HEARING BEFORE THE SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES OF THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE NINETY-FOURTH CONGRESS

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• Document Creation Date: December 9, 2016
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• Sequence Number: 1
• Publication Date: April 18, 1975
• Content Type: NOTES

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REFORM OF THE FEDERAL CRIMINAL LAWS
HEARING
SUBCOMMITTEE ON
CRIMINAL LAWS AND PROCEDURES
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
S. 1
THE "CRIMINAL JUSTICE REFORM ACT OF 1975"
[JURISDICTION OVER INDIAN RESERVATIONS, NATIONAL SECURITY
AND SENTENCING PROVISIONS]
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REFORM OF THE FEDERAL CRIMINAL LAWS
HEARING
SUBCOMMITTEE ON
CRIMINAL LAWS AND PROCEDURES
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-FOURTH CONGRESS
S. 1
THE "CRIMINAL JUSTICE REFORM ACT OF 1975"
[JURISDICTION OVER INDIAN RESERVATIONS, NATIONAL SECURITY
AND SENTENCING PROVISIONS]
APRIL 17, 18, 1975
U.B. GOVERNMENT PRINTING OFFICE
53-398 WASHINGTON : 1975
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COMMITTEE ON THE JUDICIARY
JAMES O. EASTLAND, Mississippi, Chairman
JOHN L. McCLELLAN, Arkansas
PHILIP A. DART, Michigan
EDWARD M. KENNEDY, Massachusetts
BIRCH BAYH, Indiana
QUENTIN N. BURDICK, North Dakota
ROBERT C. BYRD, West Virginia
JOHN V. TUNNEY, California
JAMES ABOUREZK, South Dakota
ROMAN L. IIRUSKA, Nebraska
IIIRAM L. FONG, Hawaii
HUGH SCOTT, Pennsylvania
STROM TIIURMOND, South Carolina
CIL\RLES McC. MATIIIAS, Jr,., Maryland
WILLIAM L. SCOTT, Virginia
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES
JOHN L. McCLELLAN, Arkansas, Chairman
PHILIP A. HART, Michigan
JAMES O. EAASTLAND, Mississippi
EDWARD M. KENNEDY, -Massachusetts
ROBERT C. BYRD, West Virginia
ROMAN L. HRUSKA, Nebraska
HUGH SCOTT. Pennsylvania
STROM THURMOND, South Carolina
WILLIAM L. SCOTT, Virginia
PAUL C. SUMMITT. Chief Counsel
PAUL F. ROTHSTEIN, Minority Counsel
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CONTENTS
PART XII
Hearings held on: Page
April 17,1975------------------------------------------------- 1
April 18, 1975-------------------------------------------- --- 140
Statement of:
Fogel, David, Executive Director, Illinois Law Enforcement Com-
mission----------------------------------------------------- 149
Freimund, Justus, Director, Action Services Division, National
Council on Crime and Delinquency____________________________ 181
Hovis, James B., representing the Yakima Indian Nation----------- 53, 129
Landau, Jack C., Reporters Committee for Freedom of the Press------ 11
Neaher, Ilon. Edward R., judge, U.S. District Court, Brooklyn, N.Y__ 1
Pirtle, Robert, Attorney, National Congress of American Indians - _ __ _ 38, 47
Rudd, Ralph, on behalf of Friends Committee on National Legislation_ 176
Wilson, Professor James Q., School of Government, Harvard Uni-
ver;it.) ------------------------------------------------------ 160
Zirpoli, llon. Alfonso J., judge, U.S. District Court, Northern District
of California ------------------------------------------------ 132
Statement submitted by:
American Civil Liberties Union_________________________________ 190
American Library Association___________________________________ 210
Associated Builders and Contractors_____________________________ 214
Association of American Publishers, Inc__________________________ 216
Bazelon, Ilon. David L., U.S. Court of Appeals, Washington, 1).C_____ 218
Crane, Mark, on behalf of the Antitrust Section, American Bar
.Association------------------------------------------------- 232
Lazarus, Arthur Jr., on behalf of the Association on American Indian
Affairs ----------------------------------------------------- 236
Parker, Alan It., on behalf of the Friends Committee on National
Legislation-------------------------------------------------- 239
Sonosky, Marvin J., on behalf of certain Indian tribes --------------- 240
Straus, Jerry C., on behalf of certain Indian tribes----------------- 241
Wisconsin Civil Liberties Union, letter and statement of David
Randall Luce, congressional liaison____________________________ 334
Exhibits:
Administrative office of the United States Courts, letter of March 21,
1975, with comments and proposals relating to S. 1---------------- 288
American Bar Association, resolution of the House of Delegates re
S. 1, the Criminal Justice Reform Act of 1975__________________ 360
American Law Institute, status of substantive penal law revisions in
states and other jurisdictions ----------------------------------- 296
American Newspaper Publishers Association, letter of Jan. 14, 1975,
from Arthur B. Hanson, General Counsel----------------------- 243
American Society of Newspaper Editors and the American News-
paper Publishers Association, supplemental comments on S. 1,
letter of May 9, 1975 ---------------------------------------- 332
Associated General Contractors of America, letter of March 24, 1975___ 297
Capital Punishment, The Deterrent Effect of Capital Punishment: A
Qestion of Life and Death, Isaac Ehrlich, The American Eco-
nomic Review, Vol. 65, No. 3, June 1975------------------------ 338
Commitment, Treatment and Discharge of Mentally Incompetent
Persons, propos-,d revision of chapter 313 of title 18, United States
Code, Judicial Conference of the United States------------------ 1'8
(I11)
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IV
Page
Creative Punishment: A Study of Effective Sentencing Alternatives,
David F. Fisher, Washington Law Journal, vol. 14, No. 1 -- - ------- 275
(The) Indian Civil Rights Act of 1968 and the Pursuit of Responsible
Tribal Self-Government, Joseph de Raismes, S. Dak. L.R., Winter
1975, pp. 59-105 -------------------- -- ----- ----- 247
Juvenile Justice and Delinquency Prevention Act of 1974 amendments
suggested by the Department of Justice ------------------------- 246
Lock Em Up and Other Thoughts on Crime, James Q. Wilson, The
New York Times Magazine, March 9, 1975--------------------- 170
National Association of Manufacturers, letter of Feb. 6, 1975 --------- 333
Nebraska Revised Statutes-Section 28-1011.21 (Firearms, Knife,
brass or iron knuckles; used or carried; commit felony; penalty) -- - _ - 159
Public Law 280: The Limits of State Jurisdiction over Reservation
Indians, vol. 22 UCLA Law Review----------------------.----- 297
Remington, Frank, letter of Jan. 29, 1975 -------------------- 245
Schwartz, Prof. Louis B., The Proposed Federal Criminal Code---.--- 384
Solomon, Donald Jay, Department of Legal Research Services,
United Southeastern Tribes, Inc., letter of April 24, 1.975 ----------- 287
Vergari, Carl A., chairman, Committee on Federal Legislation,
National District Attorneys Association, letter of June 25, 1975--- 336
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S. 1, THE CRIMINAL JUSTICE REFORM ACT OF 1975
THURSDAY, APRIL 17, 1975
U.S. SENATE,
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:40 a.m., in room
2228, Dirksen Senate Office Building, Senator Roman L. Hruska,
presiding.
Present : Senators Hruska and Abourezk.
Also present : Paul C. Summitt, chief counsel; Dennis C. Thelen,
deputy chief counsel; Paul F. Rothstein, minority counsel; and
Mabel A. Downey, clerk.
Senator HRUSSA. The subcommitee will come to order.
The Chairman is busy with other very important Senate business,
and has asked me to preside in his stead. This is a continuation, and
one of the concluding hearings, on S. 1, the Criminal Justice Reform
Act of 1975.
The first witness that we will hear is the Hon. Edward R. Neaher,
U.S. District Court from Brooklyn, N.Y. He is not a stranger to
this room. Once before, Your Honor, you and I sat in the positions
that we now occupy. How long ago was that?
Judge NEAHER. Almost 4 years. June of 1971.
Senator HRUSKA. At that time you were a nominee for the position
which you now hold. From reports we get, you have fulfilled every
expectation. We welcome your presence here today, and we thank
you for taking the extra time to share your views with us on the bill
that is before us.
Do you have a prepared statement?
Judge NEARER. I have submitted a prepared statement. I do not
propose to read it in deference to the time schedule you are under.
I do thank you for the opportunity to be here. Let me say, first-
? Senator HRUSKA. May I say just this, Your Honor. We will print
the entire statement, in its full text, following your extemporaneous
remarks.
STATEMENT OF HON. EDWARD R. NEAHER, JUDGE, U.S. DISTRICT
COURT, BROOKLYN, N.Y.
Judge NEARER. Let me say at the outset without any individious
reference to the physical proportions of S. 1, I do regard it as a
monumental achievement in terms of accommodating the needs of
statutory drafting with the recommendations of the national com-
mission.
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I would also like to say at the outset, as I have indicated, I come
from a district which I find, even to my surprise, had more criminal
cases pending at the end of December 1974, than any other district
in the United States except two, namely, the southern and central
districts of California which have exceeded our number.
So, when I speak here I do believe we have a,great deal of practi-
cal experience in sentencing of criminal cases among the judges in
the eastern district. My comments with regard to the sentencing pro-
visions in the bill about which I was asked to comment, have been
designed to be practical in nature, and do not represent any criticism
of the draft in any sense whatsoever.
