requirements of due process of law and assume jurisdiction without amending Washington's Constitution and passing affirmative legislation allowing the States to enter into mutual agreements with Indian tribes respecting jurisdiction and government operations in Indian country. State courts are the exclusive forum to determine state powers, subject only to the overriding control of the Constitution of the United States. In Washington state where the judiciary must regularly stand for election, one must be concerned with the State court's determination of state authority to deal with a minority sovereign. Whatever other limitations state judges have, most all can count.

The desire of the States, and political subdivisions thereof, to have power to deal with Indian tribes is a question in the minds of the Yakima Indian Nation. The Attorney General of the State of Washington has announced that Indian tribes have no sovereignty and that the State of Washington will never negotiate with the Tribes as sovereign equals.

Our experience has clearly shown that the State of Washington is unwilling or unable to provide good law and order in Indian country. We have experienced that federal authorities are likewise unwilling to diligently pursue Assimulative Crimes jurisdiction where an Indian'is the victim and the state has failed to act.

The greatest frustration of this last year was when the Supreme Court upheld unilateral assumption of state jurisdiction in Indian country by the State of Washington in breach of our treaty with the United States and in breach of the promised disclaimer of state jurisdiction contained in both the Washington Enabling Act and the unamended Washington State Constitution. Washington v. Yakima Indian Nation, 439 U.S. 463, 58 L.Ed. 2d 740, 99 S. Ct. 740 (1979). We were soon faced with two more frustrating experiences. After the opinion was filed, in an effort to provide better law enforcement for non-Indians and Indians alike on the Yakima Indian Reservation, we immediately drew up a plan that would provide for a coordinated plan using all area law enforcement agencies. A request for federal funding assistance to help us finance such a plan was rejected on the reasoning that the State of Washington had assumed responsibility to finance adequate law and order on Indian Reservations. We then approached the State for financing through state agencies. Even though our request for a state appropriation was contingent on federal matching monies, our request was rejected. It is indeed frustrating to have these two supposedly responsible governments strip us of promised rights of sovereignty and then as a further insult, leave us with the tab to finance fulfillment of their unilaterally acquired responsibility. Even though the unilaterally imposed system is a real burden, we will continue to be responsible and work for good law and order on the Yakima Reservation for all persons within the exterior boundaries. Your assistance is requested.

Also, we made an agreement with the State of Washington regarding fishery management on the Columbia River. However, we found that rather than settling problems, that the problems still exist. It is very difficult to deal with people who do not consider themselves bound by agreements and also to deal with people who seem to be unduly controlled by special interest pressure. The United States has no monopoly on breaking promises made to the Indian people. However, probably the biggest concern we have regarding S 1181 is that legislation permitting states and Indian tribes to enter into mutual agreements and compacts respecting jurisdiction and governmental operations in Indian country will be unilaterally used to force the Indians to execute agreements before they can obtain federal assistance to fund their necessary governmental programs. To forestall this fear on the part of the Yakima Indian Nation and other Indian Nations, we would suggest that Section 102 of S 1181 contain a provision that provides that the execution of agreements respecting jurisdiction and governmental operations in Indian country shall never be a requirement for the availability of federal funding for either the states or Indian tribes.

Likewise, we suggest to forestall the states from using this legislation to unilaterally force agreements with tribes, that the bill provide that after the passage of this legislation that all federal funding for law and order purposes go directly to Indian tribes without the requirement of state approval or review. While we applaud the concern this Committee has toward better law and order within Indian Reservations, we suggest that the basic problem is being ignored. The basic problem within the Yakima Reservation is the failure of state and federal authorities to provide protection for the Indian people within

Indian Reservations or to permit Indian tribes, that are willing and able to provide this protection, to have this power. One of our basic problems on the Yakima Indian Reservation is that of trespass. This problem has been recognized by the Departments of Interior and Justice and by Committees of Congress. Yet in spite of this recognized need, this need has not been legislatively satisfied. Bills that have been introduced die.

Your Committee is familiar with a failure of either state or federal authorities to prosecute non-Indian offenders where either an Indian or the Indian society is the victim. It is either naivety or a failure to accept responsibility for adequate law and order on Indian reservations, that would lead this Committee to believe that all states, or their subdivisions, will readily agree to tribal jurisdiction over non-Indians. The more the need exists to provide for the prosecution of non-Indians on a reservation, the more certain it is that the State will not agree to tribal jurisdiction. You can easily see that a state which has a poor attitude or record regarding prosecution of non-Indians for offenses against Indian victims, is a state that will not agree to the prosecution of its non-Indian constituency by tribal courts.

