1 Indian Reorganization Act of 1934, as amended 48 Stat. 984, 25 U.S.C. 462 et seq. See especially 25 U.S.C. 476 and 477. 2 Portland regional solicitor's opinion, Sept. 28, 1971. However, the solicitor's listing of Washington's jurisdiction to enforce State laws indicates, without comment or supporting reasons, that Lower Elwha and Port Gamble Reservations are under 1957 general State jurisdiction (78 I.D. 18, 26 (1971)).

3 On Apr. 17, 1972, Washington's attorney general expressed the opinion the Governor of Washington had no authority to retrocede the State's jurisdiction within Indian country, AGO No. 9, 1972.

Previous general civil and criminal jurisdiction retroceded by Governor except as to ch. 36, Laws of 1963 (G.P. Aug. 26, 1971) and accepted by Secretary Apr. 14, 1972 (37 FR 7353 (1972)).

5 On Apr. 13, 1935, the Indians on this reservation voted in favor of the application of the IRA but they have never organized under a secretarially approved constitution and bylaws.

• Previous general jurisdiction retroceded by Governor except as to ch. 36, Laws of 1963 (G.P. Aug. 15, 1968) and accepted by Secretary Aug. 30, 1969 (34 FR 14288 (1969)).

Senator MELCHER. The committee stands adjourned until tomorrow at 10 a.m. We will be in room 457 of the Russell Building.

[Whereupon, at 1:05 p.m., the hearing was adjourned to reconvene at 10 a.m., Wednesday, March 19, 1980.]

JURISDICTION OF INDIAN RESERVATIONS

WEDNESDAY, MARCH 19, 1980

U.S. SENATE,

SELECT COMMITTEE ON INDIAN AFFAIRS,

Washington, D.C.

The committee met, pursuant to recess, at 10:15 a.m., in room 457, Russell Senate Office Building, Senator John Melcher (chairman of the committee) presiding.

Present: Senators DeConcini and Cohen.

Staff present: Max Richtman, staff director; Peter Taylor, special counsel; Jo Jo Hunt, staff attorney; John Mulkey, professionaÎ staff member; and Doris Ballard, secretary.

Senator DECONCINI (acting chairman). The Select Committee on Indian Affairs will come to order.

We are resuming today the hearings on S. 1181, S. 1722, and the Federal magistrates concept.

Our first witness today will be from the Department of Justice, Mr. Roger Pauley, who is the Director of the Office of Legislative Affairs, Criminal Division. We will also hear from Douglas Gow of the Federal Bureau of Investigation and R. E. Thompson, U.S. attorney for New Mexico and chairman of the New Mexico Subcommittee on Indian Affairs.

STATEMENT OF ROGER A. PAULEY, DIRECTOR, OFFICE OF LEGISLATIVE AFFAIRS, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE, ACCOMPANIED BY ROGER ADAMS, GENERAL LITIGATION SECTION, CRIMINAL DIVISION; LAWRENCE A. HAMMOND, DEPUTY ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL; DOUGLAS GOW, FBI; AND R. E. THOMPSON, U.S. ATTORNEY, DISTRICT OF NEW MEXICO

Mr. PAULEY. Thank you, Mr. Chairman. If I may also introduce two of my colleagues who appear with me at the table. On my extreme right is Roger Adams, in the General Litigation Section of the Criminal Division, and on my immediate left is Lawrence A. Hammond, a Deputy Assistant Attorney General in the Office of Legal Counsel. I am pleased to be here today to discuss matters of concern to the Department of Justice with respect to the administration of justice in Indian country.

Let me outline our statement. After briefly reviewing the law with respect to jurisdiction over Indian country, the statement will first address the provisions of S. 1181, a bill to authorize the States and (193)

the Indian tribes to enter into mutual agreements and compacts respecting jurisdiction and governmental operations in Indian country. Second, pursuant to the committee's request, the statement sets forth our views on section 161 (i) of S. 1722 as reported, the Criminal Code Reform Act, which would authorize Indian tribes to apply to the United States for resumption of Federal criminal jurisdiction where States have taken over jurisdiction under Public Law 83-280 and similar statutes. Finally, the statement discusses the concept of increased use of Federal magistrates on Indian reservations.

