Report on Federal, State, and tribal jurisdiction

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Report on Federal, State, and tribal jurisdiction
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United States -- American Indian Policy Review Commission. -- Task Force Four, Federal, State, and Tribal Jurisdiction
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Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Page i
        Page ii
    Letter of transmittal
        Page iii
    Acknowledgement
        Page iv
    Table of Contents
        Page v
        Page vi
        Page vii
        Page viii
    I. Preface
        Page 1
        Page 2
        Page 3
    II. Issues in Public Law 280 States
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
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        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
    III. The Federal role in jurisdiction
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
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        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
        Page 56
    IV. Special problem areas
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
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        Page 109
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        Page 111
        Page 112
        Page 113
        Page 114
        Page 115
        Page 116
        Page 117
        Page 118
        Page 119
        Page 120
    V. The exercise of jurisdiction by Indian Justice Systems
        Page 121
        Page 122
        Page 123
        Page 124
        Page 125
        Page 126
        Page 127
        Page 128
        Page 129
        Page 130
        Page 131
        Page 132
        Page 133
        Page 134
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        Page 136
        Page 137
        Page 138
        Page 139
        Page 140
        Page 141
        Page 142
        Page 143
        Page 144
        Page 145
        Page 146
        Page 147
        Page 148
        Page 149
        Page 150
    VI. Findings and recommendations
        Page 151
        Page 152
    Appendix A. Special problem areas: Water rights
        Page 153
        Page 154
        Page 155
        Page 156
        Page 157
        Page 158
        Page 159
        Page 160
        Page 161
        Page 162
        Page 163
        Page 164
        Page 165
        Page 166
        Page 167
        Page 168
        Page 169
        Page 170
        Page 171
        Page 172
        Page 173
        Page 174
        Page 175
        Page 176
    Appendix B. Indian child welfare statistical survey
        Page 177
        Page 178
        Page 179
        Page 180
        Page 181
        Page 182
        Page 183
        Page 184
        Page 185
        Page 186
        Page 187
        Page 188
        Page 189
        Page 190
        Page 191
        Page 192
        Page 193
        Page 194
        Page 195
        Page 196
        Page 197
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        Page 201
        Page 202
        Page 203
        Page 204
        Page 205
        Page 206
        Page 207
        Page 208
        Page 209
        Page 210
        Page 211
        Page 212
        Page 213
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        Page 215
        Page 216
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        Page 223
        Page 224
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        Page 234
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        Page 236
        Page 237
        Page 238
        Page 239
        Page 240
        Page 241
        Page 242
    Appendix C. Jurisdiction over Indian hunting and fishing authority
        Page 243
        Page 244
        Page 245
        Page 246
        Page 247
        Page 248
        Page 249
        Page 250
        Page 251
        Page 252
        Page 253
    Appendix D. Proposal for clarifying the tax status of Indians
        Page 254
        Page 255
        Page 256
        Page 257
        Page 258
        Page 259
        Page 260
    Back Cover
        Back Cover 1
        Back Cover 2
Full Text







COMMITTEEE PRlINT]


REPORT ON FEDERAL, STATE, AND
TRIBAL JURISDICTION





TASK FORCE FOUR: FEDERAL, STATE, AND
TRIBAL JURISDICTION





".A; 4]RJPORT. TO THE
SAMERICAN INDIAN'POLICY REVIEW COMMISSION


SHERWIN BROADHEAD, Chairman
JUDGE WILLIAM Roy RHODES, Pina
MATrHEW CALAc, Rincon
PAUL ALEXANDER, Speci Counsel
DONALD R. WHARTON, Specialist


Printed for the use of the American Indian Policy Review Commission


U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976


77-467


For sale by the Superintendent of Documents. U.S. Government Printing Office
Washington, D.C. 20402 Price $2.55










































Congressman SIDNEY IL. YATES, Illnoil' ADIA jumra,; *mnollcee
Congresmman SAM STEIGER, Arizona ADQLP'B DIL, .abew."
JAKE WHITECROW, QuapaW-Seneca-Cqyuga

ERNEsT L. SXTvzxE, Oneida, Ewcoutive Dfrector

KIRxu KICKINGBIRD, Kiowa, General lonuel

Max I. RZicHTMA; Profemionalm Saff M'embter


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LETTER OF TRANSMITTAL


S. .AMERICAN INDIAN POLICY REVIEW COMMISSION,
,L CONGRESS OF THE UNITED STATES,
WTashington, D.C., July 1976.
Tin AMRIcAw INDIAN POLICY REVIEW CoMMIssioN,
Congress of the United States,
Wehingtfon, D.C.
DEAR SIRS AND MADAM: The task force on Federal, State and tribal
jurisdiction presents to you this report pursuant to Public Law 93-580.
The report contains the task force's findings and recommendations
in some of the major areas of current jurisdictional conflict.
Before this report is published in final form, the task force urges
that all Indian tribes and organizations, as well as other interested
parties, be given the opportunity to review and comment on the report.
It had been the intention of the task force to do this; however, limi-
tations of time precluded such review.
With the above indicated caveat, we urge your consideration of the
facts presented, and your good efforts in ensuring implementation of
the recommendations made.
Respectively yours,
SIFERWIN BROADHEAD,
Chairrnon
MATTHEW CALAC
SRincon Band of Mission Indians)
udge WILAMx RoY RHODES
(Pima)
PAUL ALEXANDER,
Special Counsel
DONALD R. WHARTON,
Specialist
(ir)










The task .wtIeameiftrsm and fstaf-wisht t6 tumkrtha many tribal
leaders -& d -ituidtal tribal mnmbdrs for their consistently high
level .6f iperition'with the task force.
The task force:,also wishes to expnt ts appuywoiq4 t4 ViA. -
ing individuals who assisted in various aipasiiaa: *\ .,. r, ,. -,;.:v
Professor John Barrett, Northwest School ofiw-rn t
Michael Chosa (La Courte Orielel,BaR pf Sh r)-
., Oqnsiulwant '* .'.. .r ,.':,.
Aoearie .Cornelius ,(Siolx/Onei'da)-n. 4 l.a. p .
Lucy Covinton (ColviUe)-Consultant i ,,
James Flyn--Attornqy "
Jan H'pkinsDUke-ecretar i
Professor Ralph Johnson, Unlversity of Was -nA4 .&| .
Law-Consultant
GeneJdseph (Covill) -oi ns ltant ':,.
Frnestiie Lewis-Secrdtary i ;ti-
James McKay (Shoshone-Lumai) -Legal Assistant .,.,.
Sandy MdFeeley-Legal Assist..nt 0 '.1'1 :il
Margaret Pena-Legal Assistant L,
Catherine Romano-Legal Assistant
Carole ibop-Secrdttry '.
Richliard Slhiippan-Attorney'
Fred. Stone- (Colville) --R earch Assistant
Anthofiy Strong (Tlingit)-rLegal Assistant
.....XKathyn Harris Tijermna CComanche)-Attorney1
M Members .of Researv" titt t0ueu the thie direction of Gilbert Hall Um.
(IvT













CONTENTS



1 oterof Tiansmittal ---------------------------------I.. i
A4mowledgments .-------------------.---.---------- Iv
Pret ae ---. .: .. . . . . I
A. introduction- __ 1
B: Methodology--------------------------------- -- 2
. Issues in Public Law 280 States -------------------------------- 4
SA. The Theory and Purpose of Public Law 2W0-------------
B. The Current Status of the Implementation of Public Law 280- 7
1. Status by Tribe and State..------------------------ 7
2. Status by Subject Matter------------------------ 10
(a) Hunting and Fishing Rights--------------.. 10
(b) Land-Use Regulations-- ------- 11
(c) Taxation -------------------------------12
S C. Retrocession
1. Generally------------------------ --13
2. Status----------------- ---------------------- 13
D. The Public Law 280 States ----------------------------- 15
1. The Indian-Perspective-------------------------- 15
(a) Law Enforcement------------------------ 15
(i) Adequacy of Law Enforcement-.. 16
(ii) Discriminatory Trealjpent ... 18
(b) Other Services------------------------- 19
2. The Non-Indian Perspective- ---------------------20
E. The Retrocession Movement ---------------------------24
F. Special problem Areas.----.----.-----------------. -----.-- 26
1. Recent Retrocessiou Experience: Lessons Learned'-- 26
(a) Nevada-.------------------------------ 26
(b) Menomijnee ---------------------------- 28
2. Technical and Legal Services--------------------- 29
(a) Preparation---------------------------- 29
(1) Private Resources---------------- 30
(2) Federal Resources---------------- 30
Findings --------------------------------------------- -- 32
Recommendations--------------------------------------- 32
ilA, The Federal Role in Jurisdiction------- ---------------------- 34
A. The defined role- ------------------------------ --- 34
1. Criminal Jurisdiction--------------------------- 35
(1) Major Crimes Act----------------------- 36
2. General and Assimilative Crimes Act-------------- 40
Findings---------------------------------------------- 42
Recommendations---------------------------------------- 42
B. Creeping jurisdiction----------------------------------- 47
1. Applicability of General Regulatory Statutes to
Indian Country------------------------------- 48
2. Applicability of Statutes Regulating Federal Agencies
to Indians--- ------------------------------- 49
3. Applicability to Indians of Federal Statutes Delegat-
ing Authority to the States-------------------- 51
4. Applicability to rndianp of Domestic Assistance
Statutes Giving States Authority to Participate
in Program Delivery.._--- ----------52
Findings-_ -.. ... -- -------.- -------- 54
Recommendations-------------------------------------- 55
tv)





VI

rlaws
IV. Special Problem Areas 57--------------------- -
A. Hunting and Fishing Rights-------------------------- 5T
I. On-reservation Hunting and Fishing Rights--------.. 58
(a) State Regulation--------------------- 5
(W Present Status of the Law -------..- 5
$1 .Stufttitfl(eA2-------------------- 60
(b) Federal Rbglatiron--------------------- 63
(c) Tribal Regulation--------------------- .S
2. Off-ReservatiofilTMhing and Fishing ---------- 7
(a) The Stte ---?-----------.--- 8
(b) Federal Regulation- -- --....... -.--. . S
(c) Tribal Regulation- .. : 4" "
3. Aboriginal Fishin Rights...... ..-.. 5
Findings ------. ..... ....... 76
Finding ---------------- -----....- 76
Recommendations --------------. ,_ .. ..L.. '
B. Child Custody-------,----"---- -..
1. The Demograppy 6f the oblL -.-- -r 81
2. Legal Status- Wh.)ecides?--. .. -- -.. 85
Findings __- _---___.-- ,-___, -------87
Recommendations....-------- ------------------- 87
C. Jurisdiction over n.-dT..---------------- s88
1. The Legal Case f6t Ju&ditIn" Over Non-Indians 89
2. Indian country--------'------.. ... 9
3. Viewpoints -------------- 96
(a) Non-Indians ------- -------- 96
(b) Indian Viewpoiz&,r;:._ _- 98
--- -------------- -----------
Findings ..rr-t/ X .... I..... 0
Recommendations ---_------- 101
-7T r-14'--I-------------------10
D. Taxation-------.------ ;-- ------- 101
1. Federal Taxatio o.f Indins and Indian Property.. -- 102
2. State Taxation of Indiais and Indian Property----- 103
3. Taxation by Indian Tribes._ ...------.--------- 108
Findings -------.... .__--- ------------.-_ 110
Recommendations- .*.. 110
-E. Land Use Controls----------, .. ---------I---- 111
1. The Federal Govetnment- -...---------- 113
2. Federal, State and Tribal Interplay---------------- 115
3. State Controls on Tribal Ladnd------------------ -116
4. Tribal Controls of Lqnds Within' Reservation
Boundaries -----..------------------------------- 117
Findings. ---------------------------------------------118
Recommendations-------------'-- -----------.. 119
F. Oklahoma-------------------- ------------ --- 120
V. The Exercise of Jurisdiction by Indian JMPie Syqtms-------. .. 11
A. Background---------------------------- ----- T
B. The Current Justice Systems-------------- .124
1. Issues
(a) Capabilities) ..--------------125
b) Training and Funding --------.... 126
(c) Coordination and Cooperation....----.. 128
C. Indian Civil Rights Act------ ---------- ..---- 129
1. Legislative History and Baclrgound-------- 129
2. Summary of Provisions of Indian Clff Rights Act- 131
S3. Scope of Intervention by Federal Courts----------- 132
(a) Legislative History of Habeas Corpus Pro-
..--------------- "132
(b) Expansion, of Juiidiliorit 'Under 28 U.S.C.
1331 (a) and$ 1I.8.%'C 3 (4)--------- 133
(*.c) Exhaus. tigqLf.4'4'_ia0-detms or Limita-
tion oFedeat 6S .,tuItMrvention ------ 134
(d) Lack of Justifciable Ib ue_ ------*.....* -_ 135
4. Sovereign Immunity of Tribe From S.uit, -- 135
5. Cases by Subject Matter*l-'.-'-- 137
(a) Free Exercise of Religion, Freedom of
Speech Press and Assembly------------- 137
(I) Free Exercise of Religion--------- 137








V. The Exercise of Jurisdiction by Indian Justice Systems-Continued
C. Indian Civil Rights Act-Continued
5. Cases by Subject Matter-Continued Page
(b) Freedom of Speech---------------------- 138
(c) Equal Protection----------------------- 139
(1) Legislative Reapportionment------ 140
(2) Fair Election Practices------------ 141
(3) Age and Residency Requirements
for Voting---------- ---------- 142
(4) Enrollment and Membership in the
Tribe------------------------ 142
(d) Due Process--------------------------- 144
(e) Property Disputes---------------------- 146
(f) Criminal Procedures and Ordinances------- 147
(1) Attorney Cases--------- ---------147
(2) Jury Trial---------------------- 147
(3) Revocation of Probation---------- 147
(4) Imprisonment for Inability To Pay
Fine- ------------------------148
(5) Unreasonable Search and Seizure... 148
Findings----------------------------------- ---------- 149
Recommendations --------- ---------------------------- 149
VI. Findings and Recommendations-------------------------- 151
A. General-------------------- -------------------151
Findings----- ------ ------------------------------- 151
Recommendations---------- --------------------------- 151
VII. Appendixes:
A. Special Problem Areas: Water Rights-------------------- 153
B. Indian Child Welfare Statistical Survey ------------------177
C. Jurisdiction Over Indian Hunting and Fishing Authority--.... 243
D. Proposal for Clarifying the Tax Status of Indians.--...-------- 254









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I. PREFACE
A. ].h I rNDUCnON
The Concptp,of sovereignty and jurisdiction are inherently inter-
tlpd api4soreaqunderstalidg of both is a necessary prerequisite to.,
this report.1
Sovereignty is a legal concept of western European international
law. It defines the political-legal existence of a nation-state. Jurisdic-
tion in its simplest terms is the legitimate power of a sovereign over
pesls tundlpw o ty.
-W.tlSsr 1 .pdatiIQaldefinitions the various Indian tribes and nations
had applied itb themselves before the arrival of the European colo-
aers,:the.relationship established between the Indian tribes and the
Etnoaz.pQwers-one characterized by treaties-was based, on the
cnuaut'qf sovereigAty.2 Sovereignty.has becAme the starting point for
aridltaseions ordecisions with respect .to Indian, tribes and nations,.
agd1tf jtwkji ldictionjtbey possess over people and property,
T .ftlingi jurisliotion in conceptual .terms does not4 however, give
fettitfh dtht,tle ,past An. d present difficulties invol ved inlawertaing.
jrisdictional relationships between and among the Federal Goverme
riwty $tote ,gpVmernieats and tribal, governments.3 The seminal prem-
ise is that prior to European coloniation and settlement .of the Npith.
AmWeiAn cQuontinent, Indian tribes and nations possessed full jurisdic-
tiq oxe 3er te trritories, they occupied and the people within those
tenitmt iFs.. U-j urisdiction has sinpe been ,eroded.
The three fundamental principles stated by. Feli Cohen on the.:
A4.icWi jrisprudential view of tribil. powers, or jurisdiction, have
ofp *(kqupte,:
T ,whql~.eouise -of judicial, decision on. the nature. of Indim. tribal -powers
I 4qOiq -by adherence to three fundan4ertal principles: (1) An.u India trjWj,
p3=seus, in ,the fitst instance, all the powers of any sovereign state. (2) 0oug(..t,
r&a@;th1b tribe subject to the legislative power of the Untted States and' .an,
sibstaiuoe terminates the. external powers of'sovereignty bf, the tribe, e.g, tW#
Pp. r. to ptqrJnto. treaties with fOregn nations, bptdoes:not by: ftsflif affektn
thq internal sovereignty of the tribe. i.e., its,powers of local aqlf.goverpnexzt, (),,
Thtep ikwers ase subject to qualification by treaties and by express leglation.ok
Cobrwse'but, save as thus expressly qualified, have full powers of Internal didly
constituted organs of government.'
fo 4~JaigM a of tbee. concepts written, for non-la'vsys,..te: noap-uIl Avmetla1 .
limah codrt 16t9e Asso n. "Juaticeaml t? ,A n;4 ", sitla: InM aJtiM swou
o-. .of-ha)L.@ w.4aAd Order Authotit.,' At 2 W o tef cIn e u *
jCi *vMA.jl. 4; ahs gaiter, T., "Tnstitute for the DeveNopYnt o a I lntla arw, 1isla,
31 UNTO Paet f 44tnlnuetod .nt, politico conm iin iqit qf* *" lcrqwfler v, .fterfa,.
W'a eaeflentb ozrical-lepalfdiA lmon o"t the rwlatoship. q9qWg;5P.. "flpelpp-


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The report examines the basis of each government's claim of juris-
diction and how such claims operate within a national policy objective
of Indian "self-determination,"6 and suggests Congressional solutions
to problems where warranted.
In addressing problem areas, two principles are adhered to through-
out the report. The first is the politica.legal definition of Indian tribes
and nations as sovereign entities.6 The second is that when faced with
ambiguities or conflicting factual- materials, the task force will en-
deavor to be as fair and objective as possible in interpreting testimony,
data or any other matter, but will follow those rulef'of qnat -tfet.. n
utilized by the United States Suffreme Court in jflrpfefi(ig3J14
Indian treaties and statutes.7 r' .
o. 1 o '.* ~h i ,W".N .
B. METHODOLOGY 'i. j' '
-: 1 jl ilU
This report relies heavily on the hearing process as a basis .fou kst
veloping its findings and recommendations. During the one yeauwl
of the task force, it participated in 28 days of hearings. At th.es6ewuail
ings some 250 witnesses testified, representing tribal officials, satemB
local government officials, Federal officials and %private eitizeans,e bot&
Indian and nomJkndian. Some 4,500 pages of testimony were.'ti.Ma
and an additional 3,000 pages of exhibits and submissions ned .'
trained. In all, approximately 90 tribes had input through the heaib"
process. These hearings were not precipitously held. Invitations fit
sent to tribal and state officials to attend; ik many cases dtsaltd}
issue questions were provided to potential witnesses to failitati,
factual, thoughtful testimony. Many siti visits were conducted by *r
task force to collect data and hearing testimony. .
In addition to hearings and the materials collected and devlope.'..
through them, the task force has made an extensive review of the'
literature in the subject area and has utilized consultants in speq t?
areas to prepare position papers.
A review and analysis of the developing case law has alie'obe
conducted. Case law, however, is a separate category Of outii alo
trial with distinct limitations and must be explained in somi dtiil.
The courts, using the "political question doctrine," defer to uontli1
apparently in adherence to the "plenary powers doctrie."' A
has plenary power over Indian tribes on all matters. Congressional
action in Indian affairs, although subject to the consi derab ewealpon
of court interpretation, is not reviewable'on the same bais as a'jjiRtr
of Congress in other areas. In effeet the substantial -body of cai J.aw
'Two fairly recent expressions of this policy are found in Public Law .09-688-a4
President Richard M. Nixon'e 1970 Message to Congress, 116 ConzresplonasReaord S231,.
SThe task forces specificay rejects suggestions made to it that India; i,t and-zatlina
are deflnltionallyand legally. akin to ehIl table organfrizonsropeprt owaepramsa0taatw.,
or social clubs as havi g no 4ctuaZ or legal bases. See e.g., I.N. Alrn. 4WE =.S. $
(1975). l l ll .... ..
1T5hese rules are: ambiguities are resolved In favor of Indiana; ape9eu6ts wil e ,rea&
as they would have been understood by the rndiana at maktn; uX, ti"ad tlvIMwl not
be lost by inference. Seenerall Worcester v. Georgia, 51 U.S6.).,35, (18.) ;
Menominee Tribe v. .. 896 .. 404 (1968): UM hi af.MrI At _,_m-
iiesasn, 411 U.S. 145, HA (1tT8)7. and Eimsbel V. S7a r4 4
S.Some i.gnlficant eommenttrlea Ik this ar. re a ct the pleny po. t Sdl.u.e a. ng
neither a bua. a Intemnatlonsl law Inor In the. IL CeonjItettf e .l t E'L .EIu wi
fact be accurate~a as do mwno matter.- sa itra fntoig*tfat iuhjf
U.S. Cong ress basn such power de 'e It early exerets O power t ltrol. f sfa
Report of Task Force One, statement of Hank Adams.


... ... ...........







that has been built up, much of which is considered pro-Indian, is
merely judicial interpretation of congressional action. For example,
it was and presumably still would be, constitutionally "legal" to re-
move by legislation all Indian tribes from Georgia to Oklahoma. (It
is quite doubtful whether Congress would have the same power over
other distinct population groups who are not political units.)
The case law suffers from an even more important disability: it is
not Indian case law. Simply put, it is the case law of one side, albeit
the powerful side, in the controversies concerning non-Indians and
Indians. It is the case law of non-Indians. The Task Force will
tfiie case law throughout the report and will indicate the directions
that case law takes; however, the Task Force will not be precluded
from recommending results contrary to those reached by the courts
where facts and circumstances warrant.
The format of this report is built around the major subject areas
where jurisdictional questions and conflicts currently exist. The re-
port does not purport, however, to be a definitive statement or the last
word en Federal, State and tribal jurisdiction.'
;l ,,,
* .flls report Is subject to 1sny0 limitations based on the period of time available for
eseareh, the period of time available for analysis and drafting, the wide-ranging com-
plexity of the subject matter, and the economic resources available to the task force.
Any metlon of this report could easily be the mubjeet of an individual report requiring
at euat the eame time and financial resources as did the entire report. For example, to
collet basic data on the operations of tribal courts the BIA4 recently spent $85,000 for
a study which Is not yet complete. The Navajo Nation alone spent over $200,060 on a
Sudit of Eta management system.
N,. task force has participated ln separate research efforts and special reports with
respect to both Oklahoma and Alaska; however, little to no material pertaining to those
areas is contained In this report. Although information was collected concerning terminated
ad nonrecolted tribes they too are omitted.
T Bhe report covers only some of the subject areas which can be logically clasifled as
beln, within the jurisdiction framework: th e scope of coverage even In these are vaes
-witin the report.





7 *.


p" 9 f r1 J r ij F1 #WiiB
'- ~ : :; if" : .' I 9UL> Irh F tsn I I' f ml 7( dw ah
b .-.
tA
: .. s '+ ,'+ + *, ;** * .** :*: ** -+j i ; :^i rr- ,,rsf iM. + i +'1:
,, .. ..4 a... .. .. ,t4.. sagjIEI J


- "it '".- .o :' : *, 'i+ ." .. -. + *:. -^ ';.j .-"++ b"i-,Mraw:aM
.'.
.4f +cJ ',1.0t-n']!m





SIM' a #"' 1fgih! withi$
: tin l.' wsfls x+ p"wnr iawa'+ Sla n. 4,49aao b palmy ...

C adAas feBihedfioeb? .; to~ i.. rrv' h)AW .#io."i'
pendulum swing sometimes appotlyd q NWRgxaaiLSfntrIte t

Vrndtiad ltretbetbnowuvatbye toiPbict!rM (,t R.iao
oiguw w9iiik'.d At s twk-aitrsus -of v?%p wswAifstBi
relationship that had etieh giN.4wfjl, toMn,_ "a
tribal governments since the formation of the Federal
-, T he+'dirst m"... !tine ,m ... ,L l+I L '
+. +.,r,'..1 x ..tr W.. i ; .w. a Zka.': t, .r.+= .4j P,j,:.j. r]+".ul''+ ;u"u w +. ; .L 'e[
i tl th S u' uar ns."a cu 'r ...lat'^ ".r.uH!p.B:.

delare t n tlhe sense ofhCongress;tf tha. t the earliest poQssic^'ft "-9diix
the Indan traQi bes n the.iaial t iid e therea secfi MR




toclarewithine ta d elne Cns A rian ntos e ed aliety p,
tndian trdlIe o ian rcinsida 6o59d1 tteereef
states) . should be freed from Federal supervision and control n b e "' lad
all disabilities and lemitations specially applicable to Indian s .
While at first glance House Concurrent Resolution 108 -wo)u34: Ma..aB
to fit within traditional American notions of equality and A i -


delredstonsbelitbe sens ofdCongresais thattat te oearliest pse Th n.te
a nd many non-Indian citizens would no doubt perceive its fia t els
pro-Indian, Indies an people hl o ave most often taken quite a;i



Whl atd fir. lst gaceHueCocren eolto 108 .wo.l.. ..
view. House Concurrent Resolution 108 is seen as destroying t;ri
institutions,3 as in effect depriving Indian people of their s .t..s .
nation-states--tribes-and forcing them to assimilate idividuaiy;
into the larger social-political society. Indians perceiv-d. .jh'...
tribal-Federal relationship as one between sovereigns, based ftrqii4
and negotiation, and rooted in the trust responsibility that the F.%e.= .
Government has legally and morally to Indian tribes.'
Another major congressional action of the period wasabrosd-Taig-
ing mandatory and permissive transfer of.. Federal jorisdictim awd
responsibility in Indian affairs to State governments. This enactment
is known as Public Law 280 and contains three mechanisms for the
1Codified as 18 U.S.C. | 110 and 28 U.S.C. 11360. 'aT
'88d Cong.. lat sese. (1953).
'The following tribes were in fact terminated: 81 trlbesgroupa moupqwr.
or allotments In California terminated 1954-40: Patire (9=21k8
Klamaths, Public Law 8S7 (1954); Menimnlee Public La* 399 (i&4ns, mea f
Wyandotte: Ottawa; Alabama Indiana; and Texans Couchatta.
'See Task Force No. I'm Report on Trust Responsibility.
(4)







awnlmptieon of .federal jurisdiction by the individual states: (1) As-
sumtwan is, mandatory in five named States-Caliiornis, Minnesota,
Ntlbaka Oregon, and Wir#onsin; (2) Assumptioun is. at the option
otit4 &bte ib: affirmative action whichmust include removing State
coatiiaBonLedieclaimers barring such jurisdiction.
rliisrmmbhmism applies to Arizona, Montana, New Mexico, North
halstae^Bcutlirfakota, U(hi, and Washington; and (3) Asuinption
isiAbjthe option of the State by affirmative legislative enactment (no
cwmtitlaioial disclaimers being present). This applies to all other
States wherein federally-recognized tribes reside. Congress specially
excluded three areas from the Federal jurisdiction the States were al-
lqwed-to asubme. Excluded is any State jurisdiction pertaining to the
ajiisaion or taxing of trust property, or any -State jurisdiction per-
taing.itote treaty, -recognized hunting,, filing, or trapping rights. As
omgipmiUya passed, Public Law 280 required neither the consent of the
aeCewi.ribes nor even consultation with the affected tribes.$ Several
indivadaal-tribes rnaaeged to get. themselves excluded from the cover-
a. filPublojLaw,_80 on the premise that they had" ** a tribal law
aidtrader system that functions in a reasonably satisfactory man-
nerP* *" ob all-tribes which objected were:exciuded. Some 15 years
later, aWAhe pendulum was swinging once more, the Indian Civil
ltw". t i ;o f 1968 amended Public Law 280 prospectively to require
t.b&Ioqaamct before any -State assumption of jurisdiction.
-Tbloare'several ,interrelated,, although distinguishable, underlying
aswtsptias inberantz in the teraniiiation philosophy upon;.which Pub-
lie- Law 0 was,, at least in part, based: the assimilation of Indian.
pwpleNintarthe mainstream of America-n life: the removal of an op-
pusave ruud ;paternalistic BIA ,bureaucracy; and the provision of
adequite[laew enforcemrnent services to,-non-Indians, and I"dians, in
rm~nwlnn areas.
.t~iq4,,who -take a more historical and perhaps. economic view of
tke'edemal Government's relationship to Indian nations, have as-
serted that the primary motivation-whether acknowledged or-not-
wnS.th ibe' for Indian land: 8
S *-"0'an& finally, the question: Whiy do states want the additional responiblil-
ityQjwIIdictipn, over, Indian.- resertv;tUais with .1Jke, 5d(PQots' Fis, would
incurl' This answer too is simple. Above all they are inte tnFd.ia 'yeontroL"
Control over the territory or lands of the Indian tribes. Why 6o they want thjs
ccqrutsBecausue, since the first Buropekn set. foot on.-the eastern ashore tle nob-
I.n4iwrpompqlqtJof oSAkoeriea has aoveteO the Indians' land.
ft]he assimilutionalist philosophy has been periodically .applled'to
Itiauns. ThiY;philosophy contains many elements, some of which have
a surface attraction, such as allowing Indians to share in the educea--
tional, material .et celr'a, .benefits of Aanaen -soVciety. there are,
however, several basic-flaws in- this viiw. -It' isg'bwsetine raism to
.r.. .v.... *
*aWtb stehhu4.AIaslm wonufl be added, to-tlls maidTflty greibp. -
President Eisenhower objected to this sack of tr.tsl recent n Aug. 5, 13S ; hisa-
mwsage'ot Au : 5. 1953. accompanvlnr the act, TBe- dl'sig'tp0 'ielation. Reirlinted in
102 Cong. Rec. 399 (Jan. 12, 1956). A number of States did. however. Laitliure tribal
content provisionD.
'25 U.S.C. 11231-26 (1970). The act also provides for retrocessloa otf.jqriqsdleoqn
to the Federal Government by States. .
AStatement of'.Wayne Dueheneaux, chalrpian. Cbey. i"eRTer Slops Trtfe., .eings on
S. 2010. before -the: Sueoewzilttee on IndlIan Affa ,r of tkle Senate Comhltree 9O interior
andn' mular Affairs, 94th Cong., lst seas. (1975). (kereafler cited as S. 2010 bearings.)





6
assume that because a culture is different from theoinaefi alqm
it is inferior. The notion :of the "white man's buirdo w fp
applied to Victoria's India, or to the Indias within tkew ..l ...
United States, suffers conceptually from the ..same -ltldA *StI
Assimilation as a philosophy takes many forms; it ina dAtatte
trust responsibility of the United States :unmsto indivMuOiA J i
as opposed to the tribes. Most arguments, theefor, atoe u taM i
of how termination can better the lot of individuals, with Tihm1 si
reference to the tribal relationship. In an interemting twisted L' S...
historical reality, it also defines Indlian tribalidaMtity sswtyl
and, hence, unconstitutional segregation. ..,: . B
The role of the Bureau of Indian Affairs has been tbjInw.t I
its existence to recurrent criticism from a variety of quarti:s
least of which comes from Indian tribes. In tJ.e 1920's, the. .riw.q. i
port acknowledged the poor quality of services that Wetrn
vided to Indians by the Federal bureaucracy.1 In fact, :e
to the Meriam view that State services were. g a .y sptile
BIA's was the legislation authorizing t Se: ntar.o.E- h 6Lttdww
enter into contracts with States for thetprovision O.f V'ious.'u
services.11 The dissatisfaction with the BIA was grwiiang'ttie pblai'
preceding the passage of Public Law 280. In 1940, the Seaiate Cot
mittee on Indian Affairs issued ariticalreporton the BTA% JS.'
concluding that it should be abolished.' Felix 'ChenMb w WI.
tering attack on the BIA burewyucracy shortly -befor tek,
of Public Law 280.1 Cohen. who wai opposed to the pwhi
of Public Law 280, made an interesting point about teuditd
apparently, and unfortunately, has been igaored. The te n.4OP'
argument is that although the BIA periodically supports rt
or withdrawal of its stewardship, the historical reality frtlaf
such attempt is followed by huge increases in the Bureauis'bul "tA1
staffing pattern. Inff other words, the Bureau seems to have niax
termination into a mechanism to insure its continued ......I
survival-. .. '. 4..1 jfn4s
The major argument, however, for the passage of PublicIowSlaPI
was "the hiatus of criminal law enforcementon Indian u-M-O
Indian tribes do not eWforce" [in ce rta1 area]" a eti. jr 1 I
committed bj Jndias * *. "* a:' "4= .. t |
*. .. : *!.. : s,- .- = .. n ijl. iii., .l
Complaints were multiple and of different influteces..
the quality of law enforcement on Indian fre4ervatibn; 1.l ...
the multiplicity of laws which were, felt to apply# denpdin
was the victim and/or perpetrator of thecrimul t t. ditn I
--. .. = = = ;.. :- i .s. =r.ii il.g- : i
'This argument b" no ba. -ee LU.N Vmp.* '3' U
1Meriam &- Assactta, "The Problem ot Indian AU jmnE"tAT ... *t..*if
n ESee. Cohen, supra, at 83, for a.htit a-dmoiqo of To *Mttip%
35 U. S.C. 1 452. ..
n 8. Rept. No. 310. 78th Cong., let som. (1943) aited in Cosgresional "SWMImo'luir
"Background Rfepot on PWi Law 89' (f..sea:brnilt m=a Xl:=mUI
Affidre print 1075).
The U4roslon of Indian Sg.ts, ioO-S 4A stu:aBueamg,..2a er &. .
348 (1948). ... .. v- ... ., ,v .= *.. >
Ibid.&, at 387. C..... t,. : ......
SRept. No 48, SB, g. a uu ( ) . .. ". :
131H. xept. No, 1505. Both enag., g2aeal (1948). '
Ssee Gold eIN.,.Pubc law The JA It.tf ite I s '11G
I ndfans,'! lw2 U.k I,, lo.5,' .I T 5 ). od t bIn
Inu contrast during tis period ofo rQnenal eomlaitt In. h''t qallCoIn 4i. aWIRM..
enforcement on Indian reservations 1s that Coagress was at the name time eons!teatly
reducing lPederal funds for law enforcement on reserratlons. See BIA. Division of Law
Enforcement Services, "Indian Law Enforcement History," at 55-1 (1975).
I bid.. at 536.








inefficiency of Federal police providing services to rural, dispersed res-
ervatibons; the lack of efficient justice-in the common law sense-
1fr Indians from tribal governments; and the cost of the Federal pro-
visions of police services. A major component of the argument over
criminal law enforcement seems, however, to have reflected congres-
sional concern for the safety of non-Indians:
* . lawlessness on the reservations and the accompanying threats to angles
living nearby."
The situation concerning California Indians in the 1940's and the
1950's played a large part in the drive for Public Law 280. In fact,
several commentaries and the legislative history itself indicate that the
whole P.L. 280 legislative effort began as a specific effort to unravel the
economic and political problems of California Indians, particularly
those of the Aqua Caliente Band and the city of Palm Springs."
The California focus which was predominantly related to criminal
law enforcement spread to all Indian country and then somehow, with-
out much congressional indication of why, to most civil matters as
well.21 In fact, Public Law 280, as finally passed, was a poorly drafted
piece of legislation that has caused more confusion and problems than
it has resolved.

B. Tam CummNT STATUS OF THE IMPLEMENTATION OF PUBLIC LAW 280

1. STATUS BY TRIBE AND STATE

There is considerable variation in Indian country as to what juris-
diction 22 over specific reservations the different States have assumed.
In addition to the jurisdiction assumed pursuant to Public Law 280,
the current jurisdictional status is influenced by a series of specific
Federal statutes which transferred jurisdiction piecemeal to States
with respect to some or all of the tribes within their geographical bor-
ders, and by certain distinct historical relationships."
The following chart 2 summarizes by State the current status of
jridictional transfer to States where federally recognized tribes are
fo.und. It also indicates whatever case law exists pertaining to the
mechanism or validity of the transfer of jurisdiction.25
I. bid., at 541.
s .Bee. Callfornia Department of Housing and Commercial Development, "California
ialians and Public Law 280," at 15 (1974). and Goldberg, supra at 540.
a MTe aet of Oct. 5, 1949 ch. 404. 63 Stat. 705. transferred civil and criminal Jurisdiction
over Aqua Callente to California. Goldberg. supra nt. 17. One major historical, factural fal-
lacy in the process of legislative development Is that the tribal history of California Indians
beast little to no relationship to the histories of other tribesin Indian country. The status
of tribal government, reservations, treaty relationship, acculturation patterns, size, wealth.
et cetera, all reflect the unique California system of tribal destruction tied to church
slavery systems that ultimately manifested Itself in reorganization of Indians into bands
associated with particular missions-the "mission Indians." See generally Kroebler. A. L.
"Handbook of the Italans of California" (1925) and Forbes. J.D., "Native Americans of
California and Nevada' (1969).
= This section does not define, since Public Law 280 does not affect, the Jurisdiction that
'tribe@ and/or States may or may not have over non-Indians on reservations. This issue Is
* treated separately in chapter III, section C.
: .g., m.the relationship between North Carolina and the eastern band of Cherokees and
the relationship (treaties) between certain States and tribes preceded the United States.
"This chart Is based, in part, on a comprehensive analysis on a reservatlon-by-
reservation basis showing State Jurisdiction pursuant to Public Law 280 or other statutes
as It presently exists (Mar. 1, 1975), as submitted by the Department of the Interior, to
hearintgs on S. 2010, Subcommittee on Indian Affairs, of the Senate Committee on Interior
and Insular Affairs. 94th Cong., 2d sessm., at 642; and NAICJA, "Justice and the American
Indian." vol. Tat 83 (undated).
0 Section 'II-B(2) discusses the scope of State Jurisdiction as to subject matter.






..


