ally, it would seem susceptible to far more than that. We feel this provision should be refined.

In subsection 101(a), page 3, line 15, we suggest that the words "and among" be deleted because the word "among" could be interpreted to mean that the States could enter into jurisdictional compacts with other States, and tribes with other tribes, whereas the bill's purpose is to allow a State and a tribe to enter into agreements only between themselves.

In subsection 101 (e), page 5, line 10, we suggest that the phrase "civil or regulatory" be inserted after the word "criminal", the first time it appears, and before the word "laws".

Also on line 10, the word "criminal", the second time it appears, should be deleted and the word "those" should be inserted. Alternatively, the phrase "to make criminal laws for or enforce criminal laws" could be deleted.

The effect in either case is to enlarge the proviso discussed earlier so that it applies to civil as well as criminal jurisdiction of the United States, consistent with what we believe is the limited intent of the legislation. The proviso would then make it clear that Federal jurisdiction over both criminal and civil matters may not be affected by tribal-State agreements or compacts.

We also note that there is no requirement in the bill that compacts entered into by tribes be approved by the Secretary of the Interior. The original draft of S. 2502 in the 95th Congress contained such a requirement. While we defer to the Department of the Interior on the propriety of the deletion of that requirement, we suggest that on major jurisdictional agreements, secretarial review and approval may be appropriate.

Subsection 101 (c) of the bill provides that the jurisdictional provisions of any such agreement, compact, or revocation be published in the Federal Register "unless requested otherwise by all parties to the agreement or compact". We believe that providing public notice of the jurisdictional provisions is important to all persons affected thereby to apprise them of the potential consequences of various activities. A provision which limits notice could subject an individual to unknown and unintended consequences. We therefore suggest that the jurisdictional provisions should be published in all instances.

We believe that subsection 101 (d), which states that agreements will not affect ongoing cases, does not go far enough. We suggest that it ought to provide that matters which arose prior to the agreement, but which are not yet in litigation, should be handled in accordance with the law as it existed prior to the agreement.

In the civil context, this would preserve the expectations of the parties and seems the fairest approach, while in the criminal context the rule may be necessary to avoid problems involving ex post facto application of law.

Title III states that the Federal district courts shall have original jurisdiction over any civil action brought in equity by a party to enforce the agreement. Legal actions can be maintained only to the extent provided for in the agreement.

It is our understanding that the intent of this provision is to waive, to a limited extent, the immunity from suits possessed by States and

Indian tribes and to allow them, by explicit provisions in the agreement, to consent to further waiver.

We suggest it would be more clear if the act provided that States and Indian tribes, by entering into compacts or agreements, shall be deemed to have consented to litigation relating to the subject matter of those compacts or agreements. In keeping with this comment, we recommend that the following language be inserted at the end of section 301 on page 10:

The States and Indian tribes shall be deemed to have consented to suit relating to the subject matter of those compacts or agreements.

Let me turn now to the relevant portion of S. 1722 as reported by the Senate Judiciary Committee. Section 161 (i) of that bill provides a mechanism by which tribes occupying Indian country over which a State has assumed jurisdiction pursuant to Public Law 280, either as originally enacted or amended by the 1968 Civil Rights Act, or pursuant to the special statutes that were enacted giving jurisdiction to Iowa, Kansas, and New York, may oust the State of jurisdiction and place the tribe back under Federal and tribal jurisdiction.

This would come about first by a resolution adopted at a special election of the adult Indians to the effect that they want such a retrocession. Ninety days after the adoption of the resolution the United States shall, with the consent of the Secretary of the Interior, reacquire such measure of criminal jurisdiction granted to or assumed by the State pursuant to Public Law 280 or similar statutes.

Under present law the States have full authority over whether to offer a retrocession, regardless of what the tribe may want. Under this portion of S. 1722 the tribes would have such total control regardless of what the States may wish.

For some time now the Department of Justice has taken the view that tribes which were placed under State jurisdiction, often without their consent, should be given the opportunity to elect between Federal and State jurisdiction. Needless to say, this is also the view of most or all of the Indian community, many of whose spokesmen have long been opposed to Public Law 280 and similar statutes on the ground that they represent an unwarranted loss of tribal independence and status.

