The preparation of a model code by the Secretary of the Interior is directed by Senate bill 964. This code would extend to the Indian defendant in a tribal court proceeding the same procedural rights secured to any person tried in a Federal court for the same offense and would provide for advising the Indian of those rights. The code would also set qualifications for Indian judges and would provide for judicial training classes as a means of improving the quality of justice in Indian

courts.

Three of the eight bills introduced relate to the trial of offenses by other than Indian courts. Senate bill 965 confers upon the United States concurrent jurisdiction with the States over offenses committed in Indian country by non-Indians against non-Indians. Senate bill 966 would repeal Public Law 280 and would, with the consent of the Indian tribes concerned, reauthorize the States to assume civil and criminal jurisdiction over Indian reservations. (Emphasis added.) The bill also enables the United States to accept a retrocession by the States of either, or both, civil and criminal jurisdiction once assumed. The offense of aggravated assault is added to the list of major crimes by Senate bill 967. This offense would be defined and punished in accordance with the laws of the State in which committed.

To prevent undue delays in the approval of attorney contracts by the Secretary of the Interior, Senate bill 968 would provide that any contract not receiving approval or not being denied within 90 days of the date of submission would be deemed to have been approved.

Research tools in the field of Indian affairs are many and richly varied. One of the most important instruments, and for the subcommittee's purposes one of the most consistently valuable, is the two-volume set, "Indian Affairs, Laws and Treaties." This document has not, however, been updated since 1938. The legal status of Indians must also be researched, virtually as a matter of necessity, in the opinions of the Solicitor of the Department of the Interior. But many of these opinions have not been published in readily available form, thus denying to those pursuing a legitimate interest in Indian affairs access to an important source of essential information.34 To remedy these situations, Senate Joint Resolution 40 authorizes the Secretary of the Interior to revise and update "Indian Affairs, Laws and Treaties" and to prepare a compilation of all the opinions of the Solicitor, published and unpublished, relating to Indian affairs.

SUBCOMMITTEE HEARINGS, JUNE 22-29, 1965

On June 22, 23, 24, and 29, 1965, the subcommittee, meeting in Washington, received testimony relative to Senate bills 961-968 and Senate Joint Resolution 40. Additional statements were filed with the subcommittee both before and following the public hearings.

In all, some 79 persons either appeared before the subcommittee or presented statements for its consideration. These persons included representatives from 36 separate tribes, bands, or other groups of Indians located in 14 States. Four national associations representing Indians, as well as three regional, federated Indian organizations, also presented their views.

34 See memorandum accompanying S.J. Res. 40, Congressional Record, Tuesday, Feb. 2, 1965, vol. III, No. 22, p. 1769.

Officials of the U.S. Government communicating with the subcommittee included seven Members of Congress, the Solicitor of the Department of the Interior, the Commissioner of Indian Affairs, a U.S. attorney, and a U.S. commissioner. State officials included the assistant attorney general of South Dakota and the chairman of the South Dakota Indian Commission.

The subcommittee also received testimony or written commentary from the American Civil Liberties Union and the National Council of Churches.

In the following section are set out the texts of the bills introduced and a summary of pertinent comments on each bill as received by the subcommittee.

PENDING LEGISLATION AND RELEVANT TESTIMONY

SENATE BILL 961

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any Indian tribe in exercising its powers of local self-government shall be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the United States Constitution.

The purposes of S. 961, protection of individual Indians from arbitrary and unjust actions of tribal governments, were not opposed by anyone submitting testimony to the subcommittee. Most, in fact, commended the subcommittee for its interest and action in this area. The comments of Mr. Lawrence Speiser, director of the Washington office of the American Civil Liberties Union, are typical: The subcommittee *** is to be commended not only for its interest, and its action in this particular field but also for the wide range of constitutional rights it has studied in the past and which it is currently studying.

The Indians have, for too long, occupied a no man's land with regard to their rights as Americans and this subcommittee has brought a good deal of attention to this fact. The bills that have been proposed will help a great deal in trying to provide for Indians the rights they should have in their relationships with their own tribes.

It is clear that they have rights as American citizens with regard to the U.S. Government and the State governments. It is not at all clear that they have similar rights as against their own tribes.35

Evidence purporting to show that the subcommittee's earlier findings of deprivation of individual rights by tribal authorities were still relevant was offered in several instances. Perhaps the most flagrant examples, with respect to the administration of justice, were cited by Miss Emily T. Schuler, a member of the Isleta Pueblo Tribe, Isleta, N. Mex.:

Gentlemen, I have never seen such improper court proceedings; there is no courtesy given the defendants, they are allowed to defend themselves but in most cases they do not even understand what's going on. Instead of being told what they are doing wrong and seeing if they can work with them to try and help them adjust themselves, and make a better place for themselves in the community, they are belittled and insulted. So consequently they leave the courtroom feeling bitter and defeated. The majority of the people will not appeal it to the tribal council.