^-t ^- ri:.i^ ftc i"'' .'wo~iAaist 1
-ri: ,l rs' ,a' rn^ ISS -**:T 'Jt*d*p~i .a*.i- u .ae risb. >
...d ,,ll m ,nlin.. . ~ : .....*..,,,GI.,,

Auianu......... Assumption of j. 1.UH .,l*il r.- ._ __-. li_ nr t L mi .v
over air and water pollution.
( oigntoo... . o-TSnn .. .. . .. . .. .. . .. . .. . "1 B.... .:. .f "a _W -
Floid ...... Fillassumption of crminal and 1.^[ 4. 1 41 .: l
..ldah ...- ,....S-..ZA.Ee i i ... .. u P'
to ISIOIRS eat .* t .'**'"" iii*""^ f a
L~ ,i~ Wed i.tfVL 'mt
S d e :. r an. d .
j. u -wwwp ., : (iiil y c *n : : <* < ,r .i ,:" ,[( ,,:*' r

aH i~ tim s1*:;** .: .: ..: 1** Jt'fii'brf
; "^S!pvrS?"'"1 :lO *l i* 'l r :. : .... ..t -..^ a ote-it

O isru linin o ; ,nai aken ent : '... :, q+ fl^/
_Do vif'faqJ ided m .en, d
Oert*m n dm ;,-ifid m alk *.ili :
.lf Of D iC U ; A :. *.": ,
Shii kpai nd raf--ds flain- *

Iowa -..--..- ...-..-......-......... ...--- Limited criminal jursichow to "' r
Sac and Foxipursliatteioaot f .W "
Junoale301I948,ch.79.62SWl.
------ W.... No'juHudbfla .I.A.ei. 4t + I .: -r;; : T .i
tostofJune8i.19 .m: .
54 Stat. 249.
Louisiana .............do- .---- ..... .. .._ ,.. .
Maine -----------do-- ------ ..- Issue apen. Io quion, re "
*'fflgb-----a------- u L*wanay:'t. M M- : nalhih
huFederal %co E .lito o-.r e- ; "X

Misi- ...................... pr* ............... .

t o ll 7e-toi ii. .1 I :'h ,,:V l
iii n" ii l"mimtl Ua-

,p it..i ...... .. . . .
; il-SEdare rkdl .61 I* -* ; *i: .. .. "**^ -^f-yr..l~~l. 1 1.w fa
Mississippi -.---- Nj r iSdR I ilWJ70 - L,-^ ^a -;Lir ^j t ^ A J, ^ijf I -,iL
Mna-- n en.m h., "-'" * '^..'^ i^^ SS
'~q q ------ A, of. t .. H pn


Domestic relations (except 4238 (10
adoptions); t ..
Meal Petlm and i fmitli; **i I lll
. . rn . . . . : i ,, .

", ,A r P Y .... i ft tv, .r '.. *.. r' W
.. ,, 'H+Wastpt' WUliiM ^ W" * +" :* ** ,.'-i ..*', .!Vf | P~t-" r,+tiS-i: .,t:* iir 'rt I
f M ie ld" l, ... ..... '" ...... ; "* ,,', ,,: *)"11 +'. ,':. q, ,
thii~m t ia w. I'* --g< * v
'4d ., 4 t *i i
,, .-'l B',l~lo Tpll r :tll i" : "'. .:l~'? "*',:" m ',,+*!^' :,: :, t : B U'"
alloy, roads, and hi" h '-, 't' :.,: 3i,:!:,"
"" ,*'" tU ,i '" .. . L 4 *"'* +.' ,G .ct kid. S m
*N~!Mhiha.'.*S mfemtiM~lXaoeartumridB'^L..Ca^^,..flta ...agz-^ alEJ kqg*
ta crimmalurisd in ex- : :i ",l t jef"
tos a l -, ej fo ,
"*** : ..... ,nc ... -".. ,+, .: w ,, .J+ t Itoii/)iti ifgHM qt _B
*,, ..P ,,artil e,. .0 *:'' A s:.s'..l rs
,< -. . ** t . M,, ..j,..:,' *



Ne,,,S--------..OriBinainfy asserted over same ats.... J
reservations. Now retroafceded
for all reservations, except
for Ely Colony.









S" Other assumption of Case law dcifelopnmenti
W Stm i Status Re Public Law 280 jurisdiction validity of assumption

IWMeIr-bL---- No assumption pursuant to Claim of criminal Jurisdiction
, Pl limie Law 280. re particular filny climes
pursuant to New Mexico Con-
: stitutimn art. 19, sc. 14. No
, .apparent legal basis to Slate
claim.
Jbifutrlt..-.....- do.------ -...---------.... State Jurisdiction pursuant to
act of Sept. 13, 1950 ch. 947,
64 Stat. 845.
tortl Orolii ......... do.-----. ------------.... Fll jurisdiction abumed by
State pursuant to citizens of
state provision oflu-he treaty
of 1835, and by court deci-
sion Eastern' and of Cher-
okee v. U.S. and Cherokee
Nation, 117 U.S. 288 (1886).
North Dakota ..... Civil jurisdiction extended Criminal jurisdiction on Devils
where tribe or individual Lake Reservation, pursuant
Indian consents. No tribal to act of May 31, 1946, ch.
dausent-mduviduals have 279, 60 Stalt. 229.
.consented. *
t&IMtHdiaL. .- --- O j urlsdictilon pursuant to Jurisdiction exercised In all
*" ,, Public Law 280. matters pursuant to various
:, Federal statutes.
.Bilal.6L.-.... Full assumption of jurisdiction -.. --- .... -..-
exrept for Warm Springs
r *, Resiervation.
SoutmpiPta_.. No jurisdiction. Attempt at-...-----...--.....
: assumption defeated in state-
.,., wide referendum vote in
1966.
H.mjb........ o urisdlction. State Has passed -- ---.-----........-..---
S-a statute establishing tribal
tbnsent meehanism for as-
amll option.
Vsihgton--....... Assumption of jurisdiction is -...-.....--.......--- ....- Quinault v. Gallagher 368 F. 2d
piecemeal. rand varies per 648 (ft cdr. 1966), 3iB7 U.S.907
individual tribe: (.1967). Defers to State court
1. State assumed full civil determiation of what State
and criminal jurisdic- action is necessary to assert
tion with respect to- *jurisdiction pursuant, tO sec. 6
Colville, Chehalis Nis- of Public Law 280 when a Stale
r ally, Muekleaehook, constitutional disclaimer wists.
" Qulto, Skokomlsn, See also State v. Paul. 53 W. 2d,
.a "quxin Isld and sea -.789 397 P: 2d 33 (1959) iW
.u. Tuilip.. an Mken Tribe v.IState 76 W.d,
2. State assumed full crim- 645,457 P. 2d 590 (1969).
final and civil jurisdic-
i tion on-fee patented
;. : -lands' re Swonomish.
... .. 3. State h assumed civil
and" criminal jurisdic-
:. 'ti tlron-with rspectito
only. nontrust.land, in
+* <"' + *>1e following aren:
,., ,, (),Compullory
Sichboi laws;
1 (1( PubMic
assistance;
(C) Domestic
'"elaions;
i. ." ,) (dimande
delinquency;
(f)'AdeptlIons of
mtmilorsl;
(g) Dependent
SStatus;
(h)'MotolroMwcde
cparatmionrn
public roads.
., On the followingg ritrvMions:
S, Itohp Kaltspel. Liamwe rIwe,
,. jLnuFM, *M- ih, Neoksalk,
,Port Gamble, Portr'tMdisn,
Puyallup, Quineult Shoal
Water, Spokane.
tatrloession of samewith re-
spect to Port Madison flRese-
Svaion.
*Wisemin.;-..... Full assumption of juriadlo-
tionerxcept that jurisditipn
has h"i retrceededover the.
SMenominee Reservation.
Wyoming...------.. No jurisdiction----.........--.--------------------.------

77-047-76---2







In addition to the court decisionsdefining the aI i
used pursuant to Public Law 280 for Stated t bal -8:=aM-
Indian country, there is a developing line qf.0cp. wih jnf'
States may only acquire jurisdiction in lhdIiiaBu'01WAry purIuEMa
congressional action.' The theory of the "cases" is, however, not aMaEO
sarily predicated exclusively on inherent tribal sovereignty, but rathv.
,on the court's notion of Federal statutory preemption of th. julim
tional field-the Federal Cohgress has established the "contournS a
both Federal and State jurisdiction over Indian reservatir
the mechanisms for .any State to acquire any jurisdiction, and abnast
any State action that does not fall within the statutory scheme should
fail.28 o "
2. STATUS BT SUBfE" X&TTXMA T: -r,. .'-MS.t
""*' !*i :.y :'*
Indian tribes have objected to assertions ijuwdtnreonby States
under Public Law 280 on several basic thedens:.Pl6Zbaw 2ki4
gives States the right to aply ;lws of general application thEey
precluding all ordinances a regd tios o.mmeiparM ocaw l s
lent units; the exemptions to State jurisditioi sahl e broadly com-
strued in favor of Indian interests; and.tja.it4 A-u"f jdINvMj
to States should be narrowly construed sto be lisitet primarily to
"causes of action," that is, civil dispute. to besettled ii State .. w2t
Controversies surrounding the implAnBnt .:if otAblic Law 280
generally fall within three specific subject areas :ir.atm andSl4
rights; land use regulations and laws; and taxati. *' .
(a) Huntingand fhing rights"9
Public Law 28M reads: . ....
Nothing in this section shall ... deprive ty Tu ltWor Indian trte, Ad.
or community of Many right, privilege, or immultya .Md urb n der Federal reaty,
agreement, or statute with respect to hunting, trAppjus Ma flaking or the astrAl
licnsing or regulation thereof. "
While this area is the focus of mudh it w oalism), co.nc.a ,p
litigation, it has not been a conceptual pr'%-fet*fr Fedi aciB
In fact, the developing law is uniquely eisiuta-euu.iststI
of Indian hunting and fishing rights fifItr.: ai.y.ll ..
intrusion.30 Analytically, the major Publi, IwZ 0 p Ablem bius
been to define whether or not, in a specific s a particular *tinii
HE.g., See ennery v. DIrDIt O wt 400 U.B. 4= t commission 411 tS. 164 (197s); warren X- 6 400 Ur..w 4
U.S. 885 (19M5) Wakais, v. Lee, 358 U.S. 2 1957m ym.iBf t g v. Ie bM
- U.S. -, 96 S dt. 2102 (1976). ;.. ,.,
SNot to be confused with the Spreme Court's redafttafMflw ud iaWl periuuebru de
specifle Indian reservation; for example, Deteas v. Dielto ONus cam, 420 U. 40
(1975). :.0i.:' "'
See Goldber., supra, at 567-S75 for an excellent lodmwun th pootf
See. D of thi. chapter diseasses thte issue In thesmhut:S the iRLItMUSI Pubie law
280 States. Ch. III. see. A provides an extensdve anarist huntinafg and *hg waeTher or
not in the nPublie Law 280 context. ....
o etlaorkata v. BEos, 369 U.S. 56 (1962). Power M .e itaf tlVe i terio to
regulate on a reservation contrary to State law; M W.6.M. ...MI
(168). Termination statute did not termilatte SoM e*: 4 f v
secured by treaty: Callahan T. KESWU. 4931.26 506' WU.*
1019 (1974). Terminated Klakath Indian retaelnlhsDflt f t 4Jg
reservation lands which had biens mo Leech Lake BUel d w .it
334 F. supp. 1001 (D. MInn. 1971). =eano of and:'M Bt tjeB:;a
hCnting and fishing A nto; n70stra Organi"ed VOlNM W Sa? SWU.S U 0MW.
State haniting and ushing regulatory authority found to f exit d w .Jedu.
tion existed. Case distinguishable because Alaska Dm.us foA O .gJj.
reservations nor treaties; cf. Pullp V. Duteprtui of ,.'fiJe 8 C |.*
Limited State regulation of the manner that hun6atl ...i::l ShM.
.. .. .. ., .. .. .. . .. : ... . ..W.. .
S .:: '. .. *; ; . . r







Indians has a hunting and fishing right that can be traced to or implied
in a treaty, statute, or agreement. The scope of the hunting and fishing
'exemption is generally more limited than aboriginal rights. In fact, the
statutory language is a reversal of the normal rules of construction.
Treaties are documents that do not confer rights; at best they may rec-
ognize preexisting rights, and at worst terminate such preexisting
rights. The Federal courts, adopting the best rule of construction avail-
able which requires resolving ambiguities in favor of Indians, have
generally found in favor of finding the necessary documents.51
(b) Land use regulations
The operation of Public Law 280 in this area involves both a dis-
cussisn of what is a law of general application and what, in fact, is an
alienation or encumbrance on real property or personal property held
in. trust.82 The early litigation results were varied. California, the
State for which earlier versions of Public Law 280 were drafted, has
been the major arena for litigation concerning the issue of State versus
local laws. Several U.S. district court cases 33-Madrigal v. County of
Riverside, Civ. No. 70-1893 E.G. vac'd (other grds) 496 F. 2d 1 (9th
cir. 1974); Rincon Band of Mission indians v. County of San Diego,
324 F. supp. 371 (S.D. Cal. 1971) vac'd (other grds) 496 F. 2d 1 (9th
sir. 1974); and Aqua Calimete Band of Mission Indians v. City of
Palm SpIngs, 347 F. supp. 42 (C.D. Cal. 1972)-have held that local
municipal or county laws were applicable on reservations. Such hold-
ings if followed by higher courts would have had a far-ranging impact
an Public Law 280 States, since most economic and land use regula-
tion occurs at the local level. Recently, however, the ninth circuit has
considered the issue of State versus local law, as well as the issue of
whether zoning ordinances are encumbrances within the meaning of
the exception provision of Public Law 280. In Santa Rose Band of
Indianm v. Kings County,34 a unanimous three-judge panel held that
Public Law 280 was only a grant of jurisdiction to apply State, not
local law, and that the zoning ordinances in the particular case were an
encumbrance upon trust property. The reasoning of the court is in-
structive. Utilizing both the current theory of Federal preemption
coupled with the concept of inherent tribal sovereignty,"5 the court
required that any power over Indian reservations claimed by the State
or political subdivision be specifically found in a congressional enact-
ment. In its review of Public Law 280 and its legislative history the
court found only ambiguity. Reviewing case law interpretations of
statutory language in analogous cases, the court stated:
t Goldberg, supra, ut 7IT. at 584. footnote 218.
"* Pertinent Public Law 280 sections provide: those clvil laws of such State that
are ofgeneral application to private persons or private property shall have the same force
-and effect within such Indian county as they have elsewhere within the State' **
w i "e thi th Stt "
Nothing In this section shall authorize the alienation, encumbrance, or taxation of any
real or personal property, including water rights, belonging to any Indian tribe, band. or
community that is held In trust by the United States or Is subject to a restriction against
alienation or authorize regulation of such In a manner Inconsistent with any
Federal treaty. agreement or statute or any regulation made pursuant thereto, or shall
confer Jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the
ownership or right to nossesslon of such property or any Interest therein.
SContra. Snohomish County v. Seattle Disposal Co., 70 Wash. 2d 668. 425 p. 22 (1967)
ewf. denied 89 U.S. 1016 (1967). County regulation of garbage disposal site struck down.
"532 F. 2d 655 (9th cir. 1975).
SIbid. * any concurrent jurisdiction the States might inherently have possessed to
regulate Indian use of reservation lands has long ago been preempted by extensive Federal
policy and legislation (citations omitted), at 658.






-. we ftqd thopq vases. ur9Iflevtqtxt
obviot'L.th.. t,&. Kb' t n tu tt". 0" AF . '&. .. .........
. Faced" wie1oy ier' .0
'wdrn xrule of coiatrneio-r2nQlv. r
t.e cout then confided 4, ,issue aSi 0 Spaz M
z71on1b (A ,issue the court 4i4 ,ot ,haweV, to. .rwI v4d
WQtl 01 hn '8S5 the 01QiUArj4b0 ;a01
La 28'0. The court lounc t3ois cifi C t.lvziw- "
to havd been both preempted by Federal action ,.d to q bel
brace in the sense of * "the negative impat! *U n
havezoi the value use and enjoyment 6f hie 16d sd M : qr 'f F
SIf the: logic and principles appli4 by-the Cfcifteit 0ftt l
RBa prevails it a(s likely that the only .kt mnheI@hilLdjiifl4
ing to' be rectifiedwill b the relatiotwhill'ew in d"
governments and the Fedma Gevetn.ei awithspeitih t
eontroels4-issmes that are' beyond: the sitepeiof NLISf' f'J
(c) Taat .a, '. ,t.. i. ,on.., ,.^ .
Taxation is .perhaps flthe mopt vyng put kob .ia".iA Vlafl.e
Law 280 coniext. As one cougientatpcpnp.., ely. rdelu.Me
Dnomic pressure hat State.axrd. loel~igove_ na 1b;hv0 ijlt t4
the last, several" decades has, np ;tft ris; *l Mxiip; t wit
tpped sou ces of revenues. C4opled. wh1kiSOQmewn a
ms the .ppereep.Ln o, many S.es $ tjRat,tlahye. .M V4...W. fI
services to lndjans, .withoutheii1 aa~bte~t deffir( As' nPEWW.*fe~f
'Thi0 perception is b1lstevq 4y. tM Ipmgl'qa 1w'wiN
hoT6lds that s cate a.npt, as.t ..a Ctituf^iq, BMier,'ld10tritf.
iviydAal .Indian citioiis whether reuid4ig oznv.$qEfw uas4
*if services the Stae.providq ,gpnoralge tW otbr, t$qwpiM
b. noted here that Public Law,2804 d npbpWwvis'uva
6iStateto cary out the juzisdinitMiwatE.ws h traamtflal
fh pa .. . ; * :u i:*ej x*s in* b ?m ;i M .y i i.
'A. liter .ad ot th, QAtzp tew:ai irty4wfmmJ
or pprsoial frIus property #whU.t tirstapeuLep rour ein-
activeity. Whi.thBare, isi an l Leeono.]uaBex4, ^wm ,+9^
etgg inho rodudng ex rw 'f449at rVUVlw
=9cis61X by thQenf..$ -S0u;pnrgpRo^ rfi4 X'Lawi 280 does QotI, ater t tw e a4'y. 'iehyeLQ fdltAnu
iin .U country. ., ., . .. ''. 1 1' ":* ? *tj" : ..
Starting with the prpwnsht.Satta'e~firiW r u*h b
Indians or Indian property,4" the U.S. Supreme Court re "Ewed th
legislative history and statutory lauigugeofdhthul Lwta&*ttqt-
tte:be ftYetheaM tAfjflW44s ta
exemption' languaq oiit 0:.tflp r *W6!td
referring to tne, tat%,4^is ogneaJn spplckttr haodgn

11 'A 4&I1
4 .,+.stoeL.,e: L i&. h iw., h~L &htI.: : ': -.. ., +,.
* ASfl r A "s'*w rt tee D .: z1 .m .." ..... j.' ""......" *" s" ."c" ,. q *'** ':".
.,, i A" ,, +31 *:.T' Ut, 4 .- '1t1. A !::-
1R '-e~lU lac.q G&tt 9tB 'u6b. *.--.' tJ .: S1
MeCls n'hithior Bryan w ty e 67 IM C -
no-rdl aD JtpeasO of 1q4uvey rrTa x+& fi H
tneke i : h + + ': ,h 'K?' ES.+ + .,,+, .. i ,+,+, .,., u. .: .... A RP ,o.:. .* -,*
. ., ': ... ,. .. t+,. "i-i' ,i,,]j<..." f? i .<* **'*'t P







'MNWthe States' received no congressional grant of authority through
Public Law 280 to tax.
-:' C. RETROCEssxo8 t
: I'
1. GENERAL
i,., tsooSion simply means a return of whatever jurisdiction was
aesnfid' punmuan n to Federal grant, usually Public Law 280, to the
Fademai.w-4 ernment4 The Indiane government inmthis situation is free
uwBmay State regulation, and the only jurisdictional relationship
t6 be' solved is the division of powers between tribal governments
and the Fedveral Govmrnment,
- The- onl existing mechanism. for ousting State jurisdiction over
Jidiau tribes is the retrocession provision of the 1968 Amendmnents
to Public Law 280i contained in the Indian Civil Rights Act."
SThis pmfvisionrstates:
S1828. Retrcesion of Jurisdiction by State.
' ();',1"dhe United States is anuthortzert to accept a retrocession by any St4te of
stzr axy measure of the criminal or civil jurisdiction, orboth, acquired by such
twtesarnnant to the provisions of section 1102of Title 18,:seetion 1360 ofTitlUe
2p section 7 of the Act of Auguat 15, 1053 (67 Stat. 588), as I. was.in effect
pdr" tolts repeal by subsection (b) of this section.
This .nibrooession procedure excludes the major affected party rini the
process-the Indian tribe. The congressional history af' the adoption
aofwthe"'"retrocession provision" provides several distinct components
ef oogrssional purpose. There was from.the time of passage of Pub-
lioLdgw 280-significant dissatisfaction with the absence of any tribal
consent provision. This dissatisfaction led to many attempts to modify
Juhb]t Law 280. Soie of the support for modification came from
those tribesover whom jurisdiction had been assumed by Statesiwith,
toftbeir consent,
.*The major. impetus for the retrocession provision, however, appears
to have,,been an economic one; the State complaints concerning the
purported'high cost of asserting jurisdiction in Indian.country.4
v.. 0 rall, ithe retrocession component of the IndianCivii Rights Act
-wBTft'tht'time seen as a relatively minor paut ofithis signfieait and
wt aeking legislation," and the Indian viewpoints and inpat rex
c 'yidl i title recognition in the retrocession provision as passed.

.. 2i STATUS

f Since 1A68, there have been relatively few developments. in the retro/
cession area.
The case-law has established several significant factors in the im-
plementation of the Public Law 280's retrocession provisions The
aAdotiag a vwew that rejects Federal Plenary Power-or fez that matter, "The
leralPreemtttfoir" thst developed of'late by the Supreme Courti.wvas thee view that thit
roer relationship should-be notated..between he two aovwtaa and ma wall differ
'.ibe'y tribe. The tralitlowl view woGlU,6swre the, tribees..wrft&., sovereiga powers.
a -** -a" *' '' .!**
pSee letter to Senator Abooresi. ftmi-Chtef ten le grtailoyl., sitrlbuu CCrufll dl
Chiblefs. S. 2010 hearings.
see ch. V.
"See Goldberr. supra nt. 17 at 558. for example. Nebraska saved $90,000 In 1 year of
retroceding Jurisdiction over Omaha. S. 2010 at 449.
0 See ch. V, section C.







Secretary of the Interior has broad discretiopasry pqwor,. im
Whether or not to accept retiocession from Say 81.4.,- :.. ..i, I rldt0 l
Also, retrocession can be partial. Neither all thejuridiceua
sumed by a State need be offered back to the Federal Government, t.'
need the Federal Government accept a' that is offered by a States.
Retrocession has occurred in only five instances. *;..
Nebraska attempted to retrocede criminal 1UriBdiictonL (oos*'JIvr
mptor yehiele jurisdiction) by legslative- xesolutioat f82 ainApiASS.
over the Omahas and the. Winnebagos to the' Federal ,:.
The Secretary of the Interior, in OctoberlT i90,;aceptedwretrad
oily .in relation to the Omaha Tribe. The State'then: atenp te*.b
withdraw its offer of retrocessionby legislative ResolutiM'ew dlbdIa
February 1971. Litigation followed, and the Se tarys iistmdae-
ceptance of retrocession was upheld, and Nebraska's attu Gtpitaitb..
draw its retrocession offer was invalidatedY Smine that timAEe -1
to get the State to offer again to retrocede jurisdiction overtlWixM -
bago Tribe have not been successful t ,, .. ,,,
In 1971, the Governor of WashmgtQ n respndhg to ,
resolution of thp same year, retroceded soI. of tihe purS isitoWiuAe.
ington had assumed over Port1 Madison, to the Federal (0imoS.att.
The Secretary of the Interior accepted the ietrocesslon offer tWo
1972. Subsequent to the Secretary's awc6itaice, the Attornf eyGi
of Washington ruled that, absent A stve authorization, i-
nor did not have power to retroeede. Although the ftate:t
General's opinion apparently has not affoted the validity o.h... -
cession at Port Madison, no retrocesisfo `n i any other tnbtl- .
Washington has since occurred. Lekbjlatin attempts.. t6"tkIS
retrocession have not been successful. ta'pj"w
In Minnesota, based on a tribal request to the State, the .tsiA*-
roceded criminal jurisdiction over the 'Nett Lake -Reservation:," .
In July 1974, by a legislatively authorized process, the :oveTrSli
Nevada offered to retrocede jurisdiction over all but die tribe. IV !t-
vada. The Secretary of the Interior accepted.'retroession in JuulyTl.
The last instance of retrocession concerned a curious tiWi 1iStVx-
haustive Menominee restoration effort.4 A dispute aroe Ont
whether or not restoration had voided the congressional g *' .-.
Public Law 280, over the re-created Menominee Reservation. ',h
of Wisconsin maintained that it had notirisdiction over M9tfmime'l
however, the Federal Government maintained that Menomine was
subject to mandatory State jurisdictibn under Public Law 280. To
solve the impasse, Wisconsin offered to retrocede Jurisdiction **r
Menominee and in January 1976, the Secrtary of the nteiotr a d
retrocession. ,
U.N. v. RrelSnu, 334 V. Sflw. 636 (1971) its 0oa Vue of 0r eAS s V'. VWW'vbbw
WValthll 460 F. 2d 1327 (Sthelr. 1972), cert. de..A 409 U.S. 110 (19781. ..............-.....
&Ibd d..
S,,!$atement of John C. Uft% Counsel, ComjttsqafleJulch. Mtt
uateria 2010 hearings. r ,
* Menomntee terno. occurred n. 1961 u..nuait T a. '._lM
Cong., 1953, and the 'of Jwne 17, l994, 25jSL1krwr (I tt*loagnbrd
struggle by Menominee leaders and others, a resteratlon statute wau sened, Publi law
83-197, codmAfie as i U.S.C1 | 903, effectIve Apr. ,2.7 ... .,,. ,
.... i e,; .: ***"'"
...,-- ..... f. <' :, ..
--. .... "., e::. .! .:.......







,, D. THE PuBLIc Law 280 STATES
.- .: 1. THE INDIAN PERSPECTIVE
i.
(4) 1LA uforoement
S"ThB only time the police come [to] us is when something

Ufth arious reasons for Public Law 280, the major acknowledged
impetus tor granting criminal jurisdiction to States was perceived
"lwtlesne" on and near Indian reservations.2 In fact. those reserva-
timns.specifically exempted from Public Law 280 were done so on their
a Sftnability to provide adequate law and order services.
i rsonable inquiry, therefore, after 20-plus years of State in-
rolverieht, is: have the States and their political subdivisions which
auwned criminal jurisdiction under Public Law 280 adequately pro-
vid thesime justice services? The almost universal Indian viewpoint is
thkt pie wisdom of Justice Miller in 1885 is applicable today:
blemamU of the local ill feeling of the people, states where they are found are
ht0nueir [the Indian tribes'] deadliest enemies."
SAlthough the reasons for the lack of law enforcement services may
TWy, the result is viewed throughout Indian country as a very serious
i=e. Lack of service means that law enforcement protective or en-
fereobmeat presence is not there when it is needed.
Perhaps more serious than the absence of a police officer are the
allegations of discriminatory treatment of Indians by the entire pano-
ply of law and justice agencies. This discriminatory treatment ranges
from disproportionate arrest and sentencing practices to allegations
of extreme brutality. This issue is, of course, not limited to Public
Law 280 States. In fact, the major difference with respect to allegations
of discrimination is one of situs-Public Law 280 provides increased
access to Indian persons by the various components of a State's justice
rsf In Non-Public Law 280 States, brutality and discrimination
ale 11ons are found with alarming frequency in border towns and
urban centers where, because of geography, States have criminal juris-
diction over Indians.
The views and stories from Indian country which the remainder
of this section will relate, are not new. The conditions have been re-
ported on before by official arms of the Federal Government.
.Extensive field investigations and hearings were held during the
1960's by the Subcommittee on Constitutional Bights of the Senate
Judiciary Committee, chaired by Senator Sam Ervin. These investiga-
tiens and hearings documented abuses against Indian people by State
a sometimes, by tribal governments.4 Curiously, the remedy adopted
Testimony of Hank Murphy, Degayoe Tribe, Syean Reservation. Southern California
Trauerlpt, vol. 1 at 132. Allr transcript references contained In tis reportare at the
lp.g. held by the task toeee In eoopertionu with. other taqk force. The transeripta
SIdentied bey the region of the country to which the hearing applied. All transcripts
SIn. the American Indian Policy Review Commlselon s permanent files.
' Bee ch. II, see. A, supra. .
Untuf states v, Kaga.a, 118 UP&S. B7 G (1886).
*ior a summary of the evidence prodnuep unett, "An Historical Analysis of
the 1958 Indian Civi Nights Act'" 6 arr.. 5T .


, F -








in the 1968 Indian Civil Rights Act deals almost exclusively with
tribal governnients.,. In addition, the U.S. Conirnission on Civil Rights
has, on several occasions, pointed to significant problems of dis-
crimntinatory treatment of Indians by State and local justice officials.6
(i) A.ldequa-y of law enforcrment.-One of thie major problems with
the adequaicy of, law enforcement services is the rural and isolted
position of many reservations. This view was shared by a number-of
Indian- and non-Indians. Valancia Thacker, chairwoman of the
Camnipo Reservation, was asked to comment on the quality of law, en-
forcemi'nt services received at Campo. Her response is instructive:
* we don't get any great services * but neither does the white com-
munity up there * We're in a very isolated corner of San Diego Oourn.,
and what we do get out there isn't the cream of the crop, as far as the Sheriff's
Department goes. That go*s fpr the white community as well as the Indian
reservat ions out there.7
A somewhat similar view was expressed by representatives of the
Paina Reservation in rural southern California.8 and the Agua Caliete,
Band of Mission Indians .con-erning more rural parts of Palm
Springs.9 Several non-Indian witnesses concurred in the view that the
distance of State andl county law enforcement services of these areas
may be the casual factor. The Yakima County, Wash. prosecuting
attorney indicated that whatt'ver inadequacy existed was applicable
to both; Indian and non-Indians and was caused by insufficient num-
bers of police and the vast size of tlhe area to 1e patrolled.10 Mrs.
Morris of the Q'linault Property Owners Association, a critic of tribal
jurisdiction over non-Indians, indicated that the county has failed.to
provide adequate law enforcement services over fee patented lands
where it exercises jurisdiction."
Others indicate that the lack of law enforcement services has dif-
fereiit roots. The Svcuan Trrribe stated that the only time law enforce-
nment is present is after a serious incident occurs and that preventive,
or protective services are simply not found on the reservation.12 This
pattern is consistent with the view that non-Indian police are often
only responsive when an incident involve. non-Indian., and are just not
concerned with protecting Indians. One tribal official of the Minnesota
Chippewas related a particularly disturbing incident1:
Onp ( deputy sheriff in Itasca County told me also, he said if all those Indiaps
would kill each other, then we wouldn't have to go up there. I think it was in
response about a homicideY.
The testimony of John Johnson, a veteran law enforcement officer,
now serving( as the chief of the Coh'ille Tribal Police D)epartment,
lends credence to the view that non-Indian antagonism is a basis for
the lack of service. (Chief Johnson stated that he could go on with
felony after felony where the county was called and failed to respond

r 25 rs.c. S3nO (10970).
'See U.S. Commission nn Civil Rights, the "Southwest Indian Report" (197.1) ; Report
of the North Dakota-Montana-South Dakota Advisory Committee to the U.S. Commisgin
on Civil Right. Indian ('iril Rigfhts Issues in Montana, North Dakota. 1974: and
Report of the New Mexico Advisory Committee to the U.S. Commission on Civil Right*,
the Farmlngton report: "A Conflict of Cultures. July 1975."
7 Teetimony of Valancla Tharker, Southern California Trans., vol. fl at 82.
Tp-tmnnv of King Freeman. Southern California Trans., vol. fl at 92.
*Testimony of Raymond Patentlo. Southern California Trains., vol. IT at 74.
'0Testimony of .Tpff SRuillivan Northwest Trans., at 149.
1 TeRtimony of FilyRah-ipth .lorrl,. Nort'iweqt Trans.. at 124-1'25.
1 Testimony of Hank Murphy. Southern California Trans.. at 132.
Marvin Sargent. White Earth Clipppwa. Great Lakes Trans., voL I at 103.








to crimes committed on the reservation.1" He testified concerning the
Pffents of Dr. Lois Shanks of the Spokane Coroner's Office. Dr. Shanks,
long with the Colville Tribe, had attempted to get several quIestion-
Uble deaths investigated and was reportediv told by a county law
enforcement official: "What the hell * It's just another Indian on
the reservationn" B
Still others take a kinder view of why the problem of law enforce-
ment exists and maintain that the juwisdictionakl confusion, even after
Public Law 280, precludes effective law enforcement. A tribal official
of the Fond du Lac reservation responded this way:
Question. What is the nature of the problem that you (have) with county
law enforcement?
Answer. Well, its kind of a lack of, simply because of the large unpopulated
area that lies there * is more of a county situation where there'R very few
houses, there's a large span between and the city saying first of all they
don't have jurisdiction to respond and maybe the county saying well maybe
the states or they are fighting over who should respond to the particular call.'*
This view is reinforced by the testimony of Richard Balsinger, As-
sistant Area Director of the BIA (Portland), who stated that police
services to reservations generally diminished after the assumption of
jurisdiction by States. This problem was particularly complicated in
States like Washington that adopted 280 in a piecemeal fashion-
"police officers just about had to carry a plat book around in their
pockets."
Whatever the cause of the problem of lack of services on a particular
reservation, one thing is quite clear, the pattern and practice of inade-
quate police protection on reservations in Public Law 280 States exists.
This pattern and practice has been in fact a major impetus for many
tribes to seek retrocession of Public Law 280 jurisdiction. Harry
Bomites chairman of the Bois Forte Reservation at Nett Lake. Minn,
testified that law enforcement concerns were a major reason for s.ek-
ino retrocession fromin the StaTe. Retrocession. of course, has not cured
all law enforcement problems, and serious issues remain for Indians
in off-reservation areas where they are subject to State and colminty
jurisdiction.'8 Both the retrocession in Nebraska and the ret recession
now occurring in Nevada were prompted by inadequate law enforce-
ment. In Nevada, the issue revolved around the lack of cooperation
from county law enforcement officials.'19 In Nebraska, the issue was the
same. Interestingly from the State perspective, retrocession was seen
as a way of saving substantial sums of moneys.0 James Petenrson,
tribal attorney for the Winnebago Tribe in Nebraska ov-er which retro-
cession jurisdiction was not accepted by the Secretary of the Interior,
testified that the Winnebagos are still actively pursuing retrocession
because of continuing severe law enforcement problems.2' Representa-
tives of the Suquamish (Port Madison Reservation) stated that they
were not satisfied with "the work the State did at the criminal level;
therefore, we went to ret recession." 22
14 Testimony of John Johnson. Northwest Trans., at 588.
Is bid.
Is Testimony of Kent Topper. Fond DuLac, Great Lakes Trans., vol. I. at 134.
2 Testimony of Richard Balslnger. Montana Trans. at 118.
s Testimony of Harry Boness. Great Lakes Trans. at 141.
SFielpd lntervlpws.
2Statement of Ralph H. Glllan. Asst. Atty. Gen. of Nebraska. S. 2010 hearings, at 471.
I Testimony of 3ames Peterson. South Dakota 'Transe.. at 9.
"Testimony of Richard Belmont. Northwest Trans.. at 74.








lbehevi that mijorseimintioi7' Wovau w
exists. Miarvin Sargont ofqfethotlia
related .what lie tetned b'ateoftehorrm stniu"^ m t4.- j
aoused',of eartheft, imd was lId11bd'big 1 4w l I IIm
fleeing the car unarmed. Mr. Sargent gave the follWJ7*p
to why such things happen: *i .- *.: r.. : z:. ri i i
'.(It) Is bafaillt, tieemnnmmfittr afflttlleh, e imti 'Stt ,y .bahi
Wiherifs, the'attftude that theiy. cawr:arinad- nt tahdeerqttols. ea'.
it's open house on any Indian$ ,t ,-fl, Mn, 5IRat 4fpt
streets you might say of Menominee, Detroit Lakes, Bagley..,. e $lify
diffibul t time gebtbg ahUy fair l.rett* 'cifn .l6t Wt ... m: .iiitm.bul.
, The Soboba :BMd ofMiAAsWi di ;au&.'i'al8B
police hararmeat along with tleair ailegtoasizw inEadqejtAmrs
The situation was so bad- fkile -of thwlofetl-lit^O .1W"
nation land&S from non-diidi.as, t''.sp.rs tn &Bib
cattle-that the Indians 'tobo" prodvig riri' gua
their laids.2 The represetat tiVe fr in i1l& r.l
rncidents'of being shuttle& tik' ktd lth'6etieeid Itheif tjw
and State highway pairol; wifvth nl s' b i,.n. Ill a'b -Iw
ledtion until th tiselves' thei ted 4o anft* -the ITW"
non-Indians. Then all the'in'titlnditi p"he't-sw
and State-arrived to enmio'e the no6A-l-idiarin;. -A a. a
plaint that even where law enforcement services are pvroAbr
reservation, the police air"esi thahn w!.ihg t6dh e'le ti f
non-Indiahs. i *i'ft. "': 'r; -, "j r Or. ihi f
It was, ho*wver, clear fr6&t'the ThfibEi vi *pdiMA&l4.A
unity existed %fr indtanis inithe *noriflTnahahttiffltitIty i "
Question. You mentionedd ttb. the rherl. Depa, i ,t Wdi. Uap 4 ..
Indian trespabser' *ho was--t!eIin;tlmber (16) I= *'Ie66ddV
the Sheriff take a similar poBflenl if t 1lh abfftin't&&Witreio-
there similar restraitt show, In the art polets? 1 : '00'0if
.. Answer. I'd probably stilLbe oyj ,todtif Itwd oy dtfX d ..,c, -r ri f flit
Question. I take It that.the an .wfi, no,. .. ...tit.iWf
Answer. tRlght."
A represeitajivp of h4TPitt Iiyew Ijadaang o6f ntoithe
related several ihsidento Vhere I.4Ls wr lQ f ',i
non-Indian perpetrators were no6 w.scuted, or1. Uye3,V4--
the merits of the spefic casea,.tb. rlsutant.aneQr anM sti
4eep : .. 4 . i:.;. .. ;,. ::, .. v ,i .
.I don't know too Mb&h abbilt this bi&c LwSsw.iwehierawe, uaSt*
besnnder the same Jiurisdition.a- .te white,manut4 ,rjltajahiftlfllq4W
don't need PublUc Law,2O ..... , -. .,.
!Perhaps the most cogent expoflot,'of the -faiAur.e of'W, hi
inent conoemns the experience of the '1oiille ResemantwAi .efl he ol
villae Reservatieo consists of: appiowmatey i *milliti acr* n8744
located in north central Washington. Withinm ;th. rnserv.ib. bsfl
aries are five distinct predominately non-Indian -ommu nitisi.an4-tmw
Testlmo Y of Ma n a gen a m ",, 4ji. .i '' l rt !' "- 'r"i'T
.ar Vn t,_ G Il " .. 1'.,'*
STestimony of W&if. Cllawahye Tt flftY fltJflMMm.I.ri '"
Te tlmony of W *n. " ..... . ... P -!...
tonk ll, l S&M L tLinony offakVlpy.,wn' .'L;
P T e stim o n y q f ,i .. N S ., P W. 4
iibe follobidMI a-le
Jobnuon. "iutory of law a inG. '
Exhibit 46.







