tribe discontinued financial support and refused to make future payments because adequate police services were not being provided by the counties.

Response of Local Police-Our interviews revealed unanimous dissatisfaction with police responses to problems on the reservation. The Quinaults stated that failure of local police to come when needed, as well as their delay in arriving, made the local police "worthless". The same complaints were voiced in Lummi. At Yakima we were told, "When we call the outside police and they don't respond or take too long in arriving, we are forced to act ourselves. This is to keep the problem from becoming worse. In many cases we have no jurisdiction, but must act because no one else will." Most local law enforcement officers interviewed indicated that Indian problems on the reservation receive a low priority.

Specific Enforcement of the Law-We repeatedly heard the allegation, "I was stopped (arrested) just because of the color of my skin." There were numerous complaints that local police conduct road blocks, spot checks, etc., at places where mostly Indians pass. For instance, Indians said that almost all Indians are stopped but most non-Indians are waved on through at the entrance of the road leading to the Indian Health Service Hospital.

During tribal celebrations more police than are required appear at the celebration. The Indians feel they are being harassed. While these police are keeping surveillance on celebration areas, burglaries occur throughout the unprotected and unpatrolled portions of the reservation. It was also alleged that when monies are distributed to tribal members through tribal dividends or per capita payments the incidence of Indian arrests seems to rise.

Complaints about state policemen were widespread, mainly involving harassment. We were told of several incidents in which faultless Indian drivers were followed by state policemen for unreasonable distances, sometimes despite obvious violations committed by other drivers in the area.

The tenor of the reports and interviews indicates that Indian opinion of local and state police is very low. Most Indians do not consider these officials protectors. Some Indians consider the actions of these police officers as tantamount to extortion.

Distance-There were uniform complaints that the local authorities work out of offices too far away from reservations to render good service. The Makah Tribe is 73 miles from the county seat in Port Angeles. At Spokane, one county seat is 65 miles away, the other 40. At Colville, a similar situation exists. The distances at Quinault, Lummi, Kalispel and Yakima also cause serious problems. Because of these distances, much time is lost in responding to reservation complaints and with court appearances.

Understanding of Indians and Indian Problems-Lack of understanding by local authorities was a constant complaint. Likewise, many reservation residents do not understand the systems off the reservation. The tribal judges at Makah were particularly vocal on this point. Tribal members frequently contact them in order to find out what has happened in their off-reservation cases. Local officials rarely give explanations, even when asked. Many tribal judges spend much time investigating the outcome of county court matters in order to provide explanations to Indian parties in the cases.

The Swinomish Tribal Business Committee made comments which were echoed by leaders of other small tribes. The tribe petitioned for total state jurisdiction for financial reasons, the tribe being unable to afford the cost of law enforcement services. The law enforcement is better now, but not satisfactory. There is one Bureau of Indian Affairs trespass officer who spends part of one day at the reservation every two weeks. If the Swinomish could be funded to run their own law and order department they would do so. They would try to regain their jurisdiction because, they said, the local authorities do not understand Indians and some authorities don't even try.

Courts and Commitments-Many Indians are bitter over what they consider unfair treatment of Indians and Indian problems by the courts. A tribal police officer who is commissioned as a county sheriff stated that he cannot get convictions when he arrests non-Indians, but "when I bring in an Indian they throw the book at him". Officers of the Colville Reservation have filed over S00 complaints in the local county courts but have obtained only four convictions. County authorities have refused to serve legal papers on the reservation

because, they claim, it's too hard to find people. Tribal officials, however, never have this difficulty.

As reported earlier, the Greys Harbor County Court remands all cases involving Quinault juveniles back to the tribal court, under a cooperative arrangement with the tribe. Complaints were widespread about violations which had led to juveniles being removed from their families. There were charges that parents had not been informed when their children were scheduled to be in court or that they had been notified at the last moment. In some of these instances, county judges viewed the failure of the parents to attend as lack of concern for the children and the children were, therefore, removed from the home. Many Indians consider this "stealing" of children.

