At the request of Senator Abourezk, S.1 has been amended to delete the proposed changes in Indian country jurisdiction and to return to what is essentially existing law. It was agreed that significant changes in Indian country jurisdiction should not be included in S.1 but should be treated in separate legislation. Senator Abourezk has announced his intention to hold hearings on this issue and the Department will be asked to present its position. This approach to answering jurisdictional questions seems to be the most significant, serious legislative effort in this regard currently underway. It has attracted a great deal of attention in the Indian bar and among the tribes and will very likely continue to grow as a major Indian issue. C. Other Proposed Legislation The task force has served as a clearinghouse for development of Departmental positions on other proposed legislation regarding jurisdiction in Indian country. 1. H.R. 2470 This bill, introduced by Mr. Rhodes would repeal 18 U.S.C. § 1153 (the Major Crimes Act) and amend 18 U.S.c. 8 1152 so as to eliminate the exemption from federal jurisdiction of intraIndian offenses. The approach taken in H.R. 2470 is essentially that contained in the proposed revision of the Federal Criminal Code, S.1. The bill was introduced in order to correct a constitutional defect in the Major Crimes Act under which Indians and non-Indians receive different punishment for certain offenses. See United States v. Cleveland, 503 Fed. 2nd 1067 (1974), declaring portions of the Major Crimes Act unconstitutional on equal protection grounds. The task force has 62-696 0 - 80 - 16 supported the Department of Justice Bill, discussed below, as the preferable method of solving the equal protection problem, pending a more comprehensive revision of Indian country jurisdiction. .2. Department of Justice Bill - H. R. 7592.. 18 U.S.c. 1153, the Major Crimes Act, extends federal jurisdiction to certain "major crimes" committed on Indian reservations by one Indian against another. Similar offenses committed by non-Indians are covered by 18 U.S.C. §1152, which extends federal enclave law to Indian reservations but exempts from its coverage intraIndian offenses. Prior to 1966, the aggravated assault crimes listed in §1153 were defined and punished according to federal enclave law. In 1966 Congress amended the Act to require that the crime of assault with a dangerous weapon be defined and punished according to state law. In 1968, Congress further amended the Act by adding the offense of assault resulting in serious bodily injury and requiring that this new offense be defined and punished according to state law. The uniqueness of the state laws has created a situation where the state definition and punishment for aggravated assaults may differ from the federal statute. District courts in the Eighth, Ninth and Tenth Circuits have recently held that these differences in treatment for Indians (as opposed to non-Indian defendants who are punished with reference to federal law) constitute a denial of equal protection and due process under the Fifth Amendment. Under these decisions, the federal government is without authority to prosecute Indians who commit aggravated assault offenses on Indian reservations in states where the local law is more severe than federal enclave law applicable within Indian country. See e.g. United States v. Cleveland, 503 F. 2nd 1067 (Ninth Cir 1974); United States v. Boone, 347 F. Supp. 1031 (D.N. Mexico 1972). This has created a serious law enforcement problem on several Indian reservations. To remedy this situation, the Department has drafted legislation, H. R. 7592 amending the Major Crimes Act to insure equal treatment for Indian and non-Indian defendants accused of committing aggravated assaults within Indian country. The task force, in conjunction with the Office of Legislative Affairs, has obtained support for this bill from other Departments in the Executive Branch and has expedited clearance by the Office of Management and Budget. The bill has just been introduced in the House by Representative Rodino and in the Senate by Senators Fannin and Hruska. Speedy passage is very important. In 1953 Congress passed P.L. 280, a statute which grants specified states broad criminal and civil jurisdiction over certain reservations within their boundaries. These states are listed in the codified portions of Public Law 280. 21/ Public Law 280 also contains two provisions, subsections 6 and 7, which grant all other states permission to assume jurisdiction over tribes within their boundaries. Several states took advantage of this offer prior to 1968 when section 7 was repealed and section 6 was amended. Public Law 280 is still in effect. Those states which properly acquired jurisdiction pursuant to subsections 6 and 7 prior to changes in the law may still exercise that jurisdiction. However, the 1968 Civil Rights Act dictates that henceforth tribal governments must consent to state jurisdiction as a precondition to other non-280 states asserting criminal or civil jurisdiction on reservations. 22/ 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 wishes to exercise all or part of its jurisdiction over tribes within its boundaries. Tribes are not given the power to decide whether an offer of retrocession will be made to the federal government; however, they can request the state to retrocede jurisdiction. The Secretary of Interior has the discretion to accept or refuse retrocession. the request of Indian tribes, several states have retroceded varying degrees of jurisdiction to the federal government pursuant to the terms of the 1968 Act. At 21/ See 18 U.S.C. §1162; 28 U.S.C. §1360. 22/ See 25 U.S.c. §1321-26. Most Indian organizations and tribes abhor P.L. 280. The tribes wish to decide whether the state or federal government will exercise jurisdiction on Indian reservations. S. 1328, introduced by Senator Abourezk, reflects the view that the tribes, not the state or federal government, should be the final authority on whether Public Law 280 jurisdiction continues to exist. The Act authorizes tribes in all Public Law 280 states to adopt resolutions declaring their desire to have the United States and the tribe re-acquire jurisdiction from the states. Upon adoption of such a resolution, the Secretary of Interior is required to proclaim the re-acquisition of jurisdiction. Neither the consent of the state nor the federal government is required. Title I of S. 1328 deals with retrocession of jurisdiction. Title II is captioned "Improvement of Law Enforcement on Indian Reservations." Title II would establish a pilot program within each of the states of South Dakota, North Dakota, Montana, Nebraska, and Wyoming, to improve law enforcement and the administration of justice within Indian reservations in those states. The bill would authorize grants, totaling $10 million, to Indian tribes to improve tribal police, courts, and corrections, programs and facilities. Members of the task force, at the request of the Senate Interior Subcommittee on Indian Affairs, have participated in several informal discussion sessions to provide the Committee with background information on reservation law enforcement problems. The task force also represented the Department in formal hearings before the Subcommittee. (See Tab B.) Actions Taken 1. The process of developing a Departmental position on jurisdiction issues has been initiated. 2. Legislation restoring the government's ability 3. Assistance has been given to legislative drafting committees on law enforcement issues and Departmental testimony has been drafted and presented. Recommendation The chaotic state of the law regarding a wide range of Indian jurisdiction issues is the source of many of the law enforcement problems Indians face. The Department should, through the task force or some other coordinating mechanism, aggressively pursue the task of developing a coherent position and approach to the jurisdiction issue and provide leadership in the national debate on jurisdiction which is underway in both the Congress and the courts. |