4o01ty Ygovernmental unitas. In.: 1965, the Colvile Businewq Ortcil
Wqrated the State of Washington to assume crniin," l and civil juris-
diction pursuant to Public Law 280 over the Colville, Reservation. At
ltb time, ths council was under substantial termination pressure from
tlwSTA Superintendent.29 Two week, after the counc's, action, the
$tut4 f. Washington assumed jurisdiction.
.A in other states, while the assumption of jurisdiction is by the
.$4 government, implementation is often the responsibility of local
;wcal subdivisions-counties and municipalities. In the Colville
ituatiQn, tbhe law enforcement responsibilities fell to both Ferry and
0k"nogn Counties. Since Public Law 280 provides no finaheial assist.
sace to States or their subdivisions to aid in the delivery of services,
and, the Colville Tribe was deeply concerned that services be ade-
quately provided, it voluntarily donated equipment and moneys to
the eimties. In 1965, the tribe donated a fully equipped patrol car to
each county plus a cash contribution. Payments continued for 6 years
and totaled cumulatively $680,000. It also leased its jail facility to
ohe' eWnty for $1.00 per year. During the period of time when the
counties were providing sole law enforcement services, enforcement of
law and order on the Colville Reservation had been sporadic, uncer-
ta n nd of diminishing quality and ever-increasing instances of dis-
crunnatory and prejudicial treatment of members of the Colville
Qbn debated Tribes had been brought to light. The county law en-
fbrcement officials had been shown to be financially, socially, cul-
tirally and psychologically unprepared to deal with and, recognize
]ndianii problems and consequently were unwilling and 'unable to
provide for adequate and equitable maintenance of law and order on
the Colville Indian Reservation.0
On September 1975, the Colville Confederated Tribes asserted their
jurisdiction and are now concurrently providing law enforcement
services through a court system and police department to all persons
within the exterior boundaries of the reservation. Colville tribal police
are all trained at the BIA Police Academy in Brigham, Utah, as well
as locally. They aie, with one notable exception,31 cross-deputized with
the police in neighboring jurisdictions. The police department has
investigated and brought to prosecution numerous felony offenses to
which county officers had refused to respond or had done nothing. The
total expense of this law enforcement operation is being borne by the
tribe at an annual rate of slightly over $300,000. The tribe's capacity
to adequately provide these services and its success at doing so is evi-
(denced by the fact that the non-Indian city of Nespelem, Washington
contracts its police services with the tribe rather than the county as it
liad formerly done.
(b) Other services
Few services are as important as law enforcement in the context.of
Public Law 280, and it would not be constitutional for any state to
n The BIA Superintendent then assigned to ColvUle was the same one who had terminated
-se Klammath .
0 Chief Johnson, supra note 28, at 2.
K Mbt., Sheriff Beck of Okanogan County In May 1970 termInated the croa-deputlzatlon
agreement with the tribal police department because the trmal police ia ae feldtihves-
'gtieaon and arrest turning the felon over to the Count? Promer and did not 'otify
the sheriff until after the arrest. The tribe iews ttus action is precpitousq stating
that Its adtlon was an otirsight whnh1 is "certainly not an nubu.al occurrnce when.two
law enforcement agencies are working together", and something that colF have Worked
iont through discussions between the departments.







&S1fi IAcdians asty swvmbas hit am pan iwdllo agt ww"
This does not Mewn, however, thu t.rlbn -Te&iiil'tv*
Sattiled with thse*Eh*y reeMe. % .:.-J.]I.,pt 1
Rank Miiphy nf_'Syceuntaa"alftl seserntiw'oileemeO ;. i
peitoor# i' satrheaftern f&1gbtaxsftAed .thw4It %f
protection services, the. reserftle6n h4dttot"t $Mt#I 4,
8bpartnment and has .inc_ %eaie fo- t&t nAei't-*L
merits with San Diegh Coumty2M'M Murfi4r ,.y
of services in several ways. T-h'teTOk cbTttcts w 'tH.e .
services to the r6tervMiob; lIwevnt, tjif pbantructt s kW"1
laSdS protection and dts, not' awppl,'to ..'d re ..f wv '
dtes not providethie services on'is. : .. a
The county is nql going tq,.provde it tqr usa.Tlsj dwa'tr Jtv:t,tl 2d9t0EL
or. equipment either. FAev,4re short .of woney..6, r te omgri.gto
their own people Ouide t resrv4atlof first,: b o6e& rentitaS
emne in. And,. thft again, the J urisliwtibmat pit lee (ft t. iW' aMow
can serve us or not. They're;not, evet sune. about tbatVu-. ,.1 ,.-
Questiwo. So, even thwah 23;,yasafter( th, ..havSe II 4us.
is stUil some question of whethpr te. (jerVM
question whethd'g they are bfle-ttroMAlfe-,stt6 a .
A'min er. Yes, Yht 'eorreet. ... ". .. ; .i .
Other types of social services; fiolnlbOththe tijate ahA, fiSi
sector, which most Ameri ans take for graitgd lavelben, 4iqil
problem in Indian country. Alfh7bu9h ie'lies r'" tM eg.. .1W
... .;," A l u. .. .." q a.f' .
reservation, the c4airwoman of the lppr"eywvi a,,wa 3
to get electricity hloked up to herh6ome uhtfl se made a triajo
~~ ~~34"""" ..
of the problem min the local newapuae- ,, ,,,.
The general view seems tobe that al9iq ikbev. acl ye veay
on the part of someestates and.,cowmties, IMianm for tIP4.9i4 4
not satisfied, with the provision of ,services.A reflectiS QfaJri^ p *
satisfaction is that several' tribes,, the Quihaults, Colviifl. .
mas, hrve developed their own social-service. cepartment& .Marj:. y
Becker, a state representative from WaShibnigte, and a member af!'
social-and health service committee of the legislatue, sul medup', ,
view this way: ,"'
Ques ... do you think the state ha. lived. up ....- i t "M.
(social services) it acqWjred when it took on thteubtlwrity .unerJleSXiIwW
Answer. Well, apparently from the tedtimojy, it has uTz4d'-frOrn a-* tq
area ... birt tribal members seem pretty dlighatife8 'w I. I"" '
" : . .... j; : ; = .* : ". 7 -
~ 2. '1 l, WtJI-I-ND1AW a:. .. i..
_ *. ,. .. ; i .. ". f
While there' is little diversity of viewposa tmoag'the tribes ,e-
cerning Public Law 280, the divergence among theb.amO-Jdica m
munity is extreme. On one side of the issue are some non-IndiaijqnaayA
of whom have economic interests on or near reservations, who' are "-
tfemely vocal in opposing any removal osf thte jVrisditifon froItl'ap
4 rsev4ations. The argimenrt favoringthe Tt mstenf'onGof.TieHi4
and perhaps extending more state control over Indian reserElt sRi
ibtift&.ely in'rt ."ined, wit.ithe "oti6 hihf 'afl ""t."W"",% ""oiY

a e g. E q t 't .. .." *V, ; i' t'- 'ii" .. ;',': w
bna*n-





,pp 4jPs .fpeoificaily. The major concern therefore appears to be "the
hiDt" of Indians exercising some control over the behavior and eco-
I gaiG interests of non-Indians on Indian reservtiom. In extremes,
t this viewpoint argues for the destruction of reservations and the total
te nation of tribal governmental identity. Somewhere in the middle
i''thb spectrum of views on Public Law 280 arce non-Indian per-
sons ... as well as some Indian persons who simply wish to see the
juwisdietional confusion settled once and for all. Some of these people
do not believe, as a practical matter, that Indian governments. and
aid-Indians can coneuicrentLy opernt, and gowtMtnsmt tie6eMf.nrIe-
*qjites, oe or the other to hare sole controiL particularly in the area
4feland use control and planning. At the other end of the spectrum ap-
-poar to be some non-Indians who. as a matter of social philosophy
or practical experience, favor the total repeal of Public Law 280.
...Those inon-Indian persons, as well as some Indian persons who sup-
.pprt Public Law 280 and oppose retrocession in any form, argue that
a assion:
*. will be violating our rights guaranteedd by the Constitution and Bill oT
Bzftgh, Specifically you (Congress) will be recognizing a sovereign Nation within
tke co flAaes. of the continental United States, the very heart of this great country,
"an 'n the..Bicentennial year at that."
The major constitutional right that they believe will be violated is
that non-Indians are. generally prohibited from participating * *
tthirough the voting franchise * in tribal government. This situation
iism'enplicated by the demography of some Indian reservations. The
strongest opposition to the exercise of tribal authority appears to come
.fnww.those areas where Indians have become a minority population
w.it im the exterior boundaries of their rpervation;. The above quote
is fiom a resident of Thurston Count, Nebr., which is totally encom-
pksed by either the Winnebago or maha Reservations. According
,Iothe 1970 census, Thurston County shows population of 5,024 non-
Indians and 1.918 Indians, with 79 percent of the land mass with an
assessment value of approximately $80 million being owned by the
:on-indian population. The view of some non-Indians is that in this
county under retrocession, 72 percent of the population would he dia-
eafranchised and governed by the minority of the 28 percent.::'
Similar views were expressed by representatives oif an organization
kmown, as "Montanans Opposed to Discrimination"-M-OD--whose
stated purpose is to:
t ,P* ...* acduct its activities, so -as- to enforce unifinimty -4n the customs and
nmee. of a nation. State, and. local laws which relate to personal and property
matters. ,
Other purposes of this organization are to prevent the unjust and unreasonable
fiserimination against any citizen and, in general, to enforce and defend through
Eli egal and constitutional means the rights of all citizens regardless of race.
creed: or national origin."
The apparent membership of this organization includes some '3,000
persons, predominantly non-Indian, many of whom reside on or near
the Flathead Reservation located in the State of IMontana. According
to MOD, approximately 83 percent.of tfie rfeservation'population are
*Statement or Ann Flicker. editor. *tithnil atted bf. a S. aoO..at .56L.
W Statement 5E Alps CurU.s. city attornq, Pe4w., Nebr.. 14,101.1- at WI.'
Wredtimoiy f r.'L. Tgidhafmi. attorney rot MO, Soutl Kota transcript at.24,






Indians who are-not enrolled members: of the Flatheadr Tri ti2. ib
persons are reputed 'to have half a billlbn dollarss ve~t44IhiS:|
landi 'and commercial holdings.V The position' exprei6d'stWi't
that of some non-Indians residing within reservation bouhdaelk r
Nebraska: "c ; .. 4.J
The fact that 83 percent of the population'would be stbjectt to uie ctm w
of a tribal government in which 83 percent of the popuilationdid not Mn'.e4u*-
sentation could only result in violence. People resent the fact that they are 6ft
to be subjected to those laws for which the King of.Elngland was kowtnwa
200 years ago.t ed: ."
Another reason for some opposing retrocession is the i- tiit
reservations were to be transitional entities and: that tribes should he
terminated. This argument, as with many termination or assinil*-
tionist positions, is phrased as an argument for extending:"fulfliti-l
zenship" to individual Indians: .. "...: -',
** the status of my people as wards of the Federal Goveruzmnit began
over 100 years ago and may have been ,a necessary condition at that time."I
cannot believe that this program was planned to be more than a, .temptkry
period of judgment and transition.. ., ..
Gentlemen, I submit that the time tor responsibility Of citizenship .byT. thel
Indian' people as well as the 6enoyment f all of the prerogatives Is towg p
due. * Until the Indian citizen assi;s.is the responsibility .o ifiai p
until all law in any community applies to iti people, the Indian citizmi who
are intelligent and capable cannot achieve the level of pride and. dGnitzbtey
deserve." : ,.
Coupled with these arguments is the belief that being -subjeeWe.itb
tribal jurisdiction 42 will both preclude fair justice and createmawive
Indian-non-Indian conflict. .. ..,
A non-member has a distinct fear that his authority and power to imntfote"s.
and penalties upon the non-member would be used as profit raising and endittr-
ing the situation where the.fine that they paid into the .tribal courts wpuHl t.-
distributed out into the pro rata annual payments. I think this fearrs...wel
founded. I don't know that it would be applied.. "'
But I do know this, that if S. 1828 or Its companion S. 2010 or any ofan .'A.if
type bill is passed, that * it would engender a situation that would tiSe
Wounded Knee look like a baseball game : ..: .,.
Mrs. 'Elizabeth Morris, treasurer of the Quinault Property Owlens
Association, most of whose members live within the boundaries Of
the Quinault Reservation over which partial jurisdiction hao-bs bI
retroceded, testified that fee patent owners onr the reservation oppOsed
retrocessioa because of the economic umeertainty and hardship it 1ts.
caused: ,.
We find ourselves the innocent victims in the noa-man's land beaten gdvrn-
ment politicians and Indian militancy. Current jumwdictional abuses are b -ee.-
ing a hatred unrecognized by the young militant leaders, heady with theirdtew
powers. ". : ,
Mrs. Morris and others in the several Public Law 280Stateas, ce4
the blame for their problems on the'Federal Government. Temony
is replete with references; to,being misled f5 when they o r, their an-
S. ,,. **: "' t S /tl ^ i, ; ': " '
*1Fd.. af 31W32. ., -
t0 Id..at 35.. : . : .,::. "
t1Teltimouv of B. H. Lambeth. president of MOD, South Dakota transcript at 37, PR.
NBtihlio tw 280 or'retrobeoslon neither remove nor grants tribal jureisdtion. over
non-Tundtans.
"ATem liqny ,F. L.lgralbam, Souiith DaotaI tanpcrlpt at.36. . .. ,.
"Ni Nflh tt^fleltlt li'n 109. ..
Mtrs. Moatxs.. "1 wobn~ .1 e M, i lao6eut If ~fa'~ bl u.rau1 feet4 ,i5trae."




23

efttor pturchased land within the boundaries of Indian reservations
or rations that would soon be termninkted. Others who apparently
i, ,trn they were locating in, Indian country seemingly had no
:Imtual ar legal idea as to what that meant.
.. io,..the original sales brochures posted by the Federal Government In any
VaXw pf th' United States clearly states that these villa sites were situated
titin thi former Flathead Indian Reservation.
Si *. *
Now, these are all ... the reasons why people came on the Flathead Reserva-
tion in herds and droves was to buy villa sites, to buy bomesites, townsite lots,
and settle within the Flathead Reservation. Now these people thought that
this had been extinguished, that they were not coming on at the reservationn"
Other persons who tend to be somewhat less vocal or emotional in
their vitws, but who oppose retrocession or the removal of State juris-
ctif, seem toWfocus on the jurisdictional ambiguities that they be-
liewtiretession would cause. Fred Mutch, the mayor of Toppenish,
Wash., : predominantly non-Indian community located within the
exterior boundaries of the Yakima Reservation, opposed the removal
O. State jurisdiction, citing the developing system of concurrent
tribal-state-city-county jurisdiction as not being perfect but prefer-
able to the situation some 20 years prior:
: With'all its imperfections, the limited concurrent jurisdiction under Public
Lw 8&480, which we have lived with for the past 15 years or so, have come
cose to working. It is understood well by the governments involved and it has
bieu a vast improvement over the confusing and frustrating period of exclusive
urlsdiction before Public Law 83-280. What is needed now is clarification of the
gray areas of concurrent jurisdiction which will enable tribal governments to
lie in harmony with State, county and city governments. History has shown us
that given the proper framework, these governments can resolve a system which
can work. Changes in Public Law 83-280 could pose a direct threat to self-
dterminnltion and self-government for the non-Indians living in the incorpo-
rated cities on the reservation."
"The Mayor of Palm Springs, Calif. which has been in continual
land tWe jurisdictional disputes with the Agua Caliente Band," op-
n8sed0 removal of jurisdiction on the basis that only one government
ebtild'within the same geographic boundaries, provide the land use
planning and zoning necessary to the economic vitality of the city of
Palmn Springs, and that should be the city of Palm Springs repre-
senting all interests and having expertise.
The notion that tribes will not respect the environment and will he
Irrespttiible in the exercise of jurisdiction permeates the views of
others:
tlieetically at least, it would be possible to have installed in the finest resi-
dentlal area of a city a meat packing plant, glue factory or something of this
nature."
SAnd finally, there are those non-Indians who support retrocession
nIia'bashedly; interestingly, they cite the same adherence to basic
Ainericin principles as do those persons opposing tribal jurisdiction:
It is inconceivable to me that any nation be denied the right to self-determina-
tion, and in fact, it is still being denied here. Wei espouse liberty, yet we deny
4^sytauyh of. John Coehftne, past preldent of te Plathead Lakers, Inc, South
daI otatraUscrlpt t t52-53. .
T Northwest transcript at 187.
MTestimony of Bill Foster. southern California transcript, vol. I at 81-83.
SMemorandum to Ronald, Saggs. a qsistant to the citj manager, Tacoma, Wash. from
Robert Hamilton, city attorney, Northwest Tranfta. Exhibit 26.





liberty It itmlRsae .kint t fNhOWa! fl if
ciples .that bare made thi_ Nat;pn a wead M
.. on a more practical vein It I bmea t
Iest to the, Confederated Tribes 6t- thie mnAti ndi
consists of over 3,200 square mUeaml -mand t' ubsmatI is4
Within these vast areas Btae.p4 Wouutyla
the protection it ought to bep ridingg. .,a 0 4tf .,. p
non-Indian living or passing' throat .$e ,_.the A
official in Umatilla County is awairft 6 the ip r
taken the opportunity to wholeheartedly, endorse aieturn of JIrlCIuida
Confederated Tribes. i. I .- *
E. TE assHE MwQvwt, i *:t 4:,'pp boa
Although them ae diverse viewpoints stUng h :4u:ieicMkW
reasons why State jurisdiction assumed ,nd or R .wgf-ll
appropriate, there is overwhelming support u .wgtip
least some, if not all, State jurisditn ower A]Jntdi
moved.1 The questions that arism firwenty t Jb I Lb. iPWM
retrocession-eheuld be eou.plise& ,and wmed w ,pBfi N M
would wish to have any State .imvolvezentu--t'juri.tdiot^-lt
their reservations. & .. + .... li T
Norbert Hi], vice chairman of t Oaeid Tib. M'W
cated that Oneida had r.ui..te4 .hf. yrn F ..n
cede jurisdiction to t te, '4 wwwfat jlowioi 9
"eroded tribal sovereignty," and law eAfoom ie tniam
State system was an "unreality." (0 6ytlsohjw"ftsdc&
ure of Stas to pwovide J4t1o
gress perceived to be making w i asse' Pblio
Baker, chairman of Lac C rOots Oe is, stated: - . I, d
After twenty-two yer M, this jq e4 Ku,,;.Tw, Q 'q.
protection of persons and property Is st ilvalm laht. mI .7 ,, 1i
Many of the California tibewasp fWesa oA tfaaohU$9j ewpts
to provide adequately for. 'InUn *ntele-ts asWo.' .1easn .MlMM
sion.A The failure of lawwenforcemeat pNhpt the s
movement for retroeessiowg.5 TM wis tr forptw 04
retrocession.6 1 .'... ..........t M rl
Another reason g,,e,4qr maki ngm- ocep w IeAfu PWI.- AAPIn
support is the lack of initial t6riM) .o.osa. toeMp,.jW .fl*ii
view was given soma cmntMgssionaa.reot iitioapwkea fl'J'swr
was amended in 1968 to. p petfvny quai bsl o *s*Mi
requirement of tribal consent in 1968, no tribe has consented 1,4
imposition of State .jurid 4 9 A MWU#*A..PA...-
ever, provide 'ny tribal noiiaiwi PP pa pg
since retrocession is dependent upon State action. *' ..,
SI . ... ". T -.. ; . . "
tateqient t of J "k "eAtt
at fit". e'I. M.

S- 2010 bearings at 50.
and voL IT at 92-wa (Pala). I ",
MFleld la w l ,.h
ti" ,f '~<' .fq f " : ...: : *'ati ,t ,4< *'s. : 1i j +j '.1 .' *-
-S .- 4, ^wA^*ifiW#N 4u nu> ^:n






As adoption by the State of Washington of a complex jurisdic-
timd scheme based on land ownership patterns, and specific subject
N hSsa s brought much confusion.' This development is certainly
?'Csicgress did not contemplate because one of the reasons for Pub-
lie Law N was to reduce the patchwork of jurisdiction Congress saw
befoft the passage of Public Law 280. A number of Indian tribes in
Wtehgton view this vastly confusing and ineffective system as a
mefbr bsis for requiring retrocession.16
x noted previously," one basis for Public TAw 280 was the assimi-
atim philosophy that periodically pervades Federal Indian policy.
Tribl reection of this philosophy is clear and forthright:
tq Lthe State] want the control but they don't know how to handle it and
hWj want to put all of us Indians into a category and assume that If we stick
af lui lof enough, we will soon be white, and if-they want to throw us into
tint nuDe S pot and we are Just basically telling them to go to helL We don't
66 fr att.?
Although court decisions in hunting and fishing rights, taxation,
and land use controls should make clear that States and their subdivi-
sions do not have any special jurisdiction pursuant to Public Law 280,
ift is not anticipated that tribes will be free from continual State at-
tempts At regulation in these areas. Public Law 280 provides States
with the appearance, although not the legal reality, of power, and
this veneer of authority has been an extremely costly problem for
Indian governments an non-Indian taxpayers. For example, the liti-
gatik surrounding the zoning and land use controls between the city
m -Palm Springs and the Agua Caliente band (membership less than
100) alone has consumed a half million dollars min legal expenses. The
Wolles expend approximately $100,000 per annum in legal fees to
protect tribal interests from State intrusion. The States show no signs
of abating this behavior. Shortly after the Ninth Circuit opinion in
Bata Rvsa3 San Diego County notified all reservations in the county
that since Santa Rosa was technically not a final decision, the case
would be appealed to the Supreme Court-San Diego would still ap-
ply its various land use regulations to the reservations.'4 Testimony
of an associate State Attorney General representing Departments of
Fish and Game in Washington shows a clear pattern of continual
litigation attempts to graft exceptions to hunting and fishing cases
with have gone against the State's interests in almost all instances.
The pattern was so pervasive that the concurring opinion in U.S. v.
Wsaialgton,'5 in an unusual judicial step, notes the recalcitrant behav.
ior of the State as necessitating continuing Federal court supervision.
The continual need to fight State attempts at regulation of tribal
interests is seen by many tribal officials as a serious handicap in pursu-
ing their economic and development plans. Lucy Covington, then
council member of the Colville Tribe of Washington, put it this way:
A See Chapter II, Sec. B. suprn prosecutor, Northwest Transcrlpt 46-52.
ee e.g., testimony of Paul Maikut, Kitap County.
N SEe e.g., testimony of Barry Zrnstoff, counsel to Suquamlsh, Northwest Trans. at 101.
SC chapter II, section A, supra.
"Tesimony of Louis Laose, chairman, Winnebago Tribe, Midwest Transeaript at 409.
"S2 V. 2d 655 (9th Cireuit. 1975).
"Letter from Bo Mazzettl, community affairs officer, San Diego County to Matthew I.
Calac, chairman. Ad Hoc Committee on Public Law 280. Dec. 11. 197L.
"520 F. 2d 676 (9th Cir. 1975) at 693.


77T-467--76----3






26
* we cannot fulfll completely oir dream of 4 v.^la
extent possible as long as the cloud of Public Law 83-280 04ags siy '
Nationally, the Indian position on Public.Lw BoQ.
subject of much discussion and signifloaat hard work: atW. &
solutions. The National Congress of ,American lIdians hasIifin
sistent in its opposition to Public Law 280's unilateral t.
jurisdiction to States. Frequent resolutions at NOCAT
have addressed the issue.1" Other national groups hive,'....
firmly attacked Public Law 280 and the. termination py
underlying it. At the NCAI convention ih San. Diego inI 1
began a major Indian effort to develop a unified position a ,d P
nism for repealing the effects of Public Law 280. several mm
were held in Denver involving hundreds of trbiibJ
which resulted in a draft retrocession bill. This biMU : t' .i
form was introduced as S. 2010 by Senator Jaekson inJrni ap
since that time, major tribal support has coalesced behind.: th
Mel Tonasket, president of NCAI described the bill .as re tqg :.
* a consesus of all the Indian tribes in America. That .,cofeallk
accident. It was achieved only through great effortand .expenm.,.': 4:.. e.;i
The support for retrocession as reflected in S. 2010 or asg *.*0,aE
proposition is not limited to tribes in States where Public TSW!
has been operative. Frank Tenoriof secietary-treasurer of teaItI
Indian Pueblo Council, expressed such support in the folHwiE g
manner: : it.i
Public Law 280 has no effect on any Indian tribes Itn *ew MexIe"'lt I
tribe wishes to allow the State such jurisdictibf,. But evt' ltou'*h:th4t"
of New Mexico enjoy all the power of self-goverument, it its still. .iBMl iM
them that the strength of self-government depends in pqas Si the e.a
governmental powers by all Indian tribes.
This insures generally app~lcable case law and consisent legishiaielv*4
efforts of the two national Indian organizations, -in concert, along WlIh.M4IS
output throughout the nation has come out with legislation that is t: Ioft0.
position. ... : Loki I,
F. SPECI&AL PROBLEM AA& ]: 'A !y

1. RECEN RO E lTROCESSION EXPEIENCB: LPsSO5 IMAXNm, -: lo
Two recent experiences involving the removalef. State juisijA p
and the reestablishment of Federalrtribal jurisdictioniilu!steur a.
of the problems inherent in the process as it ea ... ". :. i
(a) Nevada :" ... r ..:.".."r
SIn 1957, by affirmative legislative action/O Nevada provided pt.s
ess for assumption of jurisdiction pursuant to Public Law 9280. This
process provided for State assumption on a county-by-county bai
with the individual counties being provided with the option to eept
themselves, or portions thereof, for coverage. The result of this pros-
1 S. 2010 hearing- at 110. Mrs. Coviagtoe ha r ne'bieome ie". dh"i"i 4. htae
Colvlle Tribe. .b o ..e .. -
17 See Report on National Congress of Americaa tFdmanis.: .Hitor1a I4m wides
and Priorities,". 190D-lfl7o, American, Indian- Poliey R.ew, -Revielwuu..i. "I
Indian Purpose, Ch let o Conference, t9fiversity o Chit- le .3. ,:. x aipd
NALCJA, volume I "The. Impact of Public Law 280 Upon 0t06dwiklaStist 6at
on Indian Keserwatone, o"
a S. 2010 he tings tl i-. ,, ::,, ,,
1 rbid. at 140. "
o 0Nevada Rev. State. 41.430.








a was that jurisdiction was assumed over some but not all Indian
xeBa~srtious.21
GrJMing tribal dissatisfaction in the 1970's with the provision of
law enforcement services and the removal of Indian children from
Indian homes by State social service workers in the reservation areas
where the State had assumed Public Law 280 jurisdiction led to a
statewideIndian effort for redress.22 This effort solidified into a retcro-
cessiaaon movement. The Nevada Legislature passed a retrocession stat-
ute on JIly 1,1974, NRS. 41-430, which provided for individual tribal
referendum on whether the State should retrocede jurisdiction over
its specific reservation. All previously covered reservations with the
exception of Ely Colony chose retrocession. On July 1, 1975, the Sec-
retary of the Interior accepted Nevada's retrocession prefer.
The intervening period of approximately 1 year was a period when
the-Nevada tribes were pretty much left to their own devices and
received no meaningful Federal assistance to plan or prepare for
theirkemsnumpftion of jurisdiction.23 Most of the Nevada tribes over
whom retrocession was to occur had not been exercising concurrent
jurisdiction and therefore did not have up-to-date law and order
codes, tribal courts, trained tribal judges or other personnel necessary
to provide full governmental services. In addition, many of the tribes
do hot now independently possess developed economic resources to
provide for or to enable purchase of the services necessary.24 The
Federal Government did not provide either the funds or the personnel
to assist in the redrafting of law and order codes or in designing and
implementing of mechanisms for tribal exercise of jurisdiction. Al-
though many BIA officials were not in favor of retrocession, the BIA
agency in Stewart, Nev. requested that $250,000 in planning money
be made available to Nevada tribes for the transition. The request
was turned down apparently for fiscal reasons at the Washington
level." Tribal application was made to LEAA for planning funds;
this application was turned down because, although the tribes soon
would be exercising significant law enforcement functions, they then
were not, and hence were not certifiable by the Secretary of the In-
terior, a prerequisite that determines which tribes LEAA may fund.
The only meaningful service available from the State was assist-
ance in setting up a tribal referendum to determine positions on
retrocession.
An additional problem, of mnch functional significance, was the
uncertainty as to when State jurisdiction would cease. Rather than
any negotiated or mandated timetable, both State and tribal officials
could only guess when and if the Secretary of the Interior would act
to accept retrocession. In the interim, State services were in some in-
stances prematurely withdrawn, creating a vacuum. Also, once the
Secretary of the Interior did act, his action was effective immediately.
Covered were Battle Mountain Colony. Carson Colony. Dresservllle Colony. Duck-
water Colony, Elko County, Ely Colony. Gonhute Reervaton, Novelods Colony, Odgrg
Rank1h, eno-Sparks Colony. Ruby valley allotment. South Fork Reearvatlon Wafloe
Pinenut allotment. Washoe Tribal Farms. Winnemucca Colony. and Tomba Reservation.
"Interviews with Harold Wyatt, director of the Nevada Inter-Tribal Ceundi. Dee.
18, 1975o.
"Interviews with Robert Frank. Chairman Wasmu Nation, Mike Deasay, Counsel.
Wmanu Nation. and Donald Pope, director, Nevada Indian Legal Services. Deec. 10. 1975.
Interview with Bob d.nter, diretr. Western evad Agency, Dee. .
F" Interview with Bob Banter, direet~r, western 2revaaa Agmeny, BrA Dee- is, 1975.




w..iiiiiii .. .. i~i i:


Therefore, on July l, 19752';thiea Nwe' tttib lth.0
to adopt preexisting and in the view of most obse
federally drafted systems for tribal lac.:
and older codes and' courts. FoHlowing 't-rtIW tttl,",a^
having all judges be lawyers in aSSt.ate'Wer&e 4s tefie iSf
Indian lawyers, all CFR court judge 'S n6fltditfi8'dt.i i
Once retrocession did in fact te&eikily d60 Lt hh. A ibift
$125,000 grant to Nevada India$- Iegt'ServieiA to ow
preparing law and order codes and eonstiwtio revision r"oS/
has opened an additional office in Ned t-ht $astrn
Elko. The rationale for two ageied iastlm10 4 Utb s 6ia n M
Nevada and the existing Stewart Agncy'O lasonl-it. Mi
from Elko area tribes for their own ag#ey.. Nhe. B1A.I......
three judges have also been addpd.: Most of thepoll Wl* tob i
by transferring BIA police from: tbiher States, therebyr WdtOW
presence in those areas. V-: : ' :"r'-. ? Mr.I;4I
In effect, the Nevada tiansitoio-planiig, treating it t&x
has occurred and is onimri'g after rsB&si. .... krl :t.,
One prominent observer ad piartimipjait in :Neflaeda inse thfti .t
ing recommendation #.ith respect to any Thtu t tl re oee rs':. A 66h
(1) Strong BIA support-the Butesu c'not adopt ai sit-bwot d3
wait attitude expecting "the aseerih t' te. ,'t -aU( thetmsiab
be a significant prior commitment of fAnds for pIfmiig andltrt
(3) the discretion of the Secretary of the Interior Vndu,5i1
1322: Indian Civil Rights Act, shotild be mandatory witbins a1
period of time; (4) a sufficient period of time shoul be ad. i uvaimaid
for tribes to gear up for assumption of jurisdeictionMI T .I 'Iw:-
(b) A e onne ..e., ." .. .1i:..n,.
As part of the termmation, or assimilatiqu, fever.', ef '
Menominee Tribe of Wisconsin was telrninated. Atr i1
hard-fought battle by Menominees and their allies, i.n ece Tif
Congress reversed itself, via the Menomnnee Restoration Act P91. t
up a mechanism to reestablish tribal government anad ltedF t
relationship. While restoration is not legal the same as.'toco,, n
the appliability of the restoration experience is relevant bu i
can involve a tribe movuJ; from a position ,of minimal 9 .Xo,
ernmental powers, including the existence of the istittiopDsA
exercise, to a greatly expanded exercise of govwrnmnental pq'-er. ,/
The Restoration Act directed both the Secretary.of the In.ti: 1
Menominee Enterprises, Tpc.,-the holder of remaining buassts t
jointly develop a transfer plan, In addition, an electi. ,aw .sIhaw..
in effect produced an nri. tribal government to xpreeenf *
Menominee people for both preparation andimp .e-aton of t.
transition. The parties joinly d .elo. this 4n. :
approved it. On April 22, 1975, the Menomine-Itesf.ajntn
legally reestablished ".. : ..,. ... :: ,.
The transition process mandatorily ifqulnid a 4tiWit$.ang
the tribe, State and Federal Governmen ... .. :.
"' * -. ,. .....: :" ":- ", r T 1 .i j' : : :";" : *,.' *: ' ,*:
--------- *.';.;r ,. "
There is no legal or paeUeid bads far eating this "tradltiU'd N w -*" "*
SIntervilew with Mike Deay, eiaL to Washoe Naton. Dee. lTE i r :.it .
= 25 U.S.C. see. 891-902... i..'
Public Law 9-197., 9 d32 tee aufem Tt MIile.-rfl: ;1 :P :. i







1"'The State was required to perform its jurisdictional responsibilities
UtMtithilte' Federal Government and the tribes were prepared to accept
7t ettiaon. The orderly transition was complicated by the, U.S. De-
pattknet of Justice which, contrary to positions taken by the Associ-
te Solicitor for Indian Affairs, and the attorney general of Wisconsin,
dbideI -the Menominee restoration did not remove Wisconsin's man-
datory exercise of jurisdiction pursuant to Public Law 280. Therefore,
In:6rder for the transfer to become effective, Wisconsin had to for-
mally wsticede jurisdiction. Governor Lucy of Wisconsin did so on
Fbfteb .,1 197 6, and the Secretary of the Interior accepted on
February 27,1976, to be effective March 1,1976.80
In th two ;and one-third years that occurred between the signing
of .the etoration Act and the ouster of State jurisdiction, much
ceaered. Approximately one year was spent working for and negoti-
atig plan for transition. A new proposed constitution and bylaws
wer. drxted and revision and consultations with tribal members are
in, proe Once that constitution is adopted, courts, the law enforce-
tr 6ap'itMratus, and other Government entities needed to be estab-
lished. Currently, the tribe is operating its justice pursuant to 25
C.F.R. and-has contracted with Menominee County for the purchase
bfli lfr.M*eervices.
SOtiher pecifio support services are also being purchased from Me-
nolihmee County and the State of Wisconsin.
'Ada Dear, the chairperson of Menominee, felt this several-year tran-
sition.peuiod was crucial but too constrictive timewise to allow for all
that needed to be done:
Ii:"k thatt the tribes as well as the states need to understand more about the
imu.t*ad, what's involved. There is a very important question of funding, the
question of training of personnel, the judges, the facilities, and all this, and I
thlint k._Wd be very important to have some understanding of what's involved
an. b.ow itmc be planned for and carried * *
... 2. TECHNICAL AND LEGAL SERVICES
(a) Prepaztion
*Toefresuently, Indian tribes are referred to as if all had the same
tradi~~ts, populations, economic resources, and land bases. Clustering
tribes into-a collective entity, while useful for some legal and relation-
ship analyses, is completely erroneous with respect to many issues. One
sucl issue is the ability and resources necessary for retrocession.
Taken one step further, it is reasonable to assume that the diversity of
traditions, land base and resources will significantly affect the desired
or actual exercise of tribal jurisdiction.
As indicated previously,32 some tribes are effectively exercising jur-
isdiction in Public Law 280 states concurrent with that of the State and
neighboring municipalities. These tribes, in a pragmatic sense, can
make fairly quick decisions under retrocession as to how much jurisdic-
tion they wish to exercise exclusively, or what compacts or jurisdic-
tional agreements with non-Indian governments, or other Indian gov-
ernmients, they would deem appropriate.
*41 F.R. 8514.
1 Great Lakebs Transeript, voL at ItM
See oee. D(1) of this chapter.





0o
Other tribes who generally, because of resources, bave fnl4'
jurisdiction since Public Law 280 came into effect, Oftw*.O
rently have viable justice and law enforcement aythst -.,
tribes, substantial resources may be necessary-,, f themntc. mtp
jurisdictional decisions and enter into the negotiations that m
quired. Many older tribal members remember a. rpprelSirs B
lice system and do not want to return to that :: v : tia
Still other tribes have such small population and land .bijeli
as a practical matter they may well wish to retain State jiutdid
in at least some areas. All of these decisions, and more0, wouRu.j*b
made precipitously by Indian governments. $ 4 '^ r?:
It it takes 20 years, fine, because it is going to' take piany wtris t'' ,B to
gear up their administration, maybe m6re than that. 'This trflt A, h Wi t
guess. I have thought about restructuring the administration for.! ..1
we are going to need, right from the top down. We have to get a.'niw# ..
ministration completely if we go into retrocession. We will defniteIya 9aye -
into a administrative-manager type of administration. And then, yonreoii4o ftl
jails, everything else that is connected with it, social seivie& X tb 1t i
take at least 6 years, 6 years of working with the BIA to successful om
retrocession. . ,..
A very real and significant question therefore beeomesFrwht teU
the resources available to the tribes and are those resourees VN 1
(1) Private Resouroes.-Although there are some tribes with uifi
cant economic resources, who could purchase the lawyers rpnAV
scientists, et cetera, that they may feel are needed-to plan 1ae. te
effective resumption of tribal government operations, thde nigqlb
tribes do not have these economic resources." Even tliosetri&iSigl
such economic resources often would prefer to use those reao ,c to
promote the social and economic welfare of the reservati iaitto a
pay attorneys' fees. ', .,
Most tribes, therefore, rely on, mixed systems of legal t el.0.-it4k"
distance: public interest lawyers, legal counsel from tie S6ilif
office, and private attorneys. The public interest lawyer generally Is
employed by a legal service organization such as California Ind*
Legal Services, or is foundation-supported as is the Nativ*.'A4v ..
Rights Fund. As 'valuable as these resources are, the prop aX
usually significantly underfunded and 1Ad4rsta ld to.rpro 4t e
full range of services requested of them., Sonm such ae 4A, i'RF
definitionally limited to major precedentt establishing CMiSrathS
than on-going legal assistance of the type that a State attornOy -
eral provides to the client State. Several other faeors complicate t
reliance on legal services programs. The extent of their.rqipnts
tion is restricted by Federal law to preclude political rep4oen'ttA-i
lobbying-something which will be' irequired in developing and nest?
tiating permanent working relationships with non-Indtan qgurn-
ments. Another potential problem is that these pr ogI& 11y7oa
sionally be at political odds with tribal government r. ..FdiyO 'r 1 via
representation of individual tribal numbers.3 .
(2) Federal Le80 .We.- yfrtle most n eous proble nS i, the
area of Federal resources. Althmagh the seMrvie tioW pov0siwa
from region to region and tribe to tribe, thet* is sgificnt 1is"6tis-
= Statement of Elmer Saville, Chairman of tl T@uecbnu eTst Tp t 4 tlt.
V site whit.
Quechan Tribal chambers. Yuma, Ariz., Jan. 12, 1976, at 43.. ... { A .
SSee Report of Task Force No. 2.
SSee afg., Dodge v. Yakat, 298 1F. Sapp. 17 (D. Ariz. 1968).






