STATE AND INDIAN COUNTRY AFFECTED

Alaska.-All Indian country within the State, except that on Annette Islands the Metlakatla Indian Community may exercise jurisdiction over offenses committed by Indians in the same manner in which such jurisdiction may be exercised by Indian tribes in Indian country over which State jurisdiction has not been extended.

California.-All Indian country within the State.

Minnesota.-All Indian country within the State, except the Red Lake Reser

vations.

Nebraska.-All Indian country within the State.

Oregon.-All Indian country within the State, except the Warm Springs Reservation.

Wisconsin.-All Indian country within the State.

"(2) 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 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.

"(3) The areas listed in subsection (f) (1) and areas of Indian country subject to state criminal jurisdiction in any state which assumed such criminal jurisdiction pursuant to Section 6 or 7 of the Act of August 15, 1953 (67 Stat. 588), are excluded from the special jurisdiction of the United States described in Section 203 of Title 18, unless the United States has reacquired jurisdiction pursuant to Section 685 of this Act.

"(g) (1) In any case in which, pursuant to the provisions of Sections 2, 6, or 7 of the Act of August 15, 1953, 67 Stat. 588, the Act of February 8, 1887, 24 Stat. 390, the Act of May 8, 1906, 34 Stat. 182, the Act of June 25, 1948, 62 Stat. 827, the Act of July 2, 1948, 62 Stat. 1224, the Act of September 13, 1950, 64 Stat. 845, the Act of August 8, 1958, 72 Stat. 545, the Act of April 11, 1968, 82 Stat. 78, or the Act of November 25, 1970, 84 Stat. 1358, or court decisions, any area of Indian country or person therein is subject to state criminal jurisdiction or law, the Indian tribe affected is authorized to adopt resolutions indicating its desire (1) to have the United States reacquire all or any measure of such criminal jurisdiction and to have all or any measure of the corresponding criminal law of the state no longer applicable, and (2) to determine whether tribal criminal jurisdiction or law shall be concurrent with all or any measure of federal or state criminal jurisdiction or law.

"(2) Any such resolution shall be adopted by the tribal council or other governing body of such tribe, or shall be adopted by the initiative or referendum procedure contained in the tribal constitution and bylaws; provided, however, that if the tribal constitution and by-laws contain no initiative or referendum procedure, the resolution may be adopted by majority vote of the eligible voters who are enrolled members of the tribe residing on its reservation in a referendum election upon a petition signed by at least 25% of the eligible voters of the tribe who are enrolled members residing on its reservation.

"(3) Ninety days following receipt by the Secretary of the Interior of any such resolutions adopted in accordance with the provisions of this Act, the resolution shall be effective unless the Secretary of the Interior has within that period formally disapproved the resolution for the reason that (1) the tribe has no applicable existing or proposed law and order code, or (2) the tribe has no plan for fulfilling its responsibilities under the jurisdiction sought to be reacquired or determined.

"(4) Whenever the resolution shall become effective, (1) the United States shall reacquire, in accordance with the provisions of the resolution, all or any measure of such criminal jurisdiction in such area of Indian country or parts thereof occupied by the tribe, and all or any measure of the corresponding criminal law of the State shall no longer be applicable therein, and (2) tribal criminal jurisdiction or law shall, in accordance with the provisions of the resolution, be concurrent with all or any measure of federal or state criminal jurisdiction or law.

"(5) Upon disapproval by the Secretary of any such resolution, the Secretary shall immediately assist the tribe under subsection (j) hereof in preparation of a law and order code or plan, and when such inadequacies are alleviated, the Secretary shall approve the resolution. In the event of disapproval by the Secretary of any such resolution, the tribe affected may appeal the disapproval to the Federal Court for the District of Columbia in which original jurisdiction for any such appeal is hereby vested, and the Secretary shall have the burden of sustaining his findings upon which the resolution was disapproved.

"(h) No action or proceeding pending before any court or agency of any State immediately prior to the reacquisition or determination of jurisdiction pursuant to this Act shall abate by reason thereof. For purposes of any such action or proceeding, such reacquisition or determination of jurisdiction shall take effect on the day following the date of final determination of such action or proceeding. (i) Section 6 of the Act of August 15, 1953 (67 Stat. 588) is hereby repealed, but such repeal shall not affect any cession of jurisdiction validly made pursuant to such section prior to its repeal.

