on commercial fishing on the river, should there not be a moratorium on commercial fishing offshore, in your opinion?

Mr. GERARD. In my judgment I think fairness would dictate a need for more of a cutback. While this is in another geographic area, the Indian tribes along the Columbia River, namely the Nez Perce, Yakima, Umatilla, and Warm Springs have objected strenuously that the compact they have entered into with the States has not been met because of the heavy ocean take.

Mr. MCCLOSKEY. Let me make sure I understood your answer. You said, if I understood you correctly, that fairness would dictate a moratorium on commercial fishing in the ocean this year?

Mr. GERARD. At least a modification to the current regulations. Mr. MCCLOSKEY. A modification of the existing ocean fishing regulations? I guess Mr. Leitzell can defend it later on when he testifies, but it seems to me if only 150 fish have gone through the mouth of the river thus far-and it is an emergency situation on the Klamath-then the emergency would justify letting every salmon that possibly can get up that river do so. Do you agree? Mr. GERARD. I think that is a fair statement, sir.

Mr. MCCLOSKEY. As far as enforcement, I note in the statistics that if you try your case in front of the bench, in 6 out of 7 cases you will be convicted, but if you try it in front of a jury you have better than a 50 percent chance of being acquitted. Can you describe the genesis of the Indian jury trial system that is now used to enforce Indian Klamath fishing?

Mr. GERARD. With your permission I would like to call on Mr. David Etheridge of the Solicitor's Office who has been addressing this issue.

STATEMENT OF DAVID ETHERIDGE, INDIAN AFFAIRS DIVISION, OFFICE OF THE SOLICITOR, DEPARTMENT OF THE INTERIOR

Mr. ETHERIDGE. My name is David Etheridge, in the Indian Affairs Division of the Office of the Solicitor in the Interior Department.

Mr. MCCLOSKEY. Did you understand my question? As a former prosecutor-there are a number of us in the Congress-the record of convictions before Indian juries is not very encouraging.

Mr. ETHERIDGE. That is true, although our record appears to be in some instances better in that regard.

Mr. MCCLOSKEY. Better than what?

Mr. ETHERIDGE. Better than some other people who have tried cases before Indian juries. At least that is what we are told in northern California.

Mr. MCCLOSKEY. With a 50-percent record of convictions in front of juries, most prosecutors would be fired.

Mr. ETHERIDGE. The reason there are jury trials is because this is a court of Indian offenses set up under part 11 of the Federal regulations of title 25. Those regulations call for a jury trial any time there is an issue of fact involved in the case. Further, under the new regulations, especially now that the offenses are punishable by imprisonment, the Indians also have a right under the Indian Civil Rights Act that requires a jury trial of those charges.

Mr. MCCLOSKEY. What is the reason for the low rate of convictions, in your judgment? Bad facts, bad evidence, bad prosecution? Mr. ETHERIDGE. Some of them were bad facts, yes.

Mr. MCCLOSKEY. Why were they prosecuted, then?

Mr. ETHERIDGE. For several reasons, I suppose. There was a feeling early on it was important to take a hard line on some of them.

Mr. MCCLOSKEY. Do you have available what facts were rendered against the defendants and what the ultimate decisions were?

Mr. ETHERIDGE. I do not have that available to me. This is a court of record.

Mr. MCCLOSKEY. Certainly your prosecutor's office maintains a record of why they brought the cases, what the facts were, and what the results were.

Mr. ETHERIDGE. That is correct.

Mr. MCCLOSKEY. Mr. Chairman, I wonder if we might have a summary in writing of those facts?

Mr. BREAUX. I just ask on behalf of the subcommittee that the gentleman so furnish a summary.

[The information follows:]

Facts. The defendants were contacted on the evening of August 3, 1978 near the mouth of the Klamath River. At the time of contact, they were engaged in what they described as a protest action. The United States Fish and Wildlife agents concurred with this assessment but concluded that the defendants were also fishing. The net was not seized as evidence. This decision was made at the time of contact and was predicated upon the following facts: the defendants, five women and a juvenile, were occupying two boats; had wrapped themselves in a gill net which was strung between the two boats; were demanding to be arrested and one of their number was pregnant. The agent-in-charge determined that the seizure of the evidence did not outweigh the risk of injury to the defendants. As a result, the agents seized only the anchors which were affixed to the base of the gill net. Law.-The defendants were charged with set netting in the drift netting zone of the Klamath River. The set netting zone is that portion of the river which runs from the mouth to the Highway 101 bridge. Regulation: 25 CFR 258.9.

