appeal and yet has been held in contempt of the invalid order in Dickinson v. U.S. while another appellate court has upheld a newspaper's right to violate an invalid gag order.

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Some members of the media have felt they ought to obey gag orders, even when they directly forbid publication of editorials and stories about a particular case, in flat contradiction of the doctrine of Near v. Minnesota.63

Today, no one in the news media, in the bar or on the bench, knows what the law is and we respectfully submit that the Congress, as a matter of public policy, has an opportunity to resolve the growing conflict.

We think of course that any order against the press prohibiting publication of any information relating to the criminal justice process is an unconstitutional prior restraint under the doctrine of Near v. Minnesota. However, we also believe that the Supreme Court may find that there are rare instances when these orders may be justified; and for that reason we would not ask the Congress in the Federal Rules of Criminal Procedure for the United States district courts to bar all orders of whatever nature under any circumstances. We would, however, suggest to the Congress that it may be able to offer a solution to this problem by giving the press a procedural due process guarantee in the issuance of any orders which restrict publication about the criminal justice process.

In 1972, this Committee conducted a survey of most of the significant media gag order cases, and this study revealed the rather startling fact that in no single litigated case that was surveyed had there been a semblance of procedural due process afforded to the parties most affected-the news media. That is, in no case were the media given notice, an opportunity to be heard or the chance to present evidence in advance of an order restricting their coverage of public proceedings.

Therefore, we would suggest to the Congress that they bar the federal courts from holding any newspaper in contempt of any order barring publication of information about federal criminal trials if the order has not been published and if the news media has not been published and if the news media has not been given an opportunity to present evidence on its behalf, to obtain written findings of fact and to appeal on an extracted basis before the order goes into effect.

Perhaps the most controversial development in this field occurred in the Dickinson case when the United States Court of Appeals for the Fifth Circuit ruled that a newspaper in Baton Rouge was properly held in contempt because it violated a gag order which the Fifth Circuit subsequently found was invalid under the First Amendment. We would hope that the Congress, under its powers to control the use of criminal contempt and under its power to control the federal rules of criminal procedure, would attempt to settle the gag order situation insofar as it applies to federal criminal proceedings by drafting a provision which would prohibit the execution of any contempt order against the news media and it has been heard on appeal and the automatic voiding of the contempt citation if the appellate court finds that the underlying order was itself invalid under the statutes of the United States or the Constitution.

OTHER ACCESS PROBLEMS TO THE CRIMINAL JUSTICE PROCESS: ARRESTS

Another problem which the news media is now being faced with is a growing move under the guise of privacy, to seal arrest records. Proposals were submitted by former Senator Ervin to limit the availability of public arrest and conviction records. There is a regulation which has been published but not implemented by the Law Enforcement Assistance Administration, and there are numerous court decisions in cases filed by individuals seeking to seal their arrest records.

The most notable of these cases has occurred in the District of Columbia in Murphy v. Sullivan 6 in which the United States Court of Appeals has ordered

61 Dickinson v. United States, 414 U.S. 979 (1973).

62 State v. Sperry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), cert. denied sub. nom.

63 Near v. Minnesota, 283 U.S. 697 (1931).

64 Id.

65 Dickinson v. United States, 414 U.S. 979 (1973).

66 Murphy v. Sullivan, 478 F. 2d 938 (D.C.D. 1973).

the expungement of the identities of thirteen thousand persons arrested in the May Day demonstrations and the identities, when known, of the policemen who arrested them.

It is the position of this Committee that the most fundamental power of the state is to deprive a person of his liberty and that the act itself of depriving a person of his liberty should always be a matter of public record regardless of whether the act itself is subsequently declared unconstitutional or whether the act is subsequently declared invalid for other reasons such as lack of evidence for prosecution, death of the witness, or just a mistake in law.