31

faction with the manner and adequacy of Federal legal assistance.
The major Federal arm for legal assistance is the office of the Solicitor
ofthe Department of the Interior.
As a practical matter, it is not possible for the Solicitor's office to
fully service tribes in a retrocession setting. Elmer Nitzschke, field
solicitor servicing the Great Lakes region, testified that there were
four attorneys in his office who provide counsel to all of the Interior
agencies:
Questos. There are 20 small tribes in your region which are [potentially]
due for retrocession: you would not, I take it, be able to provide the kinds of
services needed by all of them on an immediate basis?
Answer. No, that's very true ... I think what should happen is that the
tribes . be provided with adequate funds to allow them to retain counsel
to represent them in legislative or in governmental matters, tribal governmental
matters and business matters ...

Tid allows us [solicitor's office] to be more effective and we could assist
tribes by responding to tribal attorneys . but we do not have a staff to serve
as tribal attorneys for all the tribes in the agency or to serve as business coun-
sels to them. It's physically impossible."
Another potential avenue for Federal services is the Bureau of
Indxanh Affairs. As noted, in the prior discussion of Nevada retroces-
sion, the BIA's role in preparation, planning, and transition was at
best negligible."
Jerome' Tbmhave, the Superintendent of the Riverside BIA agency
in southern California, has indicated almost no preparation or readi-
ness on the part of the Bureau to assist tribes in retrocession.
Qesfftion. What type of legal [or] technical staff would your office
through the Interior Department be able to provide in custom drafting law and
order todes?
Answer. At the present time, we are not able to provide anything.
Qn etWo.. Do you have any resources . political scientists, administrative
specialists--that would be able to provide services on the structuring of tribal
government?
Answer. Well, we have a limited capacity.
S*'0: M S S S S
Question. Do you provide training of any sort, e.g., parliamentary procedures,
for tribal governments?
A. We contract it.
S
Qcution. How extensive is this training?
A. Very limited.*
The other major resource potential,89 particularly in the area of
criminal law jurisdiction, is LEAA. The restriction on LEAA funding
only-to tribes that are exercising jurisdiction, however, under current
interpretations, precludes its usefulness as a planning resource prior
to retrocession.
A major issue for tribes as well as some non-Indians is the
financial resource to operate a tribal system. No one seems
to know exactly what the costs will be. Superintendent Tomhave
Testimony of Elmer Nitzschke, Great Lakes Trans. vol. II at 178-79.
3" Interview with Robert Frank, Chairman Wassau Nation; Mike Deasny, counsel,
Wassau Nation,. and Donald Pope, Director, Nevada Indian Legal Services, Dee. 19, 1975.
S Southern Calif. Trans.. vol. I at 44-45.
6'Tribal Government Development Funds under see. 108 of Public Law 683 are not
addressed in this section because of their small funding level when divided up between the
tribes. See Tribal Government Task Force Report for a detailed discussion.





32
eltlinated startup costs for s criminal jurisdietiw plpw
approximately $1 inillion for southern 4Jglitbnia tifibEr
expenditures thereafter of approximately $300 c 1p| S
Northwest are approximately: $1X0ftO00 per. year,,*? : g i
would, of course, defray some costs but it is clear that iothl
resources will be required.41 .: *.,potiai I i:
* Fn-vrNps I il l : -:i,.h Lrijj t 'nuot
a. The terminAtion philosophy always q pposed b tribes i W
repudiated. by Congress, embodied hi PubLie tae .2$*J;1M
barrier to tribal self-determination. .:' .. t i. ". .,,.
b. The 1968 aidendments to Public Law 280. havw A:. cieu its
defects since tribes still have no determinative Voice. '
c. State assumption of jiirisdictibn has ot resulted 'i
of Indian people into dominant culture; ihas not provided BL"IaI
noandiscriminatory services to Indian .rQpIe; .and ds, d
oppressive BIA involvement.in the viability of Indian A1rir i .,,
.. . i :. f : *.. ' ... s* : n :; '.l s *
K ECOM M E AO i'"- '" ;" *.'" .'* 'it.....-i,"
R.coxi"AfT1V1 141

a. Legislation should be passed providing for r4,rcessiqoVI44
tothefollowing prineipleas. ...a 4 i ,,' ,..,
(1) Retrocession shall be at tribal option witha plan. ;, ,:' .
(2) A flexible period of time fr*- partial- r total ass ip jurisdiction,. either immediate or. long torm, hful. bp r6:..,..4
(3) There should be a significant preparation p. -"od
for those tribes desiring .such, with a firm commitmentpf fingcial
resources for planning and transitibn* .". '. .;" .,'
(4) There should be direct financial assistance to tribesopr,16bpy
designated organizations. :.
(5) LEAA should4 be amended, to provide for 1andi,*g to
retrocession for planning, preparation or concUrrett" till*ion
operations. :, r.. .
(6) Provisions should- be made for federal corporate or charter
status for inter-tribal organizations (permissive, not mandatorf.
(7) There should be tribal consultation with state and cotiou- tov-y:
ernments concerning transition activities (no veto r6le, howevei)...
(8) The Secretary of the Interiqr should:
(a) Act within 60 days on a plan or it is automatically abe4t4;
b) Base non-acceptance only on an inadequate plan;
c) Delineate specific reasons for any nonacceptance ... ..
d) Within 60 day al0ter passage of the act, the Secrtiy of
the Interior shall draft detailed standards for determii.g the
adequacy or inadequacy of a tribal plan. Such standards hkl be
submitted to Congress who shall have 60 days to approve d7a8is-
approve such standards. .
(9) Any nonacceptance of retrocession by the Sectetry offt IhOIn-
terior shall be directly appealable to a'three judge distri ct rt in
the District of Columbia.; and,
0Testimony of Mehard Za.slngw, R eMtaMnarasript 143-4. t. ,ot h.
area office
.4 This le, of Fcourse, Was not addrue ie by uie LLaw0w aM wl2t1MBsfe,*ftleuiB-
diction to States without %an provlovs of n B 6 n .. .t ,i... Wst.n."







The Department of the Interior should be obligated to pay all
reasonable attorney fees as determined by the Federal court, except
where such appeal is deemed by the court to be frivolous.
(10) Once partial or complete retrocession is accomplished, the
Federal Government should be under a mandatory obligation to de-
fend tribal jurisdiction assertions whenever any reasonable argument
can be made in support of them. .






: ::| ,...i ,,. ,(y re ,.
.... ". ,: '. ,",'' '* i .. .:. .. ... :..,. ,..r.,:' T1 | rt 1"!
A 2I .J t t.I: i
:* I .. .. ,.... .1..

11L -THE FEDERAL:tiE I

A. THz DwFNi ,OLB i.. ., lj
.. n" ..'. i"
At the time of the confederacy of the Thirteen Colonies it t.e
United States of America, there was a controversy between the State
of Georgia and the "General government." The issue was 0v :itbe
extent of Georgia's territorial claims and whether Georgia or the
central government would control relations with the abon if (-
dian) holders of the land.1 The necessity of union during R e i-
tionary War and acceptance by the Colonies of the VIew O4, tie.
Federal Government should acquire all the territorial spoils of the
war, led to the eventual unanimous agreement that the general govern-
ment would have exclusive powers over foreign relations and territory
not already secured by a colony.9 Georgia agreed only after extracting
what one author felt was payment beyond their rightful clauSi. ElTps
the several States had unanimously agreed to delegate to the National
Government the control of Indian affairs.3
Georgia's continued assertions of jurisdiction, notwithstanding it
express delegation, led to the seminal case of Worcester v. Ge0 ri,
31 U.S. (6 Pet.) 515,559 (1832), where Chief Justice ISu
declared: ,.
. [The Constitution] confers on Congress the powers . of making trea-
ties, and of regulating commerce with foreign nations, and among the ,q1al
States and with the several Indian tribes. These powers comprehend that all Is
required for the regulation of our intercourse with the Indians.
This so-called plenary power emanates from the commerce .eins
and the treaty making provisions of the Constitution. It is not, how-
ever, an unfettered power and is subject to some constitutional limit-
tions.4 It has been argued that there is, as well, an extra constitutional
obligation on the United States which gives rise to legal rights. i
Indian tribes. The source of this obligation comes from the conppt of
"high standards of fair dealings" required of the United States be-
cause of the dependency status ascribed to tribes resulting from tijeir
course of dealing with the Federal Government.'
There are at least two justifications which were used by the Euro-
pean nations, and later the United States, for claiming fitles to land
held by Indians. Although "discovery" is the better known of the two,
there was also the earlier policy of converting "savage heathe ns to
Christianity which European nations viewed as giving them superior
1 See Blunt. "A Historical Sketch of the Formation of the Confederacy. Partienlarly. with
Reference to the Provincial Limits of Jurisdiction of the General Government Over 3adian
Tribes and the Public Territory" (1825). Library of Congress, No. B 309 B.. 69.
Id. at 81.
s See Cohen. "Handbook of Federal Indian Law," Chapter 5.
6 Cohen, eupra, at 89 and following.
: SeC e.f., A rea Band of Tillamoo v. United Statfe. 929 17.r. 40. 6T 8. Ct. 1l7. 91 L.ed
29 (1946); and an unpublished paper by David T. LeBlend, OomCeuues Rght. 4
Original Indan Title, June 1971. University of Washington School of Law, for Profatnr
Ralph Johnson. for an excellently written paper putting forward the arsunite far this
right as a bas for Indian las for ompea for nfor the taking of land held by them
under original Indian title.
(84)







lights to control the land and its people. This "conversion" or "mis-
saeary" theory carried with it the inherent notion of guardian-ward
uslstinaihip..
JZ ,tipe Miller in United States v. Kagama, 118 U.S. 375 (1886),
described the dependency relationship in unequivocal terms, saying:
. These Indian tribes are the wards of the nation. They are communities
aSwmeSt on the United States. Dependent largely for their daily food. De-
Iewlent A9 their political rights. They owe no allegiance to the States. and
receive from them no protection. Because of local ill feeling, the people of the
States where they are found are often their deadliest enemies. From their very
wi1enefs and helplessness, so largely due to the course of dealing of the Federal
QovemMeat with them and in the treaties in which it has been promised, there
aieu the duty of protection, and with it, the power . .6 (Emphasis in original.)
The role of the Federal Government is one which requires of it, the
highest standards of good faith dealings with Indian tribes as they
have been placed in a dependency role. The importance of that "good
faith" is significantly underscored by the decision of the United States
Sutiene Court, Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), in
which the Court refused to interfere with the actions of Congress with
respect to legislation regarding the abrogation of treaty rights.
Whether Lone Wolf is seen as an abrogation, plenary power, or sepa-
ration of powers case, the practical effect on tribes is the same-Con-
gress can abrogate and the courts will only review limited constitu-
tional property rights considerations.7
The relative jurisdictional powers of the Federal, State, and tribal
government is well traced in an excellent article by Peter S. Taylor,
"Development of Tripartite Jurisdiction in Indian Country,"' and
does not bear extensive repetition here. Mr. Taylor summarizes the
rule of jurisdiction as "allowing a state to extend its jurisdiction over
non-Indians within Indian country to all matters which do not inter-
fere withthe Federal duty to protect Indians."

1. CRIMIxAL JURISDICTIONr
Generally speaking, each of the three sovereigns historically exer-
cised relatively exclusive jurisdiction within the boundaries of their
own domains: the States were excluded from exercising jurisdiction
in Indian country within their boundaries.10 As Indians came into in-
creasing conflict with non-Indians encroaching on their territory,
Congress felt the need to exercise jurisdiction over such clashes and
enacted the General Crimes Act, now codified as 18 U.S.C. 1152. That
statute,-which was conceived of as the Federal Government exercising
concurrent jurisdiction with tribes, specifically reserves to the tribes
intra-Indian conflicts; the right to preempt Federal jurisdiction by
punishing an Indian through the local law of the tribe (no matter
what the offense or against whom); and any specific areas secured to
the exclusive jurisdiction of the tribe by treaty.
*Id. at 383-8t.
T Some current day Indian leaders feel that only '"reeourse" for Justice whpre the rnltes
States does not act In good faith is In the International Community. Testimony of Russell
Means, Mid-West Transcript at 4890.
'22 Kan. L. Rev. 351 (1974).
SLittle chn be added to the excellent report done by the National American Indian Court
Judges Association report, "Justice and the American Indian," volume 5, "Federal Prosenu.
tioc of Crimes Committed on Indian Reserwtaena" (1974). This section will only add some
recent. dbaeraflona, as not much has changed ines: that report
See Vollman, "Criminal Jurisdiction In Indian Country: Tribal Sovereignty and
Defendant's Right in Conflict," 22 Kan. L. Rev. 887 (1974) for a good discussion.




In 1871. 'a Sioux' Indiait named Crow'Do i, Id'ik"atki .
fAamed Spotted Tail arid wtE broughtitforc a'Fedetaldotti A
where he was convicted of murder. The United States Su11
reversed, ruling that the Federgl courts ha& fioty ri'AeAOd
in Ex Pafte Crow' Dog, 109 US. 556 (1888)'. logren s
and, in 1885, passed the Major Crimes Act aasertihgj.uriIM .sx
7 enumerated crimes, which have now 'expanded tol4 .n&'. 4a
in 18 U.S.C. 1153.11" This Federaljtrisdiction is' xeti44f1*
Indian in Indian country who kommf' one $ One
against the person or property of aaofthr nadia i ,r Jnqy O4i
Meanwhile, the Supreme. Cout had ruled inT, 9i,
MoBratney, 104 U.S. 621 (1881),% hat the 'State hia jur(tid_'
offenses committee by one non-Indian against .ottht#,.
in Indian country. MeBratney was later followed .t.i.
States, 164 U.S. 240 (1896) and New -York ei'reZ Ray. vdw s Y ,
U.S. 496 (1946). ' :: i i iil
The patchwork was further added to by the adoptinnntttMAgB o"
five Crimes Act which makes the laws of the State (excaptbhd*0".
is a specific Federal statute covering thb same oaduot) epplca M.
Federal enclaves located therein. ... .\ 'N
Given the above, the following jurisdictio.nil pattern smpiieasl
Except for 6ffeis.es which are peculiarly redral NI nature, thre SArO ikf
jurisdiction of Federal courts in Indian eounttry s.. founded urtb tins
Crimes Act [1i U.S.C. 5 1152] and the Major Crimes Act [1i8. iMt As
General Crimes Act extends to -the Indian country, ajll of the t :
laws applicable in Federal enclaves,. including the, Assuhlattve lRb| :
U.S.C. land 13], and under this statute, the Federal courts Ma, e ir"
diction over offenses by an Indian against a nodil-ITdian and o'ffttzab ft&
Indian against an Indian. This statute (18 UeS.C. .1 1152) dren l 'Ait
offenses committed by an Indian against the person orlopertyk,.an
nor to any Indian committing any offense in Ind4an c0utr ip &
punished by the local law of the tribe,' aid because of'thi.e-eptfjLtrtW-
by the McBratney and Draper decisions, it does not extend to offense by- p.mB
Indians against non-Indians? .'. : ::.
Although the recent passage of S. 2129 .cured some conitJ
infirmities and expanded major crimes jurisdiction bS 6bi-e .. ....
S. 2129 did not resolve many. issues presented by the'*te t "$'h
tern of Federal legislation. These will be discussed' :tiotaB
the (1) Major Crimes Act and separately, the e ,'^ '
Assimilative Crimes Act. . ..., .:,.,vfi
(1) Major Crimes Act r ''
Congress action in 1885 to extend Federal juriedictiouotr t4li
erated crimes is generally interpreted to have eliminated tr) jovb.
diction over those offenses. Neither a literal readingkot the "Mft
its legislative history support such a conclusion, Moreeket.IcontifW!,..
dealing with Federal jurisdiction either have nt'hadthis&Uonet&4Iad
jurisdiction before them, and any references to the tawct that.iwbO
jurisdiction is eliminated were dicta to the holdings.1s Likewise, txbe'
courts have exercised jurisdiction over theft, although .rt ttbhe
of the proscribed crime s .. . ., ..' ,:, .
___,_-_-* . ,*''* -. .'t "* W W i.
'u Meat reeutlit sandeSe 1b te pams.n of t -:2120 adding kidfSI*JebIS
some conatttdfidnal Infirmitel r:
S.See Waylor,.'Criminasl JtUisadlItfdd Ma"uma''of TtdiLa.w 1.' JsU S !"W1 '.,, :
2 See Vollman, supra, at '32i TaflofeiAmina, Juridetioulij s i,,;itaw .r E
porter, voL No. S at. 1,t: (1974)..' *: ; : I .; .-" :
s5. v! r- -.: t. I ---







- .Asl ted out in the recent hearings to amend the Major Crimes
A e! Iw 1968 Indian Civil Rights Act limits tribal penal powers to
a mo tethsn $500,or 6 months, or both. Such penalties would be incon-
tif1tb-wthgeffeetive, serious crime jurisdiction.1" Nonetheless, tribal
courts do exercise jurisdiction over serious crimes which, until re-
oety, included the kidnapping of one Indian by another Indian
where, the events are wholly contained within the reservation.
.jiUpAtions are that it would be more appropriate to support the
powthatitgibal courts do have such concurrent jurisdiction, particu-
lWty.in view of the negative impact on community tranquility and
seur.y resulting from the failure of Federal authorities to prosecute
major crimes. Even given the limited penal powers of tribal courts,
there is some benefit in diffusing personal vendettas which grow up
wJhwe o.tenders have gone unpunished by Federal authorities.
U,.,,ataorys are responsible for rosecuting under the Major
Q .rmAat. There, is no requirement, however, that they prosecute
evyq qise brought before them. The process by which it is decided
whtwilj'.bb. prosecuted and what will be declined is not clear. The
-opi tbe, responding to this issue, summarized the situation:
Th. flI lwvestigates some of the "Major Crimes" in this area. Prosecution of
thbq1 to e U.8. attorney seems sporadic and'inconsistent. Policies to determine
wM eases "go federal" are very unclear and often not adhered to be (sic)
~e -4'a9thorlties. What is important to tribal people is not necessarily im-
pOtant ts the; U.S. attorney. There should be a joint agreement with the Tribe,
wdtieh::te Tribe should initiate, on which cases are handled by which authori-
ties. Tribal preference should be given superior weight.'
- This lack of consistency stems from many attributes of federal
prosecution by U.S. attorneys.'6 Most offices 17 do not usually have a
specific attorney who consistently handles Indian cases; there is there-
fae 4i dousequent lack of familiarity and technical expertise. Major
Crimes prosecution often involves street crimes types of cases which
neql Uy unfamiliar. Likewise, they sometimes involve what is
effectively a misdemeanor offense which is difficult to take very seri-
aouly at the Federal level. Prosecution is more difficult, as these cases
oftn involve alcohol and/or family situations or ties which make
witnesses unpredictable. In fact, the whole Federal criminal justice
System is so foreign to reservation life and the very nature of the
situation may intimidate or affect witness dependability. All of these
ftArs tend to produce a reduced success rate in prosecutions, none
typial of Federal prosecutions generally, and, as a result, Indian
cases are shied away from.
Eighty percent of all Indian cases presented are declined by the
7.s. attorney's office. Such a figure is inconsistent with the special
responsibility U.S. attorneys have for Indian cases. Many U.S. attor-
reys" and their deputies do not understand this responsibility.'
Whether it can be said that tribes may have concurrent jurisdiction
or not, the practical effect is that most reservations rely on Federal
HeMarings before the House Committee On the Judiciary, Subcommittee on Criminal
Justes Mar. 10, 1976, on 8. 2129, Robert FPauley, deputy chief, Department of Justice.
a Southwest Hearings, Exhibit No. 8. (Question and Answer No. 6.)
"Many of the attributes of Federal prosecution described in thia section are taken
from an interview with Doris Meisner, Associate Director, Office of Planning and Policy,
Office of the U.S. Attorney General, Dec. 12, 1975.
One significant exceptio; exists In the Office of Sidney L Leak. See NAICJA, "Jrustice
and the American Indian," vol. 5, at p. 5, 8upra.







prosecution as the primary (if not sole) source of Maj-.'
enforcement. The declining of 8 out of every 10 cases.tpm
far more devastating effect in such a situation that wfl.ldt
and other geographic areas where U.S. attorney8Bzfr&:lB,
ecutorial functions. va',"*w
In Indian communities where almost everyone is knb Bo. 6b
one else, and social and family factions are common bM .dt f...
to prosecute may create the potential for self-help, 6 Whifch
creates further problems.1' Clearly, local handling of sushl pp.
would contribute much to diffuse such sitaattons wheWeuLd
to local concerns and sentencing spprpriate to e6nimityxkM1
duall needs is much higher. MWA'". '"In..'t
Investigations by FBI agents is the primary basis. fo6 US. atgi
prosecutions. Highlily trained officers can make the'work r* 'i
much easier, and consistent association develops identfftb*ia;W
paLterns. But FBI agents are not usuillyclose-to-Ijidian cn
either physically ,or culturally, and cannot easily -g'ia p?
of a situation which so often have much to-do witr-i
prosecute or decline. Since local BIA special :ffcen, jfi<^ bdt
police are much closer. FBI agents are not often thM-Ar d&iEf'abn
the scene of a crime. Thus, the scene'%often hag to6' 'e -? J
an agent can aTrive, in which case they usuVy ef, l
already done by a. more closely situated. BA1A o ,r
quality of investigation may ultimately turn::oBthe' wbrk'
local officers in any event, pointing up thi'!desiubililtyi rof'iv
well-trained local officers for this, as well as all the othsv ID aot *4Oh
reasons. .. . I ., L
Lack of feedback to.the tribal govermn'rts and.a.mrnuit4 ....
Undercut tranquility and security. As Gila RiverBearvta iud il
ant Governor Antone pointsout: 1 :.r)f.rf[lf..t.d)
We're getting quite a bit of coneernM-t*ls, in.otbr'ors, i4*"ite
some pressure from our community Imemhbers. 1' i' .';'-lOfi "IM11
The only thing that we cpik14 do i to say that.we do&Swr githdI
ernment, at-least in the executive body doesn't have an.tl, it.t wiWAt.'
tigation of these cases, and it's to them it's kind of l .ea iitQt, .., t u ...
But the working relkti6htlbp,' I think, between th6e 'ti 1 ,
and the FBI are not that good, at this point, ;- o.. lK,.a
By contrast, Denmiis Karhopp, tribal attorney .ir thdW. i
Reservation, descriBes 'hi t` of relations "etheWarnSii *in
havewithFederartfficers:-"& r "L:"' 6:, ";
S... we have had a good rqlationb.p.wlt ih the I .. ,Twe p !iVFBI
agent stationed in Bend (Oregon) which i .'... abfut 60 imles Vopuitat
resertatio.. and I find when they change an r9 iag t ii iS n..
-I find out about it-i kind f. wonder wihe6 that gaj'4j -ow1oi 'tWai:
and pretty soon he's going to;tjAe A.eats and ceceme'tes a1, stn lhfikdltawth: p
most of the FBI men end u. spending a lot of time socitlly and getIng iBy4$-
with the people and I see. that happen several times; it s hi ..4... ,
. ... S .. ,_ .S.-: -^ '*
Naturally, somebody. thgt's down there, you kCow, .:..k Wn .or.:tb ..ahen
he's coming .out to- investigate some big ripoff, h1AW knowns -a tramouS a.t.t
-~~ ., th'"'fibl
some relationship with the people, .aft tmetion. I"W e tha < dm
that's a stranger. . .. .i: ,." :: ,.'r ".i r.... .
------ -- ... ': ; 4.. '"tji' .* **".. .. : 1 '. '.' iL! '" )-' flU' .'
Judge WillIam Boy Rhodes, C'let E.fdge, :Gi l T s rta."fltkim' t-- 14 *fIf '.4'
20 Southwest Hearing at 12-13. ". ,. .. ,- A.4i'*f ..l .; .
2 Northwest Hearings at 274-75. -'







" The:preactical impact of the role of Federal criminal prosecution
pests yet another dimension. The lack of faith in the services
deinTrtd .by Federal entities has occasioned the necessity for reserva-
tiAtot ssetrt their own jurisdiction over non-Indians. For example,
the.'(.11 River Reservation was one of the first to pass a "consent
ordtiimnce" which notifies non-Indians entering the reservation that
they are subject to tribal court jurisdiction. Conversely, Warm
Springs, which has good working relations with Federal authorities,
view 'the extension of jurisdiction over non-Indians as presently
inneesary and potentially harmful as it could undercut the effec-
tiveness of its tribal courts in community affairs, where the 1968
Indian Civil Rights Act requirements could interfere with local
justice standards.
The conclusion is that, where necessary tribal governments must be
able to provide law and order services vhen they are not being ade-
quately, provided by other responsible agencies. The example demon-
strateb by Warm Springs is a significant exception which serves to
highlight the dynamics.
The role of Federal law enforcement agencies has, in some cases,
been outrageous. For example, intraoffice memos of the U.S. Com-
nissiboW.pc Civil Rights dated July 9, 1975, and March 31, 1976, con-
ceflhg agents on Pine Ridge Reservation, S. Dak., illustrate the level
to hichM"a situation can degenerate. These reports indicate that sig-
iii fi'int portions of reservation populations were cut off from any law
enforcement services. Of even more frightening consequences are the
actions taken by Federal officers on the reservation against its in-
habit ts. These reports speak for themselves and are attached to this
section.j n their entirety.
.A fea of major crimes jurisdiction presently unresolved is raised
by'ite .decision in United States v. Antelope, 523 F.2d 400 (9th Cir.
To-), ,bw before the U.S. Supreme Court. The question presented is
wrefer disparate treatment of an Indian and a non-Indian com-
mitting the same crime in Indian country against a non-Indian con-
sfihites impermissible discrimination based oD race. The circuit court
struck down the conviction of the Indian defendant.2
Ditl to judicial interpretations, notwithstanding the language of
1* U$.C. 4152, non-Indian against non-Indian crimes in Indian
co'6ntry hive been held to be State concerns." The U.S. Department
of Justice does not presently urge legislation to cure such a defect
umt*J the Supreme Court decides the Antelope case.'4 They have urged
in their brief to the Supreme Court that it is not constitutionally
impermissible for Congress to leave to the States a certain class of
eases2 (i.,e., non-Indian v. non-Indian) for trial and sentencing pur-
uaint-fo State determinations even, where that may result in the
application 0o a, more onerous standard to Indian defendants charged
bnder the same conduct pursuant to Federal law. Alternatively, should
h'at raise" serious constitutional questions, the Department of Justice
urges that the Supreme Court should overturn its previous holdings in
*.& .
SThe Indian person on the same facts as the alleged non-Indian cofelon was eubjlet to
Federal prfsecutlon under felony-murder rule, while the non-Indian In a State proceeding,
was not sunbiected to a felony-murder prosecution.
New York ex rel Ray v. Martins. 325 U.S. 496 (194) ; Draper v. Uited BSttes, 104
U.tS. 240 1398) ; UnAeC Siatres v. 'cBratnfe, 104C.... 021 (1881).
4 S. 2129 hearings. Mar. 10, 1976.






Magrenpy aed.u 4poer, thus1 obviatingie 4ispaadty, p&Iaq
ants: would'then be subject to.Federal aw. ,', .....,. .i
At the verydleqgt there should be & aeoguitjpp ^ I V| 4
diction under the General Czie Aqt. TPil j
en. States to.nforce jurisdictiQn over noUn-IiidiaJs m
boundaries presumes good faith al the part of Stae
ments. to expend their own law enfozemen 4 n $oa ys p. .
peac and, dignity of a governuunt, not their owve a,4f
dia tribe. As tribes evolvemore a nd. more into jMq
governing unizt the ability to discharge lw and orOg 'T .
all of the citizens of a .resrvation becou xes q i
MceBratney line of cases is incnsisteat with bo ....
scheme of Federal laws and the emergence of tribal' M.ill
2. GENERAL AND ASSIEI33ATXVE CO*WS 1.4(%P eq ol '~ U
The Generhi Crimes Act, now codift as 18 uxS.O. l5Z'
the 1834 Indian Trade and Intercourse Act. The 1 i49i
of that act reflects an intention of concurrent }Mur ic
tribes and the Federal Government over crimes by iTdia
Indians in Indian country.26 The act low applies Jawsi
Federal enclaves to Indian country, with thle eepi %cft
committed by one Indian against Te person or pIotem;
Indian, Indians punished by the local law of the &i.b
specifically preserved to tribes by treaty as bei.pg with
osive jurisdiction.' "
Prior to the enactment of the General Crimes Act4, Q(
plemiented a sparse code of Federal crimes in h id p --i
adopting by assimilation, the laws of the su rrun4 MUli
possession or district in which the enclave Q 0
of this Assimilative Crimes Aot [18 U.S.C, 10'lP: *$
enclaves from becoming havens from local morals j W e
18 U.S.C. 7. These enclaVeS generally; h.ve been SW.t'R
local controls of their own, such as: the .h ^ 'O l
outside of the jurisdiction of a State sa with t*i. i 4.
United States; vessels belonging to the United St9.te0
its jurisdiction when in waters tMnder U.S. jT u i 4C
the Great Lakes, et cetera; lands acquired or v. 1 0
States; islands containing guano deposits and aircraft O w
over the territorial waters of the United States .-
.~~~10 1 ., .. ,. .,
Nonetheless, min 1946 the U,$. Supreme Cout ruled tat. f.
were also applicable to the Indian country via 1 UjU.SPQI A
propriety of making applicable the full panopy of .Sta|
proscriptions-where not otherwise p reempted fy hWdS
serious scrutiny when applied to idian cpt"y'wXu R t
governments may have tfir own.Acbew.e of laws .O(kt' t *If j
cultural and societal norms. MOreover, wherq th are 0, t
standards for the application of such laws briT.. p
have unfettered discretion as to when to appy or. not a .pl. ......
Ifrapeat Vwild er9ww to bo. more ou~aSu f
la u.. i llo2 and an overall scheme af Wb alb rM I .,Am to to a
weeJOmQStuteat yMfterq oft. lw. nhu1,*wt 1uded W ., .- *
ee ,, *Pt see.% B oLf Alonae. Opla v. E "hfjle. 3W.14,41". @3pea
9th circnit, and the section on "Jurisdiction Over Nr tI
"685 U.S. 711 (1945). "Be.







State's .laws. This' allows for significant intrusions on tribal self-
Yvirnmient, even though such intrusions have, been discredited and
reectqd in other situations.2 The State, in concert with the U.S.
atb ty may accomplish by indirection that which it could not ac-
c tfptEh directly- that is, enforcement of State laws on an Indian
ttqeration in the absence of compliance with public law 280.
The view that Indian reservations are potential havens from the
Sti9t4s morals laws carries with it an underlying attitude toward
Indian p iople which is unwarranted and unsupported by history.
One reedit observation noted that:
You: [non-Ildians] have a very complicated legal system. It is not that way
With my people. I have always thought that you had so many laws because you
were a lawless people. Why else would you need so many laws? After an,
Europe opened all prisons and penitentiaries and sent all their criminals to this
eptry. Perhaps that is why you need so many laws. I hope we never have to
reach such an advanced State of civilization."
Shortly after Williams v. United States, supra, was decided, the 7th
Circuit Court of Appeals reviewed the conviction of an Indian man in
a Wisconsin U.S. District Court for operating a slot machine on a
reservation. The decision held that the Indian defendant was punish-
able pursualt to State statute via 18 U.S.C. 13 applied by section 1152,
and, not under punishment provided by tribal law. United States v.
&iseur, 181 FK 2d 873 (7th cir. 1950). A contrary result was reached in
United States v. Pakootas, No. 4777 (D. Idaho, N.D., 1963) where the
court held that Indians participating in a gambling game were subject
to the exception contained in section 1152 and as such, were under ex-
elumive tribal controL Much earlier, in a Federal prosecution for adul-
tery, an indictment against an Indian was dismissed in United States
v. Quiver 241 U.S. 602 (1916). That decision rejected the argument
that so-caWled "victimless" offenders are not within the exceptions con-
tained in section 1152; holding that such a narrow reading of intra-
Indian offenses is inappropriate, that there was a victim "of sorts in
the Indian woman," and that such conduct was purely an internal mat-
ter of the tribe absent clear Congressional direction otherwise'1
One commentator views Sosseur and Quiver as irreconcilable and
wese Ssur as no more than a "judicial aberration,"" while another
sees it as merely unfortunate decision based on the weakest rationale
offered in Quier (i.e., that non-Indians using the machines voluntarily
were "victims")." Nonetheless, the U.S. Department of Justice has
adopted the Sossew view and takes the position rejected in Quiver
that "the exceptions in paragraph 2 of section 1152 to the general
Mule in paragraph 1 should be construed narrowly so that in appro-
priate cases, Indians committing such offenses against the 'community'
can be prosecuted in Federal court." It is not explained which "com-
munity" is meant, but it can be reasoned that since it is the State's laws
being applied where no Federal law speaks to the situation, then it
Bee Justle and the American Indian, vol. 5, 19T4.
f See Williams v. Lee, 358 U.S. 217 (1959); Kenserly v. Dietr4t Court. 400 U.S. 423
(1971).
planet McCloud, University of Washington School of Law, Law Day Ceremonies, May I,
1969. Quoted In B. Cahn "Our Brother's Keeper: The Indian in America," at 182 (1969).
A See Vollman supra, at 396.
*Taylor. "Criminal Jurisdiction" supra.
"Voltnan. supra at 396.
8 Paper delivered by Roger Adams, Jan. 27 to 2% 19M, Phoenix Aria., U.S. Attorney's
Conference on Indian Matters.


