As long as the treble damage remedy remains (and there is no reason to expect it to be changed) the enactment of S. 1 in its present form would single out antitrust offenders and subject them-alone among all criminalsto paying five-fold the amount of the gain they received or the loss they caused. We do not approve of antitrust violations. We have no objection to "double-damage" fines by themselves. But we do not believe that antitrust offenses should be singled out for a five-fold penalty, especially in view of the increase last December in maximum fines for antitrust violations from $50,000 to $100,000 for individuals and $1,000,000 for corporations. Act of December 21, 1974, Public Law 93-528.

Our second reason for urging this action upon the Committee is one which we did not advance in our testimony on the prior bills, although it is similar to the reasoning we advanced for opposing corporate probation. We see problems in determining the gain or loss resulting from an antitrust offense as part of the sentencing process at the end of a criminal trial.

Antitrust offenses are distinguished from many other crimes by their complexity. It would be a simple matter for a judge to determine the gain or loss resulting from a theft or embezzlement. It is quite another thing for a judge to establish the gain the defendant derived from an antitrust offense (that is, how much the defendant's profit was increased by the illegal conduct), or how much loss the victim incurred as a result of the antitrust violation (that is, how much more profit the victim would have made but for the defendant's conduct).

These questions are exactly the same questions litigated in the damage portion of civil antitrust cases, where they often take weeks to try. Can they be adequately tried at the end of a criminal case as part of the sentencing procedure? We think not, since sentencing is usually accomplished on the basis of facts contained in reports not in the record, facts which have been developed without the procedures associated with the determination of damages at a civil trial.

If it were decided to hold a full scale hearing to determine the "gain" or "loss" at the end of the criminal antitrust trial, severe procedural problems would be presented. What standard of proof would be used-are damages to be proved beyond a reasonable doubt or simply by a preponderance of the evidence under the rather liberal standard allowed in civil antitrust cases? Are the victims entitled to representation at the sentencing hearing, since it is their damages that are being litigated? If so, what is their role, and will the fine imposed conclusively determine the basis of the recovery in the later treble damage case? Even if they are not represented, does the determination of gain or loss at the sentencing hearing constitute collateral estoppel against the defendant in the subsequent damage action even though the victims are free to try to prove still higher damages? Such a result would seem possible, perhaps likely, in view of the courts' movement away from "mutuality" as a prerequisite for collateral estoppel.

These considerations argue strongly in favor of trying the damage questions at a subsequent civil trial and not as part of the sentencing procedure. The victims would have the benefit of the finding of violation in the prior criminal case, which is, by statute, prima facie evidence of violation in subsequent damage cases. 15 U.S.C. § 15(a). As a practical matter such cases nearly always follow antitrust convictions, so there is small possibility that the treble damage remedy would not be applied.

Thus, not only is it unfair to subject antitrust offenders (and only antitrust offenders) to a five-fold penalty but doing so creates many procedural problems not present in simpler factual contexts. For these reasons, we urge the Committee to make Section 2201 (c) of S. 1, which provides for the double damage fine, inapplicable to antitrust offenses.

We respectfully request the opportunity to be heard on the matters set forth in this letter at any public hearings which may be scheduled on S. 1. Respectfully,

MARK CRANE,

Antitrust Section of the American Bar Association.

Hon. JOHN MCCLELLAN,

FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN,
Washington, D.C., April 25, 1975.

Chairman, Subcommittee on Criminal Laws and Procedure, Dirksen Senate Office Building, Washington, D.C.

DEAR SENATOR MCCLELLAN: With this letter we are forwarding a statement in opposition to the provisions of S. 1, dealing with criminal jurisdiction on Indian reservations, submitted on behalf of the Association on American Indian Affairs and a number of named tribes.

We would appreciate your having the enclosed statement made a part of the formal hearing record on the pending legislation. We would also be happy to discuss the subject matter of our statement informally with members of your staff at any time.

Respectfully submitted,

ARTHUR LAZARUS, Jr.

STATEMENT OF ARTHUR LAZArus, Jr.

The following comments are submitted in opposition to certain provisions affecting Indian tribes in S. 1, the "Criminal Justice Reform Act of 1975". This statement is filed on behalf of the Association on American Indian Affairs, Inc. and the following named tribes: The Seneca Nation of Indians of New York, the Miccosukee Tribe of Indians of Florida, the Nez Perce Tribe of Idaho, the Navajo Tribe of Arizona and New Mexico, and the Hualapai Tribe and the Salt River Pima-Maricopa Community of Arizona.