We have a solution to this problem. We suggest that it is a necessity that Congress give Indian tribes some jurisdiction over non-Indian offenders. You already realize that the federal or state authorities either lack the will or the ability to provide the necessary protection. We recognize the reluctance of this Committee to grant this power. However, it is not as big a step as you might think. First, the amount of fines and confinement by tribal courts are strictly limited by the Indian Civil Rights Act of 1968. Second, due process and the right of appeal to federal courts exists under the Indian Civil Rights Act of 1968. Third, history shows that it is the Indian who has been discriminated against by the white man, not the other way around.

We know that this Committee, with its knowledge in this area, has these matters clearly in mind. However, to secure passage of such necessary legislation, it may be politically necessary that the powers of tribal courts over non-Indians be further limited. We have a suggestion in this regard. Legislation providing for tribal jurisdiction over non-Indians could provide for federal and state prosecution priority. By this we mean legislation that provides that the Tribes shall have jurisdiction if the offender is not convicted within a certain period by a state or federal court. Then if the federal and state authorities do not act, the tribes can fill the void.

The Yakima Nation has no desire to prosecute non-Indians if the state and federal authorities are doing the job. Unfortunately, as the Committee must recognize, this is not what is happening. We feel it is better law enforcement for non-Indians to go to non-Indian courts just as we feel that it is better law enforcement for Indians to go to Indian courts. It is always a better system to have an offender tried and punished by his peers. However, something must be done to punish offenders where federal or state authorities lack either the will or ability to provide good law and order on Indian Reservations. We ask you to directly address the question of tribal jurisdiction over non-Indians and not just dodge the problem.

We have just such a provision for state and federal prosecuting priority over non-Indians in our Law and Order Code. However, as this Committee realizes, Oliphant has placed our jurisdiction over non-Indians in question. This problem can be resolved by this Committee, by addressing the main problem. Authorizing compacts between tribes, state governments and subdivisions only serves Congress. If S. 1181 passes, you can say that it is now up to the states and the Tribes to handle the matter. If either horse fails to drink the recognized problem remains. If you fail to deal with the question of tribal jurisdiction over nonIndians, you may dodge blame for the recognized lack of adequate law and order, but the problem will remain unsolved.

Let us conclude by saying that we cannot disagree with the general import of S. 1181. It would be unreasonable for us to resist legislation that intends to authorize interested parties to reach mutual agreement on a local level. However, we know and your experience must tell you, that it does not firmly address the problem of the failure of state and federal authorities to provide good law and order on Indian Reservations. We would hope that you would amend S. 1181 to contain our suggestions so that proposed legislation will not only authorize mutual agreements, but also provide a vehicle for the solution of the recognized failure of state and federal protection where no agreement is forthcoming. At

the treaty Council in 1855, Governor Stevens was the chief negotiator for the United States. After relating how it would be necessary for members of the Yakima Nation to cede vast holdings on which they made their living to go to a small reservation so they could be protected from the "bad white man," Governor Stevens said:

"The Great Father therefore desires to make arrangements so you can be protected from these bad men and so they can be punished for their misdeeds." (official minutes, Folio 104).

It was the understanding of negotiators from both sides that arrangements should be made so that the children from both sides could live in harmony. Help us make that understanding a reality with your legislative powers.

STATEMENT OF YAKIMA NATION ON EXCLUSION OF NON-INDIAN FROM FEDERAL JURISDICTION IN SECTION 161, PART C, AMENDMENT TO S. 1722, RELATED MATTERS AND PROPOSED MAGISTRATE PROVISION

Senate Report 96-553 to accompany S. 1722 recites that in enacting 18 U.S.C. 1152 Congress clearly intended to include on reservation offenses by non-Indians against non-Indians. The Senate Report correctly indicates that any breach of the peace and security of the reservation enclave is sufficint to invoke the exercise of federal jurisdiction. However, in spite of the original intent of Congress to include non-Indian major breaches of peace and security within major crimes legislation, the Senate proposes to continue judicial legislative exclusion of onreservation breaches of the peace and security by non-Indians with no Indian victim from S. 1722. We take issue with that exclusion. Not only do we believe that on-reservation non-Indian breaches of the peace should be included, within 18 U.S.C. 1152 and S. 1722, but that all non-Indian offenders should be included within the purview of the major crimes listed in Section (2) of Section 161.

In order to have a secure community, it is necessary that all breaches of peace and security receive prompt governmental attention. Your record conclusively shows that this is not happening.

