Now, is there any objection to the placing in the record of these papers, statements that I have suggested? Hearing no objection, it is so ordered. (The documents referred to follow :) Hon. WAYNE N. ASPINALL, U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY, Washington, D.C., March 27, 1968. Chairman, Committee on Interior and Insular Affairs, DEAR MR. CHAIRMAN: Your Committee has requested this Department's report on two identical bills, S. 1843 which passed the Senate in December of last year and H.R. 15122, and on a similar bill, H.R. 15419. President Johnson, in his recent message "The Forgotten American”, said: "A new Indian Rights Bill is pending in the Congress. It would protect the individual rights of Indians in such matters as freedom of speech and religion, unreasonable search and seizure, a speedy and fair trial, and the right to habeas corpus. The Senate passed an Indian Bill of Rights last year. I urge the Congress to complete action on that Bill of Rights in the current session.” We recommend the enactment of S. 1843. We note that the provisions of this bill have also been incorporated into H.R. 2516 by the Senate. Title I, which is modeled after the Bill of Rights in the United States Constitution, is in the form recommended by the Department in its report to the Senate Judiciary Committee in the 89th Congress. Some of the constitutional provisions which protect rights and freedoms of citizens from arbitrary action by the Federal Government have been held by the courts to be inapplicable with respect to Indian tribal governments in actions which affect their tribal members. The principal decisions involve the first amendment to the Constitution, and concern religious freedom. In the cases of Toledo v. Pueblo de Jemez, 119 F. Supp. 429 (D. N.M. 1954), and Natire American Church v. Navajo Tribal Council, 272 F. 2d 131 (10th Cir. 1959), the courts held that the guaranty of religious freedom does not restrain local tribal governments from actions that interfere with the freedom of religious choice of their members. Such absence of restraint on tribal governments flows from a time when Indian tribal governments were regarded as sovereign nations; when Indians were not even counted in the enumeration upon which congressional apportionment was based; and when much of what is now Indian country was unexplored wilderness. Through the 19th century the rights of citizenship were progressively applied: many Indian individuals and groups of individuals were made citizens by special Acts; and finally in 1924. by Act of Congress, all Indians not already made citizens became citizens of the United States and the States in which they resided. Since 1924 Indian citizenship and tribal freedom from constitutional restraint have been incompatible. Many tribes have adopted constitutions which contain provisions affording constitutional protection to their members. For example, the constitution of the Rosebud Sioux Tribe provides that its governing body shall have certain enumerated powers "subject to any limitations imposed by statutes or the Constitution of the United States." There has been no judicial decision, however, holding that language is enforceable in the Federal courts. Title I extends to the American Indian in his dealings with the Indian tribal governments basic rights and freedoms enjoyed by other citizens of the United States. These rights are specifically enumerated in the bill. Title II directs the Secretary of the Interior to prepare and recommend to the Congress by July 1, 1968, a model code to govern the administration of justice by courts of Indian offenses on Indian reservations. The Department now has a code, which is an operating code, rather than a model one. It is published in 25 C.F.R. 11. It applies only to tribes that have not adopted codes of their own, and only four tribes now use it. Two of those four are in the process of adopting their own codes. For its present limited use, the code has been adequate. The Senate Committee's report on this portion of the bill states: "The procedures in title 25 are outmoded, impractical, and fail to provide for an adequate administration of justice on Indian reservations. For example, under the existing code, the total number of challenges in selecting a jury, preemptory and challenges for cause, is three. Subpenaed witnesses are paid by the party calling them their actual traveling and living expenses incurred, if the court so direct, and the fee for jury duty remains 50 cents a day. Questions before the court regarding the meaning of laws, treaties, or regulations are frequently referred to the superintendent for his opinion even though he is not a lawyer and lacks a legal training. "A new model code is necessary if there is to be a sensitivity to our traditional and constitutional standards in Indian courts. A code applied uniformly to all Indian courts would also assure individuals subject to their jurisdiction the same rights, privileges, and immunities under the U.S. Constitution as are guaranteed other citizens of the United States being tried in a Federal court for similar offenses." While we might differ on the question of whether the present "operating" code is "outmoded", etc., we would agree that probably it could be improved and updated. We now encourage each tribe to adopt a code that conforms as much as possible to the law of the State involved. Our