Mr. DUNBAR. The experience in which I have been involved has indicated that often the States do not prosecute, even though they may have a responsibility to do so. Of course, that has been demonstrated through the hearings you have conducted over the past 3 days.

There have been instances mentioned in which the States have not prosecuted non-Indians for violation of Federal law. Whether they have the legal right to do so is, I guess, another question.

Ms. HUNT. Would you say that what the Justice Department said may be theoretically workable but in the practical world it is not workable? If Federal authorities do not prosecute non-Indians, States do not prosecute.

Mr. DUNBAR. I would say that is a good summation.

Mr. ROGERS. Mr. Chairman, may I augment that answer briefly. I see Mr. Ernstoff in the back of the room. He is another tribal attorney who is well aware of the situation. He was the attorney for the Suquamish Tribe and could relate to the committee some of the problems they have had in just this area as a result of lack of enforcement.

There is also the additional problem that we pointed out in our written statement. Actually there is no concurrent jurisdiction in the instance where there are tribal laws that non-Indians violate. There may not be a commensurate crime under State law. In those instances, States are obviously not prosecuting at all.

Mr. TAYLOR. I would like to address a couple of situations to which I think the Tribal-State Compact Act might have application. I would question whether under some circumstances a State and a tribe could presently enter into an agreement that would resolve the problem.

We had a situation in the last Congress wherein a parcel of land was set aside for the Papago Reservation called Florence Village. It is my understanding that the parcel consists of about 20 acres of land. There are a number of Papago people living there. It is a community. It is located a substantial distance away from the main reservation. It is in Arizona and thus a non-Public Law 280 situation. The State has no criminal jurisdiction over this 20-acre parcel of land that lies a substantial distance from the Papago Reservation.

Would not S. 1181 provide a vehicle for the Papago Tribe to negotiate with the State of Arizona to provide police protection on that 20-acre parcel? And in the absence of the bill what can the tribe do? Mr. DUNBAR. As a practical matter, I suppose that an agreement could be reached in which the jurisdictional problems of law enforcement could be worked out.

I would also like to state that any such agreement must be at the prodding of the tribes themselves. That is the position of the National Tribal Chairmen's Association, with whom I also work. In their view, tribes maintain the inherent sovereignity to make their own decisions, so these agreements must be up to the tribes whether or not the practical application of the bill would help them.

Mr. TAYLOR. I think under the Kennerly decision it was held that a tribe cannot give jurisdiction to a State without complying with the requirements of Public Law 280. I grant you that the tribe has full sovereignty, but there is an overlay of Federal law.

Mr. DUNBAR. I would agree, but there may be a position through which the tribe could work out an agreement with the State to cure the problem to which you are referring, under existing law as well as under S. 1181.

Mr. TAYLOR. I will just give one other example. I think the answer will probably be the same. In fact, I think the same answer is even more likely in this case.

I am thinking of the case of the Santa Rosa Band v. Kings County in California. There is housing construction underway on the rancheria-I think it is a rancheria-and the county attempted to impose county building codes. The tribe contested the action and it was held that the county had no right to apply their building codes. I think it was a very correct decision.

However, we now have the situation that, assuming the tribe wanted the county to have their qualified engineers and inspector to come in and help them enforce their own building code, is there an impediment to the State and the tribe entering into such an agreement?

Mr. DUNBAR. I believe the Santa Rosa case involved the application of civil regulatory laws in a 280 State. Once again, unless the particular situation were brought into a judicial setting, the agreement could be possible. However, I would lean to accepting legislation which would firm up those agreements and allow the tribes a measure of control, perhaps some sort of renegotiation procedures as are built into the bill.

Mr. ROGERS. Mr. Chairman, concerning the two examples given, I am not sure why they could not both be accomplished even under present law. In the Papago situation, I believe that if there were a proper tribal referendum, as provided by 280, they could, by agreement, do the same thing that the State and the tribe, somewhat separately, are contemplating doing under the 1968 Indian Civil Rights Act.

They would simply lay the groundwork for doing so by an agreement beforehand. I believe it is Indian country in the location you are talking about, as defined under the Federal Criminal Code. It would seem to be subject to the 1968 Indian Civil Rights Act unless there is some fact here that I am not aware of.

