such tribes.

Section 161 (i) of S. 1722 would provide for a reacquisition by the United States from States of criminal jurisdiction over Indian country which the States received under Public Law 83-280 or other Federal statutes. The reacquisition in each case would be based on a tribal

resolution approved by a majority vote of the affected Indians in an election called by the Secretary of the Interior. The reacquisition would be subject to the consent of the Secretary and would be effective 90 days following adoption of the resolution.

Section 161(j) of S. 1722 would provide that a Federal reacquisition of jurisdiction under subsection (i) would not cut off State court jurisdiction or the application of State law with regard to offenses committed prior to the effective date of the Federal reacquisition.

The purpose of section 161 (i) of S. 1722 is to enable Indian tribes, which are subject to State civil and criminal jurisdiction as the result of certain Federal legislation, to have that jurisdiction restored to the United States and the tribes under certain circumstances. The Congress had granted some States some jurisdiction over Indians prior to the 1950's. However, the major legislative actions were taken in the 1950's in accord with the now discredited policy of termination of the special Federal-Indian relationship. Of these legislative acts the most far reaching has been Public Law 83-280.

The Congress adopted House Concurrent Resolution 108 on August 1, 1953 (67 Stat. B132). One of the expressed purposes of the resolution was to subject Indians within the United States to the same laws as were applicable to other U.S. citizens, thus subjecting Indians to State jurisdiction.

Consistent with this policy, on August 15, 1953, Congress enacted Public Law 83-280 (67 Stat. 588) which divided the States into three groups, each of which was either granted civil and criminal jurisdiction over Indian country or was given a method by which such jurisdiction could be acquired. We are enclosing a more detailed statement of the provisions and history of Public Law 83-280 with this report.

Senator MELCHER. That will be included in the record along with your prepared statement.

[History of Public Law 83-280 and related provisions appear on p. 134.1

Mr. LAVIS. House Concurrent Resolution 108 expressed the sense of the 83d Congress that Indian tribes should be freed from Federal supervision at the earliest possible time and Indian property should be transferred to the Indian owners free of any Federal trust. The 83d Congress was attempting to compel assimilation by severing FederalIndian relations and discontinuing Federal protection and services to Indians. Conferring jurisdiction on States over Indians and Indian country was one important step in the process.

House Concurrent Resolution 108 has never been expressly repudiated, but termination has been repudiated as a Federal policy by the executive branch in statements by Presidents Johnson, Nixon, and Ford. President Carter has spoken of assuring the maintenance of our trust responsibility for our Indian citizens.

Congress has by implication repudiated termination as a Federal policy by enacting the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450; Public Law 93-638) in 1975. In section 3(b) of that act the Congress declares its "commitment to the maintenance of the Federal Government's unique and continuing relationship with and responsibility to the Indian people through the establishment of a meaningful Indian self-determination policy

Further evidence that the policy of termination has been discredited is Public Law 93-197 (25 U.S.C. 903) which provided for the restoration of the Menominee Indian Tribe in Wisconsin to full Federal services and Indian reservation status with land once again held in trust by the United States. Two other restoration acts have been enacted since the Menominee Restoration Act.

The Civil Rights Act of 1968 (Public Law 90-234; 82 Stat. 77) now requires tribal consent before any States may assume further jurisdiction over Indian country. However, the impact on tribes of pre1968 State assumption of jurisdiction is heavy. Some Indian tribes under State jurisdiction have complained loudly of State and local government refusal to provide police protection on reservations, of discrimination against Indians in arrests and convictions, and of inability of State and local officials to understand Indian values, moral standards, social organizations, and attitudes.

Further, tribes complain that States have attempted to move into jurisdictional areas not authorized by Public Law 83-280, such as taxation and zoning. Other problems stem from unclear jurisdictional boundaries where States have assumed partial jurisdiction. The result is confusion, conflict, and inadequate law enforcement services for many of the tribes involved.

It is difficult to precisely estimate the costs to the United States that would result from the enactment of section 161 (i). However, we believe that the maximum, if there were a wholesale reacquisition of all criminal jurisdiction acquired by States, would be one-time start up costs aggregating $10.5 million and annual costs thereafter aggregating $8 million. We defer to the Justice Department as to the sum of their additional expenses.

Either section 161 (i) should be amended, or by regulation we would set out the procedure required to obtain the secretarial consent called for in the section.

Under such a procedure a tribe seeking an end to State-acquired criminal jurisdiction would have the primary responsibility for drawing up a plan to implement a tribal law enforcement and court system, if it does not already have an adequate one in place, to replace the State jurisdiction for all but the major crimes for which Federal jurisdiction is appropriate under current law.

The current maximum limitation on tribal court sentences-6 months in jail and a $500 fine-is set out in section 202 of the Civil Rights Act of 1968 (25 U.S.C. 1302). Only in the most extenuating circumstances-for example, where a breakdown of State law enforcement threatens lives would we consider a reacquisition of criminal jurisdiction for which it would be necessary for the BIA to establish a BIA Court of Indian Offenses and a BIA police force instead of tribal courts and tribal police.

Such a procedure would also require Department of the Interior and tribal consultation with the appropriate State and local officials and with the Department of Justice on the tribe's request and plan in order to assure that the ending of State jurisdiction is achieved in a desirable and orderly fashion.

In addition to the above consultation such a procedure would proride for approval of the Federal reacquisition if: No. 1, the tribe's