Trial. The defense produced six witnesses all of whom testified that the defendants' sole purpose in being on the river on the night in question was to protest the federal regulations. The defendants acknowledged that they were using a gill net but contended that the net was old, fragmented and incapable of catching fish. The agents did not contest the defendants' First Amendment action but stated unequivocally that the net in question was large, functional and below the surface of the water at the time of the intial contact.

Verdict. The jury was unanimous in its decision that the defendants were not guilty of the charge.

The trial covered 101⁄2 hours and was completed in one day. The verdict was returned at approximately 9:30 p.m.

ALFRED M'COVEY-67-71

Facts.-Aerial surveys of the Trinity River were made by Special Agent Alva Weinrich on August 2, 18, 28 and September 1, 1978. On each of these flights, Agent Weinrich observed a net in the area of Bull Creek. The net was strung across the entire river and was firmly affixed to a series of fence posts. Information was received that these nets belonged to the McCovey family. On September 4, Agents of

the United States Fish and Wildlife Service and the California State Department of Fish and Game seized the net in question. They were met at the site by the defendant's son, Michael, who stated that the nets belonged to his family. The defendant was encountered on the highway above the net site at which time he acknowledged ownership of the nets.

Law. The defendant was charged with the following violations:

August 2: fishing on a closed day, 25 CFR 258.11(b); fishing during closed hours, 25 CFR 258.9(b); fishing with a net covering more than 3 of the wetted area, 25 CFR 258.9.

August 18: fishing during closed hours; fishing with a net covering more than 2/3 of the wetted area.

August 28: fishing on a closed day, fishing during closed hours; and fishing with a net covering more than 3 of the wetted area.

Sept. 1: fishing during closed hours.

Sept. 4: fishing with an unmarked net, 25 CFR 258.8(b); fishing during closed hours; fishing without a fisherman's identification card, 25 CFR 258.7(b); and fishing with materials set to form a trap, 25 CFR 258.9(d).

Trial. March 14, 1979.

This case presented some difficulty as the trial had originally been scheduled on January 26, 1979, and it had been impossible to proceed on that date due to a lack of jurors. At that point, jury selection was being conducted on the same day as trial. It had, therefore, been necessary for the prosecutor to summon and turn back the three government agents who had been called to testify on the date originally set for trial.

The case was rescheduled for trial on March 14. On March 13, the prosecutor was apprised of the fact that it was conjectural whether the jury commissioner would be able to produce a sufficiently large jury panel to proceed to trial. The prosecutor, therefore, contacted the agents in question and informed them that the trial was cancelled. Later in the day, he was told that there would, in fact, be enough jurors to go forward. He then contacted Agent Weinrich at his home in Sacramento and requested that he appear for trial the following morning. He drove from Sacramento to Hoopa that night and arrived in time for the trial.

Agent Weinrich testified to the facts set forth above. In addition, he stated that he met the defendant's wife on the trail leading from the river bank to the road. He identified the net and it was received into evidence.

The defendant testified that the net in question did not belong to him. Rather, he contended that it was his wife's property. This contention was substantiated by his wife's testimony. A third witness testified that the defendant was not at the net site but on the road above the site on the day in question.

The defendant acknowledged that he did not have a fisherman's identification card.

Verdict. The jury found that the defendant had, in fact, been fishing with an unmarked net and with a net set to form a trap. They found him not guilty of all the remaining charges including the charge that he had been fishing without a fisherman's identification card.

This trial covered 141⁄2 hours and was completed in one day. The verdict was returned, after lengthy deliberation, at 11:15 p.m.

The court suspended the defendant's fishing rights for one month. The defendant appealed. Under the Code of Federal Regulations, the filing of a Notice of Appeal automatically stays the imposition of the sentence.

MARVIN MATTZ-121

Facts.-The defendant was contacted by agents of the United States Fish and Wildlife Service on the evening of September 16, 1978 at or about the mouth of the river and off the north spit. The defendant was observed fishing with a gill net which was anchored to a vehicle on the spit.