77-M67-76--.-






must be the surrounding non-Indian Commuiy4wlit&. g
Departmentt seeks to6 project from actd4ity o-tw, tswvTatui.....
f da tribal controlskto 'the cdntrary.1''..* .; : ,-^-
In any case, the facts of Soaseur are.nu loWgar applicW-
similative crimes as Congress passed 15" U.S.C. AT1h tangy!
hibiting the use, possession, et cetera, of gamnbtg d riee:..
country, thus preempting the field. The anomalohidsjrie l4
meant is thai unlike the States which may exempt Utwmsljqo
provision via 15 U.S.C. 1172, tribes cannot legalie, the utse
vices. As a result, Nevada reservations axe Mt'off: fro3ptM
of revenue available to the rest of the State. Neither .the
the legislative history of 15 TU.S.C.1T75 nor of i5US.Q Tl4t
why Indian country was included i the one or deleted frwi ..
Moreover, a Judge Advocate General's opinion.-' reaohutiez.-e.
questionable conclusion that 15 UT.S.C. 1175 does iot ap V .t ul .
reservations.,. Why.a Federal military enclave wQlQd.enjIJoj t&U? 1'
unity from Federal moral laws thn Indian tribes Is. i
.... " :.:":... "..... '... .....
Finiros' .. . -i nn"ar ( a
*i : ' ,, .* i :.' :* :..- *HiV. .nf:tj. iai
(a) The adoption of the -Mijor Criniles At 0of _85 uidaqlw0 i4
amendments places the primary responriolityferithe wis.itsS
these enumerated wimes with the various T.S1 .btbiAeydos' iifimeht
it is not clear that such jurisdiction is exicusinvv 'tWihrbaGa ow1
(b) U.S. attorneys' offices .:which have Wiajbrarininsm
generally have no well-defined standards, of which:reserratioaIudiwt
tribes under that juirisdicti6n -ite a*are, for. deftn Iwbxr.aeb
brought before them 'will bp rosecuted' and whh t'wi.l .. 'ilfig.p"
(c) Many U.S. attorneys' offices do not have rsg ly:h .
staff specifically responsible for, Indian. matters n*'Wis: *: g
prosecution orifa Itsihg-terin 'basisi.' i ': al .. :...i:::.; ..
(d) Tribal cbuftt exercise jhisdictin' ovfm rhiot cflMbbtlS
limited to penalties of no miire than $500 'tri tiWIAOT
1968 Indian CiVil' Rights A&t; whiC@ may.e)4naae bt AtfB.*
serious offenses of a misdemeanor natte. .n. :r,,,. piO::,
(e) The seclusionn of Federal and tribal juricti venro-bm
between non-Indians within reservations -bou11dfibs'1. is .
with the securyf arid tranquility .f ITdian c eWM it&e.'
(/) The 4pplicati6ri of the-Assimilativ6 Cri(AkWW to'iitiac f
trv, as defineff' 18 i STS 1151, is aT:n i itriifted &poIliti'at
States' morals laws. on Tidial' reservati..nI S.lwhih m.y oonkiytt*
local tribal "o4 niirmental scheme of, l1wr'tid undercut Mgn1td*
tribal enterprise. There is no ele .1Wndidtlot :ht: fli AsiaiIMl
Crfiles Adc waf htehdtedto a'Pily to Inditaiabtttry. "' '4
..'. "1 " ,'! ,' *'" .. t ', . i hww i, *".L .''U n u .i[p
"* '" -" p .. '. RZICOi teN BM id*M ,, D. i*. i.,' 7,M

(a). Congress, should. clarify ,iiir....,.., ,.. :.
concurrent with tribal goyernmxents with rimar enforcemeit 6.
. ' . . .,, ... .. r :" i. -i, .ii 'q i
United Statnf V. Biokfeet Tribe of BWacbkfJeet dia BineiM &uaaidids, 1.:- 6. 102
(D.C. Mont. 1973). : ; -ni .i. :.* .." ...i..
3' Interview with Peter Waldmeyer of the Prelsident's Comintmaui enimeq Uwot` e
National Pd1tib,. Tb tr mblflit .&Wb j,' J sAIshe d9iuits .alMa blue1 h
room of the Pentagon. r.t -. : j : h'. ..


s "* ** :,*,.' .r:







with the Federal Government, unless and until a tribe demonstrates
am ability and a desire to undertake such jurisdiction exclusively.
Where UT.S. attorneys decline prosecution, they should be immediately
efrrsd to the affected tribe for a determination of that tribe as to
whether it will prosecute under tribal laws.
(). The various offices of the U.S. attorneys should be required to
coordinate with affected reservation tribes to develop standards for
the decisions on which cases brought before the U.S. attorney will be
prosecuted and which declined. There should be provision for mean-
ingful tribal input and participation and all cases specifically re-
quested by the tribe to be prosecuted should be given priority
consideration.
(a) All U.S. attorneys' offices which have major crimes jurisdiction
should have one or two of their staff specifically designated with
responsibility for Indian matters and major crimes prosecution on a
long-term basis to assure expertise and familiarity. Appropriations
from Cog ress should designate funds for that purpose.
Criminal penalties avail-able to tribal courts should be expanded
to $1,000 or 1 year for misdemeanor offenses and $5,000 or 5 years for
serious offenses. For tribes which show a desire and ability to exercise
major crimes jurisdiction, provision should be made for their assump-
tion of such jurisdiction with appropriate financial and technical
assistance.
(e) Federal and tribal jurisdiction over offenses between non-
Indians should be at least concurrent. At a minimum, the General
Crimes Act should be amended to include offenses between non-
ladians.
(Q) The General Crimes Act should be amended to exclude Indian
country, as defined in 18 U.S.C. 1151, from the application of the
Assimilative Crimes Act.
U.S. COMMISSION ON CIVIL RIGHTS,
MOUNTAIN STATES REGIONAL OFFICE.
Denver, Colo., July 9, 1975.
Subject: Monitoring of events related to the shooting of two FBI agents on
the Pine Ridge Reservation.
To: Dr. Shirley Hill Witt, regional director.
At about 1 p.m. on Thursday, June 26, two FBI agents were shot to death
on the Pine Ridge Reservation near the town of Oglala, S. Dak. The FBI im-
iedfiteely launched a large-scale search for the suspected Alayers which has
mavolved 100 to 200 comtbat-clad FBI agents, BIA policemen, SWAT teams, arm-
red ears, helicopters, fixed-wing aircraft, and tracking dogs. An increasing vol-
*umeof requests for information regarding the incident and numerous' reports and
ailftaints of threats, harassment, and search procedures conducted without
due6 pirtocess of law by the FBI prompted my visit to the reservation to gather
trthand information. MSRO was involved at Pine Ridge daring the investiga-
tion of the tribal election held there in 1973. This office was also .called upon to
do a preliminary investigation of an incident involving the shooting of ATM
leader Russell Means on the Standint Rock Sioix Reservation In North Dakota
last month.
- I was' on the reservation from July 1 to 3, and during that time had the op-
portunity to talk with the acting BIA superintendent (Kendall Cuming), the
president of tie-Triba! Council (Dick Wilson), FBI agents, BIA police officials,
numerous residents of the reservation Including several who lived in the vicinity
of the scene of the shooting, and media correspondents from NBC, CBS. and
National Public Radio. FBI officials were too busy to see me when I visited their
headquarters to arrange for an appointment. Part of the time I traveled in
the company of Marto Gonzales, an attorney and. enrolled member of the tribe







who has bmn, designated chairman for the South Dakota. MA
This pa1culJIr Incident of violence m.tstt'ne Oem .h h.irt
frustration, and eaime which has intreasinxg pervadedlife oA rte'
ditlftg the last 3 years. Unemplot,.meU. ,apprsctohoik.10Wr t.j g|pht
is. four tinep that of Chicago.: There have. beez tn.S ilWA 0SL
so far this year and uncounted beatings, fight d4dho
incidents have never been explained or1,. ne $ minsr .
satisfactorily investigated. The tribal government ,abetes c
tion residents with corruption, nepotism, as it -d i WAitdg..in.t
reign of terror. : .. _i. . i "i .i
Tribal officials, including the presldeui t of a cobuit, at' *0 I
connection with such an incident (on a ifflscnett* ,rge'flW r
ad knives were involved). It Is Wifely flttt.rthesB.in Polo* Wa
largesse of Federal program atithe expensp of th.e more at .ra.ull..
residents of the reservation. .. .S
Tensions are exacerbated by irresponsible statements by .$t
Civil Liberties Organization for Souti DadlL Cidieh" aW-rkhtJW
composed in large part of white ranchers who oWn' or lab*smbe O0o
land on the reservation, produces active sueout fWM koui getB i
presses: for State jurisdiction over the resergationi. ;: _._.._l
Durhg World War II, due tp a shortage of aw eoe 4: t
FBI was given Jurisdiction to investigate felttOiS on fifWe
has never been relinquished. VThe number of FBI idlseits flinito toWlk 'l -
tion was recently increased in an attempt to wcope with doe ntimftAellf
rate.. One of the agents who was killed last week was o0 speial. 'Am
Colorado. 7t
Many of the facts surrounding the shooting re 'eth' ikiotat 1}
or have not been made puble. Media repreientaVMh'b*6 thatPVi& P -
unnecessarily restrictive in the kind and amount of Information Jitr0 a
It is patently ldear that many 9f. t U a *tt ih:u4t -hat.e b't.a..
regarding the incident are either false, iasub sa$ a dor d-i~it
Some of these statements Wpre bihhy inflai.attor, Xt&le4n4 ttit.t"a^t
were led into a trap and executed&. As a resutti ledti4s huavA tt. f l:lh '
The FBI had arrest warrants for four native Americans who haldl4I
assaulted, kidnapped, and robbed a white hi. An&* MIely, Sui gam -m -
Vation and A a0tt4rney from, the Wounded KfeejLeal. fltw lg
tee with whom I talked felt that the warrants wereisued mme.r
the white people without adequate investigation. th a itn, a'
would never have happened had the Indias been the accusers and tfypef
unequal treatment often given to Indian people.: .
The two agents killed in the shooting had been to several houses on the rem
tion looking that the agents had been abusive and threatening Some-st the Efth&winteau
that I talked with, who had been involved in the Wounded Nmse *afltlat
genuine fear thSt the FBI is out to -ge, tbqm. Wha e tWo .wvp .whmtkled
they had no warraptq In their puseuin; if
The bodies of the agents were found dowa In the-YlA .aeveorlj.qxadqW
from the houses w...here the shooting supposed opq .bw .e awra
newspaper accounts turned out to be aged root oeflrp. !Cwwt, ftwH atli1st
nonexistent Persons in the houses were i tlea. p.lcss 9Rp6if A Vlliigti
the shooting occurred. One of the houses, owned by MrE. enq S. 4ih ,.ilH
Bull, contained children and several women, one rf whom was l-
Jumping Bulls had Just celebrated tihel Sth wedding A. I sq. As t
of the incident, Mrs. Jumping Bul.l had a nerve& brukown ,ad inow i
Chadron, Nebr., hospital d : .., b
The body of Joseph Stunts, the young ,aaWi nmeui in. li in. o ef.lti
houses during the shooting, was seen shortly after the shooting lying'lj.4L. a.a
hole as though it had been dumped .tere on puxposepue..wu later giwgmat! lS-
ditional hero's burial attended by hundreds of people. from 49 ferevmmma. ti*
Sixteen men were reportedly involved in the.hopliatbtoug!iiafle..le ii alii
this figure was determined. The FBI has.never given any elar .IdI&catlon that*
knows the identity of these men. Incredibly, all pf thbem, thaew #=auefeMd" r
State and BIA police and FBI agents, manage .toeesucpe tn b.Nmpedasyj..lKu-
Ing the middle of the afternoon. ; ,. .; ,. .- :. ,irAB*I
In the days immediately following the in-cdeieiendenthbeapinnu:oiiiann
of persons being arrested witiont cause for qjuestloninfg, and of houses being-








kg*M a Without warrants. One of these was the house of Wallace Littel, Jr.'
Ixit-I oo neighbor to the Jumii'lg Bulls. His house and farm were surrounded
Moj 89o S. armed me, He protested and asked them to stay off his property.
tot Dai6 an attorney with the WKLOFDC who had been staying in the house
.with X|tle's ramiiy, in0rmed the agents that they had no right to search with-
ot. w amnt They resJra~ied him and prevented him from talking further
wi^hpltyIwha two agents searched the h house.
SDa.a". aalso present when David Sky, his client, was arrested in Pine Ridge
Uas; i-trlak witness to the shooting. Sgy was refused permission to talk with
D.aj*in ton he was taken to a Rapid City jail, a 2-hour drive. Individual FBI
agents with whom I talked wee deeply upset over the execution of their
eomA to .*
8o4' r the native Americansu Fdeived me cordially and I was invited to attend
t&hbtiuial P" J.oeph Stunt.. Some expressed appreciation for my presence there
qAnA.erver. and suggested that the Commission might be the only body capa-
ip*inujg an impirtial investigation of the Pine Ridge situation. My inter-
yhwv4^h Dick Wilson was less satisfactory. He stated that he could give me no
information and that he did not feel like talking about civil rights at a time like
iweralx questions and concerns arise as a result of these observations. The FBI
ip eo.ndutinh* a full-scale military operation on the reservation. Their presence
ther hpa ~.eated deep resentment on the part of many of the reservation resi-
dea.ts who dpnot feel, that such a procedure would be tolerated in any non-Indian
community in the United States. They point out that little has been done to solve
the numseraS murders on the reservation, but when two white men are killed,
troops ae brought in from all over the country at a cost of hundreds of thousands
of dolla s.
No FBI agents. actually live on the reservation and none of them are native
AmerJian. They are a completely, outside group with remarkably little under-
stadimu.& Indian society. Questions are raised as to the basis for FBI jurisdic-
ti n ,i tlUmoeservation, the seeming conflict and overlap with the jurisdiction of
te, IA police, and the propriety of the FBI, which furnished adversary wit-
nqei for the Wounded Knee trials, acting as an investigatory body on the
imq Ridge Reservation. Many native Americans feel that the present large-
cflle search operation is an overreaction which takes on aspects of a vendetta.
fo the Commision .have legal access to FBI and RIA investigatory reports
*Wii Would enable an assessment of the scope and impartiality of their ac-
tivities? Bequests from this office to both of these agencies, and to the Justice
Department's Office of Indian Rights, for reports of the investigation of Russell
Means' shooting in June were denied.
The jursdictlonal problem, like the present shooting incident, cannot be
divorced from the other pressing concerns of Pine Ridge Reservation residents
which relate to their basic rights as human beings and citizens of the United
States. the climate of frustration, anger, and fear on the reservation, which
results from poverty, ill health, injustice, and tyranny, would indicate that the
latest incident of violence will not be the last.
WuJnAM F. MuLDBOW,
BEqual Opportunity Specimaist.
Memorandum
MarC 31,1976.
Subject: Events surrounding recent murders on the Pine Ridge Reservations in
South Dakota.
To: John A. Buggs, staff director, U.S. Commission on Civil Rights.
events surrounding the murder of two Native Americans in separate inci-
dents during the past 6 weeks on the Pine Ridge Reservation in South Dakota
hive again called into question the roles of FBI and BIA police in law enforce-
ment on the reservation. Numerous complaints were received by MSPO alleging
that 'Chest two agencies failed to act Impartially or to respond properly in the
aftermath of the two murders which are the subject of this memorandum. More
seriously, the media published allegations that the FBI was perpetrating a
covemrup to protect guilty persons.
If view of the seriousness of these charges. Dr. Shirley Hill Witt, regional
director, and William F. Muldrow, equal opportunity specilUst from the Moun-
toni States Regional Office, were asked to gather firsthand information on events
which transpired. FBI and BIA police officers, attorneys, tribal officials, and
other persons involved in events surrounding these two murders were inter-







viewed on March 18I and 19 in Rapid City, S. Dpak., n on the
: "" ': " "th ... ."" "
Reservation. Additional information was guta.e4 4ig VIt,.
telephone interviews. .. ": "
Following .is a brief.summaxy of evnt ws tr'&
persons contacted.' ,
Wanblee, a small tows on the north ..lOri on
largely populated by so-called "fual ,I o'' Or,',,& a ,
Americans. This community ..helped to bu Ut iAeu p d4et4TbaI r1 i
Wilson by a three-to-one vote against him the.eti er4
reservation. The chairman of Pine R'dge DWA-aLC,, an &rvat gi
of Wilson on the reservation, Was quoted on *.ary. 23ns saifu
needed "straighting out" and that people wouldW nOe to It *: rb" SM
On Friday evening and Saturday morning, January 30, and. 31, .
Wanblee residents, several carloads of heev1f$ ']Eedpzdtl
witnesses to be Wilson supporters arrived1 ih the town LI
morning, shots were fired, allegedly by this group, into the bofi
Knife. BIA police in town at the time ctal)ed tof teinfor i
promptly but made no arrests of the persons idtitled by' fyf
ones who did the shooting. I" C -" U: i .s U.
Shortly following this incident that same day Byron DeSersa, af t
Wanblee, was shot and killed during a high-speA autozWbiui ha -!
by persons recognized by passengers in DeSermi's car as be. t.Ue'l'.
vidnals responsible for terrorizing the town earlif&. *ttiekerf iuhhq
their cars to chase those who were with DeSersa -uiid he bled tUo deiltr
of immediate medical attention. M .. *'' ." d.*-':.
Following DeSersa's death, the FBI, which has *liiictlei,'bnerl-A S.Pw
called and two agents arrived that afternoon. Sporadic shootih eSihi
town through Saturday night and two houses were firebombed. eMIUi
ported that despite their pleas, law enforceknent' oilcere who had evti
tion powers and were present at the time did noth to top tlhe sbi.
the fact that oneperson had already been killed By ) Infire a' n iln"
District Chairman James Red Willow that the Th was sti 'l -n
agency and had no authority to act in a protective capact. Sat$ t
person, Charles David Winters, was arrested for the mtier of'D.. er..
tempt was made to apprehend or arrest thEbthqr passenge _i iaertb
though persons who were with DeSersa When he was Shot inloft-&at &9
chased by Winters' companions after the shooting and cbpld adi't
their attackers. Nor have any further arrests been made in:i.nnectO'"
terrorization of the town over a period of 2 days. The a#e is at rp
investigated by a grand jury in Pierre. ..'
The second series of events-about which Witt and MAuldrdw o*tep f'
inquiry-began on February 25 when a rancher discovered t.ie..iltt
posed body of a Native American woman beside Highway No. 73B a few4d
of Wanblee. Two BIA policemen and an FBI agent responded to .the'.6,
report and brought the body to the Pine Ridge Hospital; where an a"
performed on February 25 by W. 0. Brown, M.D., a pathologist from
Nebr. He issued a verbal report that day to the effect that she ha died J
exposure. He found no marks of violence on her body except evidence &ft iAL i
contusion. The dead woman's hands were severed and sent to a laboratwayni
Washington, D.C., for fingerprint identification, both the FBI and the BIA&l tf -
ing that they had no facilities to do so themselves due to tha stateof qect*
tion of the body. ', ."
On the morning of March 3, the body, still unidentified, was burial b .. i
Rosary Cemetery at Pine Ridge. The FBI reported that in the afternibon dte
same day they received a report from the Washingto laboratory 'tt ei
tests revealed the dead woman was Anna Mae Pictou Aqaah, h OA .ad aih !
wanted in connection with a bench warrant Issued Novem.. zj"In i5Wtft I
default of bond on a firearms charge. She al@o was under I--Iftt
grand jury in Vonnection with a shootout wit0 Oreg*1 pqltpt jat lIonW i
Relatives of Aquash in Canada were notified of bWe daet^ ,ot mar"l aS
news of her identification was released to the mndia th f,1"oli'gw da&j'fr BL I
their disbelief that she had died of natural causeeso, iiba 9 c i .
town of Oglala, where she had liTed fo, a i.m *Ajj an .. e4 *
nation of the circumstances surrounding' her u). u 'tires,repC mntp a
: .i *.:- < .; ..:. .' i *, -: ^ A (:.- "* ,: ;|
rrou ".i' : 1, :=0 : "







attotey Briuce Fllison of the Wounded Knee Legal Committee, requested that
the body be exhumed for further examination.
On March 9, 6 days after the body was identified, the FBI filed an affidavit
With the U.S. district court and received a court order permitting exhumation
for "*purposes of obtaining complete X-rays and further medical examination."
X-ra;* had not been considered necessary during the first examination.
On March 11 the body was exhumed in the presence of FBI agents and Dr.
nTrry Petemuon, a pathologist from Minneapolis, Minn., who had been brought
in byr Aqnbh's family to examine her body. X-rays revealed a bullet of approxi-
mtely .82 caliber in her head. Peterson's examination revealed a bullet wound
the back of the head surrounded by a 5 x 5 cm. area of subgaleal reddish dis-
coloration. Incredibly, this wound was not reported in the first autopsy and gave
rim to'allegations that the FBI and/or the BIA police had covered up the cause
of her death. The fact that officers of both agencies examined the body en situs,
wrapped in a blanket beside the road and far from any populated area, yet still
did0 not suspect foul play, leads credence to these allegations in the minds of
many people. Hospital personnel who received the body at the hospital reportedly
suspected death by violence because of blood on her head.
SOther persons are of the opinion that Anna Mae Aquash had been singled out
for special attention by the FBI because of her association with ATM leader
'Deoans Banks and knowledge she might have had about the shooting of two FBI
agents on the Pine Ridge Reservation last summer.
These two incidents have resulted in further bitterness, resentment, and
SuspiciOn toward the FBI. They follow months of turmoil on the reservation in
the aftermath of the FBI shooting incident when allegations were rife that the
FBI engaged in numerous improper activities including illegal search procedures
and creation of a climate of intimidation and terror.
A contrast is seen between the Wanblee incident, where a person was killed
and shooting was allowed to continue over a period of 2 days, and the incident in
tJuly When 2 FBI agents were shot and nearly 300 combat-clad agents, along with
tbe trapings and armament of a modern army, were brought in "to control the
station and find the killers." Reservation residents see this as disparate
treatment. This, along with what at the very least was extremely indifferent and
careless investigation of the Aquash murder, many residents feel reveals an
attitude of racism and antagonism on the part of the FBI toward the Indian
people.
Because of the circumstances surrounding the events mentioned here, along
with the record of an extraordinary number of unresolved homicides on the
reservation, and incidents of terror and violence which have become almost
commonplace, the sentiment prevails that life is cheap on the Pine Ridge Reserva-
tSbi. The more militant and traditional Native Americans have concluded that
they cannot count on equal protection under the law at the hands of the FBI or
the BIA police. Many feel that they are the objects of a vendetta and have a
genuine fear that the FBI is "out to get them" because of their involvement at
Wounded Knee and in other crisis situations.
Feelings are running high and allegations of a serious nature are being made.
MBBO staff feel that there is sufficient credibility in reports reaching this office
to east doubt on the propriety of actions by the FBI, and to raise questions about
their impartiality and the focus of their concern.
I. T. CxEsswnz, Jr.
S. H. Wnrrr.

B. CRPINGo JURISDICrION

Congress has, from time to time, passed a variety of legislation
ihich, although not directed at affecting the Federal-State-tribal
relationship, has a wide-ranging impact on that relationship. Gen-
erally, the status of Indian tribes and the applicability of these acts
of general application to Indian tribes are not considered by Congress
in the drafting of such legislation. These legislative acts can be roughly
'classified as either regulatory schemes, or general acts of financial
assistance.







1. APPLICABILrIt OF GENERAL VE ATORTo BRSTATUW.S UfAr-SBik j
COUNTRY' ';."..
Despite the frequently quoted dictum 'in : '. Ipft ttl
"General acts of Congress did not apply to In6dianis u. 4s |,
as to clearly manifest an intention to include: iei,"' ; *7 -
generally held' that, in the absence of conffiet'ling 1r
general Federal regulatory legislation does apply if
If, however, treaty provisions do conflict with i:gu pq
general rule prevails that later congressional a.taon!igaWem
mitigate the effects of this rule, courts have established f .t.sfl6mr. s
abrogation of treaty right 'which requires a "6Wler an4 ai .
ing of legislative intent to abrogate. Recently, an ei 'efu
express abrogation is gaining favor.' -,...... i .ni
The most liberal extension of the express abrogation -dtitt ft
found in United St ate v, White. In decidingwhethierii gfl
applying Federal enclave laws within Indian country i.aads .
statute prohibiting the taking of eagles applicable to an liwiii s4
Red Lake Chippewa Reservation, the seventh circuit waurt*6ulld'tiat
hunting and fishing rights were implicitly granted in' ,0! `6
establishing the Minnesota reservation. The treaty d'd. ..a.t...w..
hunting and fishing rights, and the statute is silent on itapptiatim
to Indians on reservations, but the statute does exemptthb-tai1t4 of
eagles "for the religious purposes of Indian tribes." Thm ,)44l
have been argued that the exemption implied ** C 0oigrI' uf l
to prohibit Indians from taking eagles for other than re.igioppur
poses. Nevertheless, the court vindicated the treaty'0 ht aid'1idtil
stated that: .. .." "" ,, S'
To affect those rights then by 16 U.S.O. 668, it was incumbent upon g
to expressly abrogate or modify the spirit of 'the relationmffp between thelltue
States and Red Lake Chippewa Indians on their native tesevafaom WBe1 S
believe it has done so. *:: .."
Yet, not all the courts agree with the Seventh Ciriatr-Onl#|
cases has allowed the expropriation of Indian treaty lad :a tiR-
authority of general statutes that are silent on the trdeatie. R pi$.
ticularly destructive case, Seneca Nation of Indiafls v-. :J
court, relying on legislative history indicating that C6Oiroft 10S
aware Indian lands would be inundated, held that it wn not :ulaHfV
for the Army Corps of Engineers to build a dam that woultd-t4
almost the entire Seneca Reservation because Congrehos -a miStt
its intent sufficiently by appropriating money for the dam. Yeas
later, the Corps moved to condemn a part of the remaining land for
a highway as part of the project. The court allowed treaty rights to
I KMuch of the first thee parts of hls section Is based on b'pMalr "tubt .te.' the
American Indian Policy Review ComminlBion, prepared by. omph 3. 7.ichet "The im
of Regulating Statutes on rNaian lteservations; ome Problems ndopoGd Litie
Solutions," 1976 [hereinafter cited as Beeher]. : .
'112 U.S. 94, 100 (1884).
SSee Reed v. Covert, 354 U.S. 1,18 (195). ,: .:.
.United States V. Santa Fe POe. R.R., 31 U.S. 339. 353 (1941). '
'508 P.2d 453 (8th Cir. 1974).
'16 U.S.C 1668(a). .
'808 r.2d at 457 (emphasis added). "
'162 r. Supn. 580, 582 (D.D.C. 1955). aff'd 262 -.2L37 (D.;, bt. mlB, eerllid
denied, 360 U.8. 909.







bb ignored without any showing of congressional intent on the theory
thattthe Corps exercised "delegated administrative discretion." '
- In two other cases with similar facts, the courts have split. The
ourt in United States v. 687.30 Acres of Land, relied on five acts
apipr-vg a series of Missouri Basin dams to show congressional
inMt to delegate power to the Corps to condemn Winnebago treaty
hinds." However, in United States v. ,005.3 Acres of Land, the
edutt construed many of the same statutory provisions and found that
although Congress might have been aware that land of the Standing
ock Sioux might have to be taken that knowledge alone was not
sufficient to defeat a treaty right." The court held that the terms of a
treaty:
stand as the highest expression of the law regarding Indian land until
ccsfikir states to the contrary. The Indians are entitled to depend on the
Smlfllmneat of the terms of the treaty until the Congress clearly indicates
qthawise by legislation."
: As these decisions illustrate, reliance on a case-by-case judicial
application of abstract principles in the area of treaty rights is con-
fusing expensive and can be dangerous, because it also exposes Indians
to possible criminal penalties in order to assert these rights.13

8. A flhJC1 LI'rr OP STATUTES REGULATING FEDERAL AGENCIES TO INDIANS
Congress has begun to exercise close scrutiny over Federal agencies.
The effect on Indian self-determination has been great because the role
of Federal agencies in Indian affairs is pervasive. Further, these
statutes have provided a means for outside groups to challenge Indian
Sqota
One law with significant potential effect on the operation of Indian
entitiealis the Administrative Procedure Act (APA).1 It may im-
pinge on tribal sovereignty in two ways: it is sometimes, and for some
purposes, asserted that the tribes are Federal agencies and thus subject
to procedural requirements for adjudications and rulemaking; and,
secondly, it can be invoked by others against Federal agencies who
ae required under their supervisory, fiduciary authority, to approve
Indian projects.
The Freedom of Information Act (FOIA) provisions of the Ad-
ministrative Procedure Act require "each agency" on receipt of a
proper request for "records" to make the records-except for certain
speoifi exemptions-promptly available to any person.15 If the agency
declines to turn over requested records, it must notify the applicant
within 10 days of this request, stating the reasons for the refusal and
must determine any administrative appeal of the decision within 20
days." Thereafter, the applicant may seek a de novo determination in
. OSoeW. Nation of Indiana v Brucker ("Seneca 11"), 338 F.2d 53, 56 (2d Cir. 1964),
ertIfleate denied, 880 U.S. 952 (1965).
8019 F. Supp. 128 (D.Neb. 1970) appeals dismissed, 451 -.2d 667 (8th Cir. 1971)
Mrftcate denied, 405 U.S. 1026 (1972).
11 1u_ V. Supp. 193 (D.S.D.) vacated as moot aub.nom.
".d. at 196-97.
i" UZted States v. White, supr., No. 5.
18 U.S.C. 1551. et #ea.
U.S.C. 1552(a)(8).
1 U.S.e 5652 (a) (6) (A).







a district court."1 Liberal application of the FOLkAto ladia r
can be adverse. For example, potential competitors toe TIsjiaahl
enterprises could learn about Indian plans and ideas, whilaw pbs
their own secret, or internal tribal matters can be preadon'twek
Several examples of the way the FOIA provisions havv'r.
Indians are: a legal services attorney representing personds.n'l'
eligibility for Colville tribal membership was given acas "tIll
membership roll which contained highly perSnmal data, onr tam
of reservation residents, such as parental identity, iegit-wamcy M t
financial information, and criminal and mental health: ecotd "*I
BIA released its files on a Navajo Reservation gravel ,niningOpla
tion:19 an attorney representation contract of the Agua Calientes t"
was ordered disclosed to a news service; 20 however, the:. Xew )Igqi
State engineer was refused technical information on water .. rQ,
on three New Mexico reservations.21 BIA has been construes&tWA
"agency" for FOIA purposes in all of the above instances 'wa* #.sa
appear to be covered under the definition in 5 U.S.C. 55.1 icfleh
authority of the Government of the United States whether ormns t.:iA
within or subject to review by another agency .. ." Thus, it-al
that the presumption in favor of disclosure under the act lw-ti
elude BIA under this definition.22 This, of course, creates a sigme
problem where the BIA is acting in its trustee relationship.
for normally a trustee should not release data detrimental to the bene-
ficiary of the trust. a .tion ;
Courts have come to contrary results in answering the.-abs"
whether an Indian tribe itself would be subject to the disclemmi:"-6
quirements. It has been reported that the Interior Departmetr"htik
taken the position that the tribes are subject to disclosure. Tk#w vi
apartment's Solicitor has demanded that the Colville Tribe ituma tBo
him evidence gathered by the tribe for a water rights suit iA w ihi
Department had taken a position adverse to the tribe.23 ironieaty-;:t*
trustee is asking his beneficiary to aid the trustee in an action against|
the Indian interests. crl .T
Since it is questionable that tribal or Government trustee reeords& am
per se outside the act's scope, decisions on disclosure havr turned -a6
whether the particular documents to be disclosed are within 'a statsJ.
tory exemption. The agency relying on an exemption has -f hoey
burden of showing that the exemption applies,' and the oo uta.ite_
narrowly construed these exemptions." ea?
Detailed requirements of APA rulemaling if made applicali"...v.
Indian tribes would cripple most reservation governments.' Tibal.
councils may often consist of people with little formal edfifltibl
living in remote areas and operating under a tradition of oratl'bdmi-
17 5 U.S.C. g552(a) (4) (B). ...
3tWashington Post, May 20, 1976, V. A7. .
Is Letter from Stanley E. Doremns. deputy assistant secretary for PflgrS* Dvsnyat3
and Budget. Department of the Interior to Tim Vollnian. Oct. 17, 19"'.'
0Letter from Royston C. Hughes, assistant secretary for Program .Dbvelqpmeit aq|.
Budget. Department of the Interior, to Will Thorne, Mar. 18, 1975. "
21 Letter from Mitbchell Melich, Solicitor, Departmenit of the Intetrior to togas apd
Hartmon. Sept. 24. 1971.. . ..
=See Consumers Union of U.S., Inc. v. Veteras" Admbndtratiot, 301 S .kp. 7t : 06
(S.D.N.Y. 1969). See also Environmental Protection Agency v. Mihl O41U.S. 73; 3 &(2l,).
23 Paper submitted to the task force on Reservation and, Resoure .DevelbWpat 'ald
Protection No. 7, Summary Discussion on Water Rights of Affiliated TrIbes of 'ofthwest
Indians. 1976.
4 Washington Research Project, Inc. v. Department of HEW, 504 F.2d 238. 244 (D.C.
Cir. 1974) certiorari denied, 421 U.S. 963 (1975).
25 See Montrose Chemical Corp. v. Train, 492 F.2d 63, 66 (D.C. Cir. 1974).







sioamn kiang. Under present systems and funding, they would find it
virtually impossible to comply with the law or to acquire the necessary
Legal assistance to do so. Outsiders could then challenge these pro-
deduni requirements and thereby overturn tribal council actions, as
sovernga immunity is waived in APA actions.26
The Witional Environmental Policy Act (NEPA)2' also has had
a great effect on the way Federal agencies decide to implement or ap-
Sprove projects in order to achieve the goals of environmental quality.
It has engendered much litigation, most of it on the requirements of
the environmental impact statements which have been stringently in-
terpreted by the courts: "They must be complied with to the fullest
extent unless there is a clear conflict of statutory authority." .8
SCase law has made it clear that NEPA applies to projects con-
structed and funded by the Federal Government as well as projects
simply requiring Federal licensing or approval.29 Thus, virtually all
Indian projects would be included. The disadvantages of inclusion
are that a new element is added to the decisionmaking process, and
the Federal duty to promote the best inte rests of the tribes may be sub-
jugated to the competing interests of the general population-a clear
confict of interest. The will of the tribe can be thwarted in its efforts
at malf-determination in use of its resources. Also, outsiders can use
the aet to veto Indian projects.
Increasing the obstacles to self-determination, the act also requires
preMarwtion of the environmental impact statement30 which must be
suicient to peas judicial scrutiny. This statement takes a considerable
amount of time and money. In addition, the courts have sometimes
required "programmatic" impact statements in which a single project
statement must be integrated and approved within an entire regional
pla. Indian tribes can be caught between the regional plan and those
who oppose comprehensive development. For example, in Sierra C(ub
v. Morton,'2 the court held that a programmatic impact statement for
the northern Great Plains was required before further Federal action
could be taken on coal development since the Government had treated
the individual permits and approvals as part of an overall develop-
ment by preparing regional reports, studies and task forces. The Crow
Tribe was caught between white ranchers and environmentalists and
Government and industry. The Crow Tribe had negotiated favorable
coal leases and additional Federal approval was required by regula-
tions before mining could begin. The Crow Tribe, along with the
Government, lost.

PLICABILTrY TO I1NDIANS OF FEDERAL STATUTES DELEGATING AUTHORITY
TO THE STATES
Congress has begun in recent years to share enforcement authority
with the States on regulatory statutes. For example, the Clean Air
NEstrada v. Ahrens, 296 F.2d 690, 698 (5th Cir. 1961). quoted w/approval in Scanwell
Labostoria. Ino. v. Shaffer, 424 F.2d 859, 873 (D.C. Cir. 1970).
"42 U.S.C 1 -11321. el eeq.
Calvert Cnliff' Coordinatinfg Committee v. Atomic Energy Comsission, 449 F.2d 1109,
1115 n. 12 (D&.CCir. 1W7).
Set e. g., Gfreene County PlanninC Board v. Federal Power Commission, 455 F.2d 412
126 Cir. '172 : McLean Gardens Residents Aasoeiation v. National Capital Planning
Commi.Rsa. W. F. unp. 165 (D.D. C. 1974 1.
42 U.S.C. i 4332.
M154 F.2d 856 (D.C. Cir. 1975).







Act mandatess the Euivronmental Proteotin.Areu t.
air quality standards to protect, publi healtth Pnd as-ta.t0V
may assume enforcement jurisdiction by. subanittbg a9 Ap
eludes the statutory requirements: Measnrwes as may .4f..
insure attainment and maintenance of the standards. 1j4
use and transportation controls; a3 measures to pirVeyeiA|. -
struction of new pollution sources; and a evideaee t. t'
has the authority needed to enforce the standard' .PA1R ..
approve a State plan that meets these stabutory, wrl "-M l"*1.,
Although the Clean Air Act does not define the .a:*li9
State regulatory plans to Indian tribes, EPA has taken t hi t
that the act neither grants any State jurisdiction over Iubifia mBin
nor does it'take it away.;7 The threat to Indian soverdgaty. at Ia -
tial assertion is, however, obvious. States through. suehofmglh i :
cold achieve, by a roundabout means, direct cintsotofvL.bNIp
use. This area of control is central to Indian self-gevernmsnk, s 0I
have noted, they have consistently resisted State attsiptstuiX M
tion of this function.38 .: :t, I 'aitwlb [14, 1
Another regulatory act allowing the -States to implenatkb4t
assuming civil and criminal jurisdiction -for enforcementdzsi
national Safety and Health Act.'9 Designed to maintains: 1
a safe, healthful work environment, the act allows the StatqnsiuV tA4
federally approved plan 0 to make unannounced inspeIidas v ahe,
workplace,"4 issue citations for standards vielations,0*fanid 1a s ui 4
and criminal penalties.43 The Act is silent on itsapplicatinto4qS:s
country, but Dennis Karnopp, attorney for the Wannrm Spigspswb&es
Oregon, said: 1 ,. 'tu r.sutpt
We had the state occupational safety and health lnsgedcd1Nite1frla
some citations to the tribe on the mill, and we went to the: 'i0it tW edl" t
administers that and suggested to them that they didn't havtwawy**A
Even though they had generally assumed what jurisdiction th.*.Oe Kir
meat has, they didn't have any jurisdiction ovey ,tJe tribe to o it
were happy to have them come and inspect our pnill and help Au Ky t
place but we weren't going to pay them any fines.'And tWe state Attort,.iASt
eral issued ah opinion saying, yes, that's righ4 tha at. daFto that.:.tat t^i
Attorney General not come down with that opinion, e wefwe pqap4A3 Jp
suit in federal court over that." ... .i
Conceivably, then, there could be many different inte1wrprdatio4
the OSHA inspector's authority if left to the deaisioa o6 each &tdi
attorney general or costly litigation. !' ; ne1
4. APPLICABILITY TO INDIANS OF DOMESTIC ASSISTANCE STATUTES OWING-
STATES AUTHORITY TO PARTICIPATE I!. RPBQGR4,A ... WqiJa.rri L
The need for wide ranging domestic assistance benefits means that.
these programs impinge directly on the day to day liveas of =stK1-
42 U.S.C. 1S1857. et seq. i
S42 U.S.C. 5 1857 c-5(a) (2) (B)..
42 U.s.C. 1857 5( (4). F .1 :.......
-42 l.S.C. 1 1857 C-5(a) (21 (F) (i) ; see also.40 C. 61.11.. . .
*42 U.S.C. 1857 C-5(a)(2). *
TBrecher, at 42, n. 145. .. ..
m See e.g., Snohomish County v. Seattle Diaposal Co.,70 VWsh. Pd 6. WS .. 3
(1967). cert. denied, 389 U.S. 1016; Riscos Band 01 Minmon. LJaAiOs v. H ..g*S
Diego, 324 P. Supp. 371 (S.D. CaL 1971) ; Age COaeste Bandym. 6i4 of fan X ..a,
347 F. SUDp. 42 (C.D. Ca]. 1972). ... .. : ,.,,
S 29 U.S.C. 8651, et aeq. .. .. .
29 U.S.C. 5 667. .,. .. ... :
S29 U.S.C. 6 657.
29 U.S.C. 1 658.
18 U.S.C. 1114; 29 U.S.C. 606.
Northwest transcript at 257-50.







Mes k1eral statutes creating assistance programs frequently uti-
iiJS&tte agencies' as a key part of a 'program delivery system. Grant
fthh may be funneled through a State agency and/or a sign-off by
'SbtM' governor may be necessary for tribes to receive grant funds.
State, in its turn, may attach regulations, conditions and require-
Ads!' oi M ;own to participate in a Federal program. Indian tribes
thusbecome subject to State jurisdiction, and it is often by legislative
p ghalt Of the special relationship between the Federal Government
tndffld'trtbes. lMany Indians view this Ps a direct infringement on
their sovereignty.
.iitSkdmtinistration of title XX programs of the Social Security
At5s nich aW'xample. Buck Kitcheyan, chairman of the San Carlos
Apche Tribe, Arizona, testified that:
zin !eW XXf, and related Social Secqrity Act amendments, the Department of
Mat& ilducaftion and Welfare has consistently attempted to force the non-
ablI~tfB% O tribes to consent to State jurisdiction for all social service pro-
grams including foster care, adoption, institutional-and other custodial care.
enforcement of child support. All within the reservation and all within the
pbrs .tf the sovereign jurisdictional power of the San Carlos Apache Tribe."
- The resulting conflict of tribal sovereignty and State jurisdiction
ereafes confusion in the delivery of services and program operation.
Beyohdthe possible feud with tribal sovereignty, the use of the States
t administer programs brings with it unresolved jurisdictional ques-
tions, confusion in program operations, and a general lack of efficient
delivery of services. Lieutenant Governor Antone of the Gila River
Reservation expressed the problems with Arizona's administration
of title XX:
4
Undier thisa Title XX, the State was asked by the Federal Government, to
provide' searCes to the reservations, something that the State has not been
familiar with for the past years. As a result, a lot of the reservations ... are
fatce!d wtI. some real jurisdictional problems. For instance, if a child was to be
placed in a foster home whose courts would the State recognize?... would they
recognuze the tribal court or would they have to be referred to a State court
system ?. The Inter-Tribal Council has done an in-depth study and has come up
with at least four volumes that would take a person approximately a day to
read all of them, they expressed a lot of the problems that we see as Ihfdian
people . it lists a number of questions that we asked of the State, which the
State could not answer, saying that the Federal Government would have to be
the. n. to answer these questions. And the Federal Government, in turn, are
iayitzg that the States have been given the direction . Well, you can see
tfis leaves the tribes in a very peculiar situation, not knowing whether their
Juiealtetlen or sovereignty will be jeopardized if they chose to go to the State
to obtain moneys for the programs..."
Important assistance to reservations is also provided by the Law
Enforcement Assistance Act (LEAA). The law mandates State
planning units as administering agencies which approve grants for
the major portion of Federal moneys.4" In most States, Indian appli-
cations (re block grants), are considered along with those of all
other cities, counties and other eligible participants. Thus, Indians are
forced to compete for their funds with other, perhaps larger, entities.
Arizona has a State regulation that at least one Indian must be in
the 'planning group which approves or disapproves applications."
Southwest transcript at 293.
a Southwest transcript at 7-8.
"42 U.S.C. 1 3711. et seq.
32 U.S.C. 5 3733.
SSouthwest transcript at 201-02.