"(j) (1) The Secretary of the Interior is authorized and directed to establish and implement programs to improve law enforcement and the administration of justice within Indian reservations and Indian country.

"(2) In implementing such programs the Secretary is authorized to make grants to, and contracts with, Indian tribes, to implement programs and projects

to

"(a) determine the feasibility of federal reacquisitions of jurisdiction and determination of jurisdiction over such Indian country or parts thereof occupied by such tribes, including preparation of law and order codes, codes of criminal procedure, and establishment of plans for fulfilling tribal responsibilities under the jurisdiction sought to be reacquired or determined;

"(b) establish and strengthen police forces of the tribes, including recruitment, training, compensation, fringe benefits, and the acquisition and maintenance of police equipment;

"(c) establish and improve tribal courts in order to assure speedy and just trials for offenders, the appointment, training and compensation of qualified judges, and the appointment, training and compensation of qualified Indian prosecution officers, and the establishment of competent legal defender programs; "(d) establish and maintain correctional facilities and establish and strengthen correctional personnel departments, including recruitment, training, compensation, and fringe benefits.

5. Sec. 686. Application of Indian Liquor Laws.

(a) Intoxicants Dispensed in Indian Country.—

(1) Whoever sells, gives away, disposes of, exchanges, or barters any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, except for scientific, sacramental, medicinal or mechanical purposes, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian to whom an allotment of land has been made while the title to the same shall be held in trust by the Government, or to any Indian who is a ward of the Government under charge of any Indian superintendent, or to any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and whoever introduces or attempts to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both.

(2) It shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under authority, in writing, from the Department of the Army or any officer duly authorized thereunto by the Department of the Army, but this subsection shall not bar the prosecution of any officer, soldier, sutler or storekeeper, attache, or employee of the Army of the United States who barters, donates, or furnishes in any manner whatsoever liquors, beer, or any intoxicating beverage whatsoever to any Indian.

(3) The term "Indian country" as used in this section does not include feepatented lands in non-Indian communities or rights-of-way through Indian reser

vations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.

(b) Intoxicants Possessed Unlawfully-Whoever, except for scientific, sacramental, medicinal or mechanical purposes, possesses intoxicating liquors in the Indian country or where the introduction is prohibited by treaty or an Act of Congress, shall, for the first offense, be fined not more than $500 or imprisoned not more than one year, or both; and, for each subsequent offense, be fined not more than $2,000 or imprisoned not more than five years, or both. The term "Indian country" as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto.

(c) An Indian tribe having jurisdiction over Indian country, as defined in Section 685 (a) of this Act, may adopt ordinances concerning dispensing, possession, and use of liquor in Indian country over which it has jurisdiction, in conformity with the laws of the State in which the Indian country is located, the provisions of subsections (a), (b), (d), (e) and (f) hereof notwithstanding. Such ordinances shall be certified by the Secretary of the Interior and published in the Federal Register.

Nothing in this subchapter shall alter the effectiveness of ordinances heretofore adopted by Indian tribes, certified by the Secretary of the Interior, and published in the Federal Register pursuant to the Act of August 15, 1953, (67 Stat. 586).

(d) Liquor Violations in Indian Country.-If any superintendent of Indian affairs, or commanding officer of a military post, or special agent of the Office of Indian Affairs for the suppression of liquor traffic among Indians and in the Indian country and any authorized deputies under his supervision has probable cause to believe that any person is about to introduce or has introduced any spirituous liquor, beer, wine, or other intoxicating liquors named in Section 686(a) and (b) of this title into the Indian country in violation of law, he may cause the places, conveyances, and packages of such person to be searched. If any such intoxicating liquor is found therein the same together with such conveyances and packages of such person shall be seized and delivered to the proper officer, and shall be proceeded against by libel in the proper court, and forfeited, one-half to the informer and one-half to the use of the United States. If such person be a trader, his license shall be revoked and his bond put in suit.

Any person in the service of the United States authorized by this section to make searches and seizures, or any Indian may take and destroy any ardent spirits or wine found in the Indian country, except such as are kept or used for scientific, sacramental, medicinal, or mechanical purposes or such as may be introduced therein by the Department of the Army.