I have three points in mind : One has to do with what has always
been regarded as the traditional power of a judge to suspend or
delay the imposition of a sentence. I notice that distinguished col-
leagues in the comtnittee, or committees, of the U.S. Judicial Con-
ference, pointed to the omission of phraseology in the draft which
would recognize----or let us say, preserve, that power. Let me be a
little more specific.
I recognize that the basic philosophy of this bill is to adopt the
National Commission's suggestions that the imposition of probation
be regarded as a positive sentencing alternative, just as the imposition
of a term of imprisonment or an imposition of a fine. When you
come to a term of probation in section 2104(a) of the bill, "term
of probation will commence on the day that it is imposed", and the
bill then goes on to state, "unless otherwise ordered".
That I find to be a recognition of what I have called the traditional
power of a court to suspend or delay the commencement of a term
of correctional treatment, if you can call it that; in this case,
probation.
When you come to the provisions which deal with sentences of
imprisonment, there is not such an unless" otherwise ordered pro-
vision. The sentence of imprisonment will actually commence to
run-and ordinarily would-upon the imposition of the sentence.
And, at that point, unless the court intervenes, the defendant is
supposed to promptly be turned over to the U.S. Marshal and im-
mediately become in custody of the prison authorities.
The point of all this, Senator, is simply this : First, with regard
to probation, I would say that many judges feel that in connection
with sentencing someone to a term of probation, it is a good idea
to hang a sword of Damocles over his head. That is to say, to make
him understand that if he does not walk the straight and narrow
while on probation, he is very likely to find himself immediately
confronted with a several-years sentence of imprisonment.
In other words, the familiar format used to be, I hereby sentence
you to a term of 2 years, or 3 years, but I am going to suspend
the execution of that sentence and I am going to place you on pro-
bation for a term of 3 years. The fellow walks out of there, we think,
believing that if I do not walk the straight and narrow, I am
immediately going to start serving my 2- or 3-year sentence which
the judge has already imposed on me.
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So, my suggestion is, since the provision with respect to a sen-
tence of probation have a so-called mandatory provision, or manda-
tory condition, a requirement which shall be specifically stated in
the judgment of probation that the defendant not commit another
Federal, State, or local crime during the period of probation, that
it be given more meaningful effect by permitting the court who
imposes that term of probation . to couple it with a specific term
of imprisonment to take effect if the defendant violates the condi-
tion. To my way of thinking, that would satisfy the feeling judges
have that they can suspend the execution of a sentence, put a man
on probation, but have that sentence take effect if he violates the
terms of probation.
In other words, it gets down to this, we view it as an additional
deterrent and, as I said earlier, a sword of Damocles, that helps a
man stay straight while on probation. That is the. basic idea.
Senator IIRUSKA. What is the present situation?
Judge Nr l-IER. Just as I explained earlier. When we size up a
defendant, we look at his background through the presentence re-
port, he should be on probation, but he is marginal. We want him
to do well'on probation, but we want him to know that lie has to do
it or else. And so, as I say, we will impose a sentence of 3 years
imprisonment, `and let him go. And he goes out of there knowing
that if he commits another crime, that is, a violation of what you
have specified as the mandatory condition, he is going to start
serving time.
I am saying that, of course, he is entitled to his probation revo-
cation hearing; I am not wiping that out. He has a specific term
of imprisonment hanging over his head if lie does violate his pro-
bationary condition.
Senator IIRUSKA. Under the probation order, that sentence and its
length are not determined?
Judge NEAIIER. The suggestion is, as part of what you now have
as the mandatory condition, that there be added a. clause giving the
judge discretion in appropriate cases, to also provide for a specific
term of imprisonment to take effect if the mandatory condition
is violated. That is the suggestion, in essence.
Senator IIRUSKA. I understand, but the condition that you do
take exception, to is that presently found in S. 1 at 2103(a). Under
that situation, is there a sentence of exact years and days imposed
before the probation order occurs?
Judge NEAfrER. ph no.
As I understand it, under the 21 series section
Senator Hruska. In other words, the sentence is not at that time
imposedy nor it it determined as to what the sentence would be
if it had to be imposed after the condition were violated.
Am I correct?
Judge NEARER. No.
You are right on the first point; the sentence is not imposed be-
cause, in my view, it is suspended. But it is specified. It says, in
effect, if you look at the mandatory condition in 2103 (a), that the
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court shall provide-that is mandatory-shall provide as an addi-
tional condition of probation that the defendant not commit another
Federal, State, or local crime during the period of probation. That
is provided for.
All I am suggesting is the addition of words, in effect, that will
say, ."and the court may also provide for a specific term of imprison-
ment to take effect if the defendant violates the condition". That
is what I say is the equivalent of suspending execution of a definite
term of sentence as we do now, and is a sword of Damocles held
over the man's head to make him realize that this mandatory con-
dition does have teeth in it; that he is expected not to be arrested
for another crime, and that if he violates that condition, he is going
to serve 2 years, three years, whatever years the judge sees fit to
impose at the time.
Senator HRUSKA. Let us take the situation under 2104(a) as we
presently have it.
The defendant is brought before the judge and he does not impose
sentence, but he says, you are free on probation. If you violate that
probation, we will call you back in here.
What happens if he should be arrested and is brought back into
the court?
Judge NEAZIER. Then, of course, he is given his hearing on the
revocation of his probation. And at that time, the judge can do
any number of things. He can continue him on probation if, for
example, he finds some mitigating circumstances as to why the man
committed his crime.
I am not suggesting that the defendant be deprived of that; that
is not my point. A court, on that revocation hearing, may also then
impose, as I understand it under the bill, a term of imprisonment
if he wishes.
Senator HRUSKA. What other options does the court have at that
time?
Judge NEARER. Basically, the real options are, shall I continue
the defendant on probation because I am satisfied that it was an
unintentional slip, or are there mitigating circumstances that make
it clear to me that there is no good reason for sending the man
to prison? He can continue, or he can say, this was such a grievous
breach of the mandatory condition, I am going to sentence him now.
Senator HRUSIA, Then impose a sentence? Is the arrest of a man
for a crime sufficient to revoke the order of probation?
Judge NEARER. That is a very difficult problem.
I think that an arrest re
uires-the f
t
f
q
ac
o
an arrest can require
he come before the court, and this hearing be held. Of course, in our
district, we constantly adjourn those hearings; for instance, if it
is a State crime, pending the outcome of the State crime.
In other words, we tend to keep him on Federal probation until
we see what the State authorities are going to do. After all, we
cannot interfere with their jurisdiction.
Senator HRUSKA. The thing that has bothered me in further con-
siderations of the sentencing, parole, and probation, is whether or
not the arrest of a man, and a charge leveled against him is sufficient
to revoke the order of probation or parole, or do we really revert to
that old axiom that a man is presumed innocent until he is convicted?
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Judge NEAEIER. I do not think that any of us feel that the mere
fact of an arrest automatically revokes his probation.
Senator IliusKA. You take into consideration all of the circum-
stances-the nature of the charges in a prima facie case and so on?'
Judge NEAIIER. Right.
That would be true even with respect to my suggestion. You
understand that mine is what I call psychological conditioning
basically.
The idea that we now employ when we say to a man, I hereby
sentence you to 2 years, and his face gets white, and then we say
we are going to suspend the sentence and place you on a period of
probation for 3 years, and he walks out of here knowing that 'if he
does violate-which means not merely an arrest-lie is in trouble.
If we later find that he willfully, intentionally violated his probation,
he starts serving his 2 years. That is the point.
Senator HRUSKA. As I understand it, the change that you propose
will take nothing away from the section as it now is, but it does
vest in the court additional discretionary power to fit the case
as the judge sees it.
Judge NEAHER. That is the whole point.
Senator HuuSKA. Thank you very much.
Would you go to your second point?
Judge NEARER. The second point is what I have called an omission
of the present Youth Corrections Act. I only mean that in the
sense that I have examined the bill from stem to stern, and while
I note there are extensive provisions relating to juvenile offenders
up to the age of 18, there is nothing in the bill that I recall that
deals with young offenders, except to the extent that there is a pro-
vision dealing with' the possessor of narcotics. I suppose he could be
of any age; we normally think of young people who are caught
possessing narcotics, and for whom there is a special kind of treat-
ment. That is to say, the court may place him on a period of proba-
tion before accepting a plea of guilty, and if, at the end of the year,
he finds that there is good reason, he may dismiss the charge. And
even if he has been convicted, the record of conviction will be ex-
punged.
These are all elements of the present Youth Corrections Act which.
as I am sure you know Senator, covers two groups of people : 18 to
22, and 23 to 26. The 1S to 22, we call the youthful offender; the 22
to 26, we call the young adult offender.
It is my belief-and I hope you will not hold me to it-that statis-
tics tend to indicate that, by far, the largest proportion of offenders
fall into those ages, 18 to 26. They certainly do in our district, and
it may be nationally.
Under the present title 18, the Youth Corrections Act takes care
of those younger offenders.
Senator IImusxA. It is repealed by S. 1-all of those sections.
Judge NEAIIER. It seems to be.
Senator HRUSILA. Placed instead thereof are sections found in 3601
and following.
Did you consider those sections of S. 1 in connection with your
statement?
Judge NEAIIER. I thought I did, Senator.
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Senator HRUSKA. I find no reference in your statement to section
3603, for example.