goal is to make the Indians a part of the States in which they reside. A model code could be drafted in a manner that is consistent with that effort. We note also that the bill calls for the development of a "model code," but it does not require the tribes to adopt all or any part of it. We believe that this is wise. Title III, which relates to State assumption of civil or criminal jurisdiction over Indian reservations, changes the present law now embodied in section 7 of Public Law 280, 83d Congress : (a) by requiring consent of the tribe occupying the reservation before a State may assume jurisdiction; (b) by making explicit an authority which we believe is now implicit— an authority to assume partial jurisdiction, or piecemeal jurisdiction, either by geographic area or by subject matter; and (c) by authorizing the United States to accept a retrocession of jurisdiction from any State that acquired jurisdiction under the present provisions of Public Law 280. The first of these changes is highly desirable. Our files are replete with resolutions and communications from many Indian groups urging this change. The change would do much to allay the fears, whether real or imagined, of the Indian people that they may be subjected to strange courts before they are ready, or before they are assured of fair and impartial treatment. The second change is a change of form and not a change of substance, because the present law permits the States to assume partial jurisdiction either by geographic area or by subject matter. Some of the States have in fact done so. For example, Nevada has assumed jurisdiction over limited areas. Idaho has assumed jurisdiction over limited subject matter (compulsory schools, public assistance, domestic relations, mental illness, juvenile delinquency, dependent children). Washington has assumed jurisdiction over both limited areas and limited subject matter. Inasmuch as this part of title III is a clarification rather than a change of present law, we have no objection to it. The third change gives the United States permissive authority to accept a retrocession of jurisdiction. It does not specify the official who may exercise the permissive authority on behalf of the United States. Presumably, it would be the Secretary of the Interior. Title IV creates a new crime of "assault resulting in serious bodily injury" within the Indian country. While we believe that the enactment of Public Law 89-707, 80 Stat. 1100, 18 U.S.C. 1153, 3242, makes unnecessary any further legislation relating to assault within the Indian country, we do not object to this additional crime. The law now covers assault with a dangerous weapon, assault with intent to commit rape, and assault with intent to kill. Title V provides that any application for a contract or agreement relating to the employment of legal counsel requiring approval of the Secretary of the Interior or the Commissioner of Indian Affairs will automatically be in full force and effect if approval is neither granted nor denied within a period of 90 days after application for approval is filed with the Secretary. On November 26, 1962, the Commissioner of Indian Affairs delegated authority to the Area Directors to approve tribal attorney contracts. Prompt action is now taken on proposed contracts or agreements for the employment of legal counsel by Indian tribes. When there is a delay in the approval of a contract or agreement for the employment of legal counsel, it is for the purpose of an investigation pertinent to the contract or agreement, which is necessary to protect the interests of the Indians. Practically all contracts require some changes to conform them to statutes and policies. At the present time the Area Director as his representative negotiates the necessary changes with the attorney, after which there is prompt approval. In some cases a contract is approved subject to agreement of the parties to a specified change. This procedure makes it possible for the contract to have an earlier effective date than would be possible if a new contract had to be drafted, executed, and resubmitted for approval. It would be a disservice to the tribes to preclude the use of this procedure. We believe that the present procedure is working satisfactorily, and that this title is not needed; however, we do not view it as significantly changing our present practices or procedures. We believe that we can act within the prescribed time. Title VI directs the Secretary of the Interior to revise and extend volumes 1 and 2 of Kappler, "Indian Affairs, Laws and Treaties". The revision is to include all treaties, laws, Executive orders, and regulations relating to Indian affairs in force on September 1, 1967. The revision must be kept up to date on an annual basis. We believe these proposals to be desirable and are prepared to carry them out. The Bureau of the Budget has advised that the enactment of S. 1843 in its present form is in accord with the President's program. Sincerely yours, HARRY R. ANDERSON, Assistant Secretary of the Interior. OFFICE OF THE DEPUTY ATTORNEY GENERAL, Washington, D.C., March 29, 1968. Hon. WAYNE N. ASPINALL, Chairman, Committee on Interior and Insular Affairs, DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on S. 1843, as passed by the Senate, a bill "To establish rights for individuals in their relations with Indian tribes, and for other purposes." This Department