The agents informed the defendant that he was fishing in violation of In-Season Adjustment 3 of the federal fishing regulations and explained that this adjustment closed the river to all fishing between the mouth and the Highway 101 bridge. The agents further observed that the defendant's net was unmarked and began to seize the net. At this point, a large crowd gathered on the shore and began to pull the net toward the bank. The agents, therefore, cut the net and departed the area. During this time, numerous rocks were hurled at the agent's boat and a shot was fired from the shore.

Law. The defendant was charged with fishing in a closed area, 25 CFR 258.12 and fishing with an unmarked net, 25 CFR 258.(b).

Trial. April 6th and 7th.

The defense moved to dismiss the case on the ground that the charges were violative of the defendant's right to be free from takings without just compensation, Due Process and Equal Protection of the Law and on the further ground that the law was selectively and discriminatorily applied to the defendant.

The defense also moved for an order that the proceedings be conducted before a qualified Indian judge.

The defense raised the affirmative defense of necessity in that the defendant's actions were allegedly necessary to preserve his ancestral and aboriginal right to his fishing hole. The defense also contended that the defendant's actions were an exercise of his Right of Free Speech, motivated by his desire to protest the regulations. The United States produced three witnesses: two agents from the United States Fish and Wildlife Service and a Del Norte County Sheriff's Deputy who was asked to assist the officers on the day in question. These witnesses testified to the facts as set forth above.

The defense produced a number of witnesses who testified that the defendant's actions were necessary in order for him to preserve his ancestral fishing hole. The defense also produced a witness who was qualified as an expert on the river. This witness was Gerald Patterson, who testified that he had lived in Klamath all his life and fished the river for over forty years and made a living as a sport fishing guide. He testifed that he was familiar with the ebb and flow of the river and that it would not have been possible for the defendant to catch fish at the spot where he was fishing. At one point in the witness' testimony on direct, the prosecutor objected and moved to strike an answer on the ground that it was not responsive to the question. The witness lost his temper on the stand. He began a threatening harangue, stormed off the stand, stopped in the middle of the courtroom to continue the harangue and left the courtroom in a fit of temper. At this point, it was 7:00 p.m. on Sunday evening and the case had been in trial for the better part of two days. Given the difficulties encountered in empaneling juries and the logistical problems attendant upon bringing agents from various parts of the country to testify, the prosecutor decided not to move for a mistrial but only to request that the jury be instructed to disregard the witness' testimony in its entirety.

Verdict.-The jury returned a unanimous decision that the defendant was not guilty of the charge. The jury returned its verdict at 11:00 p.m. The trial encompassed 191⁄2 hours.

It should be noted that the court has experienced great difficulty in getting Indian people to serve as jurors. Approximately 15% of those persons called to serve fail to appear. Of the 25% who appear for empanelment, over % are excused as a result of overt bias against the government. This situation has forced the court to reduce the number of preemptory challenges to one. In the interest of time, the court has generally conducted the voir dire rather than permitting the attorneys to voir dire the jurors. Thus, many covertly biased persons are chosen to serve as jurors.

GEORGE NIXON, JR.-60-63

Facts.-The facts of this case parallel the facts of the McCovey case in that the first three citations were a direct result of aerial observations made by Special Agent Weinrich. The fourth citation was a result of personal contact made with the defendant on September 4, 1978. On that date, agents Weirnrich and Hanley encountered the defendant and some members of his family on a small dirt road approximately one quarter of a mile from the river bank. The road was a private one which crossed the Nixon property and had been extended to the river bank by the defendant the previous summer. At the time of contact, the defendant was observed to be in possession of two salmon. The tails of the salmon were not clipped and the defendant failed and refused to produce a fisherman's identification card as required by the regulations.

The defendant was informed that he was in violation of the regulations and responded by stating that he had caught the fish before 6:00 a.m. with a hook and line.

Immediately prior to making contact with the defendant, a large group of agents had encountered an equally large number of Indians on the Dowd Road, a public highway. The Indians had blockaded the road with vehicles in an obvious attempt to prevent the agents from making further seizures of nets on the Twelve Mile Square. After a tense standoff, the Humboldt County Sheriff's Department succeeded in removing the roadblock. In spite of this fact, the potential for violent confrontation remained.

