State and Federal authorities have failed to exercise the jurisdiction which they possess. Who will deny that this failure will continue unless Congress acts?

Who will deny that next month, this very week, violations of law which would be answered with prosecution in any non-Indian community will go unpunished because the offense occurred within a Federal Indian reservation and the perpetrator was not an Indian? Congress must address this notorious void in law enforcement and so silence those who would say that the trust responsibility is a shameful farce.

Senator COHEN. You say that there might be a requirement that the tribal judge be an attorney. Why do you make that conditional? Would you want to enter a court in which the judge hearing the evidence was not an attorney?

Mr. ERNSTOFF. I have appeared in a number of courts in which the judge was not an attorney, including State courts in the State of Washington where the justices of the peace are not attorneys. Not intending to be glib, I can assure you

Senator COHEN. It was not to try a Federal offense that you appeared before them, was it?

Mr. ERNSTOFF. They are mostly minor offenses, misdemeanors. The justices of the peace are being phased out.

However, my answer is that the idea that a person must be an attorney, particularly where the fact situation is not complex and where the sentence that could be imposed is not strenuous, is not one which horrifies myself.

I appear very often in tribal courts in a number of States and a number of tribes and I have never appeared before a tribal court in which the judge was an attorney. I have been satisfied with the justice that has been

Senator COHEN. Let me stop you. You did suggest that the offense would be minor, not a very important matter. Here you are talking about a $1,000 fine or a year in jail. That does not sound too minor to me.

Mr. ERNSTOFF. That is misdemeanor jurisdiction. I am suggesting that it not necessarily be required that he be an attorney. However, I think that a requirement that the judge be an attorney would not be an unacceptable one. There are a number of young Indian lawyers graduating from law school and coming to the reservations to work.

Even if not, at least as to non-Indians, there is no reason why a tribe could not designate a local attorney, perhaps not an Indian, to at least sit as tribal judge as to matters dealing with non-Indians. I have no problem with that.

I use the word "might" because I think arguments can be raised on both sides, but I have no problem with that.

Senator COHEN. What are the natures of the crimes, in your experience, that have been committeed on reservations and have gone uninvestigated?

Mr. ERNSTOFF. They involve assaults

Senator COHEN. What kinds of assaults are they?

Mr. ERNSTOFF. I would venture to say that murders and rapes are definitely investigated and prosecuted. But, barroom-brawl kinds of

things, family assaults, things which in a non-Indian community would be investigated-even if there were no prosecution they would be of concern to law enforcement agencies are not of concern on Indian reservations.

Where the State does not have jurisdiction-and that includes crimes by non-Indian against Indians or Indian interests—I can tell you that Federal investigation is basically nonexistent. The tribal police on any of these reservations will call the FBI, call the U.S. attorney, call the Federal law enforcement officer and they will not respond for a number of reasons. Usually the reservations are remote. It is expensive and there are budget cuts. Something which seems to be minor in the FBI's eyes will not bring a high-priced FBI agent who is 32 to 4 hours away coming from Seattle, Spokane, or one of the other major cities in order to investigate, even though it may be very important to the tribe.

Senator COHEN. Thank you very much, Mr. Ernstoff, for your testimony. I particularly appreciated a unique case of pleading in the alternative. It gives us a two-track system, at least, to follow. Mr. ERNSTOFF. Thank you, Senator.

Senator COHEN. This hearing will now stand adjourned. [Whereupon, at 2 p.m., the hearing was adjourned.]

APPENDIX

STATEMENTS RECEIVED SUBSEQUENT TO THE

HEARING

TESTIMONY OF RONALD HALFMOON, CHAIRMAN OF THE Board of TRUSTEES OF THE CONFEDERATED TRIBES OF THE UMATILLA INDIAN RESERVATION

Mr. Chairman, members of the Committee, ladies and gentlemen. My name is Ron Halfmoon. I am Chairman of the Board of Trustees of the Confederated Tribes of the Umatilla Indian Reservation in Oregon and I am very happy for the opportunity to present our views on these three major legislative concepts that will directly affect the quality of life in Indian Country.

Because of our tribal history, I submit that we, the Confederated Tribes of the Umatilla Indian Reservation, are in a unique position to provide comments on these measures relating to criminal jurisdiction in Indian Country. The Umatilla Indian Reservation is located in northeastern Oregon, primarily within Umatilla County. It was established by the Treaty of June 9, 1855. Unfortunately, the reservation was situated such that it was bisected by the Oregon Trail which was a major route of travel at that time. It also encompassed many acres of prime farmland which was coveted by non-Indians in the area. As a result of these factors and other federal policies and enactments over the years, much of the reservation was lost to Indian ownership. Of the original reservation consisting of 245,699 tribally owned acres, there are today only approximately 100,000 acres of trust land, a majority of which are individual allotments. The resulting checkerboard pattern of land ownership tends to complicate jurisdictional matters.