The advantages of maintaining public access to arrest records are obvious, especially to arrests which are subsequently dismissed. They may be dismissed because the law enforcement officer was subjected to undue political pressure to drop the arrest. They may be dismissed because the law officer was bribed. The arrested person may be a public figure now, or he may be a public figure in the future, and it certainly would be of interest to the public to know that he was arrested and the circumstances under which he was able to have the arrest dismissed. It is the position of this Committee that the news media and the public must have free access to records which indicate the deprivations of liberty of a citizen and that these records should contain at least the minimum information indicating conformity with the probable cause requirements of the Fourth Amendment the identity of the person who was arrested, the location where he was arrested, the charge he was arrested upon, the person who arrested him and the complaining witness. We would hope, in view of the extensive litigation in the courts on this subject, that the Congress would find it appropriate in these Federal Rules to insure for the public by some affirmative statement that records of arrests with warrants and arrests without warrants (and searches with warrants and without warrants) shall forever be a matter of public record for any citizen to inspect at his will.

ACCESS TO CONVICTION RECORDS

We would raise a similar suggestion with reference to Section 527, the proposed amendment in S-1 to the Judicial Procedure Act relating to conviction records. That section authorizes the Attorney General to maintain in the Department of Justice "a repository of records and convictions and determinations of the validity of such convictions." We are, however, disturbed by Subdivision (c), "Records maintained in the repository shall not be public records, but certified copies of the records" and they "may be furnished for law enforcement purposes on the request of a court, law enforcement officer, or officer of a facility for the confinement of convicted offenders * * *"

We cannot understand why a public record on file in a United States District Court should not be available upon request from the Justice Department if the Justice Department maintains a certified copy of such record. The Justice Department is a public agency and certainly it should be able to use the certified copies of records for its own purposes. But under the statute the public is denied the benefit of the Justice Department file. However, any law enforcement agency whether it be federal, state or local, can simply query the Justice Department on how many convictions it has on file for Mr. X. and the local county police chief can obtain the information and yet the local newspaper cannot. We can see no reason for denying to the public or the press the benefits of the collection and collation system maintained in the Justice Department at public expense and not giving the press the same access to certified copies of public records that this statute would give to any local police chief or court.

ACCESS TO FEDERAL CORRECTION INSTITUTIONS

As this Subcommittee knows, the correctional institutions in this country are the subject of a great deal of controversy and public interest because the public depends so much on the correctional facilities to rehabilitate convicted offenders.

However, the Subcommittee must be aware that prisons are probably the least reported and least understood public institutions in the country because traditions have developed which have denied news reporters any effec

tive access to the institutions. This tradition of internal secrecy was furthered recently by the Supreme Court when it held in the cast of Washington Post V. Sarbe $7 by a vote of 5 to 4 that the news media had no constitutional right to have confidential interviews with inmates.

The news media, of course, considers the confidential interview with a particular inmate to be the most effective way to obtain information about a prison system. Inmates who are interviewed in the presence of prison officials are likely to be less than candid about conditions because of the ease of physical retribution and the power that prison officials have over their early release on parade.

Thus, while the Supreme Court has said that the news media has no constitutional right to talk to the inmate nor does the inmate have a constitutional right to talk to the news media, the Congress certainly has the power to require the Federal Bureau of Prisons and any state prisons receiving Federal funds interviews between news reporters and inmates during normal working hours and under normal prison conditions.

S-1 has given extensive consideration to the organization of the Federal Bureau of Prisons in Chapter 38. But unfortunately, we see no provision for confidential interviews or other news media access to the prison system in order to inform the public how these vital institutions are operating to rehabilitate our convict population. We would respectfully hope that the Subcommittee would take the opportunity that it has in issuing rules and regulations for the Federal Bureau of Prisons to affirmatively require the prison administrators to permit confidential interviews.

In the Supreme Court case of Washington Post v. Saxbe a 5-4 majority agreed with the Federal Bureau of Prisons that interviewing a particular inmate would make him a "big man" and would encourage him to be a leader of internal prison disorders, and therefore the Court permitted the Bureau to bar all confidential interviews.