joins the President, of course, in urging that the Congress complete action on this bill, Title I of the bill would create a legislative bill of rights for Indians in relation to their tribal governments, patterned closely after the Bill of Rights in the United States Constitution. While in their relations with the Federal Government and State and local governments Indians possess the same rights and immunities under the Constitution as other citizens generally, the Constitution does not limit or restrict the power of tribal governments. Specifically, under existing law Indian tribes in their self-government are not bound by the Fifth or Fourteenth Amendments of the Constitution or other provisions of the Bill of Rights Barta v. Oglala Sioux Tribe, 259 F. 2d 553, 556-557 (C.A. 8, 1958), and Native American Church v. Navajo Tribal Council, 272 F. 2d 131 (C.A. 10, 1959). However, in a recent case Colliflower v. Garland, 242 F. 2d 369 (C.A. 9, 1965) the Ninth Circuit held that habeas corpus was available in a Federal court to an Indian under tribal sentence, suggesting that there are some limitations on the powers of an Indian tribe in relation to its members. The legislative bill of rights which would be provided by Title I does not impose standards on the tribes which they cannot meet, nor does it seriously impair their ability to function as tribal governments. Section 102 (1) secures the right to freedom of religion but does not restrict the establishment of religion by tribal governments. This is responsive to the theocratic nature of many tribal governments. To require a change would in effect challenge the basic structure of tribal society. Section 102(6) guarantees to the accused in a criminal proceeding the right to counsel at his own expense. The fact that this is a departure from recent United States case law requiring free counsel for indigents does not necessarily mean it is repugnant to modern judicial standards when viewed in the context of Indian court practices. In most Indian tribes there is no organized bar association. Thus, attorneys are not generally available to represent defendants. In addition, the prosecution in tribal courts is often informal and may be presented without the assistance of professional attorneys. Finally, the tribal cases generally deal with traditional and customary law where the expertise or trained counsel is not essential. Section 102 (8) protects the individual against tribal officials by requiring equal protection and due process principles. Section 102(10) secures the right to a jury trial of not less than six persons to any person accused of an offense punishable by imprisonment. The Federal right to a jury trial for all suits at common law involving more than $20.00 is generally considered a burden in modern judicial practice. The six rather than twelve-man jury is more adaptable to the nature of Indian tribal proceedings which often have an informal character. The Department of Justice believes that enactment of title I of this bill into law is extremely desirable. Title II of the bill would authorize and direct the Secretary of the Interior to recommend to the Congress for enactment a model code to govern the administration of justice by courts of Indian offenses. The code would provide for the same constitutional rights of criminal defendants as presently are recognized in Federal courts, and would also make provision for judges of the courts of Indian offenses. Apparently the code to be formulated would be made applicable only to those courts of Indian offenses governed by the Department of the Interior's law and order regulations (25 C.F.R. 11.1 et seq.), and not to tribal courts operating under tribal codes. There is some basis for suggesting that after the model code proposed by the bill is drafted, congressional action on it should be in the form of a mere recommendation that Indian tribes adopt the code, rather than imposition of its provisions by statute. The Department of Justice expresses no view on this matter. In any event tribes now administering their laws through tribal courts would be free to adopt the model code if they found its provisions con structive and desirable. So far as the Department of Justice is aware there is general agreement on the desirability of the provisions of title II dealing with establishing qualifications for and the training of judges of courts of Indian offenses. Indeed, the Department suggests that the Congress in the future should explore means of making legal training available for judges of tribal courts other than those designated as courts of Indian offenses. Title III of the bill would give the consent of the United States to assumption by States of civil and criminal jurisdiction on Indian reservations to the extent determined by a State and consented to by the tribe occupying the affected Indian country, would authorize acceptance by the United States of retrocessions of any measure of the jurisdiction which may have been acquired by States under Public Law 280, 83d Congress (act of Aug. 13, 1953, 67 Stat. 588), as amended; 18 U.S.C. 1162 and 28 U.S.C. 1360, and would repeal Section 7 of Public Law 280 which authorized States to assume civil and criminal jurisdiction over tribes without their consent. In general, States at the present time do not have jurisdiction over criminal offenses committed on Indian reservations by or