In all cases arising under this section and Sections 686 (a) and (b) of this title, Indians shall be competent witnesses.

(e) Intoxicating Liquor in Indian Country as Evidence of Unlawful Introduction. The possession by a person of intoxicating liquors in Indian country where the introduction is prohibited by treaty or Federal statute shall be prima facie evidence of unlawful introduction.

(f) Conveyances carrying liquor.—Any conveyance, whether used by the owner or another in introducing or attempting to introduce intoxicants into the Indian country, or into other places where the introduction is prohibited by treaty or enactment of Congress, shall be subject to seizure, libel, and forfeiture.

6. Sec. 687. Destroying Boundary and Warning Signs.

Whoever knowingly destroys, defaces, or removes any sign erected by an Indian tribe, or a Government agency (1) to indicate the boundary on an Indian reservation or of any Indian country as defined in Section 685 of this Act, or (2) to give notice that hunting, trapping, or fishing is not permitted thereon without lawful authority or permission, is guilty of an offense under Section 1703 of title 18, United States Code.

7. Sec. 688. Hunting, Trapping, or Fishing on Indian Land.

Notwithstanding the provisions of Section 1713 of title 18, United States Code, whoever, without lawful authority or permission, knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either is held by the United States in trust or is subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for

Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, is guilty of a Class B misdemeanor; and all game, fish, and peltries in his possession shall be forfeited.

Sec. 695. Section 6 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450d) is repealed.

Sec. 696. Section 105 (j) of the Indian Self-Determination Act (25 U.S.C. 450i) is amended by deleting "sections 205 and 207 of title 18" and inserting in lieu thereof "sections 9104 and 9106 of title 5."

Sec. 697. Section 10(c) of the Act of April 19, 1950 (25 U.S.C. 640 (c)), is amended by deleting "sections 102 to 104, inclusive, of the Revised Statutes, and inserting in lieu thereof "sections 103 and 104 of the Revised Statutes of the United States and sections 1332 and 1333 of title 18, United States Code."

Sec. 698. The Act of April 11, 1968 (25 U.S.C. 1301 et seq.), is amended as follows:

(1) Section 202 (7) (25 U.S.C. 1302 (7)) is amended by deleting "six months or a fine of $500" and inserting in lieu thereof "one year or a fine of $10,000." (2) Section 403 (a) (25 U.S.C. 1323(a)) is amended by deleting "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", and inserting in lieu thereof "sections 2, 6, or 7 of the Act of August 15, 1953, 67 Stat. 588, the Act of February 8, 1887, 24 Stat. 390, the Act of May 9, 1906, 34 Stat. 182, the Act of June 25, 1948, 62 Stat. 827, the Act of July 2, 1948, 62 Stat. 1224, the Act of September 13, 1950, 64 Stat. 845, the Act of August 8, 1958, 72 Stat. 545, the Act of April 11, 1968, 82 Stat. 78, the Act of November 25, 1970, 84 Stat. 1358, Sec. 685 (f) of the Criminal Justice Reform Act of 1975, or court decisions.

Senator HRUSKA. Our next witness will be Mr. James B. Hovis, who has given us a very extensive treatment of the subject he deals with. His statement will be placed in the record in its totality.

Mr. Hovis. Mr. Chairman, I would like to request that the staff and the committee look at that appendage very closely. It is a report that has been done by a professor from the University of Washington, making a total overview of the effect of Public Law 83-280 in the State of Washington, and all the citations and all of the material therein.

And it also deals with the effect of Public Law 83-280 and the status of Public Law 83-280 in every State in the United States. I think it would be helpful to have it all in the record.

Senator HRUSKA. Very well, you will find we are very liberal in these things.

[The prepared statement of James B. Hovis follows:]

STATEMENT OF YAKIMA INDIAN NATION

SUMMARY STATEMENT

While S-1, introduced January 15, 1971, is more sensitive to the special problems in Indian Country than it's predecessors, it still leaves much to be desired. The Yakima Indian Nation, must therefore object to its passage in its present form and does request that the Judiciary Committee amend S-1.

S-1 would extend the entire federal code of enclave laws from murder to disorderly conduct-to Indian Country without regard to the laws of the Indian Tribe or the wishes of the sovereign Indian Nations involved. We suggest an amendment to cover this area.

