Mr. SCOTT. We sent them copies for their information. Senator DECONCINI. The way it operates now is that if there is money involved, you must first have the authorizations for appropriations but not approval, so there are no standards or rules set up unless the Appropriations Committee decides to tack some on. Mr. SCOTT. Right. Senator DECONCINI. Thank you very much. Mr. SCOTT. Thank you. Senator DECONCINI. The next witness is Ronald Andrade, executive director of the National Congress of American Indians. He is accompanied by Anthony Rogers and David Dunbar. Welcome, gentlemen, we are pleased to have you. Your full testimony will be printed in the record if you care to summarize it. STATEMENT OF RONALD P. ANDRADE, EXECUTIVE DIRECTOR, NATIONAL CONGRESS OF AMERICAN INDIANS, ACCOMPANIED BY ANTHONY ROGERS AND DAVID DUNBAR Mr. ANDRADE. Mr. Chairman, my name is Ron Andrade, executive director of the National Congress of American Indians. This statement has been prepared by our law firm, Wilkinson, Cragun, & Barker, and by the Native American Rights Fund on behalf of the National Congress of American Indians; the Arapahoe Tribe of the Wind River Reservation, Wyo.; the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Mont.; the Three Affiliated Tribes of the Fort Berthold Reservation, N. Dak.; and the Hoopa Valley Tribe of the Hoopa Valley Reservation, Calif. The statement is addressed to the three jurisdictional proposals and bills pending before the Senate Select Committee on Indian Affairs. The first of these is S. 1181, a bill to authorize the States and Indian tribes to enter into mutual agreements and compacts respecting jurisdiction and governmental operations in Indian country. The second proposal concerns certain provisions of S. 1722, the Federal Criminal Code reform bill, part C, subsections 161 (i) and (j), which sets forth a means for Indian tribes to obtain retrocession of Federal jurisdiction now assumed by certain States pursuant to Public Law 83-280. The third proposal has not yet taken the form of a bill but it is discussed in a letter from the chairman of this committee inviting comment on the delegation of authority to Federal magistrates with respect to crimes on Indian reservations. I will consider the proposals in the order in which I just mentioned them. S. 1181 has been introduced in the same form that S. 2502 was reported by the Senate Select Committee on Indian Affairs and passed by the Senate during the 95th Congress. Title I of S. 1181 would authorize States and tribes to enter into compacts or agreements relating to the enforcement or application of civil, criminal, and regulatory laws of each within their respective jurisdictions; to allocate or determine governmental responsibility of the States or tribes over specified jurisdictional matters or specified geographical areas including concurrent jurisdiction; and, to agree to transfer jurisdiction of individual cases either from tribal to State courts or State to tribal courts. The bill further provides that such agreements or compacts would be subject to revocation by either party upon 6 months' notice or such different time periods as they may agree upon. The bill states that no agreement could establish a period for revocation in excess of 5 years without the approval by referendum of the adult members of the affected tribe, as is now required by section 406 of the 1968 Indian Civil Rights Act, 25 U.S.C. 1326. S. 1181 would require that any tribal-State agreements reached must be filed with the Secretary of the Interior within 30 days of consummation or become subject to immediate revocation by either party. The Secretary would be required to publish the jurisdictional provisions of any such agreement or revocation in the Federal Register unless requested otherwise by the parties to the agreement. There is a proviso that no agreement could affect any pending action or proceeding over which a State or tribal court had already assumed jurisdiction. Title I of the bill goes on to indicate that it should not be construed to enlarge or diminish civil or criminal jurisdiction exercised by States or tribes, except as provided in the bill; to empower States or tribes to expand or diminish jurisdiction exercised by the United States for the making and enforcement of criminal laws in Indian country; to empower States or tribes to make agreements on the exercise of jurisdiction except as authorized by their own organizational documents or enabling laws; to authorize agreements which alienate, financially encumber, or tax any real or personal property, including water rights, belonging to individual Indians or tribes in trust or restricted status; or to agree on the transfer of unlimited, unspecified, or general civil and criminal jurisdiction, except as provided by the 1968 Indian Civil Rights Act, 25 U.S.C. 1326-the tribal referendum requirement. The bill goes on to provide for funding of administration of agreements and Federal court jurisdiction to enforce them. We commend the committee and sponsors of S. 1181 for your continuing attention to the need for cooperation in practical matters involving tribal, State, and local jurisdictions. We recognize the need for improved relations among neighboring governments and support the concept contained in S. 1181, as we generally supported a