against Indians, or over civil causes of action which arise on Indian reservations between Indians or as to which Indians are parties. However, Public Law 280, as amended, granted to six States (Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin), with certain exceptions, jurisdiction with respect to criminal offenses and civil causes of action arising in Indian country within such States. Section 7 of the Public Law, which title III would repeal, gave consent to States not having jurisdiction to assume it at such times and in such manner as the people of the State determined. It appears that three States (Florida and Montana, and Washington as to certain reservations) have assumed jurisdiction over Indian reservations within their boundaries under the last mentioned provision. A principal effect of title III would be to substitute for the present section 7 of Public Law 280 provisions (subsections 301 (a) and 302(a)) requiring tribal consent to assumption of Indian country jurisdiction. The President, in his March 6, 1968 message, urged the Congress to enact legislation providing for tribal consent before extensions of jurisdiction take place. The Department of Justice also urges the enactment of such legislation. In the interest of assuring maximum flexibility in absorption by States of civil and criminal jurisdiction over members of consenting tribes, the bill permits the jurisdiction so acquired to be limited both geographically and by subject matter. (Conversely, jurisdiction previously acquired pursuant to Public Law 280 could be retroceded selectively.) This Department has in the past emphasized the desirability from a law enforcement point of view of not adding to the complexity of the existing jurisdictional structure. For this reason States and consenting tribes should be encouraged to shift jurisdictional responsibility en bloc whenever possible. Retrocessions to the United States are subject to acceptance, presumably by the Secretary of the Interior pursuant to the authority of N U.S.C. 485 and 25 U.S.C. 2. Title IV of the bill would amend section 1153 of title 18, United States Code. That section provides that any Indian who commits certain crimes in Indian country shall be subject to the same laws and penalties as other persons committing these offenses in places within the exclusive jurisdiction of the United States. If an offense by an Indian on an Indian reservation is not defined here, or elsewhere by Federal law, it is punishable, if at all, only by tribal courts under tribal law. Title IV would amend existing law to include the offense "assault resulting in serious bodily injury” in section 1153. The assault statute applicable in places within the exclusive jurisdiction of the United States does not define or punish the offense set forth in title IV. The bill, also, provides no penalty for this offense. Consequently, any prosecution for the offense could be predicated only on the Assimilated Crimes Act (18 U.S.C. 13), and only in States in which such an assault is punishable under State law. Titles V and VI of the bill involve matters for which the Department of Justice does not have primary responsibility and, accordingly, we have no comments with respect to these titles. Subject to the comments and recommendations made above, the Department of Justice urges the enactment of this legislation. The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the Administration's program. Sincerely, Mr. LEWIS A. SIGLER, WARREN CHRISTOPHER, U.S. DEPARTMENT OF THE INTERIOR, Consultant on Indian Affairs, Committee on Interior and Insular Affairs, House of Representatives, Washington, D.C. DEAR MR. SIGLER: Your letter of March 16, 1968, requested answers to a number of questions relative to S. 1843. The questions and our responses are as follows: "1. In your opinion, would the right of a defendant in a criminal proceeding to have the assistance of counsel tend to disrupt some tribal court proceedings where neither judge nor prosecutor is an attorney? Explain." Comment: We believe that there could be some disruptive effect although our experience with the use of professional attorneys in tribal courts where the judge is not an attorney is so limited that we can do little more than speculate. What little experience we have had also indicates that the disruptive effect would vary with the degree of acculturation and sophistication of the Indian judge concerned. With even less experience as concerns prosecutors in tribal courts, we are not aware of any instance where a professional defense counsel has had any disruptive effect on the nonprofessional prosecutor. We do believe, however, that in general the presence of an attorney should be helpful. "2. Do some tribal courts prohibit participation by attorneys? How many? Comment: Tribal codes typically contain a provision that prohibits the practice of attorneys in tribal courts unless rules of court adopted locally permit the practice. We do not have definitive information regarding local rules of court, but our impression is that practice of attorneys is usually not permitted. We have been able to identify, however, five tribal codes that permit practice of attorneys. These are Fort Totten, Pine Ridge, Rosebud, Standing Rock, and Turtle Mountain. The pueblos in New Mexico have a traditional court system which is not coded. It is our understanding that attorneys are not permitted. |