However, several states have policies of permitting confidential interviews and their prison administrators believe that permitting inmates to talk to the press in fact decreases internal tensions inside penal institutions because it offers the inmate the opportunity to get his dissatisfaction and criticisms out to the public. We would hope that this Subcommittee would believe that for the good of the inmate, for the good of the prison administrators and certainly for the good of the public which is bearing the extraordinary cost of these institutions that the Congress would take this opportunity to encourage the freest flow of information about prison institutions within the limitations imposed by the penal setting.

CONCLUSION

We know that this has been a rather long statement about S-1, and certainly there are many provisions, such as the question of news media access to pre-trial discovery information, news media ability to get at parole information records, and other features of the bill which are of great interest. However, we believe that this statement is long enough and this Committee would, upon the invitation of the Subcommittee, be pleased to co-operate in any further way and to offer to this Subcommittee its expertise on legal problems which now concern the press in its desire to inform the public about the type of society we live in. We thank you.

Senator HRUSKA. That is fine. Again, I say your appearance here is very much appreciated. You have doubly enriched our record with your first appearance and your appearance this morning.

Thank you for the comprehensive memorandum that you left with us.

The committee will take a brief recess, and it will be resumed at the order of the Chair.

[A recess was taken.]

Washington Post v. Sazbe, U.S. Supreme Court Case No. 73-1265. " Id.

Senator HRUSKA. The subcommittee will come to order.

We will now hear from Mr. Robert Pirtle, who has submitted a statement which we will put in the record in its totality.

Mr. Pirtle, you may now proceed to highlight it so that we can abide by the time limitation which are forced upon us.

[The prepared statement of Mr. Robert Pirtle follows:]

PREPARED STATEMENT OF MR. ROBERT PIRTLE

Mr. Chairman and Honorable Subcommittee Members: This statement is being filed on behalf of the Colville, Lummi, Makah and Suquamish Indian Tribes whose reservations are situated in Washington, the Metlakatla Indian Community whose reservation is situate in Alaska, and the Northern Cheyenne Indian Tribe whose reservation is situate in Montana.

Like most of the Indian tribes in America today, our tribes have been making steady progress year by year in modernizing and expanding the operation of tribal government to the end that our reservations will be well governed and the lives of all reservation residents improved. In the process, we have modernized our governmental systems, expanded our governmental programs, upgraded the quality of our staff personnel and made use of every source of technical knowledge available to us.

We have learned from hard experience that long disuse of governmental power has in many cases resulted in the usurpation of this power by local state and county units of government. Often the assertion of tribal rights of self-government have been met by ridicule and opposition from non-Indians unfamiliar with the law governing the rights of Indian tribes. But we are committed to the principle of self-government or "home rule" in accordance with the President's enunciation of our new national Indian policy made in the historic speech to Congress on July 8, 1970:

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"... Self-determination among the Indian people can and must be encouraged without the threat of eventual termination. In my view, in fact, that is the only way that self-determination can effectively be fostered.

"This, then, must be the goal of any new national policy toward the Indian people; to strengthen the Indian's sense of autonomy without threatening his sense of community."

This policy of Indian self-determination has now been embodied in the Indian Self-Determination and Education Assistance Act, Public Law 93-638 (S. 1017) on January 4, 1975. In Section 2 of the Act, Congress finds that "the Indian people will never surrender their desire to control their relationships both among themselves and with non-Indian governments, organizations, and persons." And in Section 3 of the Act, Congress declared its policy to be the following:

"The Congress declares its commitment to the maintenance of the Federal Government's unique relationship with and responsibility to the Indian people through the establishment of a meaningful Indian self-determination policy which will permit an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services." (Emphasis supplied).

We believe we have the full support of the United States government in our efforts toward achieving a real self-determination including revitalization of our Law and Order Codes and our court systems.