J
Yet, Evans Navamsa, an Indian jutie. specialist fo A
that, despite Arizona's taking, ndian mwoey out ofco ip
the cities at the State planning level in a. block.setaidp '
ommended that the Governor's office be approach to ain.p. r
Indian task force for approval of applications by.. 14-
their needs were met and their sovereignty respecte.dY 1IU M4 i,
S. the problem is now whenever I present an Indian awliiew
the police and sheriff's task force%' there are someo 'other, that: $j fa.
knowledge about the conditions and the needs ot Indian tribes a4Wj:i-
lenge these Indian applications. . t : f.
Mr. Navamsa suggested that, ideally, a member of h th' it
be present when its grant came up for approval, but t 0a,44:as ajr
too costly for the tribes to do.'2 : ,
In addition to State regional approval processes, the Stte' WO ,
conditions that must be met before the State, naot necessari.y 641
approval is granted. Examples of these conditions amd t.A01ij
the tribes were noted by Evans Navmsa.: ..:' .n
On top of what is already stated iztthe application (you need) a.p'.oW.f.i.: '4
scription . they don't have these kind of personnel to... do
position classification; '"In. the ease of tribes requesting wmiver of .Milluag
requirements and then have to attach their operating budgets to it, UA PMIgIu.
tion states that they're not financially able to provide matching erntrlbud a .
(they) have to go through the expense of seeking rows End ro's. .tf.ote*&.
budgets . i And it takes more moeq for, you knoe you're hauoiedj fnA
money through these special conditioank on a tribe . thafs kMMg au .4t
much." 'i .
.FINDINGS j."'-l::.:.:!
1. The passage of Federal regulatory statutes that are unclear onf
their applicability to ITdian country has, in. effect, abrollpld, `M*iW
Indian treaty rights. j
2. Courts have attempted to mitigate the effects of apparenialri
tion of treaty rights by the stlict construction of legislative lI
However, judicial construction is inconsistent, and' the exten4lfA
gation that results is costly and exposeAs Indians ;who- ae:,xt
rights to possible criminal penalties. ...
3. By passing statutes regulating Federal agencies that afre une
on their applicability to Indian governments, Congress has create
potential threat to the operation and very existence of tribal ,! 3i
ment and to self-determination in the use of Indian .ad.'.a
sources, all in conflict with announced Federal policy encovng
tribal integrity and self-sufficiency. .... :
4. By passing statutes delegating regulatory authority to the S.. est
that are unclear on their applicability to Indian tribes, Con sb.hi
subjected Indian governments to State jurisdiction-in iiectain
flict with tribal sovereignty-without going w record :as in"eisai
to do so. Si' .R.
5. By passing domestic assistance statutes giving States atLbotg
to Dart icipate in program delivery. Congress has subjected Ibta.
enfit;ps to State jurisdiction that jeqpardizes tribal sovereigntyk.Yi-!/
6. Thus. Indian eligibility for assistance programs becomes :eond-|
tioned on both Federal and State regulations which can be anint a
Sqonthwrst transcript at 208.
1 Ihid a t 2P2-03.
Tbid at 201.
I bid at 191-93.






b& burden on tribes and, consequently, a frustration of the special
fediwal trust responsibility to the tribes.
- 7. Federal statutes which are vague in their effects on Indian sov-
ereignty and jurisdiction pose expensive and extensive litigation as
the& only current alternative for concrete resolution of jurisdiction
prbems
RECOMMENDATIONS
Recommended language to clarify the applicability to Indians of
various Federal statutes is aimed at requiring a recognition of the
statute's effect on Indian country when the legislation is drafted. The
following suggested sections are also directed at preserving the sov-
ereignty of tribal governments:
1. Suggested language to amend current statutes to assure fuller
oongression-al consideration of treaty rights before intentional or un-
intentional abrogation might read:
a. No rights reserved to any individual Indian or any Indian tribe,
gropz, band, or community, by any treaty, Executive order, or con-
gressionally ratified agreement shall be deemed to be abridged, abro-
gated, modified, amended, or repealed by any subsequent act of
CPngress unless such act refers specifically to such treaty, Executive
order, or agreement.
b. No Federal statute shall be construed so as to imply a delegation
of congressional authority to abridge, abrogate, modify, amend, or
repeal any right reserved to an individual Indian or any Indian tribe.
group, band, or community by a treaty, Executive order, or congres-
sionally ratified agreement unless such statute refers specifically to
such treaty, Executive order, or agreement.
2. To allow tribal governments to exercise the essential function of
determining their own land development and use. the Federal authori-
ties excluded from coverage of 5 U.S.C. 551(1) APA should be
amended by adding subsection (I) and (J):
a. Federally-recognized Indian tribes, band, groups or communities.
b. Agencies acting in a trusteeship capacity concerning the person or
property of any Indian individual, tribe, band, group, or community.
3. To insure that Federal regulatory statutes conferring rule-mak-
ing or enforcement authority on states are not used as an implied
means of extending state jurisdiction over Indians. langunee adding
the following new subparagraph should be adopted to 25 U.S.C. 1321
on State assumption of criminal jurisdiction:
No statute of the United States which authorizes or directs States
to adopt regulatory standards or means to enforce such standards pur-
suant to guidelines set down by Congress or any Federal agency shall
be deemed to extend the force and effect of any state criminal laws to
Indian country unless said statute of the United States specifically
authorizes such an extension of State criminal jurisdiction to Indian
country.
4. A parallel subsection should be added for civil jurisdiction to 25
U.S.C. 1322:
No statute of the United States which authorizes or directs States to
adopt regulatory standards or means to enforce such standards pur-
suant to guidelines set down by Congress or any Federal agency shall
be deemed to extend the force and effect of any State criminal laws to







Indian countuyi unless said statute oatek United Sta.&e s
thorizes such an extension of State civij'riedwitioa.toJ P6
L Statutes authorizingg 'Federal aemistiam pro.nlctii
preasdYideliaeate tribal participating ;.- ; .. i. LU
%. A special definition, of lndian tribeeshauldlba,
definition could then be incorporated into assistance statute
defining what units are eligible applicantss for programs.'
tion should contain a recognition of tribal sovereignty, and:
trust responsibility toward Irdian country. .':' 't
b. Tribes should, tberefjie;' be equivalent ift tts to-
their eligibility to ecive ftis directly rrdfn %aM
inent or chartered'orgaf'izasttiohs comparable' tb:the li6
lar State organizations. "
c. The effect of thi&d&finiti6n should lb to erliitg ttakf
to State regulations and agencies thai xeOxldt &tinb, at
tici4ation. : : . '
d. Participation by the tribes in reHgits 'g*rMttnd
program delivery should be at th6 .6tton" 6tWac';,i
agency regulations now use'State and locL"ltein fM
for tribal.funding, the administering agenies sbti M &iAl i
seek legislative changes in harmony with Ktheaboibi.'e fl


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IV. SPECIAL PROBLEM AREAS


A. HuNTING AND FISHING RIGHiTS 1
Pursuant to the evolution of relations between the expanding nation
of the United States and the various Indian nations encountered in
the path of that expansion, various agreements were entered into by
wray of treaty which provided for the continued existence of the
aboriginal occupants of this continent. An integral part of most of
these agreements was the continuation of the basic food sources known
to these people which were often also an important part of their
religious and cultural heritage. Moreover, the practices of hunting,
fishing, trapping and gathering served as the foundation of the trade
and commerce carried on by the various Indian nations, tribes and
bands.2
This was widely recognized in almost all treaty negotiations and as
lands were reserved and set aside to be held by Indian people, or to
be occupied and used by them as Indian lands are occupied and used;
also included were the unfettered rights to hunt, fish and trap game,
and, in some cases, to gather wood, wild rice and other food and herbs.
Such rights were also reserved on lands off-reservation and have been
long enjoyed by aboriginal claims of use.
Some of these rights were specifically designated to be exercised
"in common with" non-Indian users; other such rights survived the
loss of the land by cession3 or termination.4
As the non-Indian population grew and industry and development
proceeded apace, demands on these resources increased while the re-
sources diminished. Competing interests such as hydroelectric facil-
ities, poor logging practices, and international fishery of migratory
species intensified the competition for fewer and fewer available game
and fish.6
Powerful interest groups representing commercial and sports in-
terests began to apply increasing pressure on State and Federal
agencies to be more aggressive in exercising jurisdiction over Indian
rights. Attempts by Indian people to exercise various on- and off-
reservation rights, and to control the access of others to the resources
so central to their survival and economy, have been curtailed by on-
going interference from various State and Federal agencies and
officMials. Long and extremely expensive litigation has been undertaken
and continues today over the perimeters of tribal, State and Federal
S"Much of the lecal analysis for this section is taken from or based upon a paper pre-
'pared for the task force by David H. Gretcheb, "Jurisdiction Over Indian Hunting and
Flashia Activity," May 1976.
SWilkinson and Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as
Water Flows or Grass Grows Upon the Earth-How Long aTime is That-" 63 Cal. L.
TeR. 601 (1975).
, Antoine v. Washifagton, 420 U.S. 194 (1975).
Aifenominee Tribe v. United Sate l. 391 U.S. 404 (1968) : Accord, Kimball v. CaUahan,
493 F.2d 564 (9th Cir. 1974), cert. dented, 419 U.S. 1019 (1974).
.s Northwest Transeript at 338-39 and 343-45.
L (57)
77-467-76----5






jurisdiction in this important area. Despite numerous deediAo Ws-
flicts continue and in many places, emotions run high. r,.
The extent and nature of the exercise of Indian rights to1ftt d
fish must be approached with the full awareness that such r At o
defined by specific treaty or situational terms under whichktM. hk6
or were preserved.. Generalizations, therefore:taust' be vi .+.. wbW-
fully. This section will discuss the impact of State, Federal a#'p1
jurisdiction on these rights exercised on-reservstiof and Mf .rmst
tion. Aboriginal use is treated separately.
1. ON-EF SERVATION HAUWING AND FISHING mapfltip"1:KOH')n
1. * -'*irli lma~Airy
(a) State regulation .. o w
(i) Present Stahus of the Law.-A tribe exercises *exdui
within the exterior boundaries of its reservation, and St4&
rally have no application to Indians. This principle is wi '1 ..
in the nation's history e and Congress has acted c0i6istit-l
assumption.7 This sovereign status of the, tribes *as *l i
in Worcester v. Georgia, derives from the treaty 'relatl
protected by the supremacy clause contained in article V of tfr ..
Constitution. r 'i t
Once a reservation has been set apart for tudisnues1
fishing rights exist whether or iibt specifically rtfei M b 0to
of the rights is defined by the purpose fobr'4*ithi the lnd 'wa&.'4i
an Indian reservation.;0 The absence of hny profistonk e
jurisdiction cannot be construed as creating al tate Iet
cent case law has analyzed the creation of retMGs Mttr
emption of state law supported by the doctriheldt M100Mib
The absence of any treaty provisinn on huInth* am -lS
nonetheless reserves such rights-rights not specfity v,
retaied:-
tTlhe treaty was not a grant of rights to the Indians,but ai
froth them-a resvation of those not granted11i '
Land, water, timber, minerals, hunting and Mfis itgt.i.1
are property rights of the particular tribe. Any destructi,,
minishing of those rights would be a compensable taking l.
meaning of the fifth amendment to the Cogstittutjp Pdw $4
the tribe to compensation."s .. ",, i
The United States, by reason of the relatio'hip create4,i
ings with Indians, has an obligation to protect property dg
to the tribes. That relationship is one of trusteehip or: nta
s McClanahn v. Arfrona Tar Coimssion, 411 T.S. 164 (1 72) ice It K"
78(1945a) ; Bra vItiasc 0o., U.S. 96 SO+ 2102 (ffUmine 14, 1976):. f ib.
7 Wiliams v. ee,, 351 U.S. 217 (1959). h
.S1 U.S. (6 Pet 1 515 (1832). .+ "
*For the purposes of this section, treaty rights are those established by r....:b
of Congress, agreement, or Executive order. The validity and the force of .wa
creating reservations and preserving bther rights is well ietabltshed. See 'Welt W fl
Volkman.
SMenominee Tribe v. United States, 319 U.S. 404 (1968) O, ao. ap1f8t
U.S. 48 L Rd 2d 523 (June 7, 19706. (No. 74-;lW-- (D.eS-dJ. e am orns
discussion of the effect of reservation by the Federal rlferlmedt mnd 4t Imbpct wi,
rtghts). :*"'*1
Scanahan v. Arizona State Tax C.om.w. sfl : y. C rtt
and Kootenaui !Tribes, U.S. 48 L lEd 2d 96 (Agrfl9 f. i (i) ) k .i
i United States v. Winanw, 1o8 1.82S370, 381 (10ti ) ;f'"' 1 -. 1
1 E .g., Menominee Tribe v. United State*, 318 F. 2d 98 (9 t ?. If. "iPkt 91 at.t 'i0
(1968): HVnes r. Grimes Packing Co., 337 U.S. 86. 105 (1949) : See, Whitef oat v. United
States, 293 F.2d 658 (Ct. CI. 1961), cert. dems',.369 U.S. 818 (19621.
., "7







fi.i bfaSd the United States to deal fairly and protectively with all
Indian rights. Subjection of those rights to State regulation or quali-
flbfti& decreases their value and effectively is a taking."
-lthe tiutts will not imply such takings but insist upon a clear con-
dNfiini4 Mtatement before finding that hunting and fishing rights
Eai t6hn extinguished or diminished. Even termination legislation
designed to extinguish Federal supervision of the Federal trust rela-
tienslhip 'ltth an Indian tribe has been held not to destroy treaty hunt-
ing afd fishing rights absent an express statement to that effect. The
SuprbtMA Court stated in Menominee Tribe v. United States, supra: 15
We fud It difficult to believe that Congress, without explicit statement, would
subfedt the Uidted States to claim for compensation by destroying property rights
conferred by treaty.
SIndian hunting and fishing rights, then, are shielded from State
dnhtOl'or regulation by the status of the reservation and, in addition,
the eight when embodied in a treaty, act or agreement, either ex-
piessly or by implication, provides a further ground for excluding
State urisdiction in that the right and its exemption from State con-
trol coistitute a property right which cannot be taken away without
exptes'l oikressional act and appropriate compensation. Likewise,
an 'exrusive right to hunt and fish embodies a jurisdictional pre-
etptlo' of State regulation where the tribe has implemented a com-
pteN'nsiv ttbhelitory scheme.'
"'fl. "t itlu'ion which can be summarized from the foregoing dis-
dtossid'tkid authorities is that whenever an Indian reservation is cre-
ated, huz.ing and fishing rights attach within reservation boundaries
idia f4ss P specifically limited by the treaty, they belong exclusively
fodi&'ttW 1 Knd they may be exercised free of the application of State
T1 -.w(Ucicls-have considered this right in many contexts and uni-
ver.alJf tfeheld that on-reservation hunting and fishing activity is
exeni )&M"' iny State regulation."
Iitiaterial that some of the land in an Indian reservation has
pae -iut of fTindian title and into non-Indian ownership. The prin-
10 Le 'Inia n'uan hunting and fishing rights may be exercised free
mitil 9tar- regulation still obtains. Thus in Leech Lake Band of Chip-
0 ~ 06 & v7 Herbt, supra, an act of Congress which was by its
(e6Ms 'a complete extinguishment of the Indian title" based upon
a 1'agreenent between the United States and the Indians in which the
hidisxikgreed to "grant, cede, and relinquish and convey* * all
our rights, title and interest in and to the land" did not abrogate
thp Indians' unrestricted hunting and fishing rights on the reser-
.vaOw.i This holding is consistent with the definition of "Indian
'.Ibuhtry" for jurisdiction purposes found in the Federal criminal
:statutes which extend to all land within reservations and allotments
C'E. hoatoe v. Prapp, 224 U.S. 665 (1912).
a.. 391 U.S. at 413. A coord. Kimball v. Callahan, supra.
Confederated Tribes of the Colville Indian Reaervation v. State of Washington, 412
U'. Sepp 051 (E.D. Wash.. April 14. 1976). C-75-146.
SE.E., Moore v. United States, 157 F.2d 760 (9th air. 1946), cert. denied, 330 U.S.
!:2!82T16) ; Leerlh Lake Band -of Chippewa Indians v. Herbsat. 334 F. supp. 1001 (D. Minn.
1911 l.amath and Modoo Tribes v. MNason. 139 P. sapD. 63.4 (D. Ore. 1946) : Pofneer
nCo. v.Wislow. 159 Wash. 655, 294 pp. 557 (1930); State v. REwario 188 Wash.
67 6 pp. 2d 1904 (1936) : Arnett v. Five GUl Nets. 48 Cal. App. 3d. 121 Cal. Rptr. 906
(1905), cert. denied, 44 USLW 3545 (Mar. 29, 1976); Rlser v. gn Net No. 1, 245 Cal.
A 2d 30. 54 Cal. Rptr. 568 (1966).
30 334 P. slapp. at 1003.







"notwithstanding the issuance of any patent, a$d in mf
of-way ***1 ir
Enactment of Public Law 280 and its applicatiw m
has had no impact upon the ability of Indiani. to exrcis
and hunting rights free of Stat regulation within theirB
Title 18, U.S.C. 1162 codifies the criminal sections of Pl
Subsection (b) is a saving clause in which it is statl4;wt;i j ,
nothingg in this section * shall deprive any Iaiitfiat.ira r *.. g
band, or community of any right, privilege, or insanity afftrde4%mbtftjfq
treaty, agreement or statute with respect to hunting, tppi, nriii .,
control, licensing, or regulation thereof.
The courts have held that Publh Law 280 States haxo ;i4
tion to regulate on-reservation hunting and fishing rigb ,: i
(ii) Statc.-Although the law has been eW6Wv*.y litP
many decisions rendered on the nature and. extentbQf t |
Indian people to exercise hinting and fishing rights .j
beyond the reach of the State, testimony adrespiih 4iac'
tinted efforts by various State agencies to exerissacont.
Mr. James Johnson of the Washington Stats ttorzyi:
office, representing the Fisheries and Game Departunlea.t* ,i
tion of jurisdiction orer non-Indians on reservations, t^4qqtjp4,
tion that the State has concurrent jurisdiction i kfl s:j
matters. At the time of Mr. Johnson's testimony t44q *< a
litigation in Confederated Tribes of ie Colmvil Iind"' $ 7
v. State of :caahwta; U.S. district court soequenUy, I j
the State di4-not have sucn jurisdiction. a* _ :
The evolutoai of this particular litigaon'is iaotOw*1
Lakes are foad within the exterior boundaries of tAs lbj l
nation. Based on a tribal request, the State of
cisimg jurisdiction opr -ne din hunting aPr faiK
Lakes. The State was also contributing to strong Klw
to an agreement with the tribe; the tribe wuim pmon
change for hatched fish. The agreement was tennuzat,
the tribe's net, because of dissatisfaction with
Approximate y 2 years amp, 1974, the tribe note.a.
the tribe felt it had exclusive jurisdistlction over 'w- i
and fishing and that the tribe would hencefoth issue
and would therefore no longer require State permits:'
record is not dear, the State apparently refrained
jurisdiction while taking the, position t aitied
over non-Indian, on-reservation hunting and T .hi-n_ s .. ..
During negotiations between the tribe andtha. 071e
mentation of hunting and fis g regulations pursuato, Ie
decision23 concerning ceded lands no longer within the terni
daries of the reservation, the assistant director of the 'Stat .
department assured tribal officials that the State would take
against non-Indians fishing without State permits ova the' ,1i
-- /. ,; ,, :..-,, ,
"18 U.S.C.. see. 1141. : A I.t
"E.g.. Klamath and Rodue Tribes Y. Naion esjrs; Qpslqh 9*e (z fleas.0 &
J531 d 408 (9th Cir. Feb. 2. 1976). No. T2-k9,i( .(WSA.f rm. lpr6) ; tuJWk
2. eofrthe CYokiw Irfts. eowvnoun v. fftate of Wifln..awru
Sor;hwest transcript at 342-4. "
ha at 591-9t2. 38 272. . ,
Antoine v. Washington. 420 U.S. 194 (1975). :
.'*....* . .,. *. > .: dmif







t'6n atshe State did not wish to jeopradize the atmosphere of mutual
cooperation, although the State felt it had such jurisdiction.
STwom weeks later, four State game wardens came on to the reserva-
tie 'and isued citations to four non-Indians for fishing without
St o *-k.t. Litigation followed in which the tribe prevailed.2
W 1.td5ressing this case, Mr. Johnson testified that the position
of eth&Skate was not over Twin Lakes buit rather involved the larger
issa f t&Ste t jurisdiction over non-Indians within the reservation
bo~tlm~ie, -and -was not an issue of management.2- He contended
& *fite was not responsible for the conflict or the litigation
sinceathe issue was raised by the tribe when it chose to alter the pire-
vious jurisdiction relationship. The State was involved in litigation
only because "someone has chosen to sue us to challenge our autlhornity
in soi aresm,"2 6 and the State agencies involved had no intention
of being involved in protracted litigation.2
This af ibn-contrast to his statement made in the same testimony that
thie mosttignificant problem is one of uniform management and that
the mRtiple litigations in which the State is involved have resulted
in a 'divisi of management and that fragmented management re-
SUMtsItAo often in no management or mismanagement of the resource.
Thet'v'iw of the State agencies, as expressed by Mr. Johnson, is that
jurisdiction of non-Indians on reservations is essential to a uniform
tMaSAqMEMft plan.28
-' ment throughout the State might most efficiently be effectuated where
all of the jurisdiction resides within one agency. This, of course, is
not the same as saying multiple management means disaster to the
resource. It is difficult to ascertain, however, how jurisdiction by the
Stat. tbnv an area where no State resources are devoted, nor any kind
-of management practiced, could be justified on a uniform management
rationale.
More particulars are helpful for a complete understanding of the
rlatiwnship between this tribe, the Colvilles, and the State of Wash-
ington. The State and the tribe have a written agreement under which
the State stocks salmon in the Sanpoil River on the reservation but
has expressly agreed not to use such stocking as a justification in any
-csa or testimony concerning the State's right to exercise jurisdiction.-9
,Mr. Johnson did, however, offer such testimony to this task force,
twice referring to the fish stocking agreement before being asked to
identify the reservation area.
1 Perhaps the agreement entered into between the State and the tribe
has been interpreted by the State to contemplate only judicial forums
and does not cover testimony to a congressional task force. One tribal
representative did, however, disagree and felt betrayed.30
Thiu context of good faith dealings between the tribes of the State
Af Washington and the State was characterized by a number of wit-
nesses. Mr. Ernstoff detailed the reasons for this viewpoint as an at-
S1Northwest transcript, at 591-592.
XN Ji at 359.
f, at 347.
It., at 340-43.
I lN at 592.





'62

Utorney who is involved: in, frequent and sngpiag,
State over Indian rights, saying: : ; nids .: I.
One of the jrobleiii li'the xre4Wddtease [UA. W9."WAI
ust4mow, was a derde of daid dw periodss of year )m2d* a 4g j ilM
fishermen attempting toidxeras, teq. y .fishing. $ 4f.t.jt.
(the bst w#Nr-4 d despite wht .thAfi ay m ayR thisaa U
teio at opirtion-the best wai tb deal with Indian aqsker
itand treaty rights is not to liigae It til-a iner'a Iha zhioiknlthIrltSJ
is all comprehensive, extensive, and asm political t, alda ; PJu i m.
and treaty rights, but. instead to engage In ftR.-e o-ap
thereby have the law made in district court *'M1
case-by-ease method. And we all follwed,. I thik, n6w E
reports on Indians being arrested and fishing gear bhfg eRnam&
krlod of yeas. Well, don't let anyo-d think that tle But ecawS
kind 'of activity." r *" i ro' -'sn 1 o
Mr. Ernstoff concludes'that the Stat..oft6..tts..i .
sort of "confrontation polities."' "' e- lh"!f ri1
SOther Statets take similar positions: With rTAsptt4im a
non-Tndiatis hunting and fishing within fl6vatttw' =01-tm.
OQuechan Tribe recently escaped a con*oitstafionr .ItN "...S.w.t.
Califoriai when the U.S. Court of Appeatle for ..t.eiow
handed down .ueehan Tribe of Indin t: Rmweet 11"
tate on which California had servedcitimc that it: wNOd'
diction on the Quieehan Reservation:ovdrnen-Indiaasfn1n4 ttibt
Arizona presently continues to enforce State gitilw#dqdflWi0
Indian. reservations over non-Indians despite 1th!baliAVnebl
sionul consentito do so and ver'strorigaIndiatrvrkbtfct
State officialsin Arizona are attempting to recruit Aiila-.r jeSi*A .h.
the -State-of New Mexico." '* 90.: tnjf o-il4P.rtI
The police-chief of the Warm Spring Rteservati&Uf a iet
conversation on June 20, 1976, 'hat th 'Oregtr' tt i .. .....
begun.. to :inteffere with non-TIndian fishing- on' tb Huat
Warm Spring tribes have long enjoyed a particularly o -'
ship over jurisdictional issues with the 'Sfate of -t m'it
develtonmert has potential for -upsetting that'patrl"lt.!
balance solong enjoyed by all concerned. W i .,'.i idTl PZ
eGinAthe approach of the'various.Stades, it is inm il`VT
alternative to litigation is available nnieswthe'wtibesocB aS
cave in ovr this issue. That is, however,stve likaIry. qodO
tional issues oer the control of on-reservation Irnitil ".
of 'singular importance to the tribes involved. Beyoa the
cultural and psychological importance to Ind-man ptnpieM 'b
increasing economic value of theseireiource*Molh'kpe atf*n'.7 w
integral part of their trade and commerce. 'It isuaul dmsleaioa ie|t
that involves mnulifimillion dollar, sport-and -:0meorn mxti iiib,
States and many of it citizens. Ultimate ,determitahuiontlI
courts will not necessarily resdlve the issues, bA.soa&atSti1t1%
havernottshown a willingness, ore6apacitytuto-motwit1htadkltt
--- ., t 4-4, M. r wt o tzrte, oe & niw-nt M. IA
2 lIt., at 443-4. Mr. Ernustoff is with Ziontz, Pirtle, Mori.sett & .rnstof,a-...3. Ji
firm that represents a number of tribes. *to ., i
T id.,e t 446. See also Mr. Pirtle's testimony at 574o jeti pe j4' i
to him and his law partner In 1964 that "the State l. going to wipe wo6aWQe.
firhlnu. We're going to destroy it ... by pickin on little tribes who harvre ..
et our precedents. and thpn coming after the big boys.",. -,"
521 F.2d 408 (Feb. 2. 1976). te h G
ae Southwest Transcript, at 289. Article "The Phoenix Gazette", May 't24- 7 t4 e
wardenq do not go on the reservation when excluded by the tribe, but wait fl'the erva-
tlon entrances and cite non-Indians for Illegal possession or transportation of game.







'NI Jtni 1976, the Federal attorneys representing the Indian tribes
in United States v. Washington, were forced to seek contempt citations
befweiWshiangton State officials finally agreed to enforce regulations
gsntton-Indian commercial fishermen fishing in violation of fed-
erallymourt-ordered cessation. Even so. the non-Indian fishermen were
allwedttsell whatever they had caught. Although this particular in-
cilimt irtolved off-reservation fishing rights, it is a further indication
do themtnner in which State officials approach this sensitive area.
I l Mtnenas fears have been expressed regarding the present tenor of
theipolitical and emotional context surrounding controversies of hunt-
ing and fishing rights and jurisdiction. There is a general consensus
that any'legislation concerning those rights be left to a time when a
mo rational atmosphere will attend deliberations. The problems do
not seen ta'be jurisdictional in their ultimate analysis, although often
cast in that context. The more pressing problem is how the tribes will
prpei*th4 rights so essential to theirlifestyle and so clearly guaran-
timd to tt fI anything could be of assistance, it is a clear and un-
tftlfc4Pratffirmation from Congress that these rights will not be
abtsga thus clearing up any misapprehensions of non-Indians and
layM1s'fir foundation for future cooperative agreements. Any re-
tret tfrbhn much a position at this juncture will throw the entire
controversy into chaos and further posturing.
(M) Federal regtdation
The few courts to consider the question have indicated that regula-
tions bh'the Federal Government of on-reservation hunting and fish-
ing will not be permitted. In Mason v. Sams, 5 F.2d 255 (W.D.
Wadhi 1ON), the court held that regulations promulgated by the Com-
missionetef Indian Affairs and the Secretary of the Interior concern-
ing 'onfeiervation fishing were beyond the Federal Government's
amthoity because such regulations were not authorized under the
treaty. A Federal tax on the exercise of the treaty fishing right within
the wate-s of a reservation was struck down in Strom v. Commissioner,
6Tw CW, 621 (1946).
S.Itias been held that even where a treaty subsequent to the Indian
treaty outlaws hunting of migratory birds, it does not alter the In-
dians' right to hunt on the reservation. United States v. Cutler, 37 F.
Supp. 724 (D.Ida. 1941).
S. Sbimrly in United States v. White, 508 F.2d 453 (8th Cir. 1947),
It wae hld that the Bald Eagle Protection Act was inapplicable to an
ITdiino'bunte' within the boundaries of a reservation who took an
4ge.0 violation of the act. The court found that the statute did not
adequately express an intention to abrogate Indian hunting rights and
that this intention could not be implied into a general congressional
enlatdeint because the subject of Indian property interests is tradi-
tiocaly left to tribal self-government.
It has been held that Congress has the power to abrogate Indian
treaties all or in part.85 An abrogation of hunting and fishing rights
will not be found absent a clear indication of congressional intent,
however.3 A proper exercise of congressional power can, however,
"tLg.. Lone Wolf v. Hitchcock. 187 U.S. 553 (1903).
*M enminee Tribe v. United Strites, supra.







provide, the. necessary authority for th.ereteuti-b .pn* I lgilJje
lations governing Indian qn-reservation fishingJ"' :- ....A ll..
The practical impaeto Fo mrJl regulation. iiS mi s **
indirect impact han in it's direct regulation. To.the.-Okt
tory fish are taken, before they reach reserwatia wte.
reduction of the avai.aib on-reservation:rh. Ay' I HM
interest the State may legitimately assert is thein-.4il .9
of Engineers takes the position that the establtishmentu.. t1
trol dam within the Fort Berthold Reservation mwn 1a.a..
that diminished that reservation to that exteat-Asil.heiak
hunting and.fisging rights.t The refusalof c wi*A toida i
cation of law forcenient responsibility 0. by a ;,
Interioik fox bE AA discretionary funds .hampered SISalg W
regulation' 'by tribes and undercuts ,thpir ability, to::.-W "
regulation. 1 3 i. "l"" r
The practical effect of Idian tribes andindividua .h..
to State regulation while Federal agempies' .cha rge4 .a
protecting Indian rights sit idly by is viewed by 9S !h *
as an inverse Federal .'regulation by pollusiona. -or
State officials. When the Cheyeine-Araahoe Couneil 't
requested the local field solicitor's view on the tribal rig:btq e
discovered that the field solicitor had come to no indqep 4 piiIm.'
sion of his own, but had simply called the attorney repran e
tribe in its suit to enjoin State regulation of tribal 'ighlHts..t.
If one of the attributes of jurisdiction is the ability to qre a rA-!
ferente with the exercise of a right -from anefther dmtyflyilt9 t
jurisdiction iW meaningless if not enforceable. And that ieMSliS tiw
for a right which has no meaningful remedy. It is note.lotIo
the right to resort to the courts, when the restBmesi alm
withal to resist entities the magnituile of a State areinmas
becomes more frustrating when tribes find the.. BUMeau
Affairs and the Department of the Interior Soliciter'.O ..6iB .
sive, despite the much discussed trust responsibility, l flysAl
simply too poor to hire private counsel and, as a result, 0ttj.fi I
to exercise their rights against an inappropriate asm a.ft z
jurisdiction, .: ....:..,.. ,.
An attorney in Minnesota, Kent Tupper, outlined.thefhis*% *ab
case which bears repeating here: : : ; r: '
First, We have the White Earth Risfrvation whie ib7t,' .4h.s ...
Angus Parker, an enroUllee of White Eath, wrOte P r xdfdbft jipitji#
what bis rights were to hunt and, fish on the White fEarth :Res atim..I.
ceived a letter from the Solicitots Office of the Departinxit e* 'tt '
advising that President Nixon had iAfteted thbm to ariawftkei 'i
the letter, It stated that you bhavetheTilhtw to built on trustt I Wf ta.n.V..W...
ovation and depending on what happens in the Leech Lake caseo Y m.vy* .ih
a right to hunt on public lands and waters and fish and rice between t i
tion. During the Leech Lake case, the (State) AttorUney Geeral'f i%' i
judge whatever decision he rendered, it certainly wotAd affect tltt dft l
tions. After the cuase was-deeided. Angiet Parker's fatherm koiawing nh lilt: *: i
the President, was arrested for having deer on his assigned .and4 VvayJi..sft
I.h..ir
n7 efetlkatla India* Community v. Egan. 369 tt.S. 45r 11 ..... ..,
SPumallhup Tribe v. Department f drMe. 391 r .s. 'I. .l .1P.cnStn 4;':' il.i
Drnartment of Game v. Pualltuv Tribe, 441 U.S. 44 (1973M (PuyalIup 11l btttui 4wfrt .
SMidwest Transcrint at 67-7n.
4 In nrder to be eligible for LEAA funiling. the tibie ili qtb cttfletfl ASi1WAWT 4 .1A
rennnsibillties by the Secretary of the T-'terior; "!,i
4 Site visit to Chieyenne-Arapahoe, May, 1976. .







laedi within the reservation. Because the Solicitor's Office had written him iudi-
qptiUg be could hunt, they felt it an obligation to represent him, you know, since
it was a county court criminal matter. They did represent him in county court
and lot The Judge found that he had no rights. He appealed to the District
Omt, I believe in 1972, and Judge Swenson dismissed the charges on the ground
that She State had no jurisdiction, he did have hunting and fishing rights, so
qlbgelmu& to that we had a letter directed to a member of the band from the
PwieAet or his functionary, saying that he could hunt and fish. You got a court
easein other words, establishing rights and you have a district Judge saying you
got-rlgbthL Now in my estimation, a reasonable man would think he had some
righta so a number of White Earth enrollees then proceeded to hunt and fish
without State licenses and they were all arrested.0
The controversy in Minnesota goes on. The point of the matter is,
as Mr. Tupper went on to point out, "the tribe does not have the
financial wherewithal to continually litigate these issues and it takes
may years in court and the costs would be very high." But, "U.S.
attorney offices feel they are overburdened with litigation" and feel
that Indian rights cases are complex and time-consuming and it takes
fan inordinate length of time for (the U.S. Department of Justice)
to make a decision whether they are going to participate in a lawsuit."
In the Leech Lake case referred to above, it "took well over, I think,
2 years before they (Justice) could make a firm commitment."3
So, although direct Federal regulation is generally very limited,
the indirect impact on the protection of rights has significant juris-
dictional impacts.
(c) Tribal regulation
It is ,beyond doubt that tribes have the sovereign authority to regu-
late restriet, and license hunting and fishing within their reservations.
The ezoclusivity of a tribe's jurisdiction over members within the
reservation has only been diminished insofar as a treaty or a Federal
statute explicitly provides. Most, if not all, tribes with substantial
fish 'and game resources regulate the exercise of such rights." On a
number of occasions, the Department of the Interior's Solicitor has
concluded that a tribe may adopt ordinances to preserve and protect its
reseqrvtion hunting and fishing rights." Typically, these ordinances
arei enforced through a system of tribal enforcement officers and courts.
Thee are the exclusive entities having any jurisdiction over pur-
ported violations.46
Cqlsistent with a tribe's sovereignty over its own territory, it can
enforce its regulations relating to hunting and fishing against non-
members of t'he tribe as well as members." Similarly, some tribes
poegss exclusive authority to license non-Indians to hunt and fish
y 48
witHin the reservation.
-omio State courts have reached the questionable conclusion that
tribes lack jurisdiction over non-Indians hunting and fishing on the
reservation.'4 A California court has taken a middle ground, holding
that where a nonmember goes on a reservation to hunt and fish, State
:'1
,/ & at 150-7.
Great Lakes Transcript, at 109-10.
"See e.pr.. Hfobbs, "Indian HuntinUg and Fishing Rights," 32 Geo. Wash. L. Rev. 504.
523. an 100-101.
q See e.g.. Sol. Op. M 3661.q (Mqv 1 19B21.
fe. Stale v. tcClure. 127 Mont. 534. 268 P 2d 029 (1954).
v Pee Ouenhan Tribe of ln.laes v. Roe, aiivera.
OfDSfll4 Tribe v. State of 1WnFrinr*)A. No. C-75-14A (E.D. Wash. 1I7M).
3K.e.. Plate v. Danieleon. 427 P. 2d 689 (Mont.. 1967) ; see also. In re Crosby. 149
P. 989 (Nev. 1915).






game laws apply to him but that permission to fish omathe '
given by authorities of the tribe on whose reservation he is: si
complete defense.60 It has suggested in the Leec4.LakeB .B4ZJi
pewa Indians v. Herbst 834 F. Supp. 1001,, 1006 (D1 Mui i
that exclusivity of an Indian tribe s right.- to regutlte ,aWlu
Indians and non-Indians within the reservation dejndp'r
congressional acts which manifest the relationships h & E iu.
and the United States. In that case, virtually all of the EMeA
lation had allowed most of the reservation to pass itoca
o i nership. :. Iae .i-i.:
As indicated in the section on State regulation pi.of n.a'..
hunting and fishing, there is some question as to the Stat&sM, itti.
to regulate non-Indians within reservation boundariesA.- X"
there is a paucity of cases, some judicial determinationasl,-ahw.
made. ; .. :l.:
Tribes may be limited as to how far their fish and game.tfllil .
apply because of provisions in their own constitutions wlliabqltWb
their jurisdiction to members or to Indians, and there m$aIetjui*Sg
or legislation which limit their powers or allow the importAtn'' of
State laws. The trend, and certainly a better view, is that tribA.tw
apply to Indians and non-Indians alike who are hunting miand.figh
within the boundaries of an Indian reservation. This appokS
would lead to the exclusion of State laws except where the tribeatbI
requires that non-Indians comply with state regulations,.aseth eai5q
in some .situations. ..i"'
That Congrqs contemplated non-Indian hunting ad fis t
ties within reservation boundaries only uponthe QndiO.:pfx
consent has been obtained is evidenced by 18 'SA. tIt& ,p .
makes it illegal for a non-Indijn to go within the tbenid i
Indian reservation for the purpose of hunting or snig .'. ,
sent 'of' the. tribe. While the provision does not seek t6 i
Indians under Oe aegis of any Federal re ulato#rj 6AJt,
muscle ih the requirement that non-ITdians comply. n, 3'
quirements of licensing or othei'r regulations upon whiehI d ,
hunting and fishing might be conditioned. ., ,' .T
It is clear that various States intend to push the resc4tfod T4 '
matter of on-reservation, non-Indian jurisdiction thM'i. t ie,
by confronting the tribes over enforcement as Washingto. "i'ha
fornia have already done, and as Arizona and other States,`
seek to do. Again, the, States will be cast as defepdait when eA
are forced to sue over the assertion of the State's po1iMe pQ
dictably, the case law will emanate from areas wberq tribet r 0.
resources to resist the State through costly litigation: whleig
affluent Indian communities will be forced to endure 'Pthis "
their sovereign jurisdiction and drain on their fish and gaie rquu..
until legal assistance can be obtained by some means other..tt ajj
vate counsel.52 . ,:,t.
fonahve v. Justice Court. 15 Cal. App. 2d 557, 03 Cal. Rpftr. '310 (1).:T.: ,. "tr
See e.g., OQuechan Tribe v. Rowe. ampra. : ....... ,,., .
0 In some cases, Private counsel have donated their services. Gret Lakes Transeopt- at
102-10 and inTh. Those tribes left to depend on Federal agencies awged. ,wth.deAdsing
their rights have little hope of receiving such protection moon. Legal BerviweaIar.ietIAPer
unsophisticated In such areas or must waft for the eaet. feaeLltoilen whieblwiL allow
their Involvement under their rather strict guidelines. These avenues., hewerfr. seldonM
lead to a definite conclusion since the case cannot be fashioned to ultimately resolve the
matter of jurisdiction.