As the committee knows, criminal jurisdiction in Indian country is divided between the Federal, tribal, and State governments depending on the type of crime and the race-Indian or non-Indian-of the perpetrator of the crime and the victim, if any. The scheme for dividing up jurisdiction is based on three foundations.

First, is the wording of 18 U.S.C. 1153 and 18 U.S.C. 1152. Second, is a line of cases commonly referred to as the McBratney and Draper decisions after the early Supreme Court rulings in United States v. McBratney, 104 U.S. 621 (1882), and Draper v. United States, 164 U.S. 240 (1896). Third, is the recent landmark decision of the Supreme Court in Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978).

Taken together, the significant features of these concepts for S. 1181 and S. 1722 are: No. 1, the State never has jurisdiction over an Indian committing a crime in Indian country; No. 2, the State has exclusive jurisdiction over a non-Indian committing a crime against another non-Indian and most victimless crimes by non-Indians; and No. 3, the tribe never has jurisdiction over a crime committed by a non-Indian. Thus, with the exception of certain cases in which a non-Indian is the perpetrator of a crime, jurisdiction over criminal matters arising in Indian country rests with the Federal Government and the tribe. At various times in the history of Federal-Indian relations the Congress has seen fit to oust tribal and Federal jurisdiction on certain reservations and give it to the States.

The high-water mark of this policy was reached in 1953 with the passage of Public Law 83-280, commonly referred to as Public Law 280. That act gave the States of California, Minnesota, Nebraska, Oregon, Wisconsin-and, by later amendment, Alaska-jurisdiction over offenses committed in Indian country in those States with the exception of one reservation in Minnesota. Oregon, and Wisconsin.

Section 6 of Public Law 280 permitted other States to amend their constitutions to permit them to assume jurisdiction over Indians by means of affirmative legislative actions. No provision was made under sections 6 or 7 for the wishes of the tribes. The States could act unilaterally and several did so prior to 1968 when section 7 was repealed as part of the 1968 Civil Rights Act.

A section of that act, codified as 25 U.S.C. 1326, created an important safeguard that henceforth the tribes must consent to State jurisdiction before being placed under it by a State. Since that time none have so consented to the best of our knowledge.

Nevertheless, State jurisdiction, in the five original Public Law 280 States and Alaska and in States that acted pursuant to section 6 or 7 of that act before 1968, was unaffected and still continues irrespective of the wishes of the tribes in those States.

The 1968 act also provides for the retrocession of State jurisdiction to the Federal Government in the event that a Public Law 280 State no longer desires to exercise all or part of its jurisdiction over tribes within its boundaries. The right to seek retrocession is given to the State not the tribe. Tribes can request the State to seek to retrocede jurisdiction but cannot demand a retrocession.

By Executive order the Secretary of the Interior has the discretion fully or partially to accept or to refuse retrocession but he must consult with the Attorney General before acting. Some States have retroceded varying degrees of jurisdiction to the Federal Government pursuant to the terms of the 1968 act.

In the forties other acts had been passed which gave certain other States jurisdiction over Indian reservations. For example, in 1940, Kansas was given criminal jurisdiction over Indian country in that State. In 1946 North Dakota was given jurisdiction over crimes by or against Indians on the Devil's Lake Reservation. In 1948 Iowa was given jurisdiction over crimes by or against Indians on the Sac and Fox Reservations, and New York State was given similar jurisdiction over all Indian reservations in that State.

Turning now, with that brief background, to the legislative proposals before the committee, S. 1181 is designed to improve the administration of justice in Indian country by permitting tribes to negotiate with State and local governments with respect to the matters over which criminal and civil jurisdiction are exercised by the tribal and State governments. It would apply both to tribes affected by Public Law 280 and similar laws and to tribes that still are under Federal and tribal jurisdiction.

