authorized to speak for the Alaskan attorney general. If Mr. Gross disagrees with anything I say, I guess he will let me know.

You mentioned, I think, in passing, testimony by the State of Washington before the Senate Judiciary Committee. There is no testimony, Mr. Chairman. That is one of the things for which we have been urging and pleading for 2 years, and for which we very seriously thank this committee.

We have not been permitted to render testimony to the Senate Judiciary Committee. That is the subject of Attorney Gorton's letter to Senator Kennedy-any State's inability to provide testimony on what we see as a very significant issue.

Finally, with respect to the magistrates issue, we think that is an excellent suggestion, although it does not really, as a technical matter, have much application in the State of Washington because of the curious way in which we have assumed jurisdiction pursuant to Public Law 83-280, that is, assuming Oliphant, Wheeler, and our own assumption of jurisdiction.

We concede that the tribes have concurrent jurisdiction in the State of Washington, or any State, over their own members. Under our assumption of jurisdiction the State has jurisdiction, vis-a-vis the Federal Government, over all non-Indians located anywhere on a reservation. Therefore, we do not think the Oliphant problem is really that significant as a conceptual matter in the State of Washington, because in our view the State has exclusive-vis-a-vis the U. S. Governmentjurisdiction over all non-Indians anywhere in the State of Washington. Senator MELCHER. I would like to ask a question on that point. If the State of Washington has jurisdiction over non-Indians on a reservation, as you have just stated, what happens to the arresting police officer in the instance of a simple altercation when the people involved are Indian and non-Indian? What does the arresting police officer do?

Mr. MURPHY. Who is the criminal and who is the victim?

Senator MELCHER. We do not know. Surely, he does not know in an altercation. How does he handle it?

Mr. MURPHY. It depends upon what reservation you are on and on what kind of land you are. Suppose it is a partial jurisdiction reservation

Senator MELCHER. Let us use the Quinault Reservation.

Mr. MURPHY. Alright. If the incident occurs on what is colloquially called free-patent, nontrust, non-Indian land, regardless of the tribal membership or nonmembership of the individuals involved, those gentlemen go to the county sheriff. They go to the county jail.

Senator MELCHER. Is that what the police officer does?

Mr. MURPHY. Yes, sir.

Senator MELCHER. Does he know where fee-patent land and trust land is?

Mr. MURPHY. Certainly.

Senator MELCHER. What if it is on trust land?

Mr. MURPHY. If the offender is a member of the tribe within the reservation where the incident occurs, and if it does not involve one of our so-called eight enumerated areas-I guess you would have to

add a couple of other ifs-if it is not a major crime, et cetera, then it goes to tribal court. If it is a non-Indian, nontribal member, it goes

Senator MELCHER. In other words, the police officer on the Quinault Reservation, which is trust land, in an altercation involving both an Indian and a non-Indian, and the Indian is a member of the tribe, will deliver one of the so-called culprits to the tribal court and one to the State court. Is that it?

Mr. MURPHY. Yes; that is, if the incident occurs on trust land and assuming the officer is doing his job.

Senator MELCHER. I am all for supporting our local police. I guess this is a prime example of the necessity for training local police too because that is quite a few ifs and buts for a police officer to figure out. It is probably one of the most basic problems a police officer has. Mr. MURPHY. There is no question about that.

I wish I could but I cannot really speak specifically with respect to the Quinault Reservation on this technical matter. However, suppose it is the Yakima Reservation. The problem is really only conceptual because of the existence of cross-deputization. Both the deputy sheriffs and the tribal police carry each other's commission.

They all know where that land exists, by and large. If a problem does arise which we do not believe happens as often as you will probably hear it does from some of the tribes-they check.

As we testified in a lawsuit we had with the Yakimas-one of the deputy sheriffs said it-that is the prosecutor's problem. It is not a law enforcement problem. That, again, assumes that the officer is doing his job.

I am not here carrying a brief for every single sheriff's office in the State of Washington or for every single sheriff's office in the United States. My mission is to try to urge the Congress to give the States the say.

Certainly, some reservations are being treated with less deference than others. Some reservations in my own State, and certainly some others around the country, have less than a perfect system of law enforcement. There is no question about that. I am not here to defend every single law enforcement organization, but the States ought to have a say in the question of who has jurisdiction over their citizens, particularly their non-Indian citizens.