In order to appreciate fully the drastic implications of the Indian provisions in S. 1, a brief review of the unique legal status of Indian tribes is necessary. Over a century ago Chief Justice Marshall, speaking for the Supreme Court, affirmed the proposition that "*** the several Indian nations * [are] distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all lands within those boundaries, which is not only acknowledged, but guaranteed by the United States." Worcester v. Georgia, 6 Pet. 515, 557, 8 L. Ed. 483, 499 (1932). Accord, Williams v. Lee, 385 U.S. 217, 218-19, 3 L. Ed. 2d 251, 253 (1959). The Supreme Court's conclusion in the Worcester case recently has been restated forcefully in McClanahan v. State Tax Comm'n, 411 U.S. 164, 36 L. Ed. 2d 129 (1973):

"It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty predates that of our own Government *** "They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided.' Id. at 172-73, 36 L. Ed. 2d at 136.

The Indian provisions in the present Title 18 of the United States Code have been drafted in light of the extensive powers of self-government which historically have been exercised by Indian tribes. Section 1153 restricts the scope of federal criminal jurisdiction on Indian reservations to thirteen "major crimes"-"* * * namely, murder, manslaughter, rape, [statutory rape], assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny ***" 18 U.S.C.A. § 1153 (1975 Supp.). Furthermore, courts have held without exception that the jurisdiction conferred on federal courts by Section 1153 is exclusive, and state courts are prohibited from exercising concurrent jurisdiction over the same offenses. The limited nature of the jurisdictional grant in Section 1153 has allowed the courts established by Indian tribes to exercise extensive criminal jurisdiction on Indian reservations.

These same considerations are manifest in Section 1152, which provides that "[e]xcept as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District

of Columbia, shall extend to Indian country.”1 18 U.S.C.A. § 1152 (1966). The general laws referred to in Section 1152 include, in addition to federal statutes applicable to federal enclaves, the Assimilative Crimes Act, which authorizes federal courts to apply state law as the measure of a federal crime if the act committed in Indian country does not represent a criminal offense under federal law, but has been so classified under a state statute. See generally 18 U.S.C.A. § 13 (1969).

Section 1152, however, contains several important exceptions which sharply limit its impact on Indians and Indian tribes. The federal laws referred to in Section 1152 are not applied in the case of "*** offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively." 18 U.S.C.A. § 1152 (1966). This exception clause has limited the application of federal enclave laws and the Assimilative Crimes Act to cases in which an Indian commits a criminal act against a non-Indian or a non-Indian commits such an act against an Indian. Thus, the tribal courts retain jurisdiction over a number of lesser offenses when only Indians are involved.

S. 1 would effect a wholesale expansion of federal jurisdiction over criminal offenses committed on Indian reservations by deleting in their entirety Sections 1152 and 1153. Indian reservations no longer would be treated as discrete jurisdictional entities, but, instead, would be included, along with all other federally held lands and unorganized federal territories and possessions, in a category entitled "Special Jurisdiction of the United States". Section 203 of the proposed Criminal Code provides that "[a]n offense is committed within the special jurisdiction of the United States if it is committed within the special territorial jurisdiction *** of the United States", and the term "special territorial jurisdiction" is defined by Section 203 (a) to include "Indian country".

S. 1 lists no less than forty-six acts or omissions which, if committed or omitted in areas of special jurisdiction, would constitute a criminal offense over which federal courts are to have jurisdiction. The extent of federal jurisdiction thus is increased vastly beyond the thirteen offenses which at the present time are enumerated in Section 1153.

Furthermore, in contrast to Section 1153, provisions in S. 1 indicate that the jurisdiction of federal courts over offenses committed in Indian country may not be exclusive. Section 205 (a) of the proposed Criminal Cade declares that "[e]xcept as otherwise expressly provided, the existence of federal jurisdiction over an offense does not, in itself, preclude * * * a state or local government from exercising its jurisdiction to enforce its laws applicable to the conduct involved. * * *” Thus, Indian reservations would be subject under S. 1 to substantially increased federal criminal jurisdiction, and, possibly, to state jurisdiction which heretofore has been prohibited explicitly by federal law.