There were frequent complaints that County Court Judges do not explain defendants' rights to Indians. Indians also cite harsh sentences, claiming they receive greater punishment than non-Indians for the same offenses. In general, there appeared to be extensive distrust, hostility and frustration concerning local courts.

Quality of Local Law Enforcement-Tribal police officers were outspoken about the quality of law enforcement. Their greatest complaints concerned juvenile problems. One officer reported, "The juvenile situation is sad. There is one juvenile officer who covers about three or four counties. He seldom comes to the reservation and when he does he just scolds the kids and lets them off. The kids laugh in his face and then they laugh in my face because they know we cannot do a thing with them. When this juvenile officer leaves. the reservation, I have to live with these kids." Others made the same complaint and lamented that there was no action taken by the local authorities. on juvenile problems. "Sheriff's Officers release kids without holding them or doing anything. When we call them they come too late if they even bother to show up. We are getting a real hard time from kids who know we have no jurisdiction over them. Half of the time we don't let on that we have no authority over them because they would run wild."

Other officers reported, "State and County authorities do not enforce the laws. The problem has become worse since the state took over. The kids know we have no authority and make it hard for us. State officials will not eveir go onto deeded property where Indian families live, even though they have the authority to do so. The tribal police have to go there when the situation seems desperate. The tribal members don't trust the local police and courts, so they make complaints to the tribal court even when they know that the court does not have jurisdiction. All the tribal judge can do is give advice, but that's better than they get from the outside courts."

The specific problems we have discussed were examined in depth by the Colville Tribe. That tribe hired a survey team from Washington State University to study their law enforcement problems. The study was divided into two major phases:

(1) Examination of the arrest and court records of Okanagon and Ferry counties.

(2) Survey of the opinions of 85 Indians living on the reservation and of 132 non-Indians living both on and off the reservation.

After learning of this survey and examining its results, we interviewed the survey team for a better understanding of their findings. They admitted that they encountered much difficulty with the examination of the county records and that that portion of their work was inconclusive. With reference to the opinion sampling, they were convinced that their findings were representative.* Some of their findings are as follows:

Question. Generally speaking, when a crime is committed in this area, how hard do you believe the law enforcement officers try to solve the crime?

* Percentages not totaling 100% were gained by rounding.

33

18

29

10

27

6

Question. Generally speaking, how would you rank local police for promptness, respectfulness, attention to complaints, and protection?

Question. Generally speaking, do you think the law enforcement officers in this area are doing an excellent, good, fair or poor job of enforcing the laws?

Of the Indians interviewed, 73% felt the police did a fair or poor job, while only 35% of the non-Indians agreed. Of the non-Indians, 65% believed the police did an excellent or good job, whereas 28% of the Indians felt that way. It must be remembered that all the Indians questioned lived on the reservation while the non-Indians interviewed lived both on and off the reservation.

In order for such a strong opinion to be present, there must be some problem with the present system which cannot be dismissed as imagined or without merit. Many investigators have tried to obtain specific data to buttress these opinions but this is difficult.

The record examination phase of the Washington State Survey did not substantiate the Colville's charges of racial bias on the part of local authorities. The tribe counters the survey results by stating that valid conclusions could not be attained merely by examining bare county arrest and court records.

A Bureau of Indian Affairs representative assigned to the Colville, and an individual with vast experience in the State of Washington, including probation work in Yakima County, has stated:

"1. Ten percent of the total population of Okanogan and Ferry counties (Indians) account for 50% of the total persons arrested by the two counties.

"2. The process of "two-counting" * by enforcement officials is much more prevalent as applied to Indian people than it is for non-Indian people. The process of "two-counting", no matter what the perceived justification, grossly affects the Indian's ability to post bail.

