In sum, although we understand that in many cases commission by non-Indians of crimes traditionally regarded as victimless touches in a significant way upon the peace and tranquility of Indian communities, as a general rule we believe that such offenders fall within the exclusive jurisdiction of state courts. A more limited class of crimes involving direct injury to Indian interests should, however, be recognized as having Indian victims - whether the Tribe itself, an Indian who falls within the class of persons to whom certain statutes are particularly designed to afford protection, or an individual Indian or group of Indians who are victimized by conduct which either as a matter of law or as a matter of fact constitutes a direct and immediate threat to their safety. In such cases, federal law enforcement officers may properly prosecute non-Indian offenders in the federal courts. We also believe that despite the common understanding that jurisdiction over crimes on Indian reservations is either exclusively state or exclusively federal, a substantial case can be made for the proposition that the states are not ousted from jurisdiction with regard to offenses committed by non-Indian offenders which pose a direct and substantial threat to Indian victims, but in their separate sovereign capacities may prosecute non-Indian offenders for violations of applicable state law as well. John M. Harmon Assistant Attorney General 15 Senator DECONCINI. Have you had a chance to read that? Senator DECONCINI. I have no further questions, Mr. Chairman. Senator MELCHER. May I inquire how many homicides there have been in the Blackfeet Reservation within the last 4 or 5 years? Mr. Gow. Mr. Chairman, my name is Doug Gow. I am with the FBI. Insofar as the homicides on the Blackfeet Reservation are concerned, the figures I have from the middle of 1975 to the present show that there have been seven homicides. There have been 31 cases involving death but only 7 homicides. Of those seven cases, four have been brought to the conviction stage. There has been one acquittal, and two cases were what we callclosed administratively after exhaustive investigation where no suspects were developed. Senator MELCHER. What were the causes of the other 24 deaths? Mr. Gow. The other 24 deaths consisted of 18 manslaughters, approximately 6 cases where death occurred under unusual circumstances. Three of the deaths which occurred under unusual circumstances were by natural causes; two by suicide and one accidental. Senator MELCHER. How did you decide that the 18 manslaughters were manslaughters instead of homicides? Did that come out in court or was that your assessment? Mr. Gow. I do not have the full background on all those cases, sir. I would assume that was based on the facts of the situations as they came out in court. Of those 18 cases, I can tell you, 9 convictions were returned. In one there was a no bill. Two cases were closed administratively. Six cases were declined by the U.S. attorney. Senator MELCHER. Six manslaughters were declined by the U.S. attorney. Did I understand you correctly? Mr. Gow. I was told that these manslaughters all involved vehicular type accidents or deaths. Senator MELCHER. What is the status of the most recent death of the young girl? Mr. Gow. Are you referring to the girl, Monica Lynn Still Smoking, sir? Senator MELCHER. Yes; unless you know of one more recent than that. Mr. Gow. That case is still under investigation at the present time. I think it is a pending case. You understand, I have to limit my comments with regard to it. I can say that it is under investigation. The agents are working closely with the tribal authorities and BIA police. Senator MELCHER. In those cases involving an Indian against a nonIndian, in those crimes against Indians, does the U.S. attorney decline to prosecute, or are States likely to prosecute? Mr. PAULEY. We have no experience which would really enable us to answer that question, Senator. That is what I am learning from my colleagues. Senator MELCHER. What communications have you had with the States subsequent to advising them that the Department has determined that the States have concurrent jurisdiction with the Federal Government in non-Indian against Indian crimes? Mr. ADAMS. It is my understanding that that view has been communicated by individual U.S. attorney's offices through appropriate State officials. Senator MELCHER. Such as, the State's attorney general? Mr. ADAMS. It would either be him or to a county prosecutor. Senator MELCHER. What is the best method to deal with enforcement problems on an Indian reservation regarding minor offenses? Mr. THOMPSON. Mr. Chairman, in New Mexico we have reached an informal agreement between the tribes and