William Wildcat of the Lac du Flambeau Reservation outlined the
situation on his reservation in Wisconsin:
We Vown and operate our own fish hatchery in Lac du Flambeau. A problem in
tthis area Is the Depariment of Natural Resources. ... we get the fish, take the
emgg batch 'em, rear 'em and then put 'em back into our reservation with no
Snancial assistance from the DNR. Maybe in 1974, 1 made a survey. I found that
the amount of licenses sold within our reservation by the various big shots and
so forth, that produce about $40,000 and that $40,000 was directed only at
fishing licen-e6. The $40,000 then evidently went Into Madison, [from] which
our Le do Flambeau effort has no assistance. We are continuing to stock these
lakes on the reservation, trying to keep the tourism effort alive, which really
produces summer jobs for our people, but we're really concerned that there is no
finanietal assistance from the people who have the financial assistance in the
Btate, which is the DNR.-
' Mr. Wildcat went on to explain that the Lac dn Flambeau have
amended their constitution and bylaws to extend jurisdiction over aZll
land and waters (some 126 lakes) within the reservation. They do not
Know, however, what will happen when they instigate a major licens-
ing program so important to the support of their hatcheries and ulti-
mately their economy. Again, it becomes a jurisdictional issue when
the potential conflict with the State arises, as past incidents and present
policy', indicate it most surely will. A recent article in the Milwaukee
864""e May 26, 1976, reported that the State Attorney General's
Oice would sue to restrain the Lac Courte Oreilles from enforcing
tli ikimting and fishing provisions of their conservation code on
a Sai h6t completely surrounded by the reservation. Again, the State
chose the litigation route instead of responding to a proposal by the
tritb` the 'State Department of Natural Resources for reciprocal
hdino1rng f0 tribal and State licenses on and off the reservation.
r. .i, :
"'. ', 2. OFF-RESERVATrON ifUNTING AND FISfHING
e'K attive to the attention and energy devoted to on-reservation juris-
dictional disputes, jurisdiction over Indians exercising hunting and
fishing rights off-reservation secured by Federal treaty or agreement
has .bqqep a area of intensive and prolonged litigation. States have in-
1ifn( authority to regulate the taking of fish and game within their
oid^ries. fleer v. Connecticut, 161 U.S. 519 (1896). Usually State
laW can be applied to Indians who are outside the reservation, but there
ca be no such application if it would "impair a right granted or re-
seired by Federal law." 54 Accordingly, a Federal treaty may override
State power to regulate the taking of game."
To determine when and to what extent State regulatory power over
off-reservation Indian hunting and fishing is preempted by treaties it
is, of course; essential to examine the specific terms of the particular
treaty or other Federal law. Typically, a treaty cedes a land area to the
United States, retaining a defined parcel for a reservation. Also re-
served in many treaties is a right to continue hunting or fishing on
lands other than those retained.
Some of the most commonly reserved off-reservation rights are found
iit'rt&ties with Indians of the Northwest. Those treaties often reserve
a right to fish "at usual and accustomed places" which is "in common
SGnreat Lakes hearing transcript, vol. 11. at page 66.
i* Mesealero Apache Tribe v. Jones. 411 P.S. 145, 148 (1973).
Missouri v. Holland, 252 U.S. 416 (1920).







with the citizens of the territory." Hunting right aW
to as "the privilege of hunting... on open and ilutt#S1
Or the right may be "on unclaimed lands in comm=nu ...mw
Other treaties have acknowledged that Indians have it
hunt on the unoccupied lands of the United States so Blong
may be found thereon, and so long as peace subsists 0.4
and the Indians on the borders of the hunting dstrktt'.'t, D4 4
Off-reservation hunting and fishing rights have-salso.be rliia
portant subject of litigation in the Great Lakes regioTresie
have been less explicit. One treaty provides that Indians
the territory ceded by the treaty '"shall have the ight toxa -
therein until otherwise ordered by the PresidetJt. 10
great importance of fishing to Indians of the Great Lair-
held that a treaty which says merely that certain lands N: M
lake will be set aside "for the use of the Chippewas of Lake
includes fishing rights of the lake'even though it is outside
boundaries." ... L:..
How a court will construe an off-reservation treaty ii
ing right with respect to the extent of that right or jnsj&%z .
State to regulate it, necessarily turns on theb constnrufa
language used. The rules of treaty constrictiontarespegt
tant in dealing with off-reservation rightsY" Proper onizct0pn
demands extensive reference. to historical and an-throfpo E )
dence to determine the intent and understanding of .. i
the time of the treaty."3 ... ,.i
Analysis of established regulatory jurisdiction over 'il
hunting and fishing rights relates to particular cimgtNI
causes. The principles of anyparticular case must be unde "
applied in light of the language and context of the particular teIr
or agreement. Moreover, this area is particularly affected by polcl
and emotional concernsand pressures which ccqlor and ahetbul -
tions of jurisdiction. ... T.
(a) The States .
By far the most extensively litigated off-reservatio"n il'7'
been fishing rights at "usual and accustomed places' "
Indians "in common with the citizens of the territory It: i
held by the U.S. Supreme Court that Puyafup Trbe Wv, bel1
of Game, 391 U.S. 392 (1968) (Puyalup 1). permits th .
Indians to be regulated by-the State where such r Wg -
able, necessary for conservation and does not d KsIi'tein.-
Indians. In subsequent proceedings in the sardeci eth eoip7
it clear that only State regulations which have been &owx l.
necessary to prevent destruction of the fish resource fit t..e"n.4.,
* See ee.., Treatwrvltu the yakiuas. 1 Suit. 951t : W... .; I
SE.-. Treaty of Medicine Creek. 10 Stat,. 1132. .
aK.g.. Treaty with the Walla Wallas. 12 Stat. 94 5. :
F. m... Treatv with the Eastern Band Shoshone ami Bannock,.15iStat 6T13& : 4 4'. I..
Chippewa Treaty nf 1854. 10 Stat, 1109 0.
I Rfat6 v. Oarme. 53 Wlt. 2d 390. 192 NW. 2d 80( 1972). : : .
Treaties must be interpreted as indiup xhoi, thve uumaSt tmum ee .
precious must be resolved In faror of [anian- partes,. and the treatlesst Tbet
libf-lly In favor of the Iandlan.. Sue: m ew.' pr vw$br p VnhvtaQi. Bw.". a "' h.
S See. e.g.. VUnited States v. Waehi klntn, 384 F. Supp. 312 (W.D. Was. 1974). 4i.ff9
P. 2d 676 (9th CIr. 1975). cert. denied U. (lT6) ; Soealps VT"ufrf,-02,
P. Knpp. 899 (D. Ore. 1969) : Utale v. own, onm; Mur; Ulk: v. .96 M4 UIWVO., W
P. 2d 1386 (1972). Cf. Unified States Y. W'wsa, supra. ,.
.. , .. E *- :*





69

fao conservation" standard. Department of Game v. PuyaUllup Tribe,
04 U3&S 44 (1973) (Puyalup 11).61
The Piyailup cases reaffirinn an earlier decision of the Court based on
the same treaty language which indicated that Indian rights were more
extensive than those of the average citizen and any holding to the con-
trary would create "an impotent outcome to negotiations and the con-
ventiOm, which seem to promise more and give tile word of the Nation
for A re." The Court had also recognized that the right of the
Iadiea to fish could not be conditioned upon the purchase of a State
M*Insmpto While allowing State regulation of "the manner of fishing,
tb. *e41of the take, the restriction of commercial fishing, and the like,"
the Sapreme Court restricts the type of regulations to which Indians
may be subjected to those which are required to conserve the resource.
Thus, regulations applicable to Indians are not judged by the normal
standards which govern applicability of State laws to citizens with-
out treaty rights. Instead, they are held to the higher, "necessary for
conaservtion" standard.65 And consequently, regulations which are
applicable to both Indians and non-Indians, such as those restricting
all net fishing for steelhead, are discriminatory against Indians.68
Other recent cases69 have applied the Puyallup rules, refining the
concepts to give the states and tribes guidance in their application.
The &Aappy Case indicated that in order for a state regulation to be
necessary for conservation, it must be the least restrictive which can
be iMmbosed consistent with assuring that enough fish escape harvest
in rer to spawn, that State regulatory agencies must deal with
Indian treaty fishing as a separate and distinct subject from fishing
byr others, and that Indian interests must be considered just as the
interests of sport and commercial fishermen are considered. The court
rejected the notion that "conservation" includes State goals beyond
issuing that the continued existence of the fish resource would not be
iniiperiled. Regulations based on State policies concerned with alloca-
tion and use of the fish resource, not merely its perpetuation, are there-
fore inapplicable to Indian treaty fishermen.
"Whatever apparent practical wisdom may have motivated the decisions In the
Pusaliw cases, allowing the exercise of State police power over a federally reserved right
see:s eolsistment with the principle that Indian rights stemming from Federal treaties
ar'eimmnuine from State regulation because of the supremacy clause. Further, the holding
dis[fliunltl to reconcile with axioms of treaty construction, as Indians hardly could under-
%tAxg that their treaty rights would be subjected to control by some non-Indian entity,
ideed oje that was not then even In existence at the time. It also seems inconsistent with
ite etirral own requirement in Puyallup I that the treaty right cannot be "qualified or
epnd/tited by the State". 391 U.S. at 399. Remarkably, the Supreme Court In Puyalup I
cited no nae or other authority specifically holding that Indian treaty rights can be
reOlattW by the Stat.. Instead, a few cases in which dicta to that effect appeared were
cited. The court simply reached the conclusion based en its inability to find any reason
tilt-'tbe Trights could not be refPlated. stating: "And we spe no reason why the right
of the Indians may not also be regulated by an appropriate exercise to the police power of
the State", 391 U.S. 398. The lack of foundation for the Supreme Court's extension of
Rflte, power over federalty seenred r'rbtt has been 'strongly criticized. See P.R. v. Waah-
ifon, supra, 384 F Supr. at 334-39; and Johnson, The State v. Indian, Off-Reservaties
PkMftKw.ff7tfted States Rupreme Covrt rError. 47 Wasl. L. Her. 212 (19721. It would
amtr that the Court was heavily influenced by an improvident stipulation in the case
that Indiau flshisg "would virtually exterminate the salmon and steelhead fishb runs"' if
It wPt aSlowed to continue free of state regulation. 391 U.S. at 403 n.15. Whatever
qieatl'oas might be raised as to the correctness of the Puyatlup decisions allowing State
r tlatlbn. It Is the law of the loii.
e states v. Winas, *uwrs. 198 U.S. at 380.
e"neewv. Wa htinpon. 375 r.S. (81 (1942).
EPuyaflup 7. 391 U.S. 392. 401 n. 14.
P ytallup II. tsuira.
"Sohappy v. Smith, supra; United States v. Washitsgton, supra.
4 .**







In United States v. Washington, the district court .ilo 4....
happy and went farther in delineating the circumstanc
the States might regulate the Indian treaty fishing rig f
nation. Conservation was defined as allowing Stat.4iwuap,|
-where State measures are required for the perpttina $4mr '
ticular species of fish which cannot be achieved by rriiag w
Indian fishing. In addition, the court found that the t . F
selves have the power to regulate their members treaty fig
tribes meet certain conditions and qualifications designed te n W
strata capability to promulgate and enforce fishing guil4 eI
State may not regulate their treaty rights at alluh gl t il
must adopt and enforce any State conservation ieasuu s
been shown to the court to be necessary for conservatiAiiw. i... ,I
may regulate the fishing of all other tribes any time that .
states to the court in advance that such .a regulation .it.".....
conservation. The advance is not, necessary in oaed .of nr.ii$ o
It has been held by one court that Indian fisbinh kiro
tribal regulations is outside the protection of the 'in coamnornf' W
right and thus is subject to State law.70' ':. ':, li
The Ninth Circuit Court of Appeals in affiminVgte tti 46brt
decision in United States v. Waishington providerd a 1 gn1
the-fact explanation of why Stat conservaion! reutgtdao cl k
applicable to Indians exercising an "in common" tMaty Il
court analogized the relationship of treaty'Imdiaanid ke I
men to a cotenancy. Neither party can destroy the subject Wli to
the treaty, and the State cannot interfere with tbhe .Ltis'i& -
fish when it is-necessary to prevent destruction of a;pwti
Unless and until the Supreme Court modifies!h. T..
allowing State regulation of Indian treaty rights whi. majl tVienO
cised "in common with" non-Indians, the rule indoubtdlyWif
applicable to off-reservation rights to hunt and fish which. .trd- i .i
in that language or other language nearly identical toit. The.pua Bt
Court has recently shown its intent to apply the rule:to ant B
providing for an Indian hunting right on lands given pbyt he
Indians "in common with all other personsY"Y !t"'
Holcomb v. Confederated Triee ofMth l na^ dit
vation, 382 F.2d 1013 (9th Cir. 1967) utilized theli&an
conservation" standard as a measure of permissible Ste"fe, a
g i' t *I ,. ,l ** ** : " .,.,'B S "
of an off-reservation "privilege of hunting .. ca n unciie "'
in common with citizens." Another pre-,FwyafwpL case l
State regulation of Indian treaty fishing under the % *I0
with" language was indispensable to accomplishim t4fL a. ,
vration objective.72 ', mg::.?:
Where the off-reservation iight is not qualified by laugq 's
eating that Indians intend to share it with non-Infians, the ,lwae
of State regulation loses its rationale. Thus, in State v. At'ut$r W &
251.261 P. 2d 135 (1953), the Idaho SupremeC.urt l ,Mthst.b
with the Nez Perce Indians reserving the i*it to hmilunA:pnopa
and unclaimed land" entitled them to bunt niOn bad o bil f -
------- --,,:,. r *: ?* ,,/-.f',;, ((*f*'
O"State V. Gowdy. 462 P.26 401 (Or. App. 1968).
7 A ntoifne v. Washngtom. 420 U.i: 194. 207 (1975). *;
72Mson v. Confederated Tribes of the UmDAZi In&=m Reseabt, 314 F.2d 16 ,9th
Or. 1963).







6AMl governmentt and other land not settled and occupied by whites
under possessory rights or patent "without limitation, restriction or
bkuzean" imposed by State regulations.
'..Meti recently, and after the PuyaZdup decisions, the same court
construing a Shoshone-Bannock treaty "right to hunt on the unoc-
cupied lIads of the United States so long as game may be found
thereon, and so long as peace subsists among the white and Indians
on the borders of the hunting districts," found that, like the right in
tOhe Nez Perce treaty, it was unequivocal" and "unqualified." 7 Biased
<, ihe Xndians' understanding at the time of the treaty, the court
fMud I1aat 6te hunting right expressed in the treaty included fishing
ativiy. Th& court, however, seemed to soften the earlier decision in
Athw y suggesting that State regulation of the fishing right might
.e ,.i i upon a showing of necessity for conservation. The court
neithet expressly overruled Arthur, nor stated that had the State
shown necessity for conservation, it would have upheld the regula-
tion. The court said:
It would appear that if qualified treaty fishing rights received this kind of
speciaL proletion ,. the exercise of an unqualified treaty right to fisb .. cer-
tC41 Emtbe. regulated by the statQ unless it clearly proves regulation of the
treaty Indians fishing in question to be necessary for preservation of -th, fishery.
407 P.2d. at 1393.
AM r
'the' T%" z court did not really have to reach the question of
TWVe r the Ptuyall.up rule must be applied but rather seems to be rea-
s6tg a' fortiori. The concurring opinion of Justice McQuade criti-
js'this aspect of the decision, insisting that nothingig in Puyallup
requirS deviation from Arthur in deciding this case."7'
I."he Supreme Court of Michigan also has recognized the distinc-
tionb6etween the off-reservation rights considered in Puyazllup and its
progency and other rights, not subject to the same qualification. A
Ohip wa treaty provided that the Indians who "reside in the terri-
tory .reby ceded, shall have the right to hunt and fish therein, until
ottdrwaipe ordered by the President." The court found that this off-
reservation right rendered invalid the game regulations of the State
as to Indians covered by the treaty.75 A Michigan lower court has ruled
thit "the right of hunting on the land ceded" found in an 1835 Chip-
pewa and Ottawa treaty subjected the Indians to State regulations
which are "unnecessary to prevent a substantial depletion of the fish
supply."76 On appeal, the Indian defendant has argued that the site
of his arrest was not in the ceded area but it is within the Bay Mills
Indian Reservation, but that if the court finds it to be off the reserva-
tion, that the Puyallup rule ought not to be applied to this unqualified
treaty right. The case awaits decision.
Because of the savings clause in Public Law 280, the conclusions as
to the limits of State jurisdiction over off-reservation rights are the
same in both Public Law 280 and non-Public Law 280 States.77
The difficulties experienced by Indian people in exercising their off-
reservation rights and their conflicts with the States is well known. The
history of this conflict is long and well recognized. Justice Miller in
.ESutcv. Tmuo, 94 Ida. 759, 597 P.2d 1386 (1972).
TS7P 2d at F396.
JepTl v. Jodereat 384 Mich. 539.185 N.W. 2d 375 (1971).
W People v. LeBlano. 55 Mich. App. 684, 223 N.W. 2d 305 (1974).
W X.T State v. Gurn.e, supra.





72

United States v. Miler, 18 U.S. 375,383-84 (1886) dehivuvexmc i
famous language, saying: k r'iB iiu
They (the Indians) owe no allegiance to the States aniid. 'tecu6tW
no protection. Because of local ill feeling, the people of the .tSe cy
are found are often their deadliest enemies. 0,-, ft'.i.tO"
Although some relationships have changed; the uflntk1W t
flict remains. Judge Burns delivered the following ladfl ie
100 years later concerning off-reservation fishing rights: .ri
I deplore situations that make it necessary for us .[District. Co
to become enduring managers Of the fisheries, forests and highWa* ji6
ing of school districts, police departments, and so on. :The recteb ik ME 0
and the history set forth in the Puvyajl*p and Antoine case, among otl .jflsi
it crystal clear that it has been recalcitrance of Washington State .o
their local non-Indian commercial and sports fishing allies) wbhi t
denial of Indian rights requiring intervention by the Distriet Cnut
sibility should neither escape notice nor be forgotten. : ':: 1.' -:1.s
The State of Washington has not relented. r.1 "'i.
**< : *i ~.I 1. Jl~fbI.;
They [the State] have done everything possible to throw obstacles in .Lt4,f
the'tribes in their efforts towards implementing the' decision ;. Thejli"i-
Indians] fished last year with complete disregard for their own .ewgatM,. .i
State's regulations that is. The State attempted in some ifate tod .
people but the courts refused to prosecute them."x n:
The Washington Post reported on June 28, 1976, that nFIn
commercial fishermen continued to defy a Federal court oeitb_:ai..
fishing and only when faced with possible contempt citation s d&'6X
State officials relent and agree to enforcement. This came SB:tk*if
after Gov. Dan Evans offered testimony in Yaklma, W a A
issues were settled and only cooperation over mauM gme0"A:='1-i
worried over.0 Further examples serve no purpose. It in Ml,
concisely by Peter R. Taft in recent congressional testimony. ;..
I think we have a situation which is developing similarly day br doft
the State of Washington where in effect, the State courts and the Statf,
traction both have totally abandoned the protection of Indian treat .....
fishing and have thrown the total burden of enforcement of fishing t i
only for Indians, but in effect, for commercial and sports fishermen as V "W
federal court. I :.-,:
They have thrown up their hands. They have abandoned any semblance qf e .
ognition of obligations to the tribes in that instance.' ..
Reid P. Chambers, Associate Solicitor, Division of Indian X.m
U.S. Department of the Interior, concurred in testimony Azt.
same hearings. -:,:: .:
* [T]he situation out in the State of Washington which Is .*vl&rr-I
lawlessness in terms of what the State courts are doing ia that Sitais. Th ilt.
Supreme Court within the last two weeks, has come down with a- 4dt ....tJ4s
grossly violative of the Supreme Court of the Ukfted States decisioas. .
Local State courts have issued injunctions against the enfocesmnt ofledf.jl
court decrees in the State of Washington." !;
What is needed most desperately is firm congressional commit A
to protection of these rights so vital to the integrity of isie India .
7 tief. gtjaee v. Ws.ngt. o 520 F:2d 670,.693 (9th Cir. 1 75): eesi.i@u*l
"S Carlie Peterson. Makab Indian Tribe. N.W. Hearings at 438-39.
-0 Northwest Transcript at 674. exhibit 23.
'Halearings before the Subcommittee o AdmLwis .traue Prac.t.ebh L. SPn ,
Senate Committee on the Judiciary, June 22, 1976. Testmony & Pete?"W T'f, Abalast
Se General, Land and Natural f res IVIs ,3iev De it e.
bid., testimony of Reid P. Chambers. Senibeeat .. ..a Ababo-sVfts .'.....v
Moos, et ai., Me. Op. 6321 (Superior Court of Washingtoi, Tlunt4%Cot, CUdty,, June 1,
1970).







$ the Northwest and elsewhere. To succumb to the lawlessness of some
segments of the society in order to quell the controversy is repugnant
to the most fundamental notions upon which any society is based,
particularly one that has taken so much in exchange for the few guar-
antees extended.
(b) Federal regudation
The Federal Government has acted in at least one instance to pro-
vide regulations for off-reservation treaty fishing. In 1967, the Secre-
tary ofthe Interior promulgated regulations that appear at 25 CFR
Part'26. Those regulations twice have been reformulated but never
have been fully implemented. The regulations provide merely for
identification cards for Indians, identification of fishing equipment
and a framework for later issuance of substantive regulations to gov-
ern the exercise of treaty fishing rights.
It has been indicated above that the Secretary has been held to
lack power to regulate treaty rights on the reservation. It would seem
to follow that he could not regulate them outside the reservation
without enabling legislation.3 The authority of the Secretary to enact
off-reservation treaty fishing regulations in absence of legislation has
not been tested. It is unreasonable to predict that if there were such a
test, the result would track decisions regarding a State's power to
regulate the same rights. Thus, where a right is specifically to be shared
between Indians and non-Indians, as is the case with the "in common
with" rights, Federal regulations may be upheld, while rights not
subject to such qualification will not be. Congress has given the Presi-
dent power to prescribe regulations to carry out provisions of acts and
treaties relating to Indian affairs.84 Under this authority, the Secre-
tary could make any regulations which fulfill treaty purposes. Under
the Puyallup reasoning as expanded by the United States v. Washing-
ton cotenancy analogy, it would appear that the Secretary can promul-
gate regulations necessary to preserve the resource which is to be
shared as between Indians and non-Indians according to treaty termss.5
Some treaties by their terms may furnish a basis for the Executive
to promulgate regulations. For instance, it has been suggested that the
phrase "until otherwise ordered by the President" following definition
of the hunting and fishing right in the Chippewa Treaty of 1854 would
empower the President to "issue an order limiting or extinguishing
the hunting and fishing rights of the Indian." People v. Jondreav,
supra, 185 &.W. 2d at 381. I certainly would seem that any such order
would have to be consistent with the purpose of the treaty as under-
stood by the Indians at the time they entered into it. The conclusion
of the Michigan court is probably correct but should be limited to
situations in which regulations can be demonstrated to fulfill treaty
purposes.8
As in other areas, indirect impact is felt from congressional and
other Federal actions. A recent report of the Senate Committee on
Appropriations for fiscal year 1977 is pertinent. While appropriating
funds to implement United States v. Washington, the committee
SSee Hobbs. "Indian Hunting and Fishing Rights TI," George Washington Law Review
1251. 1266 note 87.
s25 U.S.C. 9 : Pnfted States v. Oapow 5 F. 575 (D. Ore. 1888).
sCoompare, "The James G. Swan," 50 P. 108 (D. Wash. 1892).
SCompare, Reckbridge v. LdMcoln, 449 F.2d 567 (9th Cir. 1971).
77-467-76--- 6






directs the establishment of 'a high ranking advisory gzjtj
a long-range management and enforcement meeha Sut
would be under the Secretary of the Interior and wAldd ih
enhancement in its considerations, and shall have faith. .
from all major parties involved in United States v. W_'ie
report then goes on to require that the plan will hte,..
appropriate State and Federal agencies for iupl(mEtaV is
the Secretary of the Interior is to analyze how tat Pep
assist the.. tribes and States in complying, Tb. nct nuti
excluded from implementation while being su0t to I p
inappropriate. i '1 Jl lirt
In a recent report to Congress from tb,-:Cq p.Ie]ip;r.l
protection of fishery ,resources 8T Indian right, areZ ot *xpz]i
report suggested that Congress.. consider impoig zna
ures on U.S. fiisheries where States fail to doso..fLow A.nV. .-
could be designed or implemented without tC mp!j 4g,,
treaty rights is incomprehensible. : ... \ ., "wwi.i .a
(c) Tr bal regulation q Pk.:": 41 I''' Ju.:;,:. . ...I 1 *,
The discussion of the limits on Ssta regulatmitn f cartrt
implication that the appropriate regulator df" nh &naf
pursuant to treaty rights is the ITndian' tritheUwhi&" hddi mh l
In Settler v. Lameer, 507 F.2d 231 (9th C.rigi.), i.fr .. .
that Indian off-reservation treaty fishipg' Arihts 'iliclid 4
regulate. It was specifically held tah't fr( b wI, 'a6i offif
right "in common with the citizens of fhtte h'l 'hf
to arrest and "prosecute tribal members dotiaftle' reseit '.
violation of tribal fishing regulations. The lMahio. ika awsm l
evidence as to the Indians' understanding" a .d-&to1my
concerning control of members at the time of tei' iaty. The' UtI
continued Indian self-regulation was comprihy dBid byi
enables the tribe today to exercise its regulatory pdwer at W7
accustomed places outside reserraflt6i bouida-SA. This d1.l
fringe on the State's sovereignty bkaiieithe tire's regular
is protected by the supremacy clause of'the Cohnstitdbion.. !W'" q v
As indicated previously, in the section ooice-ni"x i 'i w i=
of off-reservation rights, ihe Federal circuit Mcot' n rtevt
TVashizngton also validated the power of the tn.be f Iegtai
members' treaty fishing outside the reservatij6n at umaJl VI.M'
tomed fishing sites. If tribes meet certain qualifiactions and ic&6ap1
fashioned by the court, the State is en joined'dfrm aiy iegtl ti J
soever. While as a matter of law under P alp the'StaM
limited jurisdiction to prevent destruction tothe. resoti rs e, B.r
was developed which assured that with rebohsp ibl' tribal irtiki'
meant, State control could be precluded.88 The injunction also i
that a qualified tribe must adopt and enforce as its own azny'Sa .r4-
lation shown to -the court to be necessary for bonsvation. flhali
do so could be 'a ground for stripping the tribe of it 0f-T tf41 .
status. i : ': i :i' f -,m
The sphere of permissible State .reguatory power over. 'ndiar
treaty fishing probably is greatest in the case of the zin cuawi.i:lr
A .'_ _. .. _. ",ti;. I ;".:,
sr See, Comptroller General'u report to CoOMBS; "Agruai.*%doa laoc.84 3 ar
Fishery Resources," GGD-76-34, February 18, 1976.
a See United States v. Washington, supra. 520 F.2d at 686.
;) ..... ;V 7-. "2 "t







treaty language. The exact limits of State vis-a-vis tribal rights must
be determinedby reference to the treaty language; evidence concern-
Sing treaty purposes; and -the understanding of the parties. Accord-
bgly, the question of whether there is any State regulatory power
ad the extent of it would depend on these factors.
Although the conclusion in State v. Gowdy. supra, that Indian fish-
ing in violation of tribal regulations subjects that fishing to State
regulation, appears to be basically correct, it should be pointed out that
Indian regulation, like non-Indian regulation, takes account of many
goals which are not strictly related to conservation (e.g., allocation of
filing opportunity and fishing sites)." Any violation of a tribal regu-
lation which is not necessary for conseravtion should not subject an
Indian guilty of such an infraction to the full range of State regula-
tormy power.
3. ABORIGINAL FISMINO RIGHTS
ti
An area which has received almost no consideration by the courts
is Indian hunting and fishing outside Indian reservation boundaries
not embodied in any treaty. Most Indian rights which are found in
treaties are aboriginal rights that have been preserved by mention of
theM rights in the treaty, with language preserving them all or in part,
qr by absence of any language giving up the rights. Because any anal-
ysis of Indian treaties is necessarily based upon the notion of reserved
rights-that anything not given up is retained, the total absence of a
treaty would argue for a continuation of aboriginal rights as they
always were.
The relationship of the United States to Indians-one of having an
exclusive right to deal with the Indians and to extinguish their rights-
was flrst articulated in the case of Johnson v. McntoAY.90 That case
makes it clear that the United States succeeded to the sovereign rights
of the "discovering" nations who first came to the New World. but that
sovereignty was subject to a right of occupancy, or aboriginal title, of
the Indians.91 The Supreme Court has recently said of these principles
o0 aboriginal title:
It very early became accepted doctrine in this Court that although fee title to
the laads occupied by the Indians when the colonists arrived became vested in
the sovereign-first the discovering European nation and later the original States
and the United States-a right of occupancy in the Indian tribes was nevertheless
recognized. That right, sometimes called Indian title and good against all but the
sovereign, could be terminated only by sovereign act. Once the United States was
esganized and the Constitution adopted, these tribal rights to Indian lands be-
came the exclusive province of the Federal law. Indian title recognized to be
otly a right of occupancy was extinguished only by the United States."
The exclusive right of extinguishing aboriginal property rights of
Indians was reflected in the Indian Non-Intercourse Act, now codified
in the current form at 25 U.S.C. 177. It would appear, then, that the
supremacy clause to the U.S. Constitution, operating via 25 U.S.C.
177, which embodies the preemptive right of the United States to
deal with Indians, would preclude the exercise of any State authority
over presently existing aboriginal rights. t
SSee Settler v. Lameer, supra, 507 F.2d at 237.
*2. U.S. (8 Wheat.) I43 (1823)..
S21 U.S. at 596.
uOneflda Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1947)a






In State v. Qugqley, 52 Wash. 2423.4,:2 P. 2d 87 .(1Mflst
ington Supreme Court held that an Indian did not posAM I d
rights which prevented the exercise of State power to
hunting. In that case, the Indian failed to show thatWJt.t
right continued unextinguished. He had been arrested: ouCt
purchased from a non-Indian. The Qugley pamel was ofth.....
Indian title had been extinguished, although them .was. i
statutory or other clear manifestation of ewisgunimes t.
questionable for this reason. Further, the court failk f e
between an extinguishment of title as'to land and the r-igVto i" a
such land. Court of Claims cases have made clear that tetlBakM
are severable and distinct. .i. i.u:.s:sLll
Even though aboriginal title to land may have been '
by a tribe's acceptance of compensation for the Govern= 0&
thorized taking of lands, that would not necessarily extguishfa i
inal hunting and fishing rights -unless they were speflcal t
with in resolving the Indians' claim against the Governmenih ..-
The Interior Department Solicitor is of the opinion that thi. U. O
case with the Kootenai Tribe of Idaho which received opeSt&S
for lands taken mistakenly from the tribe which ver pri
a treaty with the United States." The same opinion ndeals..
question of to what extent a State might regulate the eersrt *
aboriginal rights. It points out that there is no sound "authorily$.
emitting State jurisdiction over the rights, as they would... appei e
protected by the supremacy clause. But in the case of Ka ffa.k.A
the Court held that the aboriginal fishing rights of Aldd4 1i 4
were not exclusive, and certain Federal regulations, con iMO eI...t t
them from Alaska's antifish trap law without, vppr'efafe 'ti
tion. The Court acknowledged that the aboriginal flhkritg iNF
the Indians are property over which Alaska had dieaiMM& .ti
tion in its Statehood Enabling Act, but that the Enabling At0t Wl*1"
mandate exclusive Federal jurisdiction over such matters. ItR W.
allow State regulation based on the "migratory habits of "" 0i &
which would make the presence of fishing traps "no B .
matter." .. '
Kake was actually concerned with the extent of permisib .l: VtdWi
power to regulate and permit Indian fishing. It doeh notA pj
the basis for the preemptive impact of aboriginal g6ig l t i
exercise of State regulatory power was fully ceide d Fu bu s
the anomolous situation of Alaska Natives was in ski oft
erable uncertainty at the time of the Ka/ke decision; it has Ad*
resolved by the Alaska Native Claims Settlement Act, ,"4$. p,"
sec. 1601, et seq. The Supreme Court of Idaho will sOO be e
the question of whether and to what extent a State may r
exercise of aboriginal hunting rights of the ootean Tr.
v. Coffee. ' V P
'nqm..s Y .il
: '. - [,
(a) Indian tribes and individuals have been.andn&ottinme tp.oI
subjected to continuous challenges by States anid local nm-ndiAs
... ..__ ____ -\ .. : :,
Memorandum from Associate Solicitor to Comminlsioner f Indik talz, dated O"t1 l9,
S 1975. .
369 U.S. 60 (iMt).







over exercise of treaty and aboriginal hunting, fishing, trapping, and
gathering rights.
,(b) States have failed and/or refused to implement Federal court
deptrminations as to the nature and scope of these important rights,
thereby denying Indian tribes and people the effective exercise of
these rights.
(6)k Indian hunting, fishing, trapping, and gathering rights are
an integral part of their culture, trade, and commerce, and are impor-
tant to their continued survival and economic viability.
(4) State refusal to recognize and assist in the protection of these
rights has promoted lawlessness and the effect of such State action
is manifest of racial distinction which denies Indian people the equal
protection of the laws in the exercise of their treaty rights.
(e) Failure to understand and appreciate the historical and legal
foundation of Indian hunting, fishing, trapping, and gathering rights,
coupled with growing competition for a diminishing resource, leads
to non-Indian proposals for abrogations of these Indian rights; is
inconsistent with the moral and legal foundations upon which they
rist; and coditributes to an atmosphere of disregard for Federal court
determinations concerning such rights.
(f). Extensive and costly litigation has gone far to define the extent
of thtse rights- and legislatively changing existing relationships will
oocasioo renewed and extensive lawsuits to the economic detriment
of all concerned.
(g) Federal actions which do not contemplate the integral role of
Inbmn 'tribes in future management and planning for the protection
of their resources is inconsistent with the viability of their rights and
the importance to the resource.
RECOMMENDATIONS
(a) Congress should adopt a joint resolution which clearly sup-
pmrts Iwdian hunting, fishing, trapping, and gathering rights free
from State regulation which unequivocally states that it shall not
be the policy of Congress to abrogate these rights.
(b) Congress should make specific legislative provision for the
recovery of attorney fees and expenses against any litigant adverse to
the vindication of a treaty right brought by or against an Indian
triri or individual where the Indian litigant prevails in such a suit.
01 particular importance are situations where the exercise of rights
is frustrated by the acts or omissions of the various States in the
ercisee of their police power.
Provision should be made in the immediate future for funds to
Indian tribes to obtain legal counsel to vindicate rights presently
being challenged by the States. Where successful litigation generates
attorney fees. t.hst money may either be returned to the Treasury or
he used in other areas, where legal expertise is needed by tribes to
clarify or implement. jurisdictional provisions: for example amend-
merts to tribal constitutions or bylaws; development of tribal law
and order codes; or negotiation of mutual management compacts,
etocetera.
(c) In recognition that Congress often passes laws which have
impact on Indian rights by indirection, such as authorizations for







the building of a damn, there should be provisioui-wliI VWht K
plate such impact. Ad hoc compensation is simply -f:t:
or sufficient where such impact may totally wipe out .s i
or cultural structure when prior review could obviat"ge 'tl!
Provisions for review such as are found in section 103 t ftt
National Environmental Policy Act [43 U.S.C. 43321 wC
investigation and research into possible i"lrlgk.emts'nitfM. i
and opportunity to the potentially affectedtribe for-iAp I i!t.'W* .A
As a corollary to the above provisions, enactmloits v fi V:t ias
States which directly or indirectly impact on th rtce fr..
rights should be subjected to similar review, pjrviions. Is. "4
ments by States are forbidden when they interfere With tdt.t4 n .
Emergency provision should be made for -those itdatifok
present exigent circumstances with additioiial provision lftr.ts
review.
(d) In recognition of the significant impact which irt&AIt*StiI
considerations have on Indian rights, specific provision. shouldbel 4.il
for Indian representation on such bodies: for example, nrt W al
Pacific Salmon Fisheries Commission and the. jNational WiSft,
eriec Services of the United States.. ,: :"r:''
Of significant importance is congressional. copnizanca al f'"4-
nition of the importance of equal participation by'idTah&.Irm
implementing plans for enforcement, management, and M-Mn e
of fisheries. It is appropriate and consistent with lIxia*tSai%.d
their relative role in this area that they bea.nn integpuia ..the
management and enforcement. implementatiaonm.' Ca gtesmftnRIlIM
should'so: reflect i 1. C .'ro-i- 11 un1n: .v ..t"".''. T ":
B. CHITD CusTOmr n `V)*! wiqriW
*I can remember rthe. welfare..wqkerkt, rming and talkine mSotai my
cousins and friends. I didn't know why and I didn't question It, It WE.t Just
done and it.bad always been done *, t- .v ',
It ii.still being done, but now-.it is,4ing agg. auly .Iti a
and fought, and hopefully in some places4 the freqmneyo.....fA. k
Indian children from. their horno'. ono-Indnm ,adptib'var *MAtti
care homes has.lessened. . ,!m -.-nnti) L(
The issue is & crucial one in Indian country, andAits rmoimt
are many. Removal of Indians from Indian societnh i duHiuu0
and short-term effects, both for the tribe and for the.,AiidbAM AiBM
removed from his/her 'home environment whowmas '*fE BII
social, and .psychological consequences, Louis La Mo, bb-hfti tB(d
the Winneba.o Tribe, expressed the anigrer ofma, ~ih..,wn.
on the debacle of the Indian child plaementsifiatidn:. .4'2 ;.r
I think the crueTest trick lhat the white man has ever Ab6he to InAiit
is to take them into adoption court, *erase all of their rot tinl tdVmMe ilI
off to some nebulous family that has a value system tlat l% A-74lb the. ta
of Nebraska and that child reaches 16.or.I, he is pa 4ttle brow* ehild'?i 'diw
- in a white community and he goes back to the reservation andfhe has a4I6tY
no ifdea who his relatffves are, and they effectively inmake hi .. Li-p.rm o-eiar
I think':. they destroy him. And it you have vevtaltked, tI Si ndiflai
like that when he comes to a reservation.... 1I get deprepued? .. :lv,
One of the most pervasive components of the various assimilAtMt.I r
termination phases of American policy has been tiw O.tfOln'ihGCithe
__________ ___ .* *.* [<'. so'*'
7 TpqtlTnnnr of VIanfleln 'Thqcrpr, southern California transcript at 88.
2 Midwest transcript at 424-25.







way to destroy Indian tribal integrity and culture, usually justified as
"civilizing Indians," is to remove Indian children from their homes
and tribal settings. This effort began in earnest in the 1880"s when
Indian children were removed from their homes and sent to distant
boarding schools. The Indian people fought this removal with what-
ever means were at their disposal. It is not necessary here to recount
the horror stories, reams of which are well documented-suffice to say
"that the resultant mortalities were incredible and the brutality against
Indian students belies any notion of civilization. Many current tribal
leaders still bitterly remember their own experiences. Peter MacDon-
ald, Chairman of the Navajo Nation, related tales of corporal punish-
ment administered for speaking Navajo in school.3 Although boarding
schools still are in existence and still present major problems, many of
the more perverse practices, fortunately, appear to have receded.
Current issues focus more on the problems of the adoption of Indian
children by non-Indian families and the temporary and permanent
placement of Indian children in non-Indian foster care homes and
institutions. It is a curious paradox that many early, non-Indian com-
mentators, observing Indian culture, praised familial and tribal devo-
tion to their children, yet now, after generations of contact and conflict
with Western civilization, so many Indian families are perceived as or
found to be incapable of child rearing. The practices of assimilation
and removal have had their impact.
The jurisdictional questions are fairly simple: who decides whether
an Lniian child needs to be removed from his or her home, and who
decides where and how that child is to be raised? In America today,
th& wse- ios are made by a combination of public and private social
service,2agAencies and court systems. The question further refined
becooi0 "C)o tribal authorities make these decisions for dependent
India4 children, or do non-Indian authorities make these decisions?
In this century, most decisions have been made. by non-Indian author-
ities, ,The pattern, however, is beginning to shift, as tribes, through
their ,court systems, and developing tribal social service agencies,
reassert their historical role in the care and protection of Indian
childre..
One might ask, since both Indian and non-Indian systems should
act in -the best interests of the child, what difference it makes which
court has jurisdiction. The difference is that these decisions are in-
herently biased by the cultural setting of the decisionmaker and the
history as to what has happened to Indian children when decisions are
made by nonrIndian authorities. Several years ago, it was estimated on
the best available data that 25 to 35 percent of all Indian children are
being.raised by non-Indians in homes and institutions.4
An Indian family's initial contact with these non-Indian institu-
tions is usually the "welfare worker." Given the destitute and impov-
erished conditions extant on many reservations and in the urban areas
to which Indians were relocated, public assistance is a painful but
necessary reality. The social workers, who are usually untrained and
have little or no understanding of Indian lifestyle or culture, make
judgments concerning the adequacy of the Indian child's upbringing.
*Transerlpt of hearings before the U.S. Commission on Civil Rights. Window Rock,
Aria.. Oct 22-24. 1973. at IR.
SIudlan Family Defense. Winter. 1974.
SUntralned Is defined as Incking an M.S.W. Unfortunately. most M.S.W. programs do
not Include any training with respect to Indiana.





