SENATE BILL 964

As was noted previously, a number of witnesses viewed S. 964 as the proper vehicle by which the objectives of S. 961 and S. 962 could be realized. A model code, it was suggested, could both enumerate Indian rights and specify improved trial and appellate procedures to be instituted within the structure of tribal government. As a result of these suggestions, perhaps, most of the witnesses testifying on S. 964 gave little attention to the feasibility of a model code but rather testified as to its mechanics, the degree of its flexibility, and the methods by which the provisions of the code would be made applicable in specific situations. The text of S. 964 follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Secretary of the Interior is authorized and directed to recommend to the Congress, on or before July 1, 1965, a model code to govern the administration of justice by courts of Indian offenses on Indian reservations. Such code shall include provisions which will (1) assure that any individual being tried for an offense by a court of Indian offenses shall have the same rights, privileges, and immunities under the United States Constitution as would be guaranteed any citizen of the United States being tried in a Federal Court for any similar offense, (2) assure that any individual being tried for an offense by a court of Indian offenses will be advised and made aware of his rights under the United States Constitution, and under any tribal constitution applicable to such individual, (3) establish proper qualifications for the office of judge of the court of Indian offenses, and (4) provide for the establishing of educational classes for the training of judges of courts of Indian offenses. In carrying out the provisions of this Act, the Secretary of the Interior shall consult with the Indians, Indian tribes, and interested agencies of the United States. SEC. 2. There is hereby authorized to be appropriated such sum as may be necessary to carry out the provisions of this Act.

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Though indicating that "we do not feel very strongly about it," 6 Solicitor Barry recommended against enactment of S. 964. He pointed out that the Indian tribes are too diverse for a single code and that though the Department of the Interior could prepare a "sufficiently elastic" model code, "you finally reach a point where it ceases to be a model." 65 Moreover, Mr. Barry stated:

Since the long-term objective of the administration of Indian affairs is to secure the smooth assimilation of the Indian people into our society, we think that Indian codes should conform as much as possible to the substantive and procedural laws of the States in which the Indians live. Since the codes in various States differ, a uniform code for Indian tribes frustrate this objective. Other witnesses contended that the model code should provide only for the training of judges.67 At least one other witness 68 pointed out that there already exists a model code in title 25 of the Code of Federal Regulations. But as Mr. Marvin Sonosky remarked:

Now, that model code is some 40 years old. In all the years that code has been on the books, the Department of the Interior has never lifted a hand to revise it. We favor S. 964 because it looks like it is going to take an act of Congress to make the Secretary give us a model code.69

Witnesses who offered detailed (and favorable) commentary on S. 964 were virtually unanimous in stressing that the model code should possess a degree of flexibility sufficient to meet the differing needs of the separate Indian communities. Distinguishing between "funda

mental" rights (those involving freedom of speech, press, religion, etc.) and "remedial" rights (those associated with the administration of justice), one witness proposed that the former be surrounded with clearcut safeguards while the latter might be set out in the code with a greater degree of latitude.70

Also received favorably by most witnesses was that section of S. 964 which would provide for the training of judges of Indian courts. Such training has already been undertaken in several instances, but, according to knowledgeable witnesses, sufficient funds have not always been available for this purpose.7

Though most witnesses who favored the writing of the model code offered no objection to preparation of the code by the Secretary of the Interior, two who provided their thoughts to the subcommittee on the matter were strongly opposed. Mr. J. Maurice McCabe, Executive Secretary of the Department of Administration for the Navajo Tribe, thought that, though the Bureau of Indian Affairs and the Interior Department should be consulted, major responsibility for preparation of the code should lie elsewhere.72 The Mescalero Apaches went further:

We would suggest that the proposed code (if it be determined that such is necessary) should be prepared by an independent study committee having no connection with the Bureau of Indian Affairs. For example: It would be recommended that the American Bar Association supervise an independent contractor who would conduct the study and prepare the proposed model code."3

As was pointed out earlier in this report, Senate bills 961-964 relate primarily to the relationship between the individual Indian and his tribal authorities and the possibility of deprivation of rights inherent in that relationship. Senate bills 965-968, on the other hand, are concerned, essentially, with the relation between Indians and authority external to the tribe. Reactions to these latter four bills will be considered in the following sections.

SENATE BILL 965

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1152 of title 18 of the United States Čode is amended by adding at the end thereof the following new paragraph:

"The United States shall have jurisdiction concurrent with that of the States with respect to the punishment of offenses made applicable to Indian country by this section committed by non-Indians against non-Indians."