The proposed Criminal Code's complete failure to recognize the unique legal status accorded Indian tribes and their courts is evidenced further by S. 1's treatment of Sections 13 and 1152 of the present Title 18. Section 13, which is the Assimilative Crimes Act, is continued in force by Section 1863 (a) of the proposed Criminal Code, which provides that "[a] person is guilty of an offense if, in a place within the special jurisdiction of the United States * * * he engages in conduct *** that constitutes an offense under the law then in force in the state or locality in which such place is located * * * [and] that does not otherwise constitute an offense under a federal statute applicable in such place ***." In addition, S. 1 would delete Section 1152.

1 The term "Indian country" is defined in Section 1151 as follows: "Except as otherwise provided in sections 1154 and 1156 of this title, the term "Indian country", as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within or without the limits of a state, and (e) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same." 18 U.S.C.A. § 1151 (1966).

The proposed Criminal Code's deletion of Section 1152 and continuation in force of Section 13 would result in yet a further incursion on the criminal jurisdiction of tribal courts. The exception clauses contained in the deleted Section 1152 excluded from the effect of the Assimilative Crimes Act cases which involved only Indians. In effect, therefore, S. 1 would extend the Assimilative Crimes Act beyond cases involving non-Indians to criminal offenses involving only Indians.

S. 1 admittedly contains provisions which indicate that, at least as a theoretical matter, nothing in the legislation should be construed as ousting tribal courts of the jurisdiction which they now exercise over criminal offenses committed on Indian reservations. Section 205(a) provides that "[e]xcept as otherwise expressly provided, the existence of federal jurisdiction over an offense does not, in itself, preclude *** an Indian tribe, band, community, group, or pueblo from exercising its jurisdiction in Indian country to enforce its laws applicable to the conduct involved. ***" Despite this rather abbreviated and vague disclaimer, the tremendously expanded scope of federal and possibly state jurisdiction could well have a significant adverse impact upon the continued vitality and utility of tribal courts which at the present time exercise considerable jurisdiction over criminal offenses committed on Indian reservations.

The proposed Criminal Code's approach to federal jurisdiction over Indian reservations appears to have been prompted by two problems of Constitutional dimension which have arisen in connection with the administration of Section 1153. See generally Committee Print of Report of Senate Committee on the Judiciary on the "Criminal Justice Reform and Codification Act of 1974" (1974). First, several federal courts held that an Indian charged with an offense under the Major Crimes Act was not entitled to an instruction on a lesser included offense. See, e.g., United States v. Davis, 429 F.2d 552, 554 (8 Cir. 1970); Kills Crow v. United States, 451 F.2d 323, 325 (8 Cir. 1971), cert. denied, 405 U.S. 999 (1972). Second, Section 1153's adoption of state penal provisions and definitions of offenses for specified crimes frequently had resulted in the imposition of harsher penalties and a lower quantum of proof on Indian defendants than would be imposed upon a non-Indian defendant committing the same offense. Both these problems raised the question whether Section 1153 discriminated in an unconstitutional manner against Indian defendants.

Neither issue, however, warrants the proposed Criminal Code's sweeping and indiscriminate approach to federal criminal jurisdiction over Indian reservations. The first question-whether an Indian defendant charged under Section 1153 is entitled to an instruction on a lesser included offense-has been resolved recently by the Supreme Court in the favor of Indian defendants: [T]he [Major Crimes] Act expressly provides that Indians charged under its provisions 'shall be tried in the same courts, and in the same manner, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.' In the face of that explicit statutory direction, we can hardly conclude that Congress intended to disqualify Indians from those benefits of a lesser offense instruction, when those benefits are made available to any non-Indian charged with the same offense." [Original emphasis.] Keeble v. United States, 412 U.S. 205, 212, 36 L. Ed. 2d 844, 850 (1973). Accord, Felicia v. United States, 495 F.2d 353, 354-55 (8 Cir. 1974). Thus, Indian defendants charged under Section 1153 plainly are now entitled to an instruction on a lesser included offense, and, consequently, this issue no longer can serve as a basis for deleting the Major Crimes Act from the Criminal Code.