Judge NEARER. I do not have the full bill with me. I made Xerox
copies of all the pages that I thought would be pertinent here. If I
could look at 3601 a minute
Senator HRUSKA. I respectfully suggest that you consider it,
because while we did in S. 1 repeal the present Youth Corrections
Act, we placed in the bill sections to which I call your attention,
provisions which we believe are an improvement on the Youth Cor-
rections bill, because there are some blank spots in it as we all
know.
Judge NEAJIFR. I do believe and I now recognize that I did consider.
3601, and I do have the, Xerox copies with me. T;;;O- chapter's dispo-
sition of juvenile offenders-I take it that juvenile, as defined in the
bill, is simply a young person up to the age of 18. Although there is
a provision that indicates that if he has committed the act before
he became 18, lie may still be punished as a juvenile even though up
to the age of 21. Is that not right? That only takes into account-sup-
pose he did it at 18, but he was not picked up for it until he was 19
or 20. Do you punish him as a 19- or a 20-year-old or as a juvenile?
As I read this bill, you punish him as a juvenile, you treat him as
a juvenile.
What I am saying, Senator, is that I do not find the present bill
really covers those two age brackets of crimes committed after the
18th birthday up until the 22d, what we call the young offender
category, or when the crime is committed by a person between the
ages of 22 and 26.
Senator HRUSEA. Thank you for your comment on it.
I wonder if we could do this, Your Honor? We will take note and
we will have taken note of the point that you seek to make. But
may we ask you in turn to consider chapter 36 and give us a written
memorandum as to what, if anything, is found lacking in chapter
36 in view of the points you make in your present statement? Could
we ask you to do that?
Judge NEAHER. Certainly. I will do that.
Senator HImUSKA. Thank you very much.
Judge NEARER. Now I come to the favorite subject over which you
have labored long and hard, appellate review. Let me immediately
assure you, Senator, that I am on your side, with some limitations,
that may place me in opposition-I will not say to the body of
judicial opinion on it-to the report of the Committee on the Admin-
istration of the Criminal Laws of the Judicial Conference of the
United States which views it as not necessary, and probably there are
good reasons for that belief, too.
My only point with respect to appellate review is, I believe, its
primary purpose is to provide for review of what might be called
a harsh or excessive sentence. That is basically what it is aimed at.
Is that not so, Senator?
Senator IIR usmk. I did not quite get that.
Judge NEAHER. I believe that the idea of appellate review is aimed-
at trying to eliminate the harsh or excessive sentence.
Senator HRTJSIcA. That is correct. That is one of its aims. There
are many facets, but that is the thrust of it.
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Judge NATIFn. That is the thrust of it. My feeling is, as a matter
of practicality and common sense, I find it difficult to believe that
sentences lower than 5 years could ever be conceived of as 'harsh or
excessive, although all things are relative. That I understand. In
view of what I believe would be a tremendous burden on appellate
courts, I think there ought to be a somewhat higher limitation than
presently exists because it should not go down, I believe, to a felony
which could be punished by 1 year and 1 day, in other words, a
sentence of 1 year, 1 day.
Senator HRUSICA. Let me give you this hypothetical situation. Let
us take the forgery of a Government check, for example a welfare
check. Suppose there develops in a given court a judge who thinks
why should we waste too much time on things like this. Let us see
what the charge is. If it is the forgery of a araft or check and the
sentence is 18 months, come hell or high water the sentence is 18
months.
Along comes a man, and he has been a diligent and honest citizen.
He runs out of his worldly means, his job and any income what-
soever. Ile has eight kids at home that are very, very hungry and
for the first time in his life he does something wrong because he felt
that the laws of the country could be violated just this once so he
could feed his kids.
That judge, when the man is brought before him, says, "Sorry
mister, I have a system here where I give 18 months to anybody
and everybody." The man will then say, "Yes, but I have a job and
I am sorry, and I did it under these circumstances." Yet the judge
will say sorry, there is a pattern. Under the present system there is
no way that sentence can be appealed and reviewed.
Do you want it reviewed, or do you not?
Judge NEARER. I respectfully differ, if I may take advantage of'
your statement of the facts.
If the judge did say I do not care about all these other factors,
factors,
I have a rule here, anyone who steals or forges or utters a govern-
ment check is going to get 18 months. Our second circuit has already
held that that is the type of sentence they review as a matter of law.
As a matter of law it is improper for a sentencing judge to adopt his
own arbitrary rule of sentence for a given type of case, because
the rule of sentencing is that you must take into account the in-
dividual factors. You cannot say, as some judges did, I know, every
draft evader gets 2 years, period.
Senator HRRUSKA. That was the case in the eighth circuit, where
there developed a kind of a pattern for draft evasion cases, and it
created a great deal of difficulty. The circuit court did deal with it,
and very effectively.
That is one type of case that would be easier to meet than the
other point that I seek to make.
Judge NFAIIFR. I understand that does not answer all the objec-
tions you raised. I in simply pointing out that considering the facts,
wh.at would open up here is this, I suppose 90 percent of our criminal
cases, somewhere between 80 and 90 percent anyway, of our criminal
cases, are plea cases-so that the only litigated issue then, is the
sentence that was imposed.
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Of course, at the present time, seeing the statistics of appellate
court caseloads. both civil and criminal, a tremendous burden would
be thrown on the courts of appeal.
Senator HRUaKA. Should we ration justice?
Judge NEAIIEii. I am not. suggesting that.. Touche, Senator.
Senator IlrUSKA. This is the only phase of our judicial process'
which is not subject to review. In fact., we are the only civilized
Nation that does not extend review-not preview, review-of the
amount of the sentence, and that is kind of hard for some of us
to accept.
Judge NE1II1;It. I understand that. Senator. That is why I am
on your side on the basic principle of appellate review. My point is,
I indicated, the more practical one of how do we deal with what will
probably turn out to be an m itoinatic appeal in practically every
case? I Vwould say there is not a
convicted defendant who does not
feel, perhaps, that he did get a raw deal, even though it is the right
deal. That is somewhat of a problem in a district, or indeed in a
circuit such as ours, in the second circuit., where we have such a
tremendous criminal caseload. As I pointed out, we alone in the
eastern district, as of the latest statistics, have over 1,000 pending
criminal cases, more than even our gigantic neighbor the southern
district of New York has.
Now, of course it does not affect the district }ridges. I am thinking
of the appellate judges there, who are thoroughly overburdened.
Senator IIRUsKA. It is felt that as this proceeding would develop,
and with the passage of time the courts would develop an attitude
toward it and a way of dealing with it and reducing it to practical-
ity in a very workable form. If there is such a flow of appeals that
are purely dilatory and without substance, the kind that we find
reaching the Supreme Court, for example, in terms of thousands per
year-just as a matter of form you apply for a writ of certiorari-if
that would develop, the Congress is still going to be in business
presumably, and they can say all right, it will apply to those 2
years or more, 3 years or more. But we would like, some of us would
very much like to overcome the backward status of this Nation, the
only civilized country in the world that grants an appeal on every
case other than this.
We respect each other's positions. I respect you for yours.
Judge NEAHEri. You have won me over on the question of appellate
review.
I believe that covers my three practical points,: and I shall take
another look at chapter 36, on the question of the Youth Corrections
Act, and perhaps state my views in an additional letter to you or
counsel if I have any different views.
[The prepared statement of IIon. Edward R. Neaher follows:]
PREPARED STATEMENT OF EDWARD R. NE;3HER
I thank the Subcommittee for this opportunity to comment upon the sen-
tencing provisions of the Bill S. 1, which proposes to codify, revise and reform
Title 18 of the United States Code. Although I am a member of the Second uit
ommi
e on
the myce nCI haveehowe er, d scu sed tractic hemewi. h mylcolleagues onstheareBeeut
the Eastern District, and my views reflect that discussion. It might be appro-
priate to note in this connection that the Eastern District of New York, as
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of the time of the 1970 census, embraced a population inexcess of 71/z million
people. That number has undoubtedly increased in the past five years. This
large and growing population inevitably contributes to the substantial in-
crease in the filing of criminal cases in our district. According to the latest
report.of the Director of the Administrative Office of the United States Courts,
released at the March 1975 meeting of the Judicial Conference of the United
States, the Eastern District of New York was third in the nation in criminal
cases pending December 31, 1974. The first and second were respectively the
Southern and Central Districts of California. The judges of our district there-
fore do have considerable practical experience in sentencing. My comments
grow out of that experience and are focused upon the three points which
follow.
1. SUSPENSION OR DELAY OF ExECUTION OF SENTENCE
Section 2104(a) provides that a term of probation commences on the day
it is imposed "unless otherwise ordered." The last clause recognizes the tra-
ditional power exercised by sentencing courts to suspend or delay the execu-
tion of a sentence. There appears to be-no comparable expression of the court's
authority in Chapter 23, which provides for terms of imprisonment. While
?2305(a) states the time when a sentence to a term of imprisonment com-
mences, it does so only in terms of the date the defendant is received in
custody. Ordinarily, a defendant IS required to. surrender immediately after
sentence to the custody, of the United States Marshal for transportation to
prison unless he is continued on bail pending an- appeal or surrender is stayed
for other reasons.
Under present practice, the court may delay the date of surrender for
reasons which require such consideration, such as illness in the defendant's
family, an impending wedding of a son or daughter, or other humane con-
siderations. While it may not be the intention of S. 1 to interfere with the
court's discretion in this regard, I note that the Probation Committee of the
Judicial Conference of the United States recommended that a prior version of
S. 1 be redrafted "to provide that the court may suspend or delay the execu-
tion of a sentence to imprisonment." I am in. accord with that suggestion and
recommend that ? 2305(a) be revised in parallel with ? 2104(a), relating to
probation.