Conflicting testimony was received concerning the merits of S. 965. Objection was expressed, by Solicitor Barry, for example. He saw no reason for the bill's enactment since, in his view, cases involving nonIndians were presently being prosecuted satisfactorily in State courts. He further suggested that, if the United States were to take concurrent jurisdiction, the States would probably withdraw, with the further overburdening of the Federal courts as the foreseeable result.75

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It was also pointed out to the subcommittee that, were S. 965 enacted, the U.S. attorney's offices could become overloaded with litigation. The U.S. attorneys have insufficient staff now, it was claimed.76

70 See statement of Arthur Lazarus following id., pp. 65-66.

71 See testimony of Commissioner Nash, id., pp. 50-51 and statements of Lee S. Thomas and Betty Laverdure, following id., p. 348.

72 Id., p. 301.

73 Statement following id., p. 343.

74 Id., p. 20.

75 Id.

78 See testimony of Emory Sekaquaptewa, Sr., id., p. 105.

One witness, opposing the passage of S. 965, suggested that the intent of the bill might better be realized through improved cooperation between the U.S. Attorney General and the attorneys general of the several States.77

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Those favoring the bill provided the subcommittee with relatively little commentary. Other than to remark that the bill "would fill a void," 78 would be "beneficial," 79 and "should be adopted," so witnesses were singularly reticent. Their views might best be summarized in the comments of Mr. Arthur Lazarus, Jr.:

[M]y clients have not reported that unpunished crimes by non-Indians pose a serious law-enforcement problem on their reservations. Even if so, experience with the so-called major crimes shows that merely making criminal activity a Federal offense does not guarantee that Federal jurisdiction, in fact, will be exercised. Nonetheless, the proposed legislation cannot do any harm, and may do some good, so it carries the endorsement of my clients.81

In a report submitted to the Judiciary Committee on S. 965, the Department of Justice stated:

The bill attempts to secure Federal jurisdiction over offenses involving only non-Indians by unilateral action of the Federal Government. There is no constitutional basis for such action, for which reason the Department of Justice is opposed to its enactment.82

SENATE BILL 966

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) the consent of the United States is hereby given to any State not having jurisdiction over criminal offenses committed by or against Indians in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country which would be affected by such assumption, jurisdiction over such offenses to the same extent that such State has jurisdiction over offenses committed elsewhere within the State, and the criminal laws of such State shall have the same force and effect within such Indian country as they have elsewhere within that State. The provisions of sections 1152 and 1153 of title 18 of the United States Code shall not be applicable within any areas of Indian country with respect to which jurisdiction has been ceded by the United States pursuant to this section.

(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.

SEC. 2. (a) The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country which would be affected by such assumption, jurisdiction over such civil causes of action to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within that State.

(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the

77 See testimony of William Day, id., p. 159.

78 See testimony of Josephine Neumann, id., p. 153.

79 Statement of Moses Two Bulls, id., p. 349.

80 Statement of Norman M. Littell, id., p. 295.

81 Statement following id., p. 67.

82 Hearings (1965), p. 324, app. B.

United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute, or with any regulation made pursuant thereto; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.

(c) Any tribal ordinance or custom heretofore or hereafter adopted by an Indian tribe, band, or community in the exercise of any authority which it may possess shall, if not inconsistent with any applicable civil law of the State, be given full force and effect in the determination of civil causes of action pursuant to this section.

SEC. 3. (a) The United States is authorized to accept a retrocession by any State of any criminal or civil jurisdiction, or both, acquired by such State pursuant to the provisions of section 1162 of title 18 of the United States Code, section 1360 of title 28 of the United States Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect prior to its repeal by subsection (b) of this section.

(b) Section 7 of the Act of August 15, 1963 (67 Stat. 588), is hereby repealed, but such repeal shall not affect any cession of jurisdiction made pursuant to such section prior to its repeal.

SEC. 4. Notwithstanding the provisions of any enabling act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil or criminal jurisdiction in accordance with the provisions of this Act. The provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes, as the case may be.