Furthermore, the second problem-whether the imposition of state penal provisions and definitions of offenses on Indian defendants is constitutionalcan be solved by a legislative technique far more subtle than making Indian reservations just another federal enclave and emasculating tribal courts in the process. Whatever Constitutional deficiencies exist in provisions in Section 1153 relating to sentencing and burden of proof can be remedied easily by amending the offending sections of the Major Crimes Act. Thus, the second issue also in no way justifies the radical approach to federal jurisdiction over Indian reservations which is employed in S. 1.

Although the proposed Criminal Code's treatment of jurisdiction over Indian reservations is the most objectionable feature of the bill, a number of additional shortcomings in S. 1 should be noted. Section 685 (b) of the proposed Criminal Code, which authorizes and describes the extent of state jurisdiction over offenses committed by or against Indians in Indian country, and is identical to Section 1162 of the present Title 18, contains a number of inaccuracies. Its description of Indian country over which states are authorized to exercise jurisdiction does not include states which assumed jurisdiction subsequent to the passage of Section 1162, or those which since its enactment have retroceded jurisdiction to the United States.

More important, Section 685 (b) fails to eliminate a number of the ambiguities which have made the precise legal implications of Section 1162 almost impossible to determine. Indian tribes have expended considerable sums of time and money litigating the question whether the state jurisdiction referred to in Section 1162 is exclusive or concurrent with the jurisdiction of Indian tribes. See, e.g., Oliphant v. Schile, No. 511-73C2 (W.D. Wash.). Furthermore, the cases are legion in which Indian tribes have been forced to resort to legal action in an attempt to determine whether, or under what circumstances, the state's jurisdiction shall include the power to tax. See, e.g., Bryan v. Itasca County, No. 44947 (S. Ct. Minn.); Confederated Salish and Kootenai Tribes v. Moe, Civil No. 2145 (D.C. Mont.); United States v. Washington, Civil No. 3909 (E.D. Wash.); Confederated Tribes of the Colville Indian Reservation v. Washington, Civil No. 3868 (E.D. Wash.).

Nor does Section 1162 indicate whether states may assume piecemeal jurisdiction over selected subject matter or geographical areas within Indian country. At the present time the State of Washington, for example, has enacted laws which authorize the imposition of its jurisdiction on all Indian reservations in eight selected subject matter areas. See Rev. Code Wash. § 37.12.

Finally, S. 1 would delete the provisions in the present Title 18 which govern the use of liquor in Indian country. Specifically, Sections 1154 through 1156 prohibit the introduction, possession or dispensation of liquor in Indian country, while Section 1161 provides that the prohibitions of Sections 1154 through 1156 shall not apply within the Indian country when "*** such act or transaction is in conformity both with the laws of the State * * * and with an ordinance duly adopted by the tribe ***." 18 U.S.C.A. § 1161 (1966). Sections 1154 through 1156 would not be recodified under S. 1, and, as a consequence, an Indian tribe's legal basis for preventing the sale of liquor on its reservation would be eliminated.

In conclusion, the provisions in S. 1 relating to federal criminal jurisdiction over Indian reservations completely belie the unique status which historically has been accorded Indian tribes by the Supreme Court and the Congress. The present version of the proposed Criminal Code should be amended to reflect the firmly established federal policy that the United States always has restricted its criminal jurisdiction on Indian reservations in recognition of the extensive powers of self-government which Indian tribes exercise.

STATEMENT BY ALAN R. PARKER ON BEHALF OF THE FRIENDS COMMITTEE ON NATIONAL LEGISLATION

My name is Alan R. Parker. I am Vice President of the American Indian Lawyers Association, an unincorporated association of licensed attorneys of Native American descent who are working in areas directly related to the legal rights of Indian tribes. However, I file this statement as a private person speaking on behalf of the Friends Committee on National Legislation.

The Friends Committee on National Legislation is widely representatives of Friends throughout the United States, having members drawn from 22 of the 28 Friends' Yearly Meetings in the country, but it does not purport to speak for all Friends, who cherish their rights to individual opinions. Friends have had a long-satnding concern in the area of criminal justice and social equality, and have also had a history of involvement in the rights of Native Americans. That concern is currently expressed in a special programs which relates directly and exclusively wth Native American legislative issues.

Under existing federal law, the jurisdictional relationships between federal, state and tribal governments regarding prosecution of criminal offenses taking