It is for that reason that we think it would be tragic if your Subcommittee were to act upon federal criminal legislation in a way which inadvertently dealt a damaging and perhaps fatal blow to our efforts at home rule. We applaud your effort to modernize the existing federal criminal laws through S. 1 as we applauded the effort of the 93rd Congress. Many provisions of S. 1 will be of benefit to Indian tribes everywhere. However, we wish to address ourselves to those provisions which we think would create a serious invasion of sovereign governmental rights of Indian tribes.

1. S. 1 WOULD NEEDLESSLY EXPAND FEDERAL CRIMINAL JURISDICTION OVER INDIANS AND INDIAN RESERVATIONS

S. 1 includes 33 new crimes not included in the existing Federal Criminal Code and, as drafted, would make them applicable to all Indians on all Indian reservations. Time has not permitted that we analyze each of the newly added 33 crimes, but experience dictates that because of the special status of American Indians and Indian tribes, activities which are properly criminal if performed by non-Indians might be appropriately performed by Indians because of cultural or sociological factors and might even be protected by treaty agreements. The status of Indian reservations as "distinct political communities", Worcester v. Georgia, 6 Pet. 515 (1832); Williams v. Lee, 358 U.S. 164 (173), dictates that an in-depth analysis be made of the 33 crimes to determine which if any are properly applicable to Indians and Indian reservations.

We urge that S. 1 not be enacted in its present form because of its needless expansion of federal criminal jurisdiction over Indians and Indian reservations. We also urge that field hearings be held to develop a factual background regarding these 33 crimes with emphasis on existing law enforcement and judicial systems on Indian reservations and their ability to deal with the subject matter involved.

2 S. 1 WOULD NEEDLESSLY ASSIMILATE ALL STATE LAW INTO FEDERAL CRIMINAL JURISDICTION OVER INDIANS AND INDIAN RESERVATIONS

Section 1863 of S. 1, entitled "Violating State or Local Law in an Enclave" is the revised version of The Assimilative Crimes Act, 18 U.S.C. § 13 which is a part of the existing Federal Criminal Code. Section 1863 provides, in effect, that a person is guilty of a crime as a matter of federal law if his conduct violates the law of the state in which the Indian country is situate even though his conduct does not violate the Federal Criminal Code otherwise. This Section, operating through Section 203 (a) (3) which defines the special territorial jurisdiction of the United States as including "the Indian country, to the extent provided under section 685 of the Criminal Justice Reform Act of 1975 (25 U.S.C.)" results in an enormous expansion of federal criminal jurisdiction. The net effect is to make every state law sanctioned by criminal penalties applicable in all Indian country in the United States. This result is a major change in existing law and is exactly contrary to the will of Congress expressed in Public Law 90-284, the Indian Civil Rights Act of 1968 (62 Stat. 696).

The present state of the law is the following: 18 U.S.C. Section 1152 provides that the Federal Criminal Code, including the "Assimilative Crimes Act" (18 U.S.C. Section 13) applies in Indian countries with the following major limitation:

"This section shall not extend to 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." No such limitation appears in Section 203 (a) (3).

Further, in the Indian Civil Rights Act of 1968, 62 Stat. 696, Congress responded to the unanimous plea of American Indians to stop further encroachment of state laws in Indian country. A close examination of the almost 1280 pages of testimony elicited by Senator Ervin reveals that state law on Indian reservations has been a disastrous failure ever since it first began with the enactment of Public Law 83-280, 67 Stat. 588, in 1953. Section 406 of Public Law 90-284 requires the consent of a majority of the adult Indians in any Indian country prior to acquisition by the state of civil and criminal jurisdiction within the Indian country.

To allow a massive encroachment of state criminal law into Indian country through the back door of revision of the Federal Criminal Code with S. 1 as presently drafted, would frustrate the will of Congress expressed in the Indian Civil Rights Act and betray not only our tribes but all Indian people in the United States.