The Federal Government has a primary duty to provide security within Indian Reservations. That is doubly true in Washington where both the Washington Enabling Act and the Washington State Constitution provides for exclusive federal jurisdiction within Indian Reservations. It is not a fulfillment of that responsibility to merely provide for federal attention to breaches of peace and security involving an Indian victim and a non-Indian offender or a non-Indian victim and a Indian offender. The entire reservation society-Indian and non-Indian alike—is entitled to federal concern about all breaches of peace and security within the exterior boundaries of an Indian Reservation.

In taking this position, we do not wish to exclude states from jurisdiction over breaches of the peace and security involving non-Indians or Indian tribes from breaches of peace and security involving Indians. These two sovereigns have a legitimate interest in the conduct of their citizens-Tribes over Indians and States over non-Indians. Likewise, tribes have a legitimate interest in the conduct of all persons who are within the territorial limits of their reservations. Concurrent jurisdiction to allow these two sovereigns to exercise this power should be provided. However, the Federal Government having a responsibility for all violations of the peace and security within Indian Reservations must provide prompt governmental attention to all violations within the exterior boundaries of these Indian Reservations.

You may decide to exclude from prosecution persons convicted of the same crime by either state or tribal governments. Subsection (d)(1) provides that offenses involving only Indians be excluded from the purview of the general laws of the United States if they are convicted by tribal courts. As a policy matter, this Committee may wish to consider the same policy exclusion for offenses involving only a non-Indian victim and a non-Indian offender punished by state or tribal courts and modify subsection (d)(1) to include this exclusion. As a policy matter, our tribal code contains such an exclusion for non-Indians where they have been punished either by state or federal courts.

Regardless of whether or not Congress makes this policy exclusion, the Federal Government has a duty to see that peace and security to person and property prevails throughout Indian Reservations. We, therefore, recommend that the first two sentences of Subsection (d) (2), contained on page 352, lines

34 and 35 be amended to read: "Any person who commits any of the following offenses as defined in Title 18, united"; and further that subsections (e), (f), (g) and (h) be stricken from S-1722.

The Bill should also contain the amendment at the end of section 161 that provides:

"Notwithstanding the other provisions of this section, any federally recognized Indian Nations or Tribes shall have concurrent jurisdiction over all offenses not contained in (d)(2) above, committed by any person within Indian country and states shall have concurrent jurisdiction over all offenses committed by nonIndians within the exterior boundaries of their states.

"Where the tribes or states are exercising this concurrent jurisdiction in a satisfactory manner, the Attorney General may forego prosecution and surrender the person to the jurisdiction of said sovereigns."

These amendments will provide a responsible way for all sovereigns to exercise their legitimate interests.

STATEMENT OF YAKIMA NATION ON SUBSECTION (I), SECTION 161, PART C,

AMENDMENT TO S. 1722

(Provision to authorize Indian Tribes to petition the United States to reassume federal jurisdiction where states have assumed jurisdiction pursuant to Public Law 83-280.

The Yakima Indian Nation supports the enactment of Subsection (i), Section 161 of S. 1722.

This subsection fulfills some desires of the Indian people and should not be found to be objectionable by other interests. This subsection's basic provision provides that those tribes placed under State jurisdiction, by a now discredited termination policy, will be returned to the same status as Indian tribes that missed the consequences of this termination federal policy. This subsection is firmly within the present policy of Congress and the Administration.

The place of Indian tribes and nations in our federal scheme of things is a special area. They are dependent sovereigns who were to have, as regards their internal affairs, exclusive control of their destiny and their territorial reserved

areas.

The reading of Chancellor Kent's opinion in Godell v. Jackson, 20 John 693 (N.Y. 1823) and Chief Justice Marshall's opinions in Johnson v. McIntoch, 8 Wheat 543, 5 L. Ed. 681 (1823), Cherokee Nation v. Georgia, 5 Pet. 1 8 L. Ed 25 (1831) and Worcester v. Georgia, 6 Pet. 515, 8 L. Ed. 483 (1823) together with the discussion of the status of Indian justice in "Story's Commentaries on the Constitution," Vol. III, Sec. 1101, and in "Chancellor Kent's Commentaries on American Law" (Vol. III, p. 382, 386), cannot lead anyone to other than the conclusion that at the time of the formation of our Union, Indian nations or tribes took their place in our scheme of government as dependent sovereigns, and as regards their internal affairs, were to have the exclusive control of their destiny. We recognize that the Supreme Court has authorized Congress to break this promise, but it is uncontroverted that this promise of exclusive control over internal affairs was made to the Indian people.