In the Santa Rosa situation, I am not familiar with all the facts, but it would seem to me that an agreement could be accomplished without the bill. Considering the particular requirements of that tribe, it would seem to me to have to be an agreement that was approved by the Secretary of the Interior in the same way as some tribes have to get leases approved.

I might point to one example at the Wind River Reservation in Wyoming, where the Shoshone and Arapahoe Tribes are negotiating at the present time with the State of Wyoming over a possible agreement on concurrent jurisdiction to zone fee lands within the reservation. They may reach agreement on an area within the reservation that is considered of joint interest-most to the reservation to the State and the tribe. Within that agreement, fee land would be regulated by both the State and the tribe.

The United States has not been faced with the situation of approving such an agreement yet, but they have been faced-rather, the Solicitor's Office at the Interior Department has been faced-with the question of whether or not to approve the tribe's 2-year-old-or almost 2-year-old-zoning ordinance. They have taken the position that because neither of those tribes has a written constitution and neither

is organized under the Indian Reorganization Act, the Interior Department need not approve tribal zoning ordinances for them to take effect, so they consider that it is in effect without Interior's approval. I would think the same logic would apply to the situation of an agreement between a State and a tribe if they are consistent in their interpretation. It seems to me too, in the two instances you cite, both are accomplishable within present law.

Mr. TAYLOR. That might require an act by the legislature. Do you not agree?

Mr. ROGERS. In order to be joint, in this instance, it would. I think the way the State is doing it now, to carry out the agreement fully, would take an act, in this instance, of the county because that is the relevant legislative body that passes on zoning. It would be a county ordinance amendment commensurate with the tribal zoning ordinance amendment.

Senator DECONCINI. In the case of the zoning, I think it would take the State legislature to do it.

Mr. ROGERS. That is probably the case. I wonder if, even under your bill, whether or not States would not consider it necessary to do that in some instances anyway.

Senator DECONCINI. Thank you very much.

The next witness will be Melvin Sampson who is accompanied by three gentlemen. Gentlemen, please come forward.

Mr. Taylor will continue to conduct the hearing. I have to go to another meeting for which I am already late, but we will continue the hearings this morning.

Please proceed with your statement. You may summarize if you wish.

STATEMENT OF MELVIN SAMPSON, LEGISLATIVE COMMITTEE CHAIRMAN, YAKIMA INDIAN TRIBE OF WASHINGTON, ACCOMPANIED BY JOHNSON MENINICK, CHAIRMAN, TRIBAL COUNCIL; BILL HOPTOWIT, LAW AND ORDER COMMITTEE, YAKIMA INDIAN TRIBE; AND JAMES B. HOVIS, TRIBAL COUNSEL

Mr. SAMPSON. I am sorry you have to leave, Senator DeConcini. My name is Mel Sampson, chairman of the legislative committee of the Yakima Tribal Council. I have with me Johnson Meninick, chairman of the tribal council, Bill Hoptowit from the law and order committee, and James B. Hovis, our tribal attorney. We have already presented lengthy written statements regarding S. 1181 and S. 1722. I ask that these statements be inserted as part of the record.

I am presuming that members of this committee or staff have had an opportunity to read the statement and will therefore use our limited time to make a short statement. Then all four of us will be available for questions.

We want to thank the committee for its obvious concern about peace and security on Indian reservations and for permitting us to testify today. We are hopeful that our testimony will assist you in getting Congress to take action soon.

For a considerable period of time the problem of peace and security on Indian reservations has needed immediate attention. The Federal Government has sought political answers rather than solutions that might rock the boat.

The attention of the Federal Government has been directed to expensive and disruptive crisis rather than to helping those tribal governments that are working hard to provide peace and security under adverse circumstances. We are asking the committee to reverse this trend and to get Congress to devote its attention to this problem. Indians have too long asked for help only to have legislation die in a committee of either House.

If history has taught us anything, it is that if you want peace and security you must face problems responsibly and that the preservation of peace and security has its cost. I have the honor of representing an Indian nation which has a long history of responsible concern for peace and security and whose people have shown their willingness to pay the price.