similar effort in the 95th Congress. Many NCAI member tribes are actively engaged in particular local efforts to arrive at agreements in a variety of cross-jurisdictional areas through Indian country. NCAI is one of the chartering organizations of the Tribal-State Relations Commission, which was established for the purpose of exploring existing cooperative agreements and developing models for such efforts in the future. Much support for S. 1181 is support for this type of cooperative effort and spirit. Our support is similarly offered. However, we question the need for this legislation at this stage of exploration. In fact, the very existence of the legislation has led some State officials to conclude that tribes and States cannot enter into cooperative agreements without legislation being enacted. This is not the case. Tribes and States have the powers now to enter into most agreements and do not need broad-based congressional authorization for this purpose. Further, we question whether there is sufficient protection to insure that jurisdictional agreements are approved by the adult members of tribes that will be affected by the agreements. S. 1181 would not require a referendum of adult tribal members with respect to any agreement that dealt with a limited shift of jurisdiction to the States and that could be revoked by the tribe in a period of less than 5 years from consummation. Many Indians, Indian tribes, and their attorneys are therefore con- · cerned that the 1968 Indian Civil Rights Act would be, to that extent, repealed by this bill. To that same extent, the decision of the U.S. Supreme Court in Kennerly v. District Court, 400 U. S. 423 (1971), would be overruled. If this committee and the Senate are to move forward on this proposed legislation, you would be well advised to require that there be a tribal referendum with respect to any agreement that caused the shift of jurisdiction to a State, in order to leave intact both Kennerly and 25 U.S.C. 1326. On the other hand, those in Indian country who favor, at least to some degree, the enactment of this bill contend that present law, particularly Public Law 280, as amended, may not conveniently permit the execution of agreements that shift jurisdiction to States on a temporary or experimental basis, unless the Public Law 280 requirements are met. However, this is not necessarily so. Public Law 280 really deals with an assumption of jurisdiction by a State in criminal or civil matters, meaning that the State would exercise authority in such matters from the time they were initiated until they were judicially concluded. However, many agreements between States and tribes cover less comprehensive but important matters, such as cross-deputization and the sharing of jail facilities. Many do not involve a shift of jurisdiction to the States to prosecute and punish offenders. These less comprehensive agreements need not meet the requirements of Public Law 280. If, in fact, there is a shift to the States of prosecutorial and punitive jurisdiction over Indians in criminal matters, then those agreements should be subject to tribal referendum as required by the 1968 Indian Civil Rights Act, even if they are only a temporary or experimental effort designed by the States and the tribes involved. Those for whom I speak today, therefore, continue to feel that tribes and States should be encouraged to move in the direction of resolving their jurisdiction problems. At the same time we do not feel that this particular bill is necessary at the present time. The cooperative efforts between States and tribes should be allowed to continue without a new Federal statute even if it means working toward agreements of a less dramatic or broad nature than S. 1181 seems to contemplate. As we have all been reminded in the past, "a journey of a thousand miles must begin with but a single step." Expansive jurisdictional agreements may well be too large a first step for tribes and States to be taking after years of disagreement over jurisdiction. When, and if, relations between the two levels of government make broader agreements more likely possibilities, then tribal State compact legislation such as this may be more advisable. Until that time we believe that the Congress should not disturb the law on jurisdictional agreements, pending an expanded analysis based on the direction the tribes and States will take in this area. We support the retrocession provisions of part C, subsections 161 (i) and 161 (j) of S. 1722. S. 1722 is a bill to codify, revise, and reform title 18 of the United States Code and the bill has been reported favorably by the Senate Judiciary Committee. S. 1722 would authorize the United States to reassume criminal jurisdiction over an area of Indian country 90 days after the adoption of a resolution to that effect by the Indian tribe occupying the particular territory. Before it becomes effective, the tribal resolution must be approved by a majority vote of the adult Indians voting at a special election supervised by the Secretary of the Interior. If adopted, S. 1722 would go far toward removing much of the jurisdictional constraints and harm to tribal self-government resulting from the enactment of Public Law 83-280, August 15, 1953, 67 Stat. 588. Public Law 83-280 unilaterally gave five