Nevertheless, the Department considers that the State should have a voice, but not a veto, over a taking away of jurisdiction over its Indian citizens and that the Department of Justice should be formally consulted by the Interior Department to make sure that our investigative and prosecutive resources are adequate to handle the increased workload, particularly given the short, 90-day period between the tribal resolution and the reacquisition of Federal jurisdiction.

Therefore, we would prefer to see subsection (i) amended to provide that the Secretary of the Interior shall request the views in writing of the Attorney General of the United States and the Governor of the State concerned as to the feasibility of the retrocession plan.

Also, it should be made clear that although the Secretary must decide within 90 days following receipt of the tribal resolution, the Secretary should be allowed to set a date beyond the 90-day period for a retrocession to become effective if more time is needed for an orderly transfer.

Further, if the Secretary disapproves a tribal retrocession resolution, he must state his reasons for so doing in writing. We would be glad to work with the committee in drafting such amending language. As a point of interest, both the Interior Department and the Justice Department agreed on specific language incorporating all of the above points as long ago as 1976.

Turning finally to the committee's request that we discuss the use of magistrates on Indian reservations, it is my understanding that the committee is concerned about possible gaps in law enforcement following the Oliphant decision holding that tribal courts do not have jurisdiction over non-Indians.

Initially, the issue should be put in some perspective. Before Oliphant only 33 of 127 courts operating on Indian reservations purported to extend jurisdiction to non-Indians. Nevertheless, the decision in Oliphant caused the Department to examine criminal jurisdiction on Indian reservations particularly over non-Indians.

A copy of a memorandum on this subject prepared by the Office of Legal Counsel has been widely disseminated in the Indian community and we would be glad to submit a copy for the record if desired by the committee.

Basically, we have concluded that the States, not the Federal Government, have exclusive jurisdiction over those crimes by non-Indians that do not pose a direct and immediate threat to Indian persons, property, or tribal interests. Additionally, we have concluded that the States have concurrent jurisdiction with the Federal Government over those crimes committed by non-Indians that do involve a threat to Indian interests.

We therefore believe that, as a matter of law, the jurisdiction over all persons on reservations has been sufficiently clarified and that no substantial gaps exist. There is pending at this date in the U.S. District Court for the District of New Mexico a case, styled Mescalero-Apache Tribe v. Civiletti, in which these jurisdictional issues are being litigated.

However, we are not unmindful of the view of some that there is a de facto gap in law enforcement as U.S. attorneys are alleged to decline an excessive number of cases that perhaps could be prosecuted under 18 U.S.C. 1153 or 1152, on the one hand, and on the other hand, tribes are occasionally alleged to be remiss or reluctant to prosecute tribal members in tribal court. Such generalized allegations are, of course, easily made but hard to discuss meaningfully without specific examples and complete knowledge of all the facts that entered into a prosecutor's decision.

In theory, at least, placing Federal magistrates on reservations would provide another forum in which to prosecute offenders in Indian country. However, 18 U.S.C. 1152 would preclude magistrate from trying offenses committed by one Indian against another and the Draper-McBratney line of cases would preclude trying many crimes committed by non-Indians.

Under present 18 U.S.C. 3401, magistrates are limited to hearing cases involving misdemeanors. A misdemeanor is an offense limited to punishment by imprisonment for up to 1 year and a fine. This limitation would preclude magistrates from hearing cases brought under the

Major Crimes Act, 18 U.S.C. 1153. There might be crimes committed by non-Indians that could be prosecuted in magistrates court, but we would expect that a serious crime committed by a non-Indian against an Indian would be prosecuted as a felony in Federal district court if the State did not prosecute.

Under the present Magistrates Act, which is contained in chapter 43 of title 28, magistrates are appointed by the judges of each court in such numbers and serve at such locations as the Judicial Conference of the United States may determine. The Judicial Conference of the United States consists of the chief judge of each judicial circuit, a district judge from each circuit, and other judges from special Federal

courts.

The Department of Justice has no control over where magistrates are stationed. The only input the Department has comes from U.S. attorneys who can make suggestions about the number of magistrates and their locations to the Director of the Administrative Office of the United States Courts. The Director's recommendations are in turn considered by the Judicial Conference.