"3. A far greater proportion of Indians received combinations of fine and jail sentences than their non-Indian counterparts. Again, no matter what the categorical justification, it appears to me that, in reality, the Indian is being punished for being an Indian, and, secondly, for being poor. This concept is supported further by the much higher percentage of Indians who must serve jail sentences in lieu of paying a fine."

Social services

Public Law 280 was a step towards the eventual termination of the special relationship between the federal government and all Indian tribes and communities. By adopting a policy of termination, the federal government sought to discontinue federal services provided to Indians and Indian tribes. They theorized that terminating federal services would place Indians on an equal basis with all other citizens and force them into the mainstream of American life. To do so, special services, such as law and order, along with many social services, were discontinued; Indians were then forced to turn to the states rather than to the federal government.

*Citing an arrested person for more than one offense committed at one time; for example, being drunk and disorderly and disturbing the peace.

The State of Washington was a key state for the policy of termination. There were many Indian tribes located within Washington. Some of these tribes controlled vast lands and resources while others had little or no resources. Reservations had large non-Indian populations living within their exterior borders. In some cases, these residents outnumbered the Indians living there. Reservation land had fallen into non-Indian ownership. To the nonIndians the special services provided to Indians were impossible to comprehend. They rationalized that Indians received all they required from the federal government, supported by their tax dollars, and thus, that Indians need not work. The myth that all Indians receive a monthly support check from the federal government is still widely believed.

Yet, in assuming jurisdiction over the Indians within its borders, Washington State expressly promised to assume responsibility for providing social services to its Indian citizens. Despite this express assumption of responsibility, even a cursory look at available statistics2 seems to indicate that Washington State is delivering fewer assistance benefits to its Indian citizens than to its nonIndian residents. Since Indians have a lower median age, educational level, and earnings level in the state, one might justifiably have expected the opposite to hold true.

Again, the incomplete figures available seem to indicate that Indians are incarcerated in state penal facilities at a greater rate than non-Indians. Conversely, they receive probation and parole at a lesser rate than do non-Indians. (The problems related to Indian probation have been recognized to the extent that the Indian Desk of the Law Enforcement Assistance Administration and the Indian tribes in the State of Washington are now evaluating a possible major program to deal with the problem.)

A detailed statistical study might well show that Washington State has not been discharging the duty it voluntarily took upon itself when it assumed jurisdiction over Indian reservations within its borders. The failure of the state to recognize its own failing in this matter, much less correct the situation, has, to a great degree, been responsible for the Indians' attitude toward the state.

Attitude of the Federal Government

If the reasons for Indian attitudes toward the state and toward state and local police have, in large part, been due to the attitudes of those in the state charged with responsibility for Indian problems, the same holds true for the federal government. The stance of the powers in Washington, D.C. regarding Public Law 280 has been as aggravating to Indians as the state's position.

A policy statement, in answer to the twenty questions propounded by the recent Caravan of Broken Treaties, was released by Presidential Advisors Leonard Garment and Frank Carlucci. They stated:

"Public Law 280 permits a state to acquire civil and criminal jurisdiction in Indian areas but only with the consent of the involved tribe. A state's assumption of jurisdiction under Public Law 280 is voluntary and whether a state repeals the law involved (or any other state law) is also within the discretion of the state. There is a provision in the Indian Civil Rights Act of 1968 which permits the states which have acquired jurisdiction under Public Law 280 to retrocede their jurisdiction back to the U.S. They are not required to do so at the request of the tribe.

"It is not true that Public Law 280 deprived any Indian Tribe of any of its civil or criminal jurisdiction over its members. The jurisdiction of the federal government over "major crimes" and under the Assimilated Crimes Act was divided and transferred to the states, but nothing in the Act strips the tribes of its powers.

"The Congress possesses the power to provide for the resuming of federal jurisdiction in Indian country where the states have acquired it under Public Law 280. The Congress, no doubt, would want to have the views of tribes which had consented to state jurisdiction before taking the action recommended under this proposal."