There is an additional reason for continuing such authority in sentencing
courts, even when a defendant is placed on probation. I recognize that S. 1
adopts the basic proposal of the National Commission. that probation be treated
as a sentencing alternative rather than as. the "suspension" of some other
sentence. I am in strong accord with that philosophy. But I reflect the views
of my fellow judges in the Eastern District who believe there are times
when the threat of a suspended specfic term of imprisonment hanging over the
head of a defendant, in the event he violates a condition of his probation,
is a strong deterrent to his straying from the path of good conduct. Not
infrequently, therefore, sentences in our district specify that the defendant
shall be sentenced to a term of years of imprisonment, execution of the sen-
tence to be suspended during a period of probation.
I understand that the National Commission urges that judges first con-
sider probation as a positive sentencing alternative before thinking about
imprisonment. The treatment of sentencing in S. 1 certainly reflects this, and
as I have indicated, I am in strong accord with that idea. But I believe
that approach will not be subverted by permitting judges to continue the
present practice, even when they impose a sentence of probation.
I note that under ? 2103 (a) it is provided that the court impose as a manda-
tory condition the requirement that the defendant not commit another federal,
State or local crime during the period of probation. I believe that condition
will have more meaningful effect if coupled with a specific term of im-
prisonment to take effect if the defendant violates such a condition. I recom-
mend, therefore, that ?2103(a) be amended to provide that the court may
also provide that a specified term of imprisonment shall take effect upon the
violation of the mandatory condition. This, of course, is not intended to dis-
pense with the revocation hearing provided in ?2105. As I have indicated, it
is simply an attempt to provide a probated defendant with an additional in-
centive to keep out of trouble.
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2. OMISSION OF YOUTH CORRECTION ACT
Present Title 18, United States Code, contains in Chapter 402 the provisions
of the Federal Youth Correction Act, ??5006, et seq. Sentencing of youthful
offenders and young adult offenders under that Act is a frequent occurrence
in our district. Youthful offenders range in age from 18 to 22; young adult
offenders from 22 to 26 years old. There are statistics showing that those two
age groups account for a large, if not the major percentage of crime com-
mitted in our district and State, and quite possibly in the nation as a whole.
The purpose of the Youth Correction Act, as I have no doubt you are well
aware, was to provide a special kind of correctional treatment for offenders
in those age categories. Where it was felt that incarceration was necessary,
special youth correction centers have been provided to insure that contact
with older, hardened offenders would be, avoided. Moreover, a young defend-
ant sentenced under that Act, whether to commitment or probation, could look
forward to the possibility that if he successfully completed the program, he
-could apply for a certificate which would automatically erase his conviction.
I note that the Youth Correction Act provisions are not.part of S. 1. I
'understand that this resulted from the view of the National Commission
that such provisions were unnecessary, since the sentencing court would be
empowered to recommend that a young offender be committed to special fa-
,,,ell-ities to be maintained by the Bureau of Prisons. The National Commission
In its proposed Federal Code, however, made specific provision in ?3203 for
youth offenders, which it specified as those under the age of 22 at the time of
conviction. I find no equivalent provision in S. 1. 'Moreover, d note that the
Probation Committee of the United States Judicial Conference recommended
that the 22-year age limit of the National Commission be changed to 2$6 years,
which conforms to, the present Youth Correction Act provision for "young
adult offenders."
S. 1? contains a complete section on the treatment of juvenile offenders
under the age of 18. It also provides in ?3808 for the expungement of criminal
conviction records in the case of persons who have been found guilty of pos-
sessing drugs. There are no comparable provisions for those between the ages
of 18 and 22 in S. 1. I have sentenced many youthful and young adult offenders
who have been involved in the importation of drugs. Many of them had had
no prior criminal record and it would appear that while on trips abroad
=they acted inpulsively in stuffing marijuana or hashish into their suitcases
when they were returning to the United States. Yet they had to be charged
with a felony. When such convicted persons have successfully completed a
period of correctional treatment, it would seem to me tragic: to have them
stigmatized for the rest of their lives by a criminal record acquired under
such circumstances. I therefore recommend that the Committee consider. some
form of special treatment for young offenders and for espungement of records
ujfon?successful completion as provided in the present Youth Correction Act.
3.: APPELLATE naXIEw OF SENTENCES
.. Section 200.5 of S. 1 provides for appellate review of sentences Imposed by
the district courts. I have no doubt the Committee is aware of the divergence
of opinion among judges, both trial and appellate, as to the 'need or desira-
bility of such review.
In our Eastern District, we have what I call a. form of pre-review of sen-
tehces 'before they are .imposed. I refer to. our sentencing' panel procedure,
sometimes called "collegial sentencing." Briefly described, the sentencing judge
,its down with two fellow judges designated to act as conferring judges for
a particular month. The three judges review the same presentence report and
the two conferring judges each fill out a form stating their respective recom-
mended sentence. At the time of the panel conference, the three judges dis-
cuss the recommendations and the sentencing judge considers them prior to
the imposition of sentence. Of course, the conferring judges, do not see the
defendant and have no opportunity to hear what he may have to say in mniti-
gation of sentence or otherwise at the time it is imposed.
_ . ;The chief advantage of the collegial method is that the resulting sentence
inevitably has to take into account the views of the two other judges as to
an appropriate sentence. A study of the results of such conferences over an
extended period of time was made by the Federal Judicial Center. It was the
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conclusion of that study that in approximately 60% of the sentences imposed,
there was substantial uniformity on the type of sentence imposed. Of course,
that means that in 40%there probably was disparity, or to put it another
way, lack of uniformity. Nonetheless, as Dean. Goldstein of the Yale Law
School recently noted at our Second Circuit Sentencing Institute two years
ago, excesses are minimized and judges tend to reduce the extremes of their
sentencing disparities by collegial sentencing.
To return to appellate review as provided for in S. 1, I would readily
acknowledge that sentence preview is not the same as sentence review.
Obviously; there are many districts in the United States where it would be
impossible to assemble three judges to sit down and discuss some sentence.
I am in favor of appellate review to insure a means of correcting excessive
sentences but am in accord with the suggestion made by the Committee on
the Administration of the Criminal Law of the United States Judicial Con-
ference. The leading point in that suggestion is that three years imprisonment
be the minimum appealable sentence. As I read S. 1, in the form in which it
carne to me, an appeal would be permitted for a prison sentence of one year
and a day. While all things are relative, I cannot view such a sentence so
extreme as to require appellate review. I would respectfully urge the three
year limitation recommended by the Judicial Conference Committee.
Senator IIRUSIIA. Returning to sentencing, as one does say that in
order to be appealable, that is subject to review, the sentence must
be at least one-fifth of . the., maximum. before review is in . order. If
it is less than that, then there is no condition. So there is some pro-
tection there. It was for that purpose.
I would like-to keep down the volume if it threatens to be,over-
whelming. That is insetted for that purpose.
Thank you very much -for coming, Your IIonor.
Judge NEATIER I appreciate the. opportunity.
Senator Illtusic.. - Our next witness is. also one who has appeared
before us before, Jack C. Landau. Ile is with the Reporters' C.om-
mittee_ Ior Freedom ,of the -Press. Ills byline is well known in: larger
,circles. We welcome you once again for coming before us.
Mr. LANDAU. We have a rather: long statement that we. have sub-
mitted for the record.. Senator. IlnusKA. We have your statement and it will be printed
in the record. I know it is going to be useful because your`.previous
analysis was very good, historically, as ,well as, for current applica-
tioli. Can you liiglinght.it for us?, We have .a meeting of the full
committee at 10:30, so we are going to have to hurry along here. We
want you to have plenty of chance.
STATEMENT OF JACK C. `LANDAU, REPORTERS CO~IMITTEE FOR
FREEDOM OF THE PRESS
Mr. LANDAU. I would like to point out that Mr. Fred Graham
and I, who worked on this, both wanted to appear, but Mt. Graham
is covering the Connally trial and, tiufortunately, for this appear-
ance, the judge is giving his directions to the jury right now, so Mr.
(raham was not able to come.
I think, Senator, we are back this year with the same complaints
we.made'to you last year that S. 1 is not substantially different than
S. 1400, but if it is put. into law in its current form, it is going to
severely restrict the current ability of the public to learn, out
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Government policymaking decisions, Government reports, and even
Government crime by establishing these new types of criminal cen-
sorship.
Of course, we are most concerned specifically with the receiving
of stolen property, theft, and fraud provisions that automatically
make a news reporter criminally liable for obtaining or publishing
any Government information without the official approval of the
Government.
The second provision is one
Mr. ROTHSTEIN. Excuse me, could you identify the sections?
Mr. LANDAU. Yes. One would be the net that was- established by
sections ' 1301, 1731, 1733, 1734, and 1523.
Senator IIRUSKA. May I suggest that you said "any disclosure of
information ;" that is not what section 1301 says. Read the language
of the first sentence.
Mn LANDAU. Yes, sir. "A person is guilty of an offense if he
intentionally obstructs, impairs, or perverts a Government function
by defrauding the Government in any manner."
.Senator HRUSxA. That is far from "any information." It has to be
something that- defrauds the Government, and it has to obstruct or
impair the Government. Do we want Government; employees to pro-
ceed with anything and everything they want to do, including de-
frauding our Government, obstructing and impairing Government
functions ?
We thought the committee touched a good nerve here.
Mr. LANDAU. Well, sir, in the Ellsberg prosecution, as you may
remember, Mr. Ellsberg was indicted on charges of defrauding the
Government, which was basically the same.