the U.S. Attorney's Office whereby the minor offenses involving members of the tribes are handled in the tribal court system. We approached the legislature with regard to the problem of a non-Indian violator on the reservation and obtained legislation through the New Mexico Legislature authorizing BIA law enforcement officers and tribal officers to become cross-deputized as State officers, thereby empowering them to make arrests for violations of State offenses. What occurs at the present time is that, for a non-Indian offender who commits a minor crime, all tribal and BIA officers are crossdeputized to make arrests for those State offenses and cite the nonIndian violator through the State court system. Senator MELCHER. Does the cross-deputization apply to sheriff's officers of the counties? Mr. THOMPSON. Some sheriff's officers-if I understand your question—are cross-deputized as members of the tribal police force as well as some members of the tribal police force being cross-deputized as deputy sheriffs. Senator MELCHER. Is that your recommendation? Mr. THOMPSON. It has worked well in New Mexico. Senator MELCHER. Would you have it that a non-Indian on a Cheyenne Reservation could go to the county seat to be hailed before the justice of the peace? Is that it? Mr. THOMPSON. Yes; that is correct. The tribal officer occupies the same status as a deputy sheriff with regard to the non-Indian violator. Senator MELCHER. Would the tribal officer then go to the county seat? Mr. THOMPSON. Yes, sir. Senator MELCHER. The Northern Cheyenne Reservation is 65 miles from the county seat. Is that a practical approach, for instance, on a speeding ticket? Mr. THOMPSON. Senator, I guess in the West we encounter long distances. We certainly encounter that type of problem in New Mexico. Senator MELCHER. Is that true from your own knowledge? Mr. THOMPSON. Yes, sir. It is from my experience. Senator MELCHER. What is the experience on cross-deputization in South Dakota? Mr. ADAMS. Sir, I am not aware of what it is statewide. I know that it has been a problem in one county. I am not familiar with the status of the case, but in late 1979 the Justice Department did bring suit under a civil rights theory to-I am not sure whether it was one or two counties that had refused to cross-deputize Indian policemen. The Justice Department attempted to make the county cross-deputize. Senator MELCHER. The experience in South Dakota is that it does not work. Mr. ADAMS. That is my understanding, at least with respect to this one- or two-county area. Senator MELCHER. Are there any areas in South Dakotą that have been cross-deputized? Mr. ADAMS. It is my understanding that there are a number of areas where they have been cross-deputized in South Dakota. Senator MELCHER. What areas are those? Mr. ADAMS. I am not sure but I would be glad to provide the committee with a list, if you would like. Senator MELCHER. What are the two counties where you think it is not working? Mr. ADAMS. I believe one of them is Roberts County. Again, I would be happy to provide the exact information if the committee desires. That case is being handled by the Civil Rights Division. I am with the Criminal Division. Senator MELCHER. What Indian reservation is involved? Mr. ADAMS. I am not sure of that either, sir. Senator MELCHER. Is there cross-deputization on the Oglala Sioux Reservation? Mr. ADAMS. I do not know the answer to that either. Senator MELCHER. I would think, after the Justice Department's experience at Wounded Knee, they would know. Is the Rosebud Reservation involved? Mr. ADAMS. I do not know the answer to that, Senator. As we discussed with the committee staff previously, it is being handled by another division of the Department-other than mine. Those persons responsible for the suit are available to answer those questions and would have the answers readily available. We would be glad to provide them. Senator MELCHER. Yes; will you please provide them for the record. We would like to know whatever your experience has been in South Dakota and where, if anywhere, there is cross-deputization. Without objection, the written statement submitted by Mr. Thompson and the other material be submitted will be included in the hearing record at this point. Thank you all very much. [The prepared statement and attachments follow. Testimony resumes on p. 334.] PREPARED STATEMENT OF R. E. THOMPSON, U.S. ATTORNEY, Mr. Chairman and members of the Senate Select Committee on Indian Affairs. I am pleased to be here today to discuss the administration of justice in Indian country as proposed in S. 1181 (State and Indian Compacts), S. 1722 section 161 (i) (retrocession of jurisdiction to United States) and increased usage of magistrates in Indian country. Having served several years in the New Mexico Senate and now as United States Attorney for the District of New Mexico, I am familiar with some of the issues presented by these bills. 