Senate bill 966 drew from Indians or their representatives more fervent support than was given to any of the other bills before the subcommittee. With few exceptions, the experiences of Indian tribes under State jurisdictions, as provided for in Public Law 280, was said to be almost wholly unsatisfactory. The Yakima Indian Nation stated its views on State jurisdiction as follows:

State court procedures are expensive and their dockets are crowded. *** Also, it is to be remembered that the tribal court is current in the trial of its cases, while the superior court in Yakima County experiences at least 10 months for civil cases. ****

Poor law and order results because of the State officer's lack of familiarity with the Indian people. Most State officers do not speak the Indian language. Most State officers are not familiar with the ways and thinking of the Indian people. The State will not provide funds for proper and adequate law and order enforcement. ***

Good law and order requires that violations be reported. Indian people are well known for their lack of complaints. They will discuss violations with tribal police, and therefore offenders are called to said officer's attention. However, delay this does not happen where the State has jurisdiction. ***83

Other groups or individuals stated similar views. Not all witnesses were critical of State jurisdiction, to be sure, but it is significant to note that, in those instances in which satisfaction with State jurisdiction was indicated, the assumption of that jurisdiction followed State consultation with or consent of the tribes concerned.84 It is not surprising, therefore, that that provision in S. 966, requiring tribal consent before a State could take jurisdiction, received overwhelming support from those expressing their views to the subcommittee.

Not everyone who favored S. 966 was wholly in accord with the present version of the bill. The most frequently proposed change was one providing for piecemeal or partial extension of State jurisdiction to the reservated areas. Witnesses taking this position felt that the bill as introduced would require the States and Indians affected

83 Statement following id., pp. 244-245.

4 See, e.g., statement of Betty Laverdure following id., p. 349, and statement of Marvin J. Sonosky, following id., p. 132.

to make an all-or-nothing choice, a choice, that is, between blanket jurisdiction by the State or none at all. Selective application of relevant State law, it was felt, was preferable to the more limited alternative.8 85

The question also arose as to how consent of the Indian people would be obtained. A slight preference seemed to emerge for the conduct of a referendum as opposed to action by the tribal council, or other representative body. Those favoring a referendum appeared also to prefer a referendum participation which would be limited to tribal members living on the reservation.86

Finally, with regard to S. 966, several suggestions were made to the effect that the United States should in some way subsidize those States assuming jurisdiction in Indian country. In support of this view it was argued that the funding of adequate law enforcement machinery may be more than some States can presently and comfortably bear. Failure to subsidize, in other words, might result in a State's failure to assume jurisdiction even though that action were desired by the Indians concerned and otherwise clearly warranted.87

SENATE BILL 967

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 1153 of title 18 of the United States Code is amended (1) by inserting immediately after "robbery," the following: "aggravated assault,", and (2) by adding at the end thereof the following new paragraph:

"As used in this section, the offense of aggravated assault shall be defined as any type, category, or degree of assault recognized under the laws of the State in which the offense was committed, and which is, under the laws of such State, punishable by imprisonment for a period in excess of six months. Such offense shall be punished in accordance with the laws of the State in which such offense was committed."

Senate bill 967 received only sparse attention from most persons communicating with the subcommittee. Of those who did comment, however, most appeared to favor passage of the bill. Some concern was expressed relative to the manner in which aggravated assault was to be defined, the major objection seeming to center on the bill's use of the definition contained in the laws of the State in which the crime was committed. It was suggested to the subcommittee that it may be preferable for Congress to establish its own definition.88

A possible amendment to the bill was provided by Mr. Marvin J. Sonosky:

If our objection to S. 967 is deemed without merit, the committee may wish to consider the need for an amendment. S. 967 calls for punishment of "aggravated assault" in accordance with State law. When the crime of rape was added to the Major Crimes Act, similar provision was made for punishment in accordance with State law. However, in 1949, Congress found it necessary to amend the law to permit punishment in the discretion of the Federal court. *** If “aggravated assault" is to be added to the exclusive jurisdiction list, the committee may wish to consider the revision of the punishment provision to make it parallel to the one for rape.89

85 See, eg., testimony of Edward Cline, id., pp. 124-126; Lester Oliver, id., pp. 207-208; and Edison Real Bird id. 235.

88 For discussion, see comments of Walter W. Andre, id., p. 112, and Edward Cline, id., p. 126.

87 See, e.g., statement of Alvin J. Zionitz following id., p. 358, and statement of Mescalero Apache Tribal Council, following id., p. 344.

89 For comment, see testimony of Arthur Lazarus, id., p. 98, and testimony of Edison Real Bird, id., p. 236. 89 Statement following id., p. 134.