We believe that the record is clear not only as to our responsibility but also as to these following points: No. 1, peace and security on Indian reservations are in need of substantial improvement; No. 2, not everyone is willing to accept the responsibility and to pay the price for improvement of peace and security on Indian reservations; No. 3, that it will improve law and order on Indian reservations if a system can be devised that will foster better peace and security without interference with sovereign rights of any governmental unit or group; No. 4, that all of us should believe that nations, States, and tribes, like responsible people, must keep their word; No. 5, that there is no band-aid answer to what legislation is required by Congress; No. 6, that under our system of government the Federal Government has primary responsibility for Indian-non-Indian law and order relationships; and, No. 7, that where responsibility for adequate peace and security is accepted, it is better law enforcement to have offenders judged by their peers.

Based on these seven premises, we believe that Congress can pass legislation that will provide for better peace and security on Indian reservations. We suggest that your legislation package provide: No. 1, that all major and minor breaches of peace within Indian country should be a Federal crime; No. 2, that the Attorney General may turn any offender committing reservation crimes over to any government exercising its jurisdictional responsibility for peace and security and may forgo prosecution; No. 3, that the promises of the United States and the disclaimers of States regarding exclusive Federal and tribal control over reservation Indians should be honored and unilateral State assumption of jurisdiction over reservation Indians should be retroceded to the Federal Government and tribes upon tribal request; No. 4, that tribes under their tribal codes shall have jurisdiction, concurrent with the Federal Government, over all on-reservation breaches of peace and security by Indians; No. 5, that the States shall have jurisdiction concurrent with the Federal Government over all onreservation breaches of peace and security by non-Indian offenders; and No. 6, that tribes, under their tribal codes, shall have jurisdiction, concurrent with Federal and State governments, for on-reservation

breaches of peace and security where the Federal and State governments have failed to prosecute.

If these six objectives can be legislated by Congress, peace and security for all persons-Indian and non-Indian-will surely be accomplished. We believe that the requests are reasonable and should have early action by the committee.

We stand ready for any questions you may have.

Senator MELCHER. I have no questions.

Mr. Hovis. Mr. Chairman, I am Jim Hovis. I would like to take a few moments to give testimony on some matters that were raised in Senator DeConcini's questions.

I would like to ask that the statement of Doris Meissner be made part of the record immediately following our written statements.

Senator MELCHER. It has previously been made part of the record.1 Without objection, your written statements will be made a part of the record at this point.

[The statements follow. Testimony resumes on p. 368.]

STATEMENT OF THE YAKIMA INDIAN NATION ON S. 1181

(A Bill to authorize the States and the Indian Tribes to enter into mutual agreements and compacts respecting jurisdiction and governmental operation in Indian country).

At first reading, S. 1181 would appear to fall "four square" within what has been the general policy of the Yakima Indian Nation, i.e., to sit down and negotiate problems with its neighbors. It has been, and is now, the policy of the . Yakima Indian Nation to settle differences wherever possible by negotiation without relying on litigation. We have been driven to litigation. It has not been our choice. We have never been able to figure out how to agree with people who are not agreeable. If that were possible, then not only would our problems be resolved; but our Nation would have peace and harmony domestically and internationally. One needs only to look at the current situation in Iran to see that agreements are not always possible even when the failure to reach a reasonable solution is harmful to every party. Mutual advantage does not always dictate agreement.

A question that this bill and the cases presented by your staff contains, is whether the Yakima Nation and other Indian groups are able to enter into agreements with other governments. Tribal power to make agreements with states probably already exists under our sovereign authority, but has been seldom exercised. It is true that there is some question as to whether the Yakima Nation is able to negotiate agreements and compacts respecting jurisdiction and governmental operations because of the question of federal preemption. This question of federal pre-emption has arisen from the 83rd Congress' unwise delegation of jurisdiction over Indian country to states without the consent of the Indian people involved. However, just as serious are restrictions in the ability of states and their subdivisions to enter into mutual agreements and compacts respecting jurisdiction and governmental operations in Indian country. State officers, cities, counties, municipalities, or other public subdivisions of the state of Washington, have submitted that they cannot enter into an agreement with Indian tribes unless the State Legislature authorizes such compacts.

Likewise, where there is constitutional disclaimer over jurisdiction existing in a state the state may not have power to assume jurisdiction without the amendment of those state constitutions. For example, in the State of Washington. Article I, Section 29, Washington State Constitution provides that the provisions of the Washington State Constitution shall be mandatory. Article XXVI of the Washington State Constitution provides that jurisdiction over Indian country shall remain exclusively within the federal government. Washington State and its political subdivisions may not be able to meet Constitutional

1 See p. 214.