A further complication occurred in 1953 when the Umatilla Indian Reservation was among those made subject to the infamous Public Law 83-280 which transferred criminal and civil jurisdiction over the reservation to the State of Oregon.

In light of the fact that we have been without criminal jurisdiction for some 27 years, it might seem strange to say that we are in a unique position to offer testimony on legislative proposals that directly relate to criminal jurisdiction on Indian reservations. However, our position is unique, because the return of criminal jurisdiction over our reservation has been a high priority for many years now. In our attempts to achieve retrocession of criminal jurisdiction we have pursued a measure through the state legislature, which ultimately failed. For several years we worked on a measure to be presented to the United States Congress. Most recently we have requested the Governor of the State of Oregon to issue an executive order returning criminal jurisdiction to us and the federal government. I am happy to report that it now appears that the Governor of Oregon, the Honorable Victor Atiyeh, agrees with our request and will eventually restore criminal jurisdiction to us.

Thus, although we have not had criminal jurisdiction for 27 years, we have studied it thoroughly, undertaken extensive planning, evaluated problems and reviewed both the statutes and case law affecting jurisdiction matters on Indian reservations.

If I may, I would like to offer our comments on each of the three measures.

S. 1722

We have two specific comments on Section 161 of this Bill.

First, and perhaps obviously, we support Section 161 (i) which would authorize tribes under Public Law 280 to seek retrocession by tribal action.

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The entire history of Public Law 280 and the results occasioned by it are so inherently unfair, from a tribal standpoint, that some type of remedial action is long overdue. Without belaboring this point which the Committee has undoubtedly heard about at length during these hearings, we would like to point out a few of the factors that support the change in the law that would result in the enactment of Section 161 (i).

Public Law 280 was supposedly enacted to combat "lawlessness" on Indian reservations. Without any attempt to establish or strengthen tribal or federal enforcement or judicial systems operating on Indian reservations at that time, it was passed into law. It was passed, significantly, at a time when termination of Indian tribes was a federal policy and its true, ultimate goal could only have been termination as opposed to combating lawlessness. No other reason can explain why civil, as well as criminal, jurisdiction was removed from certain tribes. As enacted, Public Law 280 was mandatory for certain named tribes. Tribal consent was not a factor in the transfer of jurisdiction. Not until amendments were made in 1968 was tribal consent required and then only for the removal of jurisdiction. No provision was made for a tribe to request the return of jurisdiction.

The effect of Public Law 280 has not been to combat lawlessness but rather to enhance it to a large degree and to foster ill-feelings between tribal people and state law enforcement authorities. Perhaps some examples will illustrate these statements.

We are fortunate on the Umatilla Reservation that we are not plagued with numerous major criminal problems. Crimes do occur. The problem usually is that the perpetrators are rarely apprehended and brought to justice. Within this month, we have had three tribal buildings burglarized within a 2-week period and no suspects have been identified. Last year the Indian Health Service Clinic was broken into and numerous drugs were taken. Because we are under Public Law 280, federal authorities could not participate in the investigation and to date no suspects have ever been identified. Within the last year our tribally owned grocery store was being burglarized at a rate so frequent that it almost came to be expected. That series of crimes was not terminated until a BIA game officer apprehended a suspect who was ultimately convicted.

The unilateral application of state laws and enforcement by state authorities naturally generates a feeling of resentment by Indian people. They view it as being akin to making one state's laws and enforcement applicable to another state. Criticism is frequently aimed at state and county enforcement agencies for not responding to calls for assistance on the reservation. Antagonistic feelings exist when they do appear on the reservation. The net result is ill-feeling, a serious lack of cooperation due to a lack of any rapport and an ineffective enforcement situation. Only a tribal enforcement program whose sole focus is the reservation, will have the interest and ability to establish the rapport with reservation residents that will lead to an effective, efficient relationship between the community and the police.

These problems could be effectively resolved if the administration of a criminal justice system were a tribal and federal matter. Thus, although it now appears to us that we will not be required to use Section 161 (i) if it is enacted, we strongly support it based upon our background, research and experience.

The second portion of Section 161 of concern to us is 161 (d) (2). This section would modify the Major Crimes Act by redefining certain crimes and expanding the number of crimes formerly included. We cannot disagree with the need for uniformity in the definition of federal crimes. We do question the need for increasing the number of crimes specified in this section.

Historically, the Major Crimes Act vested in the federal government jurisdiction over those major offenses which, it was felt, were inappropriate for prosecution within tribal courts. At the present time there are, within the Major Crimes Act, 14 enumerated crimes. This obviously leaves some types of felony activity to tribal courts even though the Indian Civil Rights Act limits tribal courts to the imposition of a maximum sentence of 6 months imprisonment or a $500 fine or both. 25 U.S.C. § 1302 (7). Obviously, some adjustment is needed somewhere.

If specific crimes are to be enumerated in the section, they should be restricted to "major" crimes. Although we have not yet seen the specific definitions, we wonder whether offenses such as aggravated property destruction, criminal entry, certain thefts and trafficking and receiving stolen property fall within that category.