Senator HRUSKA. There was no statute to cover that, so he was left
free.
Mr.- LANDAU. I believe he was left free because of that incident.
Senator HRUSKA. There was another reason why he went free, but
there is no statute now that is comparable to section 1301.
Mr. LANDAU. He was indicted under a fraud statute, and let me
read to you the Government's trial brief in the Ellsberg case. This
is from the Justice Department trial brief in the Ellsberg case:
Both the documents-that is the Pentagon papers-and their contents are the
property of the United States and remain its property until they are released by
the Government. The content of such documents is itself Government property
apart from the Government's ownership of the sheets of paper. To be convicted
of receiving stolen property it only need be shown that the defendant obtained
Possession of or some measure of control over the property.
They alleged in the indictment, the fraud section of the indict-
ment-unfortunately, I did not bring the whole indictment with
me-that he defrauded the Government out of its powers to control
the release of this information, and this is a very old line of cases
that go all the way back to Haas v. Ilinke.' Mr. )-lass was indicted
in 1910 for defrauding the Government of its power to release this
information. This is not a new concept that the Justice Department
has come up with. We find it incorporated here in such a way that it
authorizes a blanket prosecution anytime the Government decides-
to waive its clause by saying to the newspaper, that is our infor-
1216 U.B. 462 (1910).
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ination and you cannot publish it without. our approval. You are
defrauding is of our rights to release Government information.
Senator HRUSicA. You indicated that there are other sections be
sides 1301 bearing on this point. If so, what are they?
Mr. LANDAU. 1731 is a theft provision that incorporates this same
doctrine. You are receiving our property that was taken from us
without authorization.
Senator IIRUSIKA. Our property that defrauds us?
Mr. LANDAU. That is right, the Government. Receiving stolen
property is in the same concept. You are receiving property that
has been taken from us without authorization.
Senator HRUSKA. What other section are you referring to?
Mr. LANDAU. That is section 1733, sir.
Senator IIRUSKA. You take exception to that because of its un-
limited scope, is that correct?
Mr. LANDAU. Yes, sir. We take exception to it because the entire
thrust of the Ellsberg prosection rests on the assumption that this
is Government property, and the definition of Government property
in the new act, in S. 1, while it has been changed a little bit from
S. 1400, still permits a prosecution for Government property without
any monetary value. That is clearly designed to be information, sir.
Senator HRUSIiA. In order to make this colloquy meaningful, let
the record show at this point the text of S. 1, section 1733, entitled,
"Receiving Stolen Property," and subsections (a) and (b) of that
section.
[The information referred to follows:]
SECTION 1733. RECEIVING STOLEN PROPERTY
(a.) Offense.-A. person is guilty of an offense if he buys, receives, possesses,
or obtains control of property of another that has been stolen.
(b) Affirmative Defense.-It is an affirmative defense to a prosecution under
this section that the defendant bought, received, possessed, or obtained con-
trol of the property with intent to report the matter to an appropriate law
enforcement officer or to the owner of the property.
Senator HRUSICA. Very well, what other section have you had in
mind?
Mr. LANDAU. The six sections that I cited to you are, sir, the sec-
tions which would recodify the law in such a way as to permit
the Government under various provisions, fraud, theft, receiving
stolen property, executing fraudulent scheme, and the new provision,
intercepting correspondence, which would permit the Government
to prosecute a newspaper reporter for receiving Government infor-
mation right on its face.
Senator IIRUSKA. Their is another section, however
Mr. LANDAU. We know what it was designed to do; obviously,
it was designed to stop people from receiving stolen jeeps and other
tangible Government property of some value to the Government,
but we have to live with a document the Justice Department has
evolved in the Ellsberg case, which it has not repudiated, as far as we
know, and that doctrine is that the Government owns its own
information, therefore, may prosecute people for obtaining it.
Senator IIRUSKA. Of course, there is a more specific section on
the subject, section 1124, where the offense is-and I will let the record
show the text of section 1124, subsection (a).
54-395-75--2
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[The information referred to followsJ
SECTION 1124, DISCLOSING CLASSIFIED INFORMATION
(a) Offense.-A person is guilty of an offense, if, being or having been in
authorized possession or control of classified information, or having obtained
such information as a result of his being or having been a federal public
servant, he communicates such information to a person who is not authorized
to receive it.
Senator HRUSKA. There the penalty is visited upon the person who
communicates the information of the defined nature to a person
who was not authorized to receive it, but the person who receives
it is not within that function.
Mr. LANDAU. That is the second area, that is the national security
area, and I believe that that section also permits a blanket criminal
prosecution for receiving national security
Senator HRUSKA. You would have to point to the exact language
on that point because that is not my recollection of it, and I par-
ticipated in writing the section.
Mr. LANDAU. Perhaps, we can discuss that, sir, for a moment: "A
person is guilty of an offense if, knowing that national defense
information may be used to the prejudice or safety or interest of
the United States
Senator HRUSKA. What section is that?
Mr. LANDAU. Section 1122; "or to the advanta
e of
f
i
g
a
ore
gn
power, he communicates such information to a person he knows is
not authorized to receive it." Therefore, a news reporter may be
prosecuted for publishing national defense information if he reason-
ably knows that the information may be used. to the prejudice of the
United States .orto the advantage of a foreign power. I think that
it" is fairly well; known in relations between the United States and
hostile, powers, sir, that virtually any information from the State
Department or Defense Department that,, is embarrassing to the
United States Politically will certainly be used by a foreign power in
such a way which is prejudicial to the interests of the United States.
Senator HRUSI \. Section 1122, the text can appear also -at. this
point in the record.
[The infoxniation referred to follows:]
SECTION 1122. DISCLOSING NATIONAL DEFENSE INFORMATION
(a) Offense.-A person is guilty of an offense if, knowing that national de-
fense information could be used to the prejudice of the safety or interest of
The ITnited States, or to the advantage of a foreign Power, he communicates
ueh information to a person who he knows is not authorized to receive it.
Senator HRUSKA. Two points can be made. Item one : violation of
that subsection is only against the person who discloses the informa-
tion. Item two: it relates to national defense information. Since the
first duty of a nation is to survive, we do not like to see national
defense information broadcast indiscriminately; freely and fully. We
like to define what national defense information is and keep it classi-
fied. We believe that is a pretty good section.
Mr. 'LANDAU. Well, sir, as to your first point. '"Then a newspaper
Publishes the information, it is disclosing. This is not, directed at
just the Government employee. There is no limitation in section
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1122 on just a Government employee. It says, person, he is guilty.
Second, on the definition of national security, sir, the definition in
the statute is:
* * * military capability of the United States or an associated nation, mili-
tary planning or operations of the United States, military communications of
the United States, military installations of the United States, military weap-
onry, weaponry development, or weaponry research of the United States,
intelligence operations activities, plans, estimates, analyses, sources, or methods
of the United States, intelligence with regard to a foreign power.
As Senator I-Iart pointed out to Mr. Maroney in last year's hear-
ing, sir, there is not a story that appears in a newspaper any day
out of the Defense Department nor State Department that would not
fall under this definition.
Senator ITuusic.A. I just consulted the staff here, and I -am informed
that.it is a virtual repetition of what we have now in the present
statutes, together which some modification which were drafted into
it as a result of Supreme Court decisions. We would like to stand by
that, because the burden is certainly on those who challenge it
to show us that it has not served us well.
Mr. LANDAU. Under the existing espionage statute, which is the
one I think that staff may be referring to, "it is a crime to obtain
defense information with intent or reason to believe that the infor-
mation'is to be used to the injury of the United States."
Senator IlRUSKA. In the present statute?
Mr. LANDAU. You must intend to injure the United States. You
must intend to aid a foreign power. There is no intent in the
new statute. It says, "may be used to the prejudice." Therefore, for
example, when the New York Times published the Pentagon papers,
the Justice Department could not have said at that point that the
?New York Times intended to harm the United States. The, ;New
.York Times thought it was helping the United, States by publish-
ing that information. But under the existing statute, all the Jus-
tice Department has to show is that some third party will use .that
-information in a way that is prejudicial to the United States.
Senator HIWSKA. What number did you say that section} was?
Mr: LANDAU. You asked me to compare the existing. statute, 18
IT S.C. 793, which is the existing espionage statute, with the, recodi-
lication proposal.in S-1, sir.
Senator I.lnusx.n. That is the one oriented to intent?
Mr. LANDAU. Yes. S-1 would eliminate the intent to injure, and
.replace it with very vague language which says, "may be used to. the
.-prejudice of."
Senator 1IruSHA. Section 1122, of course, reads this way: ' A per-
.:son is guilty of in offense if, knowing that the information may be
used to the prejudice or safety" of the country-knowing is. sub-
stituted for intent. We will make note, however, of your point, and
we will recanvass it..
Mr. LANDAU. As I say, I think there is a clear difference between
.publishing something that you think may help the public of the
United States to know about it, on the. one hand, and not .intending
to harm the United Stiates, which is under the current statute. But
.on-the other hand, publishing something where you reasonably know
that some foreign power is, going to use it for political purposes
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to injure the United States, and it is not an offense that you in-
tended to harm the national interest.
Senator HRuSKA. The reason that we put knowing in S-1, is that
the present statute does not say with intent to be used to the injury
of the United States. What it says in its full text is this : "that it
will be used with intent or reason to believe that the information is
to be used to the injury of the United States." We eliminated in-
tent, but put reason to believe in its place. I believe that if somebody,
as a newspaper reporter or as a citizen, would want to put it in the
newspaper or on a billboard, that they have broken the Code of the
United States-and here is the key to it-by publishing that. There
is reason to believe, in the mind of any reasonable person, that that
is done with injury to the public interest. It is that kind of a thing
that we get into.
