This procedure provides the tribe adequate time and opportunity to give their input and express their thoughts and feelings regarding these all-important matters.

I would like to enter into the record a copy of the Constitution of the State of Montana, article 1.

Senator MELCHER. Without objection, it will be inserted in the record at this point.

[The Constitution of Montana, article 1, follows:]

THE CONSTITUTION OF THE STATE OF MONTANA, AS ADOPTED BY THE CONSTITUTIONAL CONVENTION, MARCH 22, 1972, AND AS RATIFIED BY THE PEOPLE, JUNE 6, 1972

We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.

ARTICLE I COMPACT WITH.. THE UNITED STATES

All provisions of the enabling act of Congress (approved February 22, 1889, 25 Stat. 676), as amended and of Ordinance No. 1, appended to the Constitution of the state of Montana and approved February 22, 1889, including the agreement and declaration that all lands owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States, continue in full force and effect until revoked by the consent of the United States and the people of Montana.

Senator MELCHER. On this concept, I think you stated it would be unworkable if the accused had to give their consent to the tribe before a magistrate?

Mr. GERVAIS. No, we did not say it would be unworkable. We think it does have merit, any way it goes.

Senator MELCHER. I think that is a part of the present Federal magistrates system that I would not want to see incorporated in-the magistrates or justices of the peace-giving them special authority on an Indian reservation. If you are accused of doing something and have to give your consent before you are brought before a magistrate, I do not

think you would give your consent; I do not think anyone would. It would be a way of avoiding prosecution.

I think there is a basic flaw in the Federal magistrates system as it is now set up, as it applies to an Indian reservation. I do not see how it will work at all.

If you give special authority for a Federal magistrate on a reservation to mete out justice, the question of the consent of the accused to go before that magistrate will not work.

What if a person who is accused of a crime on a reservation, when we do have a Federal entity there-whether we call him "magistrate” or "special justice of the peace"-is hauled before that magistrate or special justice of the peace and does not feel that the outcome, whatever the sentence or fine is, is fair? Would the individual's rights still be protected? Would they have the right to appeal that in district court or at a higher level?

Mr. GERVAIS. Yes.

Senator MELCHER. Are you saying yes?

Mr. GERVAIS. Yes, I agree with that.

Senator MELCHER. I understand there is a particular matter of concern to the Blackfeet Tribe; some murders that have occurred on the reservation which have not been properly or adequately investigated. Mr. GERVAIS. Homicides and assaults; I believe they are the concern. Senator MELCHER. On the reservation?

Mr. GERVAIS. On the reservation, yes.

Senator MELCHER. Is it the slowness of the U.S. attorneys to respond and conduct an investigation?

Mr. GERVAIS. That could be part of the problem. We believe that the investigations are not going properly either. There are not only the two particular cases that happened recently, but there are also several that happened in the past which we think are not being handled properly by the FBI.

Senator MELCHER. How long does it take, from the time of the crime until the FBI is on the scene or collecting evidence?

Mr. GERVAIS. The FBI are stationed in Montana about 33 miles from Browning. Sometimes it takes 3 to 4 hours for them to respond to a call, and other times it takes longer than that.

Senator MELCHER. How long?

Mr. GERVAIS. Depending on the priority, I believe it could take a day or so.

Senator MELCHER. Does that occur in the case of a homicide?
Mr. GERVAIS. In the case of a homicide it might take 3 hours.
Senator MELCHER. And in the case of an assault?

Mr. GERVAIS. In the case of an assault, it could take days.

Senator MELCHER. Several days?

Mr. GERVAIS. Yes.

Senator MELCHER. How serious an assault are we talking about? Is the victim hospitalized?

Mr. GERVAIS. Probably. One of the things we do have is a BIA Federal investigator in Browning, around the reservation. Also, we have tribal investigators who usually go right in and try to pickup the evidence. and the FBI comes in later.

Senator MELCHER. Is this investigation hampered in any way by the special BIA officer or the tribal police if there is a non-Indian involved?

Mr. GERVAIS. It certainly is. The U.S. attorney is called on the telephone first to give his consent in the case of non-Indians.

Senator MELCHER. Where is the U.S. attorney?

Mr. GERVAIS. Butte.

Senator MELCHER. What happens if it is after hours or on the weekend?

Mr. GERVAIS. I imagine the assistant is probably called.
Senator MELCHER. Is the assistant also in Butte?

Mr. GERVAIS. No.

Senator MELCHER. Where is he?

Mr. GERVAIS. He is in Great Falls or Billings.

Senator MELCHER. Does this slow down any proper police work? Mr. GERVAIS. We believe it does.

Senator MELCHER. What is the relationship of the special BIA officer to the tribal police? Does he have more authority than the tribal police?

Mr. GERVAIS. Yes, he does.

Senator MELCHER. Is he on the reservation?

Mr. GERVAIS. Yes, he lives on the reservation.

Senator MELCHER. What is his title?

Mr. GERVAIS. Criminal investigator.

Senator MELCHER. Is he an employee of the Bureau of Indian Affairs?

Mr. GERVAIS. Yes.

Senator MELCHER. Is he of assistance to the tribal police officer? Mr. GERVAIS. They assist each other, I should say, but he is the supervisor of the tribal investigators. We have two tribal investigators. Senator MELCHER. Is he the supervisor to them?

Mr. GERVAIS. That is right.

Senator MELCHER. When it is necessary to call the U.S. attorney, does the tribal investigator appoint a police chief or a special BIA investigator?

Mr. GERVAIS. Usually the BIA investigator.