The defendant's response to the agents was hostile and it appeared certain that a physical confrontation would result if agents Weinrich and Hanley attempted to seize the defendant's fish. It was, therefore, decided that the fish would not be seized.

Law.

August 18: fishing during closed hours, 25 CFR 258.9(b); fishing with a net covering more than 3 of the wetted area of the river, 25 CFR 258.9(b)(4). August 28: fishing on a closed day, 25 CFR 12(b); fishing during closed hours; and fishing with a net covering more than 3 of the wetted area.

Sept. 1: fishing during closed hours.

Sept. 4: fishing without a valid identification card in failing to clip the tail fins of the salmon; 25 CFR 258.10(a).

Trial.-Judge James Jackson was scheduled to preside at this trial. Judge Jackson is a senior citizen and a lifelong resident of the Hoopa Valley Indian Reservation. He is fluent in the Indian language and thoroughly conversant with Indian culture. He has attended judge's school and was enthusiastic about taking this first step toward making the court an Indian institution.

The defendant was represented by Paul Centolella of the National Lawyers' Guild. Mr. Centolella made the following motions immediately prior to trial: to reassign the case to another judge or for the recusal of Judge Jackson on the ground of bias; to dismiss on the ground that the federal regulations are invalid and the court lacks subject matter jurisdiction; to have the proceedings conducted only before an Indian judge who has been confirmed by the Hoopa Valley Tribe; to suppress the evidence gathered at the interrogation of the defendant on Sept. 4 on the ground that such evidence violates the defendant's Fifth Amendment Rights; to suppress the aerial photographs which were taken prior to Sept. 4 on the ground that the photographs violate the defendant's First and Fourth Amendment Rights; for summary judgment as to those charges stemming from aerial surveys conducted on dates prior to Sept. 4; to exclude all police reports from evidence on the ground that they are inherently untrustworthy and outside the exceptions to the hearsay rule; to compel compliance with the defendant's requests for discovery; to dismiss on the ground that the federal regulations violate his Right to Due Process of Law; to dismiss on the ground that the United States has failed to respect the capacity of the Hoopa Valley Tribe to regulate fishing by tribal members.

The United States produced only one witness, Special Agent Alva Weinrich. The other agent involved in this case, Special Agent Scott Hanley is stationed in Illinois and, given the difficulties the court had experienced in getting jurors to appear for trial, the prosecutor felt that it was best if he did not call Agent Hanley. Agent Weinrich testified at length about the September 4 incident and the aerial observations which preceded it. The United States also subpoenaed two BIA officials who testified that the land and road in question were private and that the defendant had the right to control access to the river bank where he was alleged to be fishing. The United States also introduced the BIA identification card list which indicated that the defendant did not have a fishing card on the date in question.

The defense raised the following affirmative defenses; the enforcement of the regulations violated the defendant's Right to Free Expression; the defendant was misled by the representations of government officials and, therefore, Mistake of Law applied; discriminatory enforcement of the regulations against Indian people.

The court refused to recognize the latter two defenses on various grounds including lack of timeliness.

The defense presented a number of witnesses who testified at length about access to the river, fishing practices in the area, etc.

The defense moved for summary judgment on the charges stemming from the aerial observations. The motion was granted with respect to the August 18th and September 1 charges.

Verdict. The jury found the defendant guilty of failing to have a valid identification card in his possession while fishing and failing to clip the tail fins of the salmon in his possession.

The trial encompassed 28 hours and the jury verdict was returned, after a lengthy deliberation, at 11:00 p.m.

The court delayed sentencing. The defendant stated that he would appeal the judgment which action would, as indicated above, stay the imposition of any sentence which might be imposed.

GEORGE M'COVEY, SR.-9 AND 38

Facts. The defendant was charged on a number of occasions with fishing on a closed night, fishing with an anchored gill net in the drift netting zone and fishing without a fisherman's identification card. All of the defendant's activities took place in and around the mouth of the river and all of the violations occurred early in the

summer run.

Law.

July 28: fishing on a closed night, 25 CFR 258.11.