Mr. LANDAU. Now, sir, I believe you referred earlier to section
1124, which does have the exculpatory provision in it.
Senator IIrzusaA. I was reading from section 793, that applies to
national defense. That is right.
Mr. LANDAU. There is section 1123, which follows in this section,
which says :
A person is guilty of an offense if, being in unauthorized possession or
control of national defense information, he engages in conduct that causes
its communication to another person, who is not authorized to receive it,
or fails to deliver it promptly to a proper Federal official, who is entitled
to receive it.
Here we have one more step down the line. Here there is not even
the maybe prejudiced to the interest of the United States.
Senator HRUSKA. That is right.. To whom is it directed? Is it di-
rected to the newspaper, or to the disloyal?
Mr. LANDAU. 1123 is directed to ever y person. A person is guilty of
an offense if, being in an unauthorized possession or control of na-
tional defense information * * * -11r. Hirsh, for example, on the
CIA- . . . he engages in conduct that causes its communication to
another person. In our language, lie publishes it. Or, he fails to de-
liver it promptly-I assume there they even ask for his notes, and
say, give us back our information. There is not any exculpatory
provision in 1123. There is in 1124.
Senator HxusKA. Very well. Your point is noted, and again, we
will recanvass that. We thank you for your suggestion.
Mr. LANDAU. Would it be improper, Senator, to suggest perhaps
that Congress, in some way in this legislation, not permit any crimi-
nal prosecution against the news media for obtaining government in-
formation, unless they conform to what is the existing doctrine in
Near v. Minnesota., and the Pentagon Papers case; that there be a
clear and present danger, or a direct, immediate or irrevocable
danger of national security. I think that most .people would agree
that the criminal law is, as a deterrent, as much of a prior restraint
as an actual injunction, and it would seem to us extremely reason-
able if the Congress would consider conforming the criminal pro-
visions, which are available under this law against the news media,
to the Near doctrine; and just ray quite simply that you cennot
prosecute a newspaper reporter for republishing 'Vove.rnment infor-
mation, unless it poses a clear and present danger to the national
security, rather than this almost libel law that says whole cate-
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gories of information are automatically subject to the criminal.prose-
cution without any evidentiary showing whatsoever that it is going
to cause any danger to the national security.
Senator IIRLSiin. Very well. What is your next point?
Mr. LANDAU. I only have one final comment. We do think that the
law does also add some rather new penalties against government
officials, government employees, who want to give information to
the press, especially information which might indicate that the
government itself is breaking the laws of Congress and the Consti-
tution. There are, ,is you know, several new provisions in the bill
which impose penalties on Government employees for giving out,
without Government authority, Government information. But there
appears to be no interest so far in the bill in trying to encourage
and protect conscientious Government employees who come to the
press and say, the Government is breaking the law.
Senator HruslA. Mr. Landau, that is not quite true, is it, if we
consider the provisions for administrative channels through which
challenges are not only admissible, but which are actually encouraged.
But if an employee of the Government sees something that he, in
his judgment, thinks is irregular or dishonest or unlawful, the re-
course is not to break his pledge and his loyalty to his Government.
It is to express his loyalty to his Government, and that is not to
go to the newspapers and make charges that will be very irre-
sponsible coming from someone on the inside, would be given great
circulation and credibility when they should not. There are ways
that he can appeal, and he can make his complaints known to his,
superior. If his immediate superior is involved, he can complain to
the superior's superior, and when a judgment is made by the head
of that agency, it then can be appealed to the Interagency Appellate
Council. And is that not the way to go about it, instead of allowing
someone, who is probably not well equipped to judge what is wrong,
illegal or corrupt-is that not a better way to do it, running it
through the hands of the people who are in a better position to
judge, and who can give it a degree of objectivity which a dis-
gruntled employee perhaps would not be able to do?
It was the judgment of the committee, and also of those who have
been in this work for a long time, that that is a better way of doing
it than having that moment of glory when his name will be on the
front page at least once. And is it not a great injustice and hardship
on those who are not guilty, inasmuch as this administrative pro-
cedure has been developed, and can work well and is working well,
that was established first by administrative order, and now we seek
to put it in the statute? What comment would you have on that?
Mr. LANDAU. Well, sir, we have not had much experience with it.
I suppose I can only talk from any past experience to- say that this
appellate intergovernmental review board did not disclose to us that
the CIA may have been illegally monitoring people domestically.
But the newspapers did it. This Appellate Council did not dis-
close to us the Watergate corruption, but the press did. This Ap-
pellate Council did not disclose to us the My Lai massacre. The
press did. I think we may be somewhat cynical about the efficacy of
Government sitting in judgment on itself to decide what the pub-
lie should know, when it involves the Government committing.
crimes, sir.
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Senator HRUSKA. On that point, you speak of the efficacy of pro-
cedures where the Government speaks on the Government. The Gov-
ernment is not monolithic. It is not a person. There are many per-
sons involved. There are many dedicated public servants who have
devoted their life to their job. Let us not be too anxious to say,
Government upon Government, because it is from individual to indi-
vidual, and they are charged with semijudicial and semiadministra-
tive responsibilities. What is the alternative to say, Government
against Government, Government upon Government, and therefore
inefficacy? What is the alternative--to put it on the front page of
a paper, at the instance of some employee ill equipped to judge
the illegality or the corruptness of something, because he probably
has supervision of a small segment thereof. Yet the employee uni-
laterally judges something as corrupt and therefore a number of
Government official who may be charged with corruption on the
front page of the paper on something perfectly groundless. And
that is not efficacy either.
Mr. LANDAU. You are referring mainly to the, provisions, I gather,
1123 and 1124?
Senator HRUSKA. Subsection (c), that is correct.
Mr. LANDAU. That provide for a government official to seek de-
classification of national security information- he wants released.
But I think that it may be somewhat unrealistio to take a govern-
ment official-and I agree with you that they are hard-working and
dedicated-who see classified information which is going to em-
barrass his agency head; I find it hard to believe that tile' average
government employee is going to risk his job security by saying to
the Director of the CIA, I want declassified the information that
you are illegally monitoring the citizens of this country. I find that
highly unrealistic. He is not going to risk his career to publicly
fight for declassification of something that might embarrass a Cabi-
net officer.
Senator HRUSKKA. On the declassification, there are standards and
provisions for it, and we have to take it as it goes. We cannot say,
let us discard it. Declassification is abused, therefore we will abolish
it. That is essentially the position that you advance, and I do not
think you will find aeception of that concept..
Mr. LANDAU. Could we turn to section 1524? That does not involve
security. That merely says-
A person is guilty of an offense if in violation of a specific duty imposed
upon him as a public servant, or a former public servant, or by a regula-
tion, rule or order issued pursuant thereto, he disclosed this information to
which. he has had access only in his capacity as a public servant that had.
been provided to the government by another person other than a public serv-
ant acting in his official capacity.
'Now, it seems to me that first provision, unless T misread it, really
says to every government official, any information that yon obtain
in your official capacity, you shall not release, or you will be prose-
cuted. There is nothing about classified information, there is noth-
ing about national security information. The conscientious govern-
ment official in the Department of Health, Education, and Welfare,
or in the White House, or in the Treasury, who wants to give to a
newspaper reporter information that his boss ma.v be breaking the
law, or that the Treasury Department or IIEW is violating secretly
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its own public policy statements, is immediately prosecutable. I
think, sir, that the Congress would want to encourage government
officials to come forward with information which, at least, reason
ably
Senator HRUSKA. They. do, indeed. But they do not encourage
them to walk to the editorial rooms of media, radio, or TV, to do-
it. They have channels which are established. They are well-defined.
They are as objective as you can get until you go to court. But
you can go to court under these procedures. That is the point of
these things. If the alternative is to do away with these classifi-
cations, give any employee, any official, the right to disclose any-
thing on the grounds that he thinks it is corrupt and dishonest,
and is possibly embarrassing but should be disclosed, then you do
away with classification. Or are you prepared to say we should doa
away with it?
Mr. LANDAU. I am not talking about the classification statute. I
am talking about 1524.
Senator HRUSKA. You are reading from 1524, are you not?
Mr. LANDAU. Have I misread it? That has no national security limi-
tation in it, does it?
Mr. ROTHSTEIN. That provision originates with title 18, section
1905. I would like you to discuss the differences.
Mr. LANDAU. I do not think I have prepared it.
Mr. SuMI4MITT. There is a possibility that it is broader in some
respects and narrower in some respects; 1524, is not new. It was in
the October committee print because we got a complaint from one
of the agencies that we repealed 1905.
Mr. LANDAU. I think I know what you are talking about. It is my
understanding-perhaps I am wrong-that this was the trade secret
provision that was put into the act when, the old Commerce Depart-
ment started investigating consumer problems in the . late 1940's,.
and one of the great problems the private companies had was that
they did not want to give the government trade secrets, because they
thought that they might be released, so they made it a crime to.
release these trade secrets.
Senator Hruska, is that not the derivation of it, sir? I do not
think this. provision relates here, as this provision does, to confi-.
dential statistical data, sources of income, profits, losses, expendi-
tures, which is drawn in the current law for trade secrets. This
is just a flat prohibition on any information or any type whatsoever
given to the government in its official capacity, sir.