Senator MELCHER. One of the points we think should be in this Federal magistrates concept on an Indian reservation is that that person have authority, even on major crimes, to make preliminary investigations, to gather the pertinent evidence that would be necessary in the prosecution of a crime. Do you favor that type of authority? Mr. GERVAIS. I do.

Senator MELCHER. I know that later today you will be meeting with the staff of the committee to discuss in detail the complaint of the Blackfeet Tribe concerning these two recent homicides on the reservation and whether or not the investigations have been conducted expeditiously and thoroughly. It seems to me that while our basic thrust with the Federal magistrates concept is with the lesser crimes—misdemeanors in light of the complaint regarding these two homicides, perhaps this function should also be part of our concept: That is, gathering preliminary evidence in this field, acting immediately as an officer of the court.

For instance, I think the authority we would want to draft would be that we remove this one little hangup of whether or not you have to call the U.S. attorney to make a proper investigation-if we want this authority given to an officer of the court. He or she would be there and could grant that authority immediately. The ongoing authority would not be something hit or miss. It would be an officer of the Federal court entrusted with the responsibility of making sure that all the evidence of a major crime were gathered. That authority would be for that Federal officer of the court, whether he was called the Federal magistrate or U.S. justice of the peace. We believe the authority should be vested in that person.

Mr. GERVAIS. Yes, sir.

Senator MELCHER. Thank you very much.

I have one further question. Please return to the witness table. The tribe is opposed to enactment of S. 1181. Is that correct? Mr. GERVAIS. That is correct.

Senator MELCHER. Does the tribe's position represent the position of other tribes in Montana ? Do you know?

Mr. GERVAIS. I do not know.

Senator MELCHER. OK. Thank you very much.

Our next witness is Sam Deloria, director of the American Indian Law Center, University of New Mexico.

Mr. Deloria, welcome to the committee.

STATEMENT OF SAM DELORIA, DIRECTOR, AMERICAN INDIAN LAW CENTER, UNIVERSITY OF NEW MEXICO

Mr. DELORIA. Good morning, Mr. Chairman. Thank you for inviting me to appear before the committee today.

The American Indian Law Center has been working for the last few years, providing staff support to the Indian members of the Commission on Tribal-State Relations, which is a commission composed of 12 State legislators and 12 tribal chairmen who are looking into the intergovernmental relationships and who are trying to examine the present state of affairs in determined areas in which States and tribes can cooperate.

I am not appearing here on behalf of the Commission on Tribal State Relations, but my comments on S. 1181 will be drawn from my experience in providing staff support.

Before I get into a discussion of the bill, I would like to make it very clear that the interest of the committee in improving tribal State relations is one that I think States and tribes welcome and are very appreciative of. However, I feel, personally, that there are some real problems with this particular piece of legislation.

The first problem we have identified is that the introduction of the Tribal State Compact Act has been interpreted by many members of State legislatures and elected tribal officials as indicating that there is not now authority for them to enter into agreements of any kind and that discussions between tribes and States cannot begin until this act is passed. So, ironically, the introduction of the act is having the effect of discouraging the very process that it is trying to encourage.

In our work with the commission, we have done a survey of intergovernmental relations between tribes and States throughout the

country and the kinds of arrangements-I think it is more instructive to refer to them as cooperative arrangements because the range of formality is very broad and ranges all the way from highly detailed agreements, written agreements to settle Federal litigation, all the way down to the simplest kinds of understandings between executive agencies to administer their programs in a coordinated way.

Looking at this range of agreements, we find that, for the most part, they have been undertaken in response to the needs of the communities and within the context of present law, particularly within the context of existing Federal law very often without having to amend tribal and State law. So, we have started from the assumption that arrangements take place wherever possible with the minimum of disruption of the present statutory structure.

My next objection to the Tribal-State Compact Act is the one I presented to this committee several years ago when the act was first introduced. That is, it is premature in the sense that it removes barriers in the Federal law which have not as yet been identified as real barriers to tribal-State cooperation.

In setting a Federal structure, it affects the negotiating process between States and tribes. The problem is that the concept of agreements or compacts is a horizontal complex that can cut across all of the substantive areas of law and government. It is difficult to discuss in the abstract because, in talking about a compact or agreement, you have to think of an infinite variety of specific situations in which an agreement could be made.

With respect to almost any subject matter of an agreement, it is possible to draw up a proposed agreement for which there is some Federal statutory barrier. But in my opinion that does not mean we now need Federal legislation removing all statutory areas; we need draftsmen working for States and tribes who can draft agreements that do not stumble into Federal statutory barriers.

The one most often discussed is the civil commitment of reservation Indians in State institutions and the litigation that is surrounding this issue. The most celebrated litigation in Montana and South Dakota both involved attempts to extend the jurisdiction of State courts onto reservations without going through the procedures required by the 1968 Civil Rights Act and the Kennerly case. However, the attempt that was not made, to my knowledge, was an attempt for the State to authorize its institutions to accept tribal courts' civil commitments, which would not have required Federal legislation.

Had this approach been taken, it would have, even if the States had been reluctant to do so at first, opened a very productive series of discussions between the State and tribe concerning the State's reasons for either supporting or being reluctant to get into this area of full faith and credit.

I think a lot of what we are talking about is a piecemeal concept with full faith and credit between governments. I think this is an example of unnecessarily removing Federal barriers to some kinds of agreements, and my guess would be that the tribes would be very reluctant to support legislation which essentially weakens the Kennerly case and allows for transfers of jurisdiction without a tribal referendum.