Senator MELCHER. Our next witness is Randy Scott, special assistant on Indian affairs with the office of the Governor of the State of Washington.

STATEMENT OF RANDY SCOTT, SPECIAL ASSISTANT ON INDIAN AFFAIRS, OFFICE OF THE GOVERNOR, STATE OF WASHINGTON

Mr. SCOTT. Mr. Chairman, thank you for the opportunity to appear before you today. My name is Randy Scott and I am the special assistant on Indian affairs to Governor Dixy Lee Ray, Governor of the great State of Washington.

First, let me offer my appreciation for the efforts of this committee and your colleagues on the Judiciary Committee in addressing the difficult issues relating to Public Law 83-280. I also communicate the appreciation of the Governor and our commitment to provide whatever assistance is necessary to the United States and to the tribes of Washington State, to work with and implement the solution that you and your colleagues of the Senate deem appropriate.

I am here on behalf of the Governor to support the passage of section 161 in S. 1722. The questions and issues relating to States assuming jurisdiction began in 1953 with the passage of Public Law 83-280. In the State of Washington the law enacted in 1957 and amended in 1963 became chapter 37.12 of the Revised Code of Washington. A copy of that chapter is attached to my written submission. Senator MELCHER. Without objection, a copy of that material will be included in the hearing record at this point.

[The material follows. Testimony resumes on p. 343.]

TESTIMONY BEFORE SENATE SELECT COMMITTEE ON INDIAN AFFAIRS CONCERNING S. 1722 AND TRIBAL/STATE COMPACT ACT, BY RANDY SCOTT, SPECIAL ASSISTANT ON INDIAN AFFAIRS

Mr. Chairman, members of the committee, thank you for the opportunity to appear before you today.

My name is Randy Scott, and I am the Special Assistant on Indian Affairs to Governor Dixy Lee Ray, Governor of the State of Washington.

First, let me offer my appreciation for the efforts of this committee and your colleagues on the Judiciary Committee to address the difficult issues relating to Public Law 83-280. I also communicate the appreciation of the Governor and her commitment to provide whatever assistance necessary to the United States and the tribes of Washington State to work with and implement the solution that you and your colleagues of the Senate deem appropriate.

The questions and issues relating to States assuming jurisdiction began in 1953 with the passage of Public Law 83-280.

In the state of Washington, the law, enacted in 1957 and amended in 1963, became Chapter 37.12 of the Revised Code of Washington. A copy of that Chapter is attached.

Needless to say, after the enactment of legislation by the state-the conflicts began. As the Governor stated in her letter to Senator Kennedy (a copy of which is attached).

"The state of Washington has spent numerous man hours and dollars to litigate issues that have been associated with Public Law 83-280. The vagueness of that statute seems to lend itself to the litigation process of which there seems to be no end. The non-Public Law 83-280 tribes in this state do not appear to be embroiled in the courtroom conflicts associated with Public Law 83-280."

I am sure that you have been told a number of times throughout these proceedings that the philosophy of Public Law 83-280 comes from the termination era of United States Indian Policy. Therefore, with the present policy, that

emerged in the 1970's, of encouraging self-determination and strengthening of tribal governments, A change in methods of dealing with jurisdictional conflicts should be developed.

The policy of the United States government was most forcefully expressed by President Nixon in his speech of July 8, 1970. In it the President asserts, "... this policy of forced termination is wrong ." and he said ". . . I hereby affirm for the Executive Branch that the historic relationship between the federal government and the Indian communities cannot be abridged without the consent of the Indians."

So now the wheel has turned full circle. In 1953, the federal government invited states to take over jurisdiction on Indian reservations. In 1957 Washington did so. When Washington extended this jurisdiction in 1963, the federal government had not yet indicated any change in its termination philosophy. But in 1970, it expressly did so. The concept of the retrocession now seems to be entirely appropriate. The state of Washington through the Governor's Office supports this concept as contained in S. 1722, Section 161.

The inadequacies that have resulted from assumption of jurisdictions by the state are many. The biggest complaint that we hear is that most local non-Indian law enforcement agencies lack sufficient manpower and revenue to provide for equal and adequate law enforcement. The burden of states assuming jurisdiction falls most directly on local enforcement agencies such as county sheriffs and court systems.

It is our estimation that retrocession can begin a process whereby the federal government, Washington State, Indian tribes and local law enforcement agencies can work out agreements of law enforcement responsibilities, cross deputization programs, etc., plus multi-jurisdictional harmony in other areas of government service delivery would seem to be a natural development.

The only thing that we recommend that you add to Section 161 would be some language that would include the Governor of the state affected as having approval authority over a tribal retrocession petitions prior to submission to the Secretary of Interior.

Again, thank you for this opportunity to present our viewpoints on S. 1722. If I may, I would like to make a brief comment on S. 1181, "Tribal-State Compact Act."