The above statement, issued on January 9, 1973, is the most current governmental policy statement on this issue. Much of this statement is erroneous, misleading and, at best, arguable. It is true that today a state may only acquire of extend its present jurisdiction with the consent of the tribes involved. But this was not the case from 1953 to 1968 when all jurisdiction was assumed.

All conclusions in this section are based upon 1972 statistics provided by the Washington State Department of Social and Health Services, figures found in the Council of Governments Book of States, 1972 and 1973, and upon 1970 census figures.

It is a fact that several tribes vigorously opposed states' attempts to assume jurisdiction. The first sentence of the statement makes it appear that all of the tribes under Public Law 280 consented to it. The following sentence is also misleading. There is no question that a state's decision about whether to assume jurisdiction was, between 1953 and 1968, solely a matter to be decided by that' state; however, the wording in the statement makes it appear that all tribes volunteered to be taken under the jurisdictional wing of the states.

In citing the 1968 Indian Civil Rights Act, the President's advisors stated that Congress permits the states to retrocede jurisdiction back to the United States. Technically, this is not true. Section 402 (a) only allows the United States to accept retrocession by a state; the act is silent as to state initiative or procedure. The Indian Civil Rights Act does not prescribe how retrocession is to be accomplished; it does not call for legislative action, executive proclamation, etc. It merely allows the federal government to accept the retrocession of any state.

Prior to presenting and analyzing the available means of returning either part or all of the jurisdiction to Indian reservations, we shall trace generally the history of vacillation in federal policy toward Indians, emphasizing events since 1950. Also to be examined in considerable detail is the assumption of jurisdiction over Indian reservations in the State of Washington under Public Law 280.

CHAPTER 1

A Short History of Federal Policy Vacillation Toward Indians

A. EARLY HISTORY

The history of federal policy toward Indians through the 19th Century and the first half of the 20th Century is marked by wide variations running the gamut from Supreme Court recognition of Indian tribes as sovereign, domestic dependent nations in the early 1830's, to a policy of dispersion and relocation in the late 1830's, to an allotment and assimilation policy in the 1880's. to rejection of the allotment policy and adoption of a tribal enhancement policy in the 1930's, and finally to a policy of paying off Indian tribes for lands wrongfully taken from them during the preceding 100 years or so.

1. About sovereignty-conquest

Chief Justice John Marshall of the United States Supreme Court in Cherokee Nation v. Georgia,1 decided in 1831, and Worcester v. Georgia, decided in 1833, defined the basic relationship of Indian tribes to the federal and state governments in terms that are still reiterated today. The court through Marshall said that an Indian tribe is a sovereign entity-a "distinct, independent, political community," "capable of managing its own affairs and governing itself", but, he said, the sovereignty of tribes is limited. Although they still retain qualified internal sovereignty, i.e., power to govern themselves as they see fit, they no longer have external sovereignty, í.e., the power to engage in international relations, such as making treaties with foreign nations, or in more modern times, belonging to the United Nations or bringing cases before the World Court. The external sovereignty of Indian tribes, as well as of the states, is exercised exclusively by the United States federal government.

The internal self-governing powers of an Indian tribe continues to exist, except as they have been modified by express federal legislation. This congressional power to enact such modifying legislation was first recognized by the United States Supreme Court in Cherokee Nation v. Georgia in 1831, and is there said to be based on conquest. This principle has since been affirmed in other cases, and is now generally conceded.

As in the external sovereignty area, the federal government has--as against the states-exclusive power in the internal sovereignty area. Thus, a state cannot apply its laws on an Indian reservation, thereby affecting Indian internal affairs and government, unless the federal Congress expressly delegates such power. Public Law 280 is an example of such specific federal authorization to the states.

The federal plenary power to enact laws concerning Indian internal tribal affairs may be exercised regardless of Indian opposition. In recent years, however, Congress has been giving increasing importance to Indian views and consent.