Senator IIRZTSKA. When you say it is a flat prohibition, to what
section are you referring?
Mr. LANDAU. Section, 1524, sir. S. 1, 1524.
Senator IIRUSKA. That relates only to public servants or former
public servants that are governed by statute. What is wrong with
that-if an employee has statistics in his possession as any employee;
or as a former. employee if the statute say that this is confidential,
are you going to say that an employee should have the right to go.
over and above that statute? ,
Mr. LANDAU. All I am saying, sir, is that the existing law to:
which your aide referred is limited to the trade secret question.
It was specifically put in to encourage companies to give their trade
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20
secrets to government, so the government could monitor the quality
of their product; 1524 is substantially broader and just says a person
is guilty if he discloses information to which he has had access only
in his capacity as a public servant.
Senator IIRUSKA. Information not authorized by law-you ought
to read the whole thing-not authorized by law for disclosure.
Mr. LANDAU. Are you suggesting then that unless there is a speci-
fic statute prohibiting disclosure that government officials are free
to release all government information?
Senator HRUSKA. No, I am not. You were trying to paraphrase
and discuss section 1905, and 1905 does not refer to everything, any
information. It says to the extent not authorized by law, any in-
formation coming to him by reason of his employment.
Mr. LANDAU. The way I read it, by statute, regulation, or rule, or
order. I believe that most Federal agencies have regulations or rules
that say you may not disclose information without the approval of
the Secretary or a superior. If we perhaps could rely on Congress
to specify, that would be one thing, but Congress is delegating to
the Secretary of every Cabinet department the power to say what
information may not be released, and a corollary that the govern-
ment employee is automatically prosecutable for releasing the in-
formation.
Mr. SUMMITT. Do you not have to read into it the condition on
page 117, lines 3, 4, and 5? This is very narrowly drafted. If it is
too broad, if you want to drop the reference to regulations, something
like that, that is one thing. But there is all kind of information
coming to government possession that it is important to protect for
a lot of reasons.
Senator HRUSKA. Mr. Landau, you have made several very good
points here, and the record will furnish us with the list of them, and
we will go back and forth among these sections to see where, and I
believe you will find in some instances the new draft will tighten
it up a good deal and overcome some of the objections in the pres-
ent law.
Mr. LANDAU. May I snake one more point, Senator?
Senator IIRUSrcA. If you have, as a result of any of the discussion
this morning, any additional thoughts or citations you would like
to furnish us, we would be glad to receive them. That is why we
have these hearings, and we are glad you spent so much time as you
did preparing for them and for also coming here.
So if you can do that, we would appreciate it very much.
The full committee does have a meeting, and I am called into
executive session.
Mr. LANDAU. May I just take 1 minute more of your time, sir?
Senator I3RUSXA. Surely.
Mr. LANDAU. To bring your attention to something which I think
is disturbing perhaps since Watergate and perhaps you might concur.
That is, we would wonder whether this committee might consider
giving some type of attention to including some type of proof by
government law, which would clearly make it a Federal crime for
any employee of the government to knowingly or recklessly make
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public statements which are false or which contain substantial' mis-
representation of fact, including omissions of important facts.
There is substantial case law for this proposition, starting back
with Hass v. flinckel, which is a 1910 prosecution against a govern-
ment official for giving false information.
The recent Campaign Reform Act, as you know, has a new pro-
vision which I believe makes it a crime to place an advertisement
which misrepresents the voting record of your opponent, and the
recent indictment against Governor Kerner, I believe, accuses him
of defrauding the people of Illinois by giving out false information
in office.
In addition, there is also the current provision in section 1001 of
the current code that makes it a crime for any person to willfully
falsify, conceal, or cover up by any trick, scheme, or device all ma-
terial facts which is in the jurisdiction of a government department.
More importantly, Senator, a great many reporters feel that
Watergate has shown that the press is enormously vulnerable and
the readers are enormously vulnerable to intentional lying by the
government, the kind of lies that cause people to give money to po-
litical parties, or not to political parties, or give money to particular
or not to particular candidates, and Congress has shown in the
past that it does have the statutory power to protect from misrepre-
sentation, to protect the consumer from misrepresentation, from peo-
ple who do business in interstate commerce.
It has power-it has in the past-to protect government from
being lied to by the citizens, and we would hope that perhaps some
consideration would be given to protecting the citizens from being
lied to by the government.
Thank you, sir.
[The prepared statement of Jack C. Landau followsj
PREPARED STATEMENT OF FRED P. GRAHAM AND JACK C. LANDAU
My name is Jack C. Landau. I am a working news reporter employed as
the Supreme Court correspondent of The Newhouse Newspapers. I am ac-
companied by Fred P. Graham, a. working news reporter employed as the
Supreme Court correspondent of CBS News. Mr. Graham and I are here
today as individual reporters in our capacities as members of the Executive
Committee of The Reporters Committee for Freedom of the Press.
We thank the Subcommittee for this opportunity to testify on certain
freedom-of-information features of the Federal Criminal Code Reform Act
of 1975, S-1, introduced by Senator McClellan.
The Reporters Committee is the only legal defense and research organiza-
tion in the nation exclusively devoted to protecting the First Amendment
and freedom-of-information interests of the working press.
The organization premise of the Committee is that the constitutional. In-
terests of working news reporters, editors and photographers may be different
from the interest of other institutions concerned with preserving First Amend-
ment rights to freedom of the press and freedom of speech.
The Committee was formed during an open meeting at Georgetown University
in March 1970 in response to the threat posed by the Justice Department's
subpoena policies. It is funded mainly by grants from a few major media
organizations.
Because we have faith that, the Congress wishes to protect and encourage
First Amendment guarantees, we believe that Congress should strongly oppose
the new press censorship principles incorporated in the Criminal Code Reform
Act.
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2. SUMMARY OF REPORTERS COMMITTE'S VIEWS ON THE CRIMINAL CODE REFORM ACT
AS IT AFFECTS THE WORKING PRESS
It is abundantly clear that S. 1 is an unwise and unconstitutional proposal
which could be used to silence the type of aggressive news reporting which pro-
duced articles about the Pentagon Papers, the My Lai massacre, the Watergate
ever-up, the CIA domestic spying, the FBI domestic spying and other govern-
ment misdeeds : news reporting which has been embarrassing to some persons
in the government and which has depended in whole or in part on government-
compiled information and reports frequently supplied to the press by present
or former government employees without government authorization.
Quite simply, S-1, if enacted, could severely restrict the current ability of the
jiuolic to learn about government policy-making decisions, government reports
and government crime by establishing three new types of criminal censorship
which would:
(1) Make any news reporter automatically liable for criminal prosecution
for "receiving stolen property," "theft" and "fraud" against the government for
merely possessing or publishing the contents of any government report without
official permission, and;
(2) make any news reporter automatically liable for criminal prosecution
for receiving and publishing virtually any type of "national security" informa-
tion without government authorization or clearance; and
(3) by making any present or former government employees automatically
liable for criminal prosecution if they give to the press, without the approval
of their superiors, any classified information about. government officials who
secretly violate federal law, who lie to the public about the secret actions of
their agencies, or who secretly take action contrary to official Administration
policy.
In seeking these criminal sanctions against the press, S-1 is based on the
pernicious theory that Congress should declare for the first time that the gov-
ernment and not the citizens owns government information ; and that the
government may restrict the press and the public from learning about. infor-
mation collected by public employees supposedly for public purposes.
S-i would men, if enacted, that the only time a reporter would be legally
a
free from the threat of a federal prosecution as the result of publishing govern-
ment information would be when the information came to him from a govern-
ment hand-out-precisely the type of censorship system which the First Amend-
ment was designated to eliminate.
What disturbs this Committee is that the Congress would consider a new net
of criminal laws which could be used against the press in such a way that,
should the Watergate cover-up or the Pentagon Papers have occurred with S-1
in effect, it would have been substantially more difficult for the press to have
reported these two events.
In fact, what concerns its is that S-1 appears to be based on the premise
that the Watergate cover-up never happened. One of the most distressing official
actions in the Watergate scandal, for example. was the repeated and intentional
lying by high government officials to the press, and therefore to the public.
Based on the misrepresentations of the President. the `'ice President and other
members of the government, news reporters and news organizations unwittingly
helped to deceive voters and taxpayers.
But, nowhere in this Act do we see any interest by Congress in attempting
to protect the public from a repeat performance of the intentional or reckless
lies which government officials gave out during the course of the Watergate
scandal. -
A second feature of the Watergate cover-up was the great difficulty the news
media had in finding government employees who were willing to risk their jobs
to give to the media and to the public information which, on its face, raised a
substantial suspicion that the government itself was violating the laws of
Congress and the Constitution or raised a substantial suspicion that the secret
acts of government conflicted with publicly announced policy.
All through the Act we find provisions which could, penalize government
employees for giving out, without the authority of their superiors, government
information and which could penalize the press for publishing information.
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But nowhere in this Act do we find any proposal which would insulate the
conscientious government official from any imposition of criminal liability if
he gave classified information to the media which raised a reasonable suspicion
that the government itself was engaged in some type of official corruption; or
would insulate the conscientious news reporter from prosecution for publish-
ir~g-without government approval-information about government crime or
other secret acts of government agencies.