The purpose of S. 1181 is relatively limited. The bill is apparently not intended to allow the tribes and the States to increase or decrease the responsibility of the Federal Government, at least as to criminal law enforcement. This is made clear by the language in section 101 (e) of title I providing that nothing in the act shall be construed to:

Authorize or empower State or tribal governments, either separately or pursuant to agreement or compact, to expand or diminish the jurisdiction presently exercised by the Government of the United States to make criminal laws for, or enforce criminal laws in, the Indian country.

That language-which, as discussed below, we now believe should be extended to civil cases-was added at the request of the Department of Justice when commenting on similar legislation introduced as S. 2502 in the 95th Congress.

So long as the policy of not affecting Federal jurisdiction is reflected in S. 1181, the Department of Justice does not object to the basic thrust of the bill, which appears to have the laudable goal of increasing the ability of the tribes and the States to reallocate jurisdiction between themselves to suit the needs of particular reservations.

In fact, the bill would reaffirm the Federal Government's faith in the capacity of tribal governing bodies as well as States to act responsibly in matters affecting the well-being of tribal members. We, therefore, support the principles of S. 1181. We do, however, have some problems with particular language and suggest some amendments in the paragraphs immediately following.

A basic aspect of the proposal, the degree to which agreements and compacts between the States and Indian tribes is to be permitted, remains unclear. Section 101 (a) spells out the kinds of subject matter and scope which such agreements and compacts may encompass. Section 101 (e), on the other hand, lists various matters which the legislation is not to be construed as permitting to be altered by Statetribal agreements or compacts.

While generally clear, these provisions are ambiguous in certain important respects. Section 101 (a) (2), for example, indicates that agreements or compacts may cover the allocation or determination of governmental responsibility of States and tribes "over specified subject matters or specified geographical areas, or both". The word "specified" is presumably meant as a significant substantive limitation, since section 101 (e) (5) indicates that nothing in the bill is to be interpreted as permitting the entry into agreements or compacts "for the transfer of unlimited, unspecified, or general civil and criminal jurisdiction of an Indian tribe", except via the mechanism provided by Congress in the 1968 Civil Rights Act, 25 USC 1326.

The line between permissible "specified" subject matters, on the one hand, and prohibited "unlimited, unspecified, or general" ones, on the other hand, is opaque. For instance, would an agreement under which a tribe and the State agreed to transfer to the latter all civil and criminal jurisdiction on the reservation except for traffic regulation and offenses be valid under the bill?

We are not sure and would suggest therefore that the bill be clarified in this regard. This is especially important since Public Law 280, as amended by the 1968 Civil Rights Act, provides for both general and limited transfers of jurisdiction from the tribe to the State, provided the tribe consents to the State's assumption of jurisdiction.

One can envision a situation whereby a State attempts to assume jurisdiction over most but not all criminal matters on a particular reservation with the consent of the tribe. The tribal council, realizing it is taking a major step, may decide to proceed under the 1968 Civil Rights Act and call for a vote of the enrolled tribal Indians at a special election instead of simply proceeding to enter into a compact as provided for in S. 1181. Should there be some challenge to the way the election was conducted or to the results, one can imagine that the faction of the tribe that favored the transfer of jurisdiction would argue that while the transfer may be ineffective under the 1968 Civil Rights Act, it is, nevertheless, effective under S. 1181.

In addition, section 101 (a) (3) allows for the entry into agreements or compacts which provide:

For the transfer of jurisdiction of individual cases from tribal courts to State courts or State courts to tribal courts in accordance with procedures established by the laws of the tribes and States.

If what is intended is to authorize tribal-State agreements creating a mechanism, like that in rule 21 of the Federal Rules of Criminal Procedure, whereby on various grounds, including the inability of the defendant to obtain a fair trial, a case could be transferred on motion of the defendant or the court from. for example, a tribal to a State court, the provision is probably unobjectionable. However, read liter