States-California, Minnesota, Nebraska, Oregon, and Wisconsin, and Alaska was subsequently added—criminal and many types of civil jurisdiction over most Indian country within their borders. Section 7 of the act, 67 Stat. 588, 590, authorized any other State unilaterally to assume criminal or civil jurisdiction over Indian country as provided by the act. Adopted during the termination era of Indian affairs, Public Law 83-280 is in obvious conflict with the current Indian policy of selfdetermination because it granted or permitted States to assume broad jurisdiction over Indian country whether the Indians wanted State jurisdiction or not. Public Law 83-280 contributed to a serious breakdown of law and order in Indian country because State governments soon showed that they were either unable or unwilling to assume the jurisdictional responsibilities which had been given to them under the statute. Where some States did assume and attempt to exercise criminal jurisdiction under Public Law 280, they frequently did so in a discriminatory fashion at the request of non-Indians living on a reservation rather than in response to the needs of the particular tribe for adequate law enforcement. See the final report of the American Indian Policy Review Commission submitted to Congress on May 17, 1977, at pages 204 through 208. By the Indian Civil Rights Act of April 11, 1968, 82 Stat. 78, Congress partly changed this malfunctioning situation by requiring the consent of a tribe before a State could assume any jurisdiction it did not already have over Indian country, 82 Stat. 78, 25 U.S.C. 1324, 1326. No tribe of which we are aware has consented to any State assumption of jurisdiction pursuant to the 1968 act. Consequently, no more shift of jurisdiction to States has occurred since then. The Indian Civil Rights Act also allowed State governments to retrocede to the United States any manner of jurisdiction which the State had acquired under Public Law 280, 82 Stat. 79, U.S.C. 1323. We are aware of five such retrocessions. However, 25 U.S.C. 1323 shares certain of the defects of Public Law 280 in that section 1323 makes retrocession dependent upon the wishes of the State government rather than upon the desires of the major affected parties—the Indian tribes. Moreover, 25 U.S.C. 1323 has engendered litigation regarding whether a State action retroceding jurisdiction was sufficient under State law. It seems clear, however, that under the law retrocession is effective if it is accepted by the United States. For reference, see for example, Omaha Tribe v. Walthill, 460 F. 2d 1327 (1972), cert. denied, 409 U.S. 1107. S. 1722 would allow for retrocession of State criminal jurisdiction to the Federal Government upon a resolution to that effect approved by the adult members of an Indian tribe voting at a special election. This bill, unlike current law, would make retrocession dependent upon the will of persons to be affected rather than upon the actions of the State government. To leave retrocession in the control of the State government is not only inconsistent with the tribal right to self-determination but also subjects retrocession to the uncertainties of State politics in which Indians have historically enjoyed almost no power. S. 1722 requires the holding of an election supervised by the Secretary of the Interior prior to retrocession and this election requirement will insure that any retrocession which occurs will be in accordance with the desires of the entire tribe. For reference, see Kennerly v. District Court, 400 U.S. 423 (1971). We note that the final report of the American Indian Policy Review Commission submitted to Congress on May 17, 1977, discussed the problem of Public Law 280 jurisdiction at length and recommended that retrocession be allowed at tribal option. For reference see final report at pages 199 through 209. Some have suggested that tribal retrocession could give tribes criminal jurisdiction over non-Indians and thus legislatively repeal the Supreme Court's decision in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Retrocession, however, would only transfer criminal jurisdiction from the State to the Federal Government and would neither enlarge upon nor contract tribal criminal jurisdiction. Tribal governments do, of course, possess current criminal jurisdiction over their own members where the Federal Government has criminal jurisdiction. United States v. Wheeler, 435 U.S. 313 (1978), and a November 17, 1978, Interior Solicitor's decision, and decisions of lower courts-for example, Confederated Tribes of the Colville Reservation v. Beck, E.D. Wash., December 21, 1978-indicate that tribes have concurrent criminal jurisdiction over their own members even where the State has assumed criminal jurisdiction under Public Law 280. To the extent that the effective prosecution of exclusively Federal offenses requires increased designation of magistrates to hear cases on the Indian reservations from which they arise, sufficient statutory authority exists under the Magistrates Act, 18 U.S.C. 3401, for district courts to make such appointments. Current law vests the decision on whether to appoint a magistrate and on what terms with the judges of each Federal district court. Specific legislation directing that such magistrates be appointed to Indian reservations would be unnecessary |