Rather than look to increased use of magistrates, it would appear more productive for Federal, tribal, and State officials to attempt to work out a plan for each reservation whereby any investigative and prosecutive enforcement problems that exist can be rectified. The problems in Indian country are not uniform from one reservation to another. The problems may better be addressed by increased cooperation at the local level rather than the creation of an additional court system that might weaken the power of tribal courts and discourage State officials from prosecuting non-Indians in State court.

In summary, then, the Department of Justice supports the concept behind S. 1181 with our suggested amendments. We would like to work with the committee in preparing a better retrocession plan than that contained in S. 1722, although we strongly endorse its core idea that the tribes ought to be able, even without the concurrence of the State, to request a retrocession.

Finally, we feel that an increased use of magistrates in Indian country is not necessarily the best approach to deal with enforcement problems regarding minor offenses.

Mr. Chairman, that completes my statement. My colleagues and I would be happy to try to respond to your questions.

Senator DECONCINI. Thank you very much Mr. Pauley, for your fine detailed statement. We appreciate the observations and constructive suggestions for improving S. 1181.

Does S. 1181 permit the States or the U.S. Government to do anything that it is not already permitted to do, in your judgment?

Mr. PAULEY. Let me ask Mr. Adams to answer that. I think it does. Mr. ADAMS. I think, Mr. Chairman, that at least the feeling in both the Indian community and the States is that there are certain impediments to their entering into the types of agreements that are contemplated by S. 1181, and I think that this type of legislation would resolve at least some of those concerns.

Senator DECONCINI. In your opinion, are there any impediments, particularly legal impediments, other than psychological ones? I cannot find any, but perhaps there are some.

Mr. ADAMS. I am not positive. I think we will have to look at that problem.

Senator DECONCINI. Nothing jumps out at you or is extremely obvious?

Mr. ADAMS. I think one problem that is addressed in the bill is the problem of sovereign immunity which might preclude the enforcement of any agreements that might be entered into. This legislation provides for, essentially, a waiver of sovereign immunity.

Senator DECONCINI. Of course, you mean a voluntary waiver.
Mr. ADAMS. Yes.

Senator DECONCINI. Just out of curiosity, in the prosecution of a misdemeanor or a petty offense before a magistrate is it required that the prosecution case be formally presented by the prosecutor, or can the arresting officer present the case as in the justice of the peace court? Mr. PAULEY. Mr. Chairman, the law on that question is rather sparse. The principal case is a district court case from the State of Maryland entitled United States v. Glover, in 381 Federal Supplement. The holding of that case is that it is not required that the prosecution be presented by a Department of Justice official or even by an attorney.

The reasoning of the court is that the statutes which do exist and which provide that it is the duty of the U.S. attorney to prosecute for all offenses against the United States are not jurisdictional in character and at the same time are not enacted for the benefit of the defendant. Therefore, the holding of that case was that a park ranger or member of the park police who, under an arrangement with the U.S. attorney's office in Maryland, was customarily allowed to present cases involving minor offenses that occurred on Federal park land was a permissible procedure.

Therefore, so long as the U.S. Attorney's Office is aware of and endorses the arrangement, at least in the holding of this fairly well reasoned case, it would be allowed.

Senator DECONCINI. Does the Department have any rule which would prevent a tribal police officer or an officer of the local police department from presenting a case directly to the U.S. attorney? Is there any requirement that the FBI first investigate the case?

Mr. PAULEY. Let me ask our colleague from the Bureau, Mr. Gow. Mr. Gow. There is none.

Senator DECONCINI. Is that sometimes the rule on a local level? Mr. Gow. I think Mr. Adams could best answer that question. Mr. ADAMS. I think there has been a fairly well-publicized policy of the Department to encourage U.S. attorneys to accept investigatory reports from those tribal and Bureau of Indian Affairs policemen whom the U.S. attorney's office feels-as individuals or as organizations are capable of investigating a case well enough for prosecution in Federal court.

In some districts around the country there are written guidelines as to the types of cases that will be investigated by the FBI and the types of cases that will be investigated by tribal and BIA police.

Mr. PAULEY. Mr. Chairman, Mr. Thompson would like to comment on this matter.

Senator DECONCINI. Yes, Mr. Thompson?