80O

Even assuming that the judgment is correct and th tho-
worker has not imposed inrapplicable social-cultuaTl v- ite- .
judgment is negative, then the social worker should &attBxpt I
counsel to the family. The effort should be wade to mainjth4in n t
family unit while problems are being resolved. Unforthate& :!
cultural barriers, this effort is often not possible.' l":j
The next step is frequently termination tf parental rigits.e 14
ically dependent parents are oftem urged to consent to t is Sf
their child. The termination of parental rights is done tbhgiM 4
proceeding. Once parental rights are terminated, the' c0.4 7
relying on the poorly trained, often biased or judgYmAntM
worker, then decides the question of the custody' [placeme*t%] J o
child. If custody is given to public or private social servi.. |am "'..
they then decide the actual placement of the child. In adoi6$ bg
ceedings, the court will rule on the actual adoptive family.
Within these systems, two levels of abuse can rnid do W
initial determination of parental neglect the conceptualt IINBi*#
removing a child from the custody of his/her parents is wW4l "&i1
cretionary and the evaluation process involves the impOsitioW i0i
tural and familial values which are often opposed to values.^lI.
the Indian family. Second, assuming that there is a real needted
the child from its natural parents, children are all. toq-o.1r |:
placed in non-Indian homes, thereby depriving the chil.6i, 'M
tribal and cultural heritage. Non-Indian institutibhns appit t 'e i h .
a very difficul"time finding Indian foster homes a-A4uaaopUit
In recent years, some States are making eontratid fflt
prove: however, many of the home approval criteria aire'
inappropriate for the economy and lifestyle bf many IAl aa il&
Because of this, many fine potential Indian adoptive aind Tq log
families are rejected or, fearing rejection, do' not Apply. Thit.
can eliminate blood relatives of the child. i i t I
Unless a tribe is actively involved with child' welf.res.wn b
its court system and its social service agencies, it ha.s 0alm s nc?' .
knowing what is occurring with respect to its minor tribal -'rit
Even where a tribe is actively involved with these issues, ther.t M W
stantial difficulties, particularly when events occur outsi Wtd0W_.r-
ritorial jurisdiction. There is no existing requirement that p ,i#
private social service agencies, whether tbe are eloseby *#,ini-i
tant cities 'have to notify a tribe when they take action with'. B
to any tribal member.9 Even when a tribe -seeks to Lggresi.vefi|
its interests in child custody proceedings in noBIndifa'lo*e %st pWi
not do so as a matter of right." : t* ;1, 1: I",4l4
A particular problem also exists where'tlheehild iseentitled.tMtfi
based on tribal membership-either on a yearly peripaqt&lijdSIr
-Pew Inditan cht.lren are brought'f tomlc btbasetton, "bpe.'. ... n |,!)
Testimony of Gerald Thomas, Director pq Social Services..,W.shlgtoui atote.in!p eat
trsnser w vt q 449M H : 1* * r "
SBecause. of the lack of any systemnitt, and Arpebeaolfe neordknu.ln.4 V.JI.i tA e
Indian agencies which are removri Tndstl h dTldren Oftrliy bktim ho t uiuiwlk
full dlmp Fdons of the problem. Several State aoll s eltc" M eas; offietalaj whwtft
contacted as Iart of the data collection process (Vr"seate4 I' ftle, following aeW *2
preRsed purnrlRe at the .tatltlt*w theyssthbwed. :
*A'tlouyh the Washington State social service agency stated that It wa .thel-a.ati, ee
to notify tribal nffiPiani whenever it took anv artinn Jinvolviln tribal xeuhers, thin Uet
Is. however, not codified. Northwest transcript- at 501. Trftl frstrtOn *otfi" "..iural
pattern of nonnotice is reflected byv a lla RMver .ordlnanc..wm maIc it ,ahim.tIl
offense to remove an Indian child froM the reservation *lfehiat'!lft toi Uot.d tt,-tal
SMatter of treyb.l. 543 P. 2d 1079 (197 : :
10 Matter of Greybull. 543. P. 2d 1079 (1975).






otbrwie---and the tribe is required to turn these moneys over to
sgmaits mud placement families.

1. TUE DEMOGRAPIIY OF TIHE PROBLEM "
Because of the various recordkeeping systems of States and coun-
ties, it is difficult to obtain a picture of the full dimensions of this
pnolem. Data is often grossly incomplete, omitting crucial information
such as whether placements are made to Indian or non-Indian homes.
Information is often not available on all the factors which affect the
placement issue, such as private agencies.
SThe data in this section has been calculated on the most conserva-
tive basis possible; the figures presented therefore reflect the most
rlinhtal statement of the problem. Adoption statistics are calculated
by using the child's age at adoption and projecting pattern based on
available yearly placement patterns. Foster care figures are derived
from the most recent yearly statistics available. All statistics are from
1973-1976 unless otherwise indicated.
Statistics are presented for those States where a significant Indian
population resides.
Alasks
There are 28,334 Alaskan Natives under 21. Of these. 957 (or 1 out
bf very 29.6) Alaskan Native children has been adopted; 93 percent
of thea were adopted by non-Native families. The adoption rate for
non-Native children is 1 out of 134.7. By proportion, there are 4.6
times (460 percent) as many Native children in adoptive homes as
there are non-Native children.
There are 393 (or 1 out of every 72) Alaskan Native children in fos-
ter core. The foster care rate for non-Natives is 1 out of every 219.
There are, therefore, by proportion, 3 times (300 percent) as many
Native children in foster care as non-Native children. No data was
available on how many children are placed in non-Native homes or
institutions.
Arienm
.There are 54,709 Indian children under 21 in Arizona. Of these,
1O39 (or 1 out of every 52.7) Indian children has been adopted. The
adoption rate for non-Indian children is 1 out of every 220.4. There
are therefore, by proportion, 4.2 times (420 percent) as many Indian
children in adoptive homes as there are non-Indian children.
There are 558 (or 1 out of every 98) Indian children in foster care."3
The foster care rate for non-Indians is 1 out of every 263.6. There are
therefore, by proportion, 2.7 times (270 percent) as many Indian
children in foster care as there are non-Indian children.
: :

There are 39,579 Indian children under 21 in California. Of these,
1)507 (or 1 out of every 26.3) Indian children has been adopted: 92.5
percent of these were adopted by non-Indian families. The adoption
Muceh of this section is based on Indinn Child Welfire Sqtatlitleil Survpv. Jnly 1T7R.
prepared for the Task Force by the Association on American Indian Affairs. Inc. : all
data unless otherwise Indicated Is from this survey.
u1l Absolute minimal estimate.






rate for non-Indian children is 1 eut of evety'19j..ThMef te4B.
fore, by proportion, 8.4 times (840 percvdnt) as many '4"W F
in adoptive homes as there are non-Indian children. :.;.ei,.
There are 319 (or 1 out of every 124) lndin'children in fotrar.
The foster care rate for non-Indians is 1 out of every 26Q6& T, ea
therefore by proportion 2.7 times (270 percent) -s xj if-
dren in foster care as there are ni6h-Indiaiitchild.i;t.o
available on how many .ihdian'childten Fareblalced tPi
homes or institutions. I t 1
t "- (* *; !.; *" *!' no i -y a T lt ~ l
Idaho- "'( F iu iio qalq
SThere are 3,808 Indian children under 21 ina IdahOM 1s 16 ge
on adoptions are too small to beJststistiallysigii.ftflt, **. .vm11
There are 296 (or 1 out of every 12.9) In4iardhildrenO inz f.i..
The foster care rate for non-Indians is l.,.out eof..eflyS2.7tT .pqp
therefore by proportion, 6.4 times (64OL-0perniw ) M. .f .. buitslr
dren in foster care asthere are nonllndiai oqfii.e.! .- ;.:, iiiom).
Maine : 4 ( t 'T
There are 1,084 Indian children mun'ler 21'in Maih O"flI1
were placed for adoption during 1974-75. ..I." nm vq
There are 82 (or 1 out of every 13.2) Indian children in fostiokt
The foster care rate for non-Indians is 1 out of eaery 2y9A1.94 Xb* re
therefore by proportion, 19.1 times (1,910 percent) asi f yltpy I
children in foster care as there are non-Indian childe,;,4pde40
the Indian children are in non-Indiain foster care homes, r i.iJ l i.t
Michigan -
There are 7,404 Indian children under 21 in'MictigtiC 0
912 (or 1 out of every 8.1) Indian children hitas beaid. adople" [" I
was available on adoptions by noA-Indians. The adoptj.. M..
non-Indian children is 1 out of every 30.3. There are the"j
proportion, 3.7 times (370 percent) as many Indian chidtfii l |
tire homes as there are non-Indian children. r
There are 82 (or 1 out of every 90) Indian children in" i69W
The foster care rate for non-Indians is 1 out of every 641. T-IWfb
therefore by proportion, 7d times (710 percent) lase ,azrysjdil ii-,
dren.in foster care as there are non-Indian childream No data wwci
able lon how many Indian; children are plaoedo in, noa-IiaaB W
and institutions. : ; ,i .,r, ajtijr
Minnesota .. ,. ".. ri ^ rw.:bih-
There are. 12,672 Indian children un4er 1 "h 'nest4iR .'..
1,594 (or 1 out of every 7.9)-Idiadn Uhildii ii s een f
percent 6f these were adopted by ion-Indian fahmlhies,' .. ttgn'
rate for non-Indian children is I out of every 31.1: There arb t d
by proportion, 3.9 times (390 percent) as many Indian d&iN eikl
adoptive homes as there are non-Indian eohiJdre. I -i li
There are 737 (or 1 out of every. 17.2) Indiam children.in foiWtta.
The foster care rate for nonr-ndians is 1 out of every ,8a,.iTl.tmru
therefore by proportion, 16.5 times (1,650 percent) as manySndiaa
children in foster care as there are non-Indian children. No dats was
available on how many Indian children ae pliece'd..-nn-nri.ii
homes or institutions. .' ," t,: -V"







joswq
There are 15,124 Indian children under 21 in Montanft. Of these,
541 (or 1 out of every 30) Indian children has been adopted; 87 percent
Aof these.were adopted by non-Indian families. The adoption rate for
non-'Idian children is 1 out of every 144.6. There are therefore by
proporion, 4.8 times (480 percent). as many Indian children in adop-
tive hzni there are non-Indian children.
There are 534 (or 1 out o.f every 28.3) Indian children in foster care.
Thb foster care rate for non-Indians is 1 out of every 363.5. There are
therefore by proportion,. 12.8 times (1,280 percent) as many Indian
children in foster care as there are non-Indian children. No data was
available on how many Indian children are placed in non-Indian
oineumor. institutions.
Newada:.
There are 3,739 Indian children under 21 in Nevada. The figures
on adoptions are too small to be statistically significant.
There are 79 (or 1 out of every 47.3) Indian children in foster rare.
Tie foster care rate for non-Indians is 1 out of every 333.8. There are
thottOre.by proportion, 7.0 times (710 percent) as many Indian chil-
drein in foster care as there are non-Indian children. No data was
ivailabloon how many Indian children are placed in non-Indian
'homes and institutions.
A~ow Hexieo
*There are 41,315 Indian children under 21 in New Mexico. The
figures on adoptions are too small'to be statistically significant.
The arse 287 (or 1 out of every 147) Indian children in foster care.
The rate for non-Indians is 1 out of every 343. There are therefore
by proportion, 2.4 (240 percent) as many Indian children in foster
care as there are non-Indian children. No data is available on how
many Indian children are placed in non-Indian homes and institu-
tiona
New York
There are 10,627 Indian children under 21 in New York. The figures
on adoptions are too small to be statistically significant.
There are 142 (or 1 out of every 74.8) Indian children in foster care.
The foster care rate for non-Indians is 1 out of every 222.6. There are
therefore by proportion, 3 times (300 percent) as many Indian chil-
diJen in foster care as there are non-Indian children. An estimated
06.5 percent are placed in non-Indian foster homes.
North Dakota
There are 8,126 Indian children under 21 in North Dakota. Of these,
269 (or I out of every 30.4) Indian children has been adopted. Seventy-
five percent of these were adopted by non-Indian families. The adop-
tion rate for non-Indian children is 1 out of every 86.2. There are
therefore by proportion, 2.8 times (280 percent) as many Indian
children in adoptive homes as there are non-Indian children.
* There are 296 (or 1 out of every 27.7) Indian children in foster care.
The foster care rate for non-Indians is 1 out of every 553.8. There
are therefore by proportion. 20.1 times (2,010 percent) as many Indian
children in foster care as there are non-Indian children. No data was






available on how many Indian children are placed in na i k
homes and institutions. T : T ;i r .
Oregon " 'J. "Il ...
There are 6,839 Indian' children under 21 in OAkigon. Of(
(or 1 out of every 17) Indian children has'beqn adopted, 1 w.
available on adoptions by non-Indih families. The .adlt.ioR. raW
non-Indian children is 1 out of every 19.2. There are M i )c ,3y
proportion, 1.1 times (110 percent) as many Indian chiden ka -
tive homes as there are non-Indian children. ..
There are 247 (or 1 out of every 27.7) Indian children. int'w
care. The foster care rate for non-Indians is 1 out of eekt .
There are therefore by proportion, 8.2 times (820 Pact) eip$
Indian children in foster care as there are non-kdian duNAllfr A.o
data was available on how many Indian children are placed t&-'fAl-
Indian homes and institutions. -::.' <; p:., :T
Oklahoma ; I1,
There are 45,511 Indian children under 21 in OklaJh6i, 0 ,
1,116 (or 1 out of every 40.8) Indian children has beefx 4dAd
data was available on adoption by non-Indians.'The adkpon 0 et
for non-Indian children is 1 out of every 188.1 There are there. 9
by proportion 4.4 times (460 percent) as many Indian d:hreid.e
adoptive homes as there are non-Indian children.
There are 337 (or 1 out of every 135) Indian childMi ia r
care. The foster care rate for non-Indians is 1 out of every '51.
There are therefore by proportion! 3.9 times (410 percent) eaT&.n
Indian children in foster care as there are non-Indian ciidatj No
data was available on how many Indian children are pk ed in ndt-
Indian homes and institutions.,'i
South Dakota
There are 18,322 Indian children under 21 in South Dako"0
these, 1,019 (or 1 out of every 18) Indian children has been adopte!'.
No data was available on adoptions by non-Indians. The ado.&
rate for non-Indian children is 1 out of every 32.4. Therem ar -
fore by proportion, 1.6 times (180 percent) as many Indian 'iduilda
in adoptive homes as there are non-Indian children.. I
There are 832 (or 1 out of every 22) Indian children i;n4Usr eafr.
The foster care rate for non-Indians is 1 out of every A492.LfFhesie
are therefore by proportion 22.4 times (2,040 percent) as many. It-
dian children in foster care as there are non-Indians. No datq WVt
available on how many Indian children are placed in vw-Indiui
homes.
WVashington ..
There are 15.980 Indian children under 21 in Washington. Of these,
740 (or 1 out of every 21.6) Indian children has':been adopted. No dat&
was Available on adoptions by non-Indians. The adoption rats ti&
non-Indian children is il out of every 407. There are therefore'iy
proportion, 18.8 times. (1,900 percent) as many Indiati childvreflin
adoptive homes as there are non-Indian children. .'
There are 559, or 1 out of evervy28.9 Indian children' in Steife an.
The foster care rate for non-Indians is 1 out' of every '75.'PThevr are
therefore by proportion, 9.6 times (960 percent) as many Indian







children in foster care as there are non-Indian children. Eighty per-
cent of these were placed in non-Indian homes.12
Wisconein
There are 10,456 Indian children under 21 in Wisconsin. Of these,
7833 (or i out of every 14.3) Indian children has been adopted. No data
was available on adoptions by non-Indians. The adoption rate for
non-Indianii children is 1 out of every 251.5. There are therefore by
proportion, 17.9 times (1,760 percent) as mniany Indian children in
adoptive homes as there are non-Indian children.
There are 545 (or 1 out uf every 19) Indian children in foster care.
The foster care rate for non-Indians is I out of every 252. There are
therefore by proportion, 13.4 times (1,330 percent) as many Indian
children in foster care as there are non-Indian children. No data
was available on how many Indian children are placed in non-Indian
homes and institutions.
Wyoming
There are 2,832 Indian children under 21 in Wyoming. The figures
on adoptions are too small to be statistically significant.
There are 98 (or I out of every 28.9) Indian children in foster care.
The foster care rate for non-Indians is I out of every 301.6 There
are therefore by proportion, 10.4 times (1,040 percent) as many In-
dian' children in foster care as there are non-Indian children. Fifty-
seven percent of the Indian children in State foster care are in
non-Indian homes; and 51 percent of the children in BIA foster care
are in 'non-Indian homes.
Utah
There are 6,690 Indian children under 21 in Utah. Of these, 328,
(or 1 out of every 20.4) Indian children has been adopted. No data
was available on adoptions by non-Indians. The adoption rate for
non-Indian children is 1 out of every 68.5. There are therefore by
proportion 3.4 times (340 percent) as many Indian children in adop-
ti~Ahomes.ass there are non-Indian children.
There are 249 (or 1 out of every 26.4) Indian children in foster
care. The foster care rate for non-Indians is 1 out of every 402.9.
There are. therefore by proportion, 15 times (1,500 percent) as many
Indian children in foster care as there are non-Indian children. No
data was available on how many Indian children are placed in non-
Indian homes and institutions.

2. LEGAL STATUS--WIO DECIDES?
The Federal courts, as well as some State courts, have generally
recognized the crucial place which the issue of child custody holds
in the framework of tribal self-determination.
if tribal sovereignty is to have any meaning at all at this juncture of history,
it must necessarily include the right within Its own boundaries and membership
to provide for its young, a sine qua non to the preservation of its identity."
The most recent Supreme Court case on the subject, Fisher v. Dis-
trict Court,1 affirmed the jurisdiction of the Northern Cheyenne
Northwest transcript, exhibit 14.
SWisco ain Potowatomfea of Hannahville Indifana Community v. Hosaton, 396 F. Supp.
719. 7.0 (W.D. Mich.. 197.3).
14 47 L.Ed. 2d 106 (1976).







Tribal ; Qourt to make custody determinations in thlb facw.$twiphig
lenge to have such jurisdiction taken by Montana: State rouWs)14. N
Montana had not acquired any jurisdiction over Indian co p..trmsv
suant to. Public Law 280, and the action arose on the reqrvgtpoa.
Supreme Court characterized the tribal court' s,r iud.7t?.
exclusive. .
Many Indian child placementissues do not necessarily a:ir. s
clean-cut fashion. Frequently, the Phyisical oction of the cM..,.
whether the tribal court has jurisdiction. Decoteau v. Te ,
Court,5 is a case involving a conflict between State and tr ibT -
diction, where the pertinent acts occurred on both trast 1a44 a a ..
trust land. The Supreme Court upheld State jurisdiction b"i":'2.
finding that the non-truat portion of the "former" res azqjr
been terminated. In that case, the tribal interest inthe wih fai's
minor member, however, cannot be as a practical matter any P.
where geography assures jurisdiction.
Although Decoteau did not deal with the issue of "domieile;S"c ti
pertinent to child welfare jurisdiction. "Domicile" is a legaIlvin pt
that does not depend exclusively on one'S physical locatbia .ata
one given moment in time, rather it.is.based on the appaerimcdwkc-
tion of permanent residency. Many Indian families .nrovem.abok-aI
forth from a reservation dwelling to border .cunmunitaemsiviesM
to distant communities, depending on employment and dc&itiioa
opportunities. The domicile of, a child isoften viewed as& abqswu
a court's..jprisdiction to determine.his/her,custody. In, them itutam
where family ties to the reservation are strong,j,btt ztm dhi"ids.tem
porarily off the reservation, a fairly strong legal argument .aq|bq
made for tribal court jurisdiction. In a recent New Mjxice casOILj-
volring i Navaho child situated off reservAtionin a(iu, ,- *- r
it was argued that the' Navajo tribal cout' is the ap'r6pt i.' rtM
to determine custody. 6 *" 'k
Child rearing and the maintenance pf 4ibal identity are "essm fAL q
relationA" [(ilation omittedd. y paralyzing the ability of the trff*&'iet
petuate itself, the intrusion of a Stat&W in famlt relatifiob i witMn-irt'zlgp
Nation and interference with a child's ethnic Identity With the tribe otSf-f t
are ultimately the most severe methods of underminiqg. retaitned;i qw
eignty ahd autonomy." .,, ,..rn
This epneept of court jurisdiction is based the tribal : .at^ f
the individual rather than the mere geography of the child and mre t
nizes that the tribal relationship is one ofyparena pataz.ot. ai Uits
minor tribal members. It is an attractive formulation, considering
that in reality, Indian children are usually culturally and tribally
terminated by placements to non-Indian homes when they are subject
to State court systems.18 This has not been given substantial reoni-
tion by'the courts.19 As a practical matter, this constructiui seem
limited to situations where the Indian child is in reasoniiblt ,oi
imity to the tribal court, such. as in a border town. Applyig; this
construction to an Indian child living in Chicago who i. an. enomlbd
.. ____. . i -" i r **?*' ( "'*
420 U.S. 425 .(1975)..
s See e.q., Wisona-n Poiowatonmfes of the KannahvllTe IndidCt Comsmnity v.: JHeu Ol,
supra; and Rhaving Bear v. Pearson, et al., S.D. Cir. Ct., Oth JurlIsdicton rr, O unYs4
1974 (unreported).
2 In the matter of the Adoption of Randall Nathan Swanson, Amitcu CuxEBteTf;,W'O.
2407. ... l,* . '
"Ib / id at 8. ... . : ::
3 See, Matter of Greybull;'543 P.2d 1079 (1975). : .. :.







member of the Yakima Nation would create major practical difficul-
ties without a well-defined operating system for effectuating tribal
jurisdiction.
Just as mobility will frequently remove Indian children from
reservation systems and bring them into initial contact with non-
Indiah systems, so mobility will also remove a child subject to a tribal
court's jurisdiction into another geographic jurisdiction. This can
create the following problem: After a tribal court determines child
custody, the child leaves the reservation, and the issue of custody is
relitigated in a non-Indian court. Generally, between the States, the
constitutional standard of "full faith and credit" governs the way one
court will treat the decisions of another. This standard is not consti-
tutionally required of State courts with respect to the judgments of
tribal courts. State courts can (and some do)-under the principle of
comity-respect between sovereigns-recognize the determinations of
tribal courts. Recently the Maryland Court of Appeals refused to
allow Maryland courts to determine the custody of a Crow child
where that determination had been made by the Crow Tribal Court.20
FINDINGS
S1. Thq removal of Indian children from their natural homes and
tribal setting has been and continues to be a national crisis.
,2; Jjmaval1 of Indian children from their cultural setting seriously
impacts a long-term tribal survival and has damaging social and
4o.gca1 impact on ,many individual Indian children.
3. Nn-Indian public and private agencies, with some exceptions,
show 4qI.ost no sensitivity to Indian culture and society.
4. Reent litigation in attempting to cure the problem of the re-
novl;oiIndian children, although valuable, cannot affect a total
solfltionflet
14,, qT current systems of data collection concerning the removal
pan. pmpnent of Indian children are woefully inadequate and "hide"
the full dimension of the problems.
6. The U.S. Government, pursuant to its trust responsibility to
Indian tribes, has failed to protect the most valuable resource of any
tribe--its -children.
T'. The policy of the United States should be to do all within its
power to insure that Indian children remain in Indian homes.
S: RECOMMENDATIONS

L. Congress should, by comprehensive legislation, directly address
the problems of Indian child placement. The legislation should
adhere to the following principles:
a. The issue of custody of an Indian child domiciled on a reserva-
tion shall be subject to the exclusive jurisdiction of the tribal court
where such exists.
b. Where an Indian child is not domiciled on a reservation and sub-
ject to the jurisdiction of non-Indian authorities, the tribe of origin
of the child shall be given reasonable notice before any action affecting
his/her custody is taken.


* Wakcefield v. Little Light, 276 Md. 333. 347 A 2d 228 (1975).







c. The tribe of origin shall have the right tointervenai i.
interest in child placement proceedings. '' .P.: 1W.:.011
d. Non-Indian social service agencies, as a condition to tfibl|s MIp
funding they receive, shall have an affirmative obl'
programs-to: ..HOW:. 7 '
(i) provide training concerning Indian culture *anldi* l
to all its staff; r .i.:,: .z:t AK :
(ii) establish a preference for placement of Indiaineh'l.....
Indian homes; W- ;: I,.:i,, )
(iii) evaluate and change all economically aad euiagia
appropriate placement criteria; II*i.t.Ym:.
(iv) consult with Indian tribes in establisig (i),i.I)m:Ipd
(iii). q ...t .,+i.E.f | .i
e. Significant Federal financial resources should ba apprrMqnaStI
development and maintenance of Indian operated EoetrimlB
and institutions: ". : jS;" 41i7
(i) in reservation areas such remsources should be madtimdl
available to the tribe; : ..., ... .:v
(ii) in off- reservation areas, such resources should be araibble
to appropriate local Indian organizations. :
f. The Secretary of the Interior should be authorized to.. "
(i) undertake a detailed study of thermanner and A.wMelId
placement records; d4m.. ". JT. .i
(ii) to definitely determine thOAVU statistical ri4 ', 4ld
placement as it currently exitt. .:..
(iii) to require standardized .ei ldtaceent IB|
systems from all agencies receiving ederald moeys ;-
(iv) tb require anniiual reports rom uek i y-t
to the mandatory recordkEepg sym ;t m i ...,
(v) to review all rules and ngut&-ons bf the FedWist a W
meant with respect to child placemzmt, and revise such, it al
station with Indian tribes and child placeineut 'aenei tl pt
Federal policy of retaining Indian Mfildren in f NdimnSiMtl
C. JURISDIECTIoN OVER NOX-Ims a: .:!i
This area must be approached on several levels. There is ..
apprehension in the non- Indian communityre"sidkon ornaord,
reservations concerning the exercise or' -ptential exereiie f Mlft
jurisdiction over non-Indians. This feeling appears to be, at les mi
part, based on a major nonunderstariding nthe non-Indian onu ty
about the legal status of Indian tribes and their historical 'i-
tional relationship with the Federal ;,,G6bverniecttrminii
vacuum of knowledge is an implicit, and sometimes etplhcui T
that while it might be permissible for India tribes :to hail
over Indians, it is somehow morally inappropriate to havee.n'dhA f r
over non-Indians within their territories. In this furort ovr e
cise of power, Indian governments are, in, the political artek'$rfg
held to higher standards of performance thin Americans generalljs
pect from their public institutions-it is as if competesce of'
Indian governments is assumed and that of ndi:a governments Bnl
be demonstrated. 1 *'







V$..)ihe technbAical-legal side of the issue, there is no question that the
dQyj"rIndian jurisdiction-be it exclusive in some components and
;I =reAnt in other components-over non-Indians is rooted in funda-
mezntal,/lng established principles of international law and domestic
ct i QoIl. law. Thlie case is persuasive, although it is not as yet
subi~eiperI y instance to definitive Supreme Court decisions.
.4 ~~., 1V O 4 the legal case for tribal jurisdiction over non-In-
4i"ns; i u. tue iial exercise of this jurisdiction has been relatively
hiftl'.elaay tribes, while affirmifig that they retain jurisdiction, have
not yet sought to exercise jurisdiction over non-Indians. This tribal
decisiiea been based, and probably will continue to be based, en
8e- 07-0t realities: (1) the size and etenomic ability of a spar-
SiBbq;, 0(2) the tribal relationship with neighboring counties"
and the State within which it is located; (3) demonstrated willness
p qrlqqptleeof of.f non-Indian governments to provide fair and im-
l"i ,"t.4 tmeut of the Indian community; and (4.) the physical prox-
in*ty r iolaton of the tribe to other government services. In a sense,
tbppq4 c e by non-Indian governments of the responsibilities
tlgy J..- apsusned in exercising jurisdiction over any matter on an
Ip.ap ^Wjrvjtion will play a strong role in any tribal decision as to
wit 4rO exericse jurisdiction over non-Indians.

'. ,F .LEOAL CASE FOR JURISDICTION OVER NON-INDIANS
y1'j4 r e.hat jurisdiction is retained by Indian tribes today, it is
lis.. td o-,start with the concept that sovereign tribes have full
ij4 lo a powers, except to the extent that specific components
1may kv benTimited by the United States. The loss of jurisdiction is
not to be inferred. It must be specifically found in acts of Congress or
tine&.'OMerf Justie John Marshall in 1832 stated the classic formu-
lation of domestic constitutional law, upon which Federal Indian law
hai been based:
'.-ur .., **,V7li ,
jbt Iniu~~fiaw 1had always beea consIdered ,.a 4istlnct,. ikdeenduet ppUt-
iqtslppjppOJ", retaining tbeir .original natural rights, am undipute pos-
W qpW: geL '.gl from tiUe im.emorial with the ..a exception of that
Wimofr.: De inveutible power. **
^A sthat time the only -powers that had been removed from tribes
P lw wf.t^r' related to international jurisdiction-the rights to go
t.e,rmfa ;,wlenter into compacts and treaties with nations other than
I tb&:cUitsd States. Chief Justice Marshall characterized, this coudi-
tiot M4Iobnesti, dependent nations. * *"
T treaties are, of course, one mechanism whereby Jurisdiction could
have b&en ceded from the tribe to the Federal-Government. While
th" nIk ayte gn individual tribe that by treaty divested itself of juris-
dtaa, tfef gieral construction of early 'treaty languaget does not
1ad t6: that; conclusion. There is much language in the early treaties
p mrtainirig to the trial and prosecution of offenses committed within
the Indian territories. The phrase most frequently found is for tribes
t&'"deiter up" persons who committed offenses in the territory of the
ltesv. Georgia S31 U.S. 515. 559 (1832) alttiough the cohnet has undergone
M =_81h'.tt, It Is stfl viable, as a basis for the current Federal preemption tet of identi-
faiutrimlet.tlon. McClanaahn v. Arizona Stale T id Comm., 411 U.S. 164 (X973).
'The Cherokee Nation v. State of Georgia. .10 17.S. 1, 18 "they may, more correctly,
perhaps, be denominated domestic dependent nations."
77-47-76---- 7







tribes.' This phrase must be construed in its historial.1
as in. its plain treaty language. Many of tiesse sp'....
the "delivery up". of both nog-Indians and Incih....
serious offenses. No one ha"periously maintsindj% 1 T
themselves of jurisdiction over tribal memberQ"y
these provisions should be read.to extend qocurpt
tribal members. The samine construction is lg4a. J1
Indians. it isinstrctive, to ind1cat0 how Qonagres
isdictional relationship in the hieat~es AtapP.rvp4 14x
it adopted pursuant to those trgatw.: Je Tq -( rtt vti
to.t

It will be seen that we cannot, eoztiiently with the fravisbjMi.
our treaties, and of the territoril act, extend oF erixlnalm dw :
n"ted by or against Indians, of which the tribes have via--
and It is rather of courtesy than of right that we undertake t
comminitted in that territory by and against oar Owtiz-![ .,,** V. u
,The courtesy referred to by the tiouse c&i ni!ttte Sil
wtiat would become the General Ciimnes'Adt uademrs^.ti& &ra:.,
Federal policy in the early yeaits o the tepublihUto %sit.
tween the Indian tribes and pthe fin6-India' citi'n*#11W
quently perdoived as being aChreat'to the tribes. T.M W
was designed to try to kep ._nflcts romi Ievelpii".'.,blli&'
not based on any congressional'notion that Lbes cW..
punish violators of their domestic peace.
The views of the Commnissonertsof nhdiln Aftirk.iI".18S%
large meqaure resulted in tbp Trade, snd IWtrceuremc4
w.nch became lgjown as the GeAralr.rime# 4c4 ,rW
see. 1L52), give credence to the; vipw, h$ golz.res r^pp|g ^
jurisdiction 4d ;was not aeti4t, 4nTqfr^^ 4l*iBn
t ,ti , ,. ippy . r; 1. ^ *.r i' 'I 1t'i i' t. i oJ k
If the Indias are' exposed Itb W Iir nonI u _oem w .-ttM j
Idence among tbean ii a t 0 .,:, jj "w^vob IwM^I |
S C **uj^u t(|a~r La
while Governmpent bas reserved a consitntional supen fi r rut
red ehilfdrn SVeI hask' olt*aft- 'Arhtbid-protecti 61 i
eyery tribe who remote -lere, tild' giyf tkbsuraftbaE&S no hawqV
shall exercise Jumrusdti6n over thei fl1W tintn l at" 'ian kaE
they may be made so energetic, too, as to d&fer'Vffeer, 0b a*w u@d"ju u
Unite#*t States rA ndividual4 of another% t _., i, mAn dt ##,tt
inmpairing,in the, least the independence of tohe tbs withi Iti 0Q _
Within the limits of the munidtall of tli toir-besW knit
should the Ia 61f the tribes and'the laws of thflffifted States iff iV
Jurisdiction, this wouLd create no diSficulty, rf indeed, idrsla tr:t i I
the several tribes to adopt salutary laxw, WE farn u possible, aa.f p ...t..
quent theJnlervention .of Government? .! d T '
It is a curious twist of revisioAist hitwy! thMt.4t" *.e.
courts, Ex p. rt. MwoyaN, 20- F. 2M9l ( f, A0, Uk li
Nop, te I.nyon, 16 F. 0Aa45.S I<.nf., )) (WaR.A 3 .iJA ii
would cite section 25 of the Trad ae d Ixnu ..ato..u! pluptl.;J
tribal jurisdiction with respect to'nn-Indan T h case w.ilf
-- s t "> T,, .., T1 .::,, ,' ; 4: i' df t1 irt ')
SSee e.g. treaty dated Jan. 21. 85bf. th" Wa "
Tribes, art. 5.' p. 1:1treaty conudfuedqn.P,1rSEtnq.
Chipppwa. Pottowatomie. and Sac Tru. art 9. p. 2; treaty witheltmiM.MtiI
Mfiasissippi tribe concluded Mar. 4I I ; ant t. the ,
was. eondaded Aug 23. 1886 treaty V Xti t.i
Yanktnnal. Hunkpadas, Blackfeet. Cithead. Tw Kettle
Arapahoe tribes. eonclded Feb. 24. 1 age xt 1.. ., r .
H.R. Rep. No. 474, 23d Congress, lIt esslon.ix (168. ....
[bid.. Report to the Secretary of War. Document 9. aineaixI- "