Senator MELCHER. In the case of cross-deputization, either the tribal policeman or the sheriff's office can make an arrest, but once the arrest has been made does not the question of whose court is involved come into play?

Mr. MURPHY. Certainly.

Senator MELCHER. Then, regardless of whether the officer is a tribal policeman or a sheriff's deputy, the Indian offender will go to the tribal court. Is that correct?

Mr. MURPHY. If it is on trust land, that is correct, and if it is not one of our eight enumerated areas.

Senator MELCHER. The non-Indian will go to the State court.

Mr. MURPHY. There is one other qualifying factor. It will go to the tribal court if it is a misdemeanor. If it is a felony he goes, presumably, to the Federal district court.

Senator MELCHER. The non-Indian would still go to the

Mr. MURPHY. No; the non-Indian goes to the State court, no matter where he or she may be.

Senator MELCHER. I think you may have answered this question. Under the magistrates concept, since that is based on Federal jurisdiction in Indian country, I think you have told us that under Public Law 83-280 that concept would not work.

Mr. MURPHY. No, sir, I think it would work. What I meant to say, Mr. Chairman, was that it may not be, if my view is correct, as necessary in the State of Washington with respect to non-Indian offenses as it is in a non-Public Law 83-280 State. I personally think-and again, I can only testify on behalf of my attorney general-that the magistrates concept, if it is fleshed out correctly, can go a long way toward solving the law enforcement problem on Indian reservations. We would like to work with your staff on that process.

Senator MELCHER. I have a question of you on this point. Under the present Federal magistrates law, consent must be given by the accused to be tried before a Federal magistrate. To me, that looks like more of the same.

If you are accused of something and you are a non-Indian on a reservation, a judicious prudent person

Mr. MURPHY. If you were a defense counsel, you would insist that your client insist on trial before the district courts.

Senator MELCHER. Right, knowing that in most instances there would never be a trial. Something falls through the cracks.

Mr. MURPHY. Sure. That is the problem. In my view it is not a question of inadequate authority in the statutes. The problem-with all due respect to the Federal Government-is an absolute unwillingness on the part of many-not all-district attorneys to go out to the reservations and do anything about it.

Senator MELCHER. We heard testimony yesterday that what we need to do is beef up the U.S. attorneys' offices and we would get rid of the problem. I do not think I am going to live long enough to see the U.S. attorneys' offices beefed up to that extent.

Mr. MURPHY. Nor will my children.

Senator MELCHER. Or my grandchildren, who are probably the same age as your children.

My concept of a Federal magistrates system on an Indian reservation is that it would not work unless you remove that opportunity to waive a trial for a misdemeanor in front of a Federal magistrate. In order to make it work, the accused would have to go before the Federal magistrate just like the accused-in my State-on a misdemeanor has to go before the justice of the peace. He does not have any choice on that.

Unless we were to waive that, we would clog up the State courts on every misdemeanor, knowing that they would never get around to trying us.

Mr. MURPHY. I do not have any conceptual problem with that, Mr. Chairman.

Senator MELCHER. In your judgment, would a Federal magistrate system work if that obstacle were not removed?

Mr. MURPHY. No, sir. It would not work as effectively as it ought.

Senator MELCHER. I have sort of a technical question on retrocession. Nevertheless, it is an important one. Can retrocession occur in your State by any action other than through the State legislature? How could retrocession, under existing Washington law and under existing Federal law, occur?

Mr. MURPHY. I think that is two different questions, Mr. Chairman. My office has rendered an opinion in that respect to the effect that only the legislature can retrocede or offer retrocession of jurisdiction. However, I have no doubt whatsoever that the law is that once the Secretary of the Interior accepts retrocession under the 1968 Civil Rights Act, regardless of how it may be offered under State law, that is the end of the inquiry as far as the Federal court is concerned.

I guess you are really asking two questions. With respect to State law in the State of Washington, I think, only the legislature can offer retrocession. As a matter of Federal law, when the Secretary recognizes the jurisdiction Congress has conferred upon him, that is probably it.

Senator MELCHER. This very point was litigated in Nebraska, was it not?