People from the pueblo often come to me and tell me of police brutality. A woman recently told me about her 16-year-old niece who was coming home a little after midnight, and was stopped just before she got inside her yard by two of the pueblo police, she told her relatives she was taken to the sand hills outside the pueblo and molested. She was told if she repeated what happened to anybody she would get treated a lot worse [sic] the next time. They would not file charges with the FBI because they were afraid of their own safety.36

The subcommittee was also reappraised of the alleged denial of freedom of worship suffered by the Native American Church. This denial is charged as resulting from action of the Navajo Tribal Council in outlawing the use (on the reservation) of peyote, an herb used in

35 Hearings on the constitutional rights of American Indians before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, 89th Cong., 1st sess., 221, 1965. Hereinafter cited as "Hearings (1965)." a6 Id., statement following statement of Abeita, p. 266, at p. 1.

services of the Native American Church. Judicial remedies against such arbitrary tribal actions are unavailing as a consequence of the 10th Circuit Court's finding that the 1st amendment is inapplicable to Indian nations.37

Mr. Frank Takes Gun, president of the Native American Church, observed:

The court's rationale would have applied just as sternly if the tribal resolution had forbidden the use of bread and wine at Christian observances on the reservation instead of peyote at ours. Indians were left at the mercy of a tribal council and tribal councils were free, so the court said, to act notwithstanding first amendment limitations.38

All witnesses, however, did not support the view that Indian rights were in jeopardy as a consequence of tribal actions. Besides disclaiming any knowledge of denial of rights to individual Indians, a number of witnesses contended, to the contrary, that their constitutions, their codes, and their traditional practices were already in substantial accord with the U.S. Constitution. Concerning these contentions, Senator Hruska said, "If there are no complaints [of constitutional violation] there would be no harm in the bill [S. 961] would there?" 39 Little objection was voiced by these witnesses, however, to extending at least certain of the restraints of the Bill of Rights to the functions of tribal governments not presently limited by their own basic legal instruments.40

The most serious objections to S. 961 took the form neither of objection to the purposes of the bill nor quarrel with the sundry allegations of the practice of possibility of denial of rights by tribal governments. Instead, as numerous witnesses pointed out, the peculiarities of the Indian's economic and social condition, his customs, his beliefs, and his attitudes, raised serious questions about the desirability of imposing upon Indian cultures the legal forms and procedures to which other Americans had become long accustomed.

Mr. Frank J. Barry, Solicitor of the Department of the Interior, expressed this position quite ably:

*** [T]he Constitution of the United States was adopted by a people whose philosophical and political roots were deeply embedded in the history of England and of Western Europe. Many of the restraints and limitations on the United States contained in the U.S. Čonstitution were an outgrowth of that history. On the other hand, the people of Indian tribes have their roots in an entirely different culture and it may be that the devices which appropriately protected the interests of the Anglo-American of the late 18th century may not be appropriate to protect the Indian tribal member of the middle 20th century.41 Mr. Arthur Lazarus, Jr., general counsel of the Association on American Indian Affairs, suggested other difficulties which would arise from a blanket imposition on Indian tribes of the same restraints resting upon the Government of the United States:

A full and direct application of the Federal Bill of Rights *** would require tribal courts to hold trials by a jury of 12 men in all criminal cases * * * and in civil cases involving more than $20, * * * even though State governments are not made subject to the same limitations. *** [T]here seems to be no

37 272 F. 2d. 131.

39 Hearings (1965), p. 163.

39 Id., p. 140.

40 See, e.g., testimony of Emory Sekaquaptewa, Sr. and Jr., id., pp. 158 and 171; Cato Valandra, id., p. 236; and Vine DeLoria, id., pp. 306 and 310-311. 41 Id., p. 17.

justification for holding Indian tribes to a higher standard of conduct that States must observe under the 14th amendment.42

To avoid both the alleged inappropriateness of restraint of Indian governments by full application of the U.S. Constitution, as well as the dislocations inherent in too swift subjection of those governments to a sophisticated legal structure, witnesses proposed several alternatives.

Through Solicitor Barry, the Department of the Interior offered a substitute bill spelling out in specific terms the rights Indians would possess in their relationships with their tribal governments. This substitute stipulated that the Indian's rights would include: freedom of speech, religion, press, assembly, and petition; just compensation for property take by a tribal government; and, with respect to the administration of justice, the ability to test the legality of his detention-as ordered by a tribal court-through a habeas corpus proceeding in a Federal court, trial by a jury of not less than six persons, speedy and public trial, confrontation with adverse witnesses, the right to counsel at his own expense, and the right to be informed of the nature and cause of the accusation lodged against him. The Indian would further be guaranteed freedom from unreasonable search and seizure, double jeopardy, and self-incrimination. The substitute would also prohibit the tribal government from passing bills of attainder or ex post facto laws, requiring excessive bail, imposing excessive fines, inflicting cruel and unusual punishment, depriving a tribal member of life, liberty, or property without due process of law, or denying to any member of the tribe within its jurisdiction equal protection of the laws.43

Issue was taken with specifics in the Department's substitute by other witnesses, but there was considerable support indicated to the subcommittee for the Department's recommendations that the Indian's rights be set out in specific terms."4 In May 1966, the Department submitted supplemental testimony to the committee and a revision of the substitute bill suggested to the committee in June 1965. The revised version simplifies the appeal provisions and establishes rights for all persons who may be subject to the jurisdiction of tribal governments, whether Indians or non-Indians.

A second general alternative to S. 961 as suggested to the subcommittee would either bar altogether the application of Federal constitutional requirements to Indian tribes or would postpone their extension over an evolutionary period in which the Indian peoples would of their own accord move toward fuller enjoyment of rights against their tribal governments. It was not unusual for those taking this position to encourage education of tribal officials and Indian youth in the meaning of the U.S. Constitution and its attendant legal philosophy.

The Mescalero Apache Tribal Council, Mescalero, N. Mex., wrote to the subcommittee:

We suggest that the present evolutionary process be continued, and encouraged. This could be done by the establishment of a positive educational system, for the education of tribal judges. In addition thereto, tribal leaders, and eventually all members of Indian tribes, should be effectively educated and informed as to the exact nature of their constitutional rights.

42 Id., p. 65.

43 Id., p. 318, app. A.

"See, e.g., Arthur Lazarus, Jr., statement at p. 65; Marvin J. Sonosky, statement following p. 130 and p. 131; testimony of Cato Valandra, id., p. 148; and Lawrence Speiser, id., p. 222.