While Section 205(a)(2) states that jurisdiction of the tribes or states shall not be pre-empted, it does not make clear that this bill does not increase the present jurisdiction of states or tribes nor does it make clear that tribal and state jurisdiction is concurrent. We suggest an amendment to cover this area.

S-1 does not provide an "exception clause" as contained in 25 USC 1152, so as to prohibit actual double jeopardy where an Indian has been punished by the local law of the tribe.

In order to prevent double and triple jeopardy, this clause should be retained and expanded to include those punished by either tribal or state law. We suggest an amendment in this regard.

Section 685 (b) (State jurisdiction over Indian Country) is simply a reenactment of 18 USC 1162. There are several objections to this approach. First, S-1 makes no provision for the retrocession of state jurisdiction, in whole or part, where state jurisdiction is not working and where the trible is capable of maintaining law and order. It fails to clear up the question of whether state jurisdiction in state assumption areas is exclusive or concurrent and whether states may assume jurisdiction without the consent of the tribes. Likewise, S-1 should make clear that state jurisdiction does not include the power to tax or regulate trust resources. We suggest amendments in this regard.

STATEMENT

A. Tribal consent should be required

The place of Indian tribes and nations in our federal scheme of things is a special area. They are dependent sovereigns who were to have, as regards their internal affairs, exclusive control of their destiny and their territorial reserved areas.

The reading of Chancellor Kent's Opinion in Goodell v. Jackson, 20 John 693 (N.Y. 1823) and Chief Justice Marshall's opinions in Johnson v. McIntosh, 8 Wheat 543, 5L. Ed. 681 (1823), Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed. 25 (1831) and Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1823) together with the discussion of the status of Indians justice in Story's Commentaries on the Constitution. Vol. III Sec. 1101 and in Chancellor Kent's Commentaries on American Law (Vol. III, P. 382, 386), cannot lead anyone to other than the conclusion that at the time of the formation of our union, the Indian Nations or tribes took their place in our scheme of government as dependent sovereigns and as regards their internal affairs, were to have the exclusive control of their destiny.

Our Supreme Court continues to follow this rule of law. (For example, see McClanahan v. Arizona State Tax Commission, 411 US 164, 36 L.Ed. 2d 129, 93 Sup. Ct. 1257 (1973).

The Yakima Nation's treaty contains these promises and guarantees. Article 2 of the Treaty of the Yakimas, (12 Stat. 951), provides that the Yakima Reservation shall be "for the exclusive benefit of said confederated tribes and bands of Indians, as an Indian Reservation; nor shall any whiteman, excepting those in the employment of the Indian Department be permitted to reside upon said reservation without permission of the tribe and the superintendent or agent." Persons residing on the Yakima Reservation have given their implied consent to be subject to federal and tribal jurisdiction. The Yakima Nation has not given its consent to be subject to federal laws except as to matters within the commerce clause (Article I, §8 C1. 3) of the United States Constitution,-matters regarding the administration of resources held in trust by the United States, or matters based on the dependency of this nation on the United States (See: United States v. Kagama, 118 U.S. 375, 6 S. Ct. 1109, 30 L.Ed 228 (1803) cited with approval in McClanahan, supra). Article 8 of the Treaty with the Yakimas (see appendix page 5), as compared with other concurrently executed treaties (see for example, Article 6 of the Treaty with the Tribes of Middle Oregon (12 Stat. 951, appendix page 7), provides that the Yakima Nation is not subject to federal laws as regards its internal matters. Likewise, the State of Washington, at the time of its formation, as required by Congress, disclaimed all jurisdiction over Indian lands in the State of Washington (Washington Constitution Article XXVI, appendix page 11). This article is mandatory (Article I. Section 29, Appendix, p. 11). Article XXVI of the Washington Constitution has not been amended as provided in Article XXIII. (See appendix, p. 11).

It is the contention of the Yakima Indian Nation that federal enclave jurisdiction should not, and cannot under treaties like the Treaty with the Yakimas, be impressed upon Indian tribes or nations without their consent. We therefore suggest the following amendment be added to Section 103: "This title shall not apply to Indian country, as defined herein, until such time as the consent of the Indian tribe, nation, band, community, group or pueblo, occupying the particular Indian country or part thereof which would be affected has been obtained and published in the Federal Register. Thirty