Mr. MURPHY. Yes, sir. I wish you had not asked me that question because I cannot remember what the result was.

Senator MELCHER. I think the outcome of that case was that it was a Federal action.

Mr. MURPHY. I think that is right.

Senator MELCHER. The State of Washington's basic law may differ from that of Nebraska. In your judgment, would it be that Washington State's laws are different?

Mr. MURPHY. That is only with respect to the authority of our Governor or State legislature. Nebraska's Governor obviously possesses different authority, but I think as a matter of Federal law, once the Secretary has accepted retrocession, that is probably as far as the U.S. district court is going to go.

Senator MELCHER. We heard that there are a couple of Indian reservations in the State of Washington where the population is largely non-Indian or may even be a majority. Is that true?

Mr. MURPHY. There are more than a couple. The clearest examples, which I think were cited in Mr. Gorton's letter to Senator Kennedy, are on the Puyallup Reservation, which I think has less than 1,000 Indians. I think there are about 750 Indians, although I could be mistaken.

Senator MELCHER. How many non-Indians are there?
Mr. MURPHY. There are around 22,000.

Senator MELCHER. How about the Yakima Reservation?

Mr. MURPHY. My best information, Mr. Chairman, is that it contains around 6,500 to 7,000 members of the Yakima Indian Nation and approximately 25,000 non-Indians. Those are just two examples.

There are several other reservations in the State of Washington with a substantial number of non-Indian citizens. On the other hand, there are several other reservations-Mr. DeLaCruz from the Quinault Nation is here. He can correct me if I am wrong. I believe the Quinault Nation is an example of a reservation which has a substantial Indian majority.

Senator MELCHER. He testified yesterday. There are 1,800 members of the tribe on the reservation and there are about 400 or 500 nonIndians.

Mr. MURPHY. I will accept his figures. In any case, I think it is a substantial Indian majority.

Senator MELCHER. It is 4 to 1, or so, Indian to non-Indian.

I have one final question of you, Mr. Murphy. That concerns your last page which is the National Association of State Attorneys General's comments on section 161 of S. 1722.

Mr. MURPHY. I hope I made that clear in my prepared remarks. This is the paragraph with respect to Indian jurisdiction.

Senator MELCHER. Yes. That is only a portion of the critique of the attorneys general on the whole bill. When was this prepared?

Mr. MURPHY. It has been in preparation for over a year. It was finally approved by the executive committee of the National Association of State Attorneys General around February of this year. I cannot give you the exact date, but it was a month ago.

Senator MELCHER. My basic point was that this is a definite critique on this section of S. 1722

Mr. MURPHY. Perhaps I should have mentioned it. That language pertains to section 161 of S. 1722.

Senator MELCHER. Alright. It is not on the last Congress' bill. It is on this one.

Mr. MURPHY. It is on S. 1722.

Senator MELCHER. As I glance through this position of the Attorneys General Association, it is basically that the States should have an input and be part of the function.

Mr. MURPHY. Absolutely. That is our mission as the attorneys for the various States. State legislatures are going to make differing decisions, but our mission is to see that our States have a say.

Senator MELCHER. What would that say be? I mean, you can go all the way from saying the States would have to agree, to a point of saying that the States participate in the function of determining what is adequate law enforcement. The Secretary of the Interior's witnesses have just told us that they believe there has to be such a function for a determination of whether or not a tribe on its own reservation has the capability of having a decent law and order code, and of enforcing it.

Mr. MURPHY. On page 4 of my prepared remarks, Mr. Chairman, I say "Thus, I suggest the following:" and I list four points.

If enacted, S. 1181 is the vehicle for the say. Under the Tribal States Compact Act, the States can negotiate the problem with the tribes. Alternatively, I suggest language to be inserted in subsection (i) of section 161. I think that would do the trick.

Senator MELCHER. That is an absolute veto on the part of the State. I am just trying to determine whether that is the position of the Attorneys General Association.

Mr. MURPHY. It is. In other words, S. 1722 currently-if you want to express it this way-has a tribal veto over State jurisdiction. The tribes can unilaterally request the Secretary of the Interior to reacquire Federal jurisdiction. That is in a sense a veto of State jurisdiction.