8. 1181-STATE AND INDIAN COMPACTS Some areas of agreement between Indian tribes, local governmental units and state governments are presently operational. Some, such as incarceration of tribal prisoners in a county jail, and cross-deputization of law enforcement officers perform essential functions. The lack of more agreements such as these is due in large part to a reticence by both the states and the Indians. The Indian tribes fear that agreements such as are contemplated would give either tacit or express approval to increased state authority over the Indian tribes and Indian tribal properties. The states fear that agreements such as these would ultimately cause them to lose revenues and authority that would otherwise have been theirs. Both sides are aggressively seeking to establish and retain their jurisdiction and authority in taxation and natural resource production matters. Important competing interests need to be openly discussed and weighed for possible agreement in areas such as (1) extradition, (2) taxation of non-Indians on Indian lands, (3) water and air quality, and (4) hunting and fishing. However, these compacts should be subject to approval by the Secretary of the Interior because they may involve commitment of federally appropriated funds. This bill would serve as a basis upon which agreements such as these, and many others, can be assured of legitimacy and enforceability in a setting of mutual agreement between Indian and non-Indian governments. MAGISTRATES The Oliphant decision caused re-examination of law enforcement responsibilities in Indian country. As indicated by the attached Department of Justice memorandum, the current jurisdictional principles for crimes in Indian country are (1) the state never has jurisdiction over an Indian committing a crime in Indian country, (2) the state has jurisdiction over a non-Indian committing a crime against another non-Indian and over a non-Indian committing most victimless crimes, and (3) the tribe never has jurisdiction over a crime committed by a non-Indian. There were and are adequate laws by both the United States and the States to make objectionable conduct a law violation. However, following Oliphant, there was, in New Mexico, a period of confusion and inadequate enforcement for some offenses by non-Indians. Our office worked through the New Mexico legislature to enact a provision in 1979 that permits Indian tribal officers and Bureau of Indian Affairs law enforcement officers to be deputized to enforce state laws on an Indian reservation when non-Indians commit state offenses, such as motor vehicle speeding or assault on another non-Indian. A copy of this cross-deputization act is attached. Tribes, representing over 50 percent of New Mexico's Indian population, as well as the Bureau of Indian Affairs law enforcement officers in New Mexico have elected to become cross-deputized under the act. This has, with reasonable satisfaction, dealt with the problem in New Mexico though similar legislation may be needed for Indian tribes in other states. Our office has a working agreement dividing investigatory and prosecutive priorities for crimes by or against Indians as indicated in the attached memorandum. Basically, the Federal Bureau of Investigation investigates the more serious crimes, the Bureau of Indian Affairs law enforcement officers investigate the moderately serious crimes and the tribal police investigate the minor offenses. The United States prosecutes all but the minor offenses, which are prosecuted through the tribal courts. This working agreement between the tribes and the United States is also utilized in Arizona and is under review in other states. It has worked well. The physical location of federal magistrates in New Mexico has been workable. They are located in New Mexico as shown on the attached map, and are reasonably near the Indian reservations, which is clearly desirable. The committee may wish to review their location in other states with Indian reservations. S. 1722 None of the 23 Indian tribes and pueblos in New Mexico have come under the jurisdiction of the state through Public Law 280. The state has never begun the Public Law 280 method for assuming jurisdiction and insofar as I know, few if any of the tribes have any interest in ceding the state jurisdiction because of their fear of state taxation and state control over Indian tribal members, lands and resources. This bill may be of benefit to them in their deliberations on this question because a decision to seek state jurisdiction would not be irreversible. |