Absent promise breaking Acts of Congress, the Supreme Court continues to acknowledge this promised rule of law. (For example, see McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 36 L.Ed. 2d 129, 93 Sup. Sup. Ct. 1257 (1973), United States v. Wheeler, 435 U.S. 313, 55 L.Ed 2d 303, 98 S. Ct. 1079 (1979). The Yakima Nation's Treaty explicitly and implicitly provides for these promises and guarantees of exclusive internal control. Article II "Treaty with the Yakimas" (12 Stat. 951) provides that the Yakima Reservation shall be "for the exclusive benefit of said confederated tribes and bands of Indians, as an Indian Reservation; nor shall any white man, excepting those in the employment of the Indian department be permitted to reside upon said reservation without permission of the tribe and the superintendent or agent."

The Yakima Nation has not given its consent to be subject to Federal laws except as to matters within the Commerce Clause (Article I, sec. 8, Cl. 3 The Constitution), matters regarding the Administration of resources held in trust by the United States, or matters based on the dependency of the Yakima Nation on the United States. (See United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 30 L.Ed. 228 (1803) cited with approval in McClanahan, and Wheeler, supra.)

Article 8 of the Treaty with the Yakimas, as compared with other concurrently executed treaties (See for example, Article 6 of the Treaty with the Tribes of Middle Oregon 12 Stat. 963) implicitly promised that the Yakima Nation was not subject to federal laws as regards its internal matters. Likewise, the State of Washington, at the time of its formation as required by Congress, disclaimed all jurisdiction over Indian lands in the State of Washington. (Washington Constitution, Article XXVI). This article is mandatory. (Washington Constitution, Article I, sec. 29). Article XXVI, Washington Constitution has not been amended by the means provided in Washington's Constitution (Article XXIII).

It is the contention of the Yakima Indian Nation that State jurisdiction should not, under treaties like the Treaty with the Yakimas, be impressed upon Indian tribes or nations without their consent. However, the 83rd Congress in pursuing a now discredited termination policy, broke the promises of this Nation and allowed such unilateral state assumption over Indian country. Everyone knows that this unilateral assumption of state jurisdiction over the Yakimas did not work. Congress created the problem and Congress should correct it without further delay and procrastination.

Apart from Public Law 83-280 and a few similar statutes, States do not have jurisdiction over reservation Indians, or over transactions between Indians and non-Indians except with the consent of the Indian, on Indian Reservations. Out of all the 50 states, only 13, Alaska, Arizona, California, Florida, Idaho, Minnesota, Montana, Nebraska, Nevada, Oklahoma, Oregon, Washington and Wisconsin, have assumed any jurisdiction under Public Law 83-280. Some of these thirteen state assumptions have been partial and some states have on their own motion provided for retrocession.

Under Washington statutes (R.C.W. Chapter 37.12), provision is made for assumption of State jurisdiction by the tribes petitioning the Governor. The same chapter imposes, without Indian consent, State criminal and civil jurisdiction over all reservation lands for eight subject matter areas, and State criminal and civil jurisdiction over all non-trust lands. We have information regarding 22 tribes in Washington. Eleven have petitioned for State jurisdiction and eleven have not. Three of these eleven petitioning tribes have obtained a Governor's proclamation retroceeding jurisdiction in whole or part. Many of the Washington tribes under full or partial jurisdiction wish to remove themselves from State juridsiction because of the resulting breakdown of law and order on their reservations under State jurisdiction. Some of these wishing to remove themselves from state jurisdiction were those who originally petitioned for State jurisdiction. They gave it a fair trial and State jurisdiction failed to provide adequate law and order.

The Yakima Nation has experienced such a breakdown since the State's unilateral assumption that it is quite often said that the Yakima Reservation has "law without order."

This breakdown is directly caused by the Congressionally permitted State assumption under authority of Public Law 83-280. The present system of a partial, checkerboarded system of justice could not be worse no matter what system is devised. Congress owes the people, Indian and non-Indian on the Yakima Reservation, action to bring order out of this mess. The foundation of this mess is passage by the 83rd Congress of Public Law 83-280.

As our reservation is checkerboarded with trust and non-trust (patented) lands. jurisdiction is presently dependent not only upon the status of the accused (Indian or non-Indian, juvenile or adult) but also upon who holds title to the land.

If the land is not trust, the State has assumed jurisdiction over almost all crimes. If it is trust, the State has jurisdiction over eight underlined categories (that is, compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoption proceedings, dependent children, and operation of motor vehicles upon the public streets, alleys, roads and highways).

Law enforcement officers must use a tract book and determine land titles to see if they have jurisdiction. Then, if the offense is on trust lands, they must make a field determination of the status of the accused and then whether the crime fits into one of the eight indefinite categories.

You lawyers on the committee would have a most difficult time in determining, if you could, what fits into the category of domestic relations. "Domestic relations" is not defined even in a law dictionary. How can one expect a trained law