The state of Washington has been involved in many conflicts with various tribes within our boundaries. Issues such as jurisdiction, human service delivery, treaty rights, fishing rights, taxation, have all been discussed, researched and litigated extensively. In fact, a number of these court cases have received national attention and United States Supreme Court review.

Tribal-state conflicts are not new to Washington State. The present administration under Governor Ray is planning some new and innovative methods of intergovernmental cooperation with tribal governments. Attached is a brief outline of the proposal to develop what we call the Washington State Study Group on State-Tribal Relations. To assist in this area, the Governor has by Executive Order 80-02 created an Office of Indian Affairs. A copy of that Executive Order is attached also.

The Washington State Legislature is a member of the Commission on StateTribal Relations sponsored by the National Conference of State Legislatures, the National Congress of American Indians, and the National Tribal Chairman's Association.

These endeavors on the part of state officials shows that Washington State is beginning to show some much needed leadership in intergovernmental cooperation with tribal governments.

Two recent agreements between tribes, local government and state government are examples of this new effort. They are:

1. Portage Island agreement-between the Lumni Tribe and Whatcom County settling a dispute over a small island in the Lumni Indian Reservation.

2. Nisqually Agreement-between the Nisqually Tribe and Washington State, particularly the Washington Department of Fisheries over the fishery management and enhancement of the Nisqually River drainage basin.

I will, if the committee desires, forward copies of both agreements within the next few days.

The state of Washington has within its code the Interlocal Cooperation Act which permits actions of agreement between local governmental units, special

purpose districts, state agencies, federal agencies and Indian tribes. I will not expound further upon this act, but will allow for its inclusion into the record to suffice for its intent and clarification.

To sum up what I am trying to point out is that Washington State without any federal legislation is embarking on a program of working out problems of conflict between the state and tribes. These conflicts are local in nature and need to be solved on a local level. The legislation does not address, nor do I think any legislation is capable of addressing the political, historical, or attitudinal barriers that must be overcome for success in this area.

The state of Washington would prefer if the legislation would be limited to encouraging cooperation between states and tribes and allowing us to work out the solutions and mechanisms on the local level with no strong federal guidelines, but with federal involvement in a manner such as the study group or tripartite method as proposed in one of the attachments. (Memo to Governor Ray dated November 16, 1979.)

We welcome the process of cooperation, but shy away from the bureaucratic guidelines that traditionally come with federal programs.

Thank you again.

CHAPTER 37.12, REVISED CODE OF WASHINGTON INDIANS AND
INDIAN LANDS-JURISDICTION

(Retained in committee files)

LETTER FROM GOVERNOR RAY TO SENATOR EDWARD M. KENNEDY, DATED NOVEMBER 21, 1979

Hon. EDWARD M. KENNEDY,

Senate Judiciary Committee, U.S. Senate,
Russell Building, Washington, D.C.

STATE OF WASHINGTON,
OFFICE OF THE GOVERNOR,
Olympia, Wash., November 21, 1979.

DEAR SENATOR KENNEDY: The Senate Judiciary Committee has under consideration S. 1722, a comprehensive revision of the federal criminal code, “The Criminal Code Reform Act of 1979." I wish to comment specifically on Section 161 relating to retrocession of state jurisdiction over certain Indian lands.

I know that jurisdictional issues have been studied and litigated many times since Public Law 83-280 has been signed into law. Indeed, even studies done by the state of Washington have detailed the problems and inconsistencies of this jurisdictional conflict.

I, on behalf of Washington State, wish to go on record supporting the retrocession provision as contained in S. 1722. The following points should serve as my reasons for supporting your efforts in this area:

1. County governments. The level of government most directly burdened with the effects of implementing Public Law 83-280 simply cannot afford to administer the law. Most counties in Washington State receive little or no remuneration for providing law enforcement service to Indian lands.

This creates a situation where counties provide or are able to provide very limited service. In fact some counties have absolutely no desire to provide any service to Indian reservation situations. For instance, Clallam County (northwest tip of Washington State) provides very little service to the Makah Tribe. Ferry County has 87 percent of its land in either the National Forest or the Colville Indian Rservation (both nontaxable) and as a result has limited capabilities or desire to provide service to the latter. Counties in general feel that this should be a federal responsibility in conjunction with other areas of trust responsibility for Indian reservations.

2. Indian tribes (who are affected by Public Law 83-280) in Washington State are unhappy with the present jurisdictional situation. Thy cite numerous areas of inconsistency and conflict with state laws under the present situation. An example is that resulting from recent court decisions there is the opinion of concurrent jurisdiction by the state and tribes on Indian lands. By law, the state of Washington is a community property state. Tribes by their ordinances and laws are not and, therefore, the possibility of additional litigation exists.

The state of Washington has spent numerous man-hours and dollars to litigate issues that have been associated with Public Law 83-280. The vagueness of that