It is our conclusion therefore that this bill might encourage government
officials to secretly break the law and to He to the public because they would
know that the press would find it more difficult than under present law to
obtain the evidence of government misdeeds:
SUMMARY-OTHER PROVISIONS-ARREST RECORDS, GAG ORDERS, PRISON ACCESS,
AND CONFIDENTIALITY
We also feel that Congress in exercising plenary?jiirisdiction over the federal
-criminal system, could do nmuch-should this Subcommittee wish to act-to
snake more available to the press and the, public important information about
the criminaljustice system, particularly (1) the availability of federal arrest
and conviction records; (2) the availability of information in federal pre-trial
and trial proceedings, including the removal of the threat of criminal contempt
against the news media for violating gag orders and (3) the availability of
information about the correctional process. And because a great many disputes
about confidentiality of news sources arise in the context of federal grand jury
proceedings and criminal trials, we are suggesting a procedural proposal to
this Subcommittee, which, we think, might eliminate a great deal of the un-
constitutional and. unfair harassment to which investigative reporters have
been subjected to recently because they insist on protecting their confidential
news sources.
4. S-1 WOULD AUTOMATICALLY AUTHORIZE PROSECUTIONS AGAINST THE PRESS FOR
FRAUD, THEFT, RECEIVING STOLEN PROPERTY, TAMPERING WITH A GOVERNMENT
RECORD, ETC., MERELY FOR OBTAINING ANY TYPE OF GOVERNMENT INFORMATION
WITHOUT GOVERNMENT APPROVAL
A. Background-The Pentagon Papers litigation
Prior to 1971 it would have been difficult to accuse the government of intend-
ing, for the first time, to apply "theft," "receiving stolen property" and
"fraud" penalties against a news reporter for merely receiving government
information: But, unfortunately, we now have what we believe is overwhelming
evidence that the Administration believes it can prosecute the news media for
obtaining unauthorized government reports. This novel legal censorship assault
conflicts sharply with both American constitutional tradition-that the govern-
-merit reports belong to the public-and specifically with the incorporation of
these constitutional principles in the 1909 Copyright Act' and the 1966 Freedom
of Information Act.'
Until 1971, the Federal Government had never suggested that a newsperson
could be prosecuted for "theft," "receiving stolen property" or "fraud" for
publishing a government report. Then, during the oral arguments before the
United States Court of Appeals for the District of Columbia in the case of
U.S. V. Washington Post (The Pentagon Papers) 8 the Solicitor General made
the remarkable statement that the government's ownership rights in the Pen-
tagon Papers were similar to the ownership rights of Mrs. Hemingway in an
Ernest Hemingway manuscript-that is to say, the Justice Department put
forth the original and pernicious doctrine that the executive branch has a
common law proprietary interest (or a common law copyright) in government
reports.
Mr. Griswold repeated this argument in a somewhat more modest form in
the Supreme Court. Fortunately, neither court was responsive to the Justice
Department's claim
I Copyright Act, 17 U.S.C. ? 1 et eery.
2 Fire'loin of Information Act, 5 U.S.C. 1552,
3446 F. 2d 1327 (D.C. Cir. 1071).
4New York Times v. United, States, 403 U.S. 415 (1971).
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B. The Ellsberg prosecution
But the government did not give up. Later in 1971, it indicted Anthony
Russo and Daniel Ellsberg on charges of conspiring to receive stolen govern-
ment property-"studies, reports, memoranda and communications which were
things of value to the United States of the value in excess of 100." In addition,
the indictment accuses the defendants of an equally novel crime-"to defraud
the United States * * * by impairing, obstructing, and defeating its lawful
government function of controlling the dissemination of * * * government
studies, reports, memoranda and communications."
Thus, those news reporters who, for The New York Times, The Washington
Post, the Boston Globe and The St. Louis Post-Dispatch, obtained the Pentagon
Papers were, under the government's theory in the Ellsberg case, subject to
prosecution for "receiving stolen property," "theft" and "fraud."
The government's trial brief in the Ellsberg case stated its position suc-
cinctly : Both the documents and their contents are the property of the United
States and remain its property until they are * * * released by the Government.
The content of such * * * documents is itself Government property quite apart
from the Government's ownership of the sheets of paper on which it is recorded."
The government trial brief adds: "To be convicted of "receiving stolen prop-
erty it need only be shown that the defendant obtained possession of or some
measure of control over the property * * * E
However, the Justice Department realized that there was both a conceptual
and legal problem with attempting to classify as a government property the
facts about government decision-making contained in reports paid for by and
of interest to the public.
The legal problem was that the current statute states that the property must
be of a value of $100 or more'-a value which it might be difficult for the gov-
ernment to assert if the information belongs to the public to begin with-and
a conceptual problem as to whether government information, in fact, belongs to
the government in a proprietary sense.
C. S-1400 and S-1 claims of government ownership of government facts
Therefore, in the original S-1400, the government added a new definition of
government property to clearly cover government reports by including as gov-
ernment property : "* * * intellectual property or information by whatever
means preserved * * *." a
This Committee, appearing before this Subcommittee, protested that, by
including intellectual property, the Justice Department was clearly attempting
to lay the foundation to prosecute the news media in order to get around the
problems it faced in the Ellsberg prosecution.
Now we see that new S-1 has eliminated the "intellectual property" definition
and has replaced it by stating that a newsperson can be guilty of "theft" if he
"uses * * * a record or other document owned by, or under the care, custody,.
or control of, the United States * * * regardless of its monetary value."
Our view of the Justice Department's intent in S-1400 to prosecute news
persons for receiving unauthorized government information was confirmed in
a remarkable interview conducted by Morton Kondracke, a reporter for The
.Chicago Sun-Times, with Ronald L. Gainer, deputy chief of legislation for the
Justice Department and the chief draftsman for that section.
According to Mr. Kondracke's story, the Justice Department's original pro-
posal in 5-1400 which has been incorporated into S-1 would even subject a
newsman to a "receiving stolen property" prosecution if he, without authoriza-
tion, obtained facts from a government report verbatim over the telephone.
The only federal attempt so far to prosecute a newsman for receiving un-
authorized government facts has been the arrest of Mr. Leslie Whitten of the
Jack Anderson Column by the FBI for his receipt and possession of several
boxes of reports compiled by the Bureau of Indian Affairs. There was no
allegation by the government that Mr. Whitten participated in the breakin, but
only that he possessed the reports. The government declined to seek an indict-
ment and the case was dropped.
Only last month, the Federal Reserve was reported to have ordered an FBI
investigation into the release to the magazine, Consumer Reports, of consumer
B Tndletment at 2, United Skates v. Russo, (C.D. Cal. 1971).
U Id., Brief for the Prosecution at 29, 33.
718 U.S.C. ? 641.
5 S. 1400, 1 111. 93d Cong., 1st Sess. (1973).
6 S. 1, ? 1731, 94th Cong., 1st Sess. (1975).
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interest rates supplied to the federal reserve by a number of banks around the
country.. Because the F.B.I..can only investigate possible violations of federal
criminal law, we can only surmise that-as in the Leslie Whitten case-the,
F.B.I. is claiming that it is a crime to publish government information.
The Justice Department has, unfortunately, not been alone in claiming it can
prosecute the news media for receiving government information without
permission.
Both the State of California and the State of New Hampshire have already
attempted to adopt the Justice Department approach, and we fear that other
states may attempt to do this in the future.
Like the Justice Department, California has recently claimed that a news
reporter and an editor can be convicted for receiving stolen government prop-
erty when the property consisted of a photographic copy of a list of state civil
service employees acting as undercover narcotics agents. The editor, Arthur
Click Kunkin of The Los Angeles Free Press, and the reporter, Gerald R.
Applebaum, were convicted, and the conviction was upheld by the appellate
division of California." The conviction was reversed by the California Supreme
Court on technical evidence grounds. The Supreme Court did not reverse the
reasoning of the Court of Appeals that the government can prosecute a news-
paper for receiving stolen property 11
In New Hampshire, state officials prosecuted a newspaper reporter for re-
publishing the contents of a letter sent by a citizen to the Governor alleging
graft in local government. Based on an allegation that the information in the
letter was the property of the government, the reporter was arrested. The case
was later disinissed.12
It should be clear that the receipt of government information and its publi-
cation by the news media in the public interest is 'constitutionally immune
under the First Amendment and can not be subject to the blanket threat of
criminal prosecution merely because the government does not want the public
to know what the report contains. "This is prior restraint in its most ancient
form-an ability to criminally punish publication regardless of content and
regardless of the effect of publication upon the welfare of the nation. In fact,
the use of blanket criminal penalties-of theft, receiving stolen property, fraud
and misuse of a government document-to stop publication of news-regardless
of the content-employs the original prior restraint tool which the British
monarchy used in the criminal libel laws to punish publication of any infor-
mation which displeased the King.
We have always permitted criminal and civil penalties stemming from the
effect of the published information-such as the criminal obscenity or civil
libel laws-but never for the publication itself. (Cf. Year v. Minnesota)." If
then the press can only publish what the government says it can publish, the
press ceases to be an independent institution operating for the benefit of the
public and is converted into a government propaganda tool supinely accepting
without question the information which the government decides it may publish.
We start then with the premise that "the Congress shall make no law
abridging the freedom of the press." And we think that numerous provisions
of S-1 violate that concept. We should also like to remind the Committee that
Congress was specifically ordered in Article I-not just to be neutral-but to
actively encourage the free flow of information and ideas to the public : "To
promote the Progress of * * * useful Arts, by securing for * * * Authors * * *. the
exclusive Right to their respective Writings * * *" (Article I, Section 8).
Furthermore, we have always believed that the freedom of the press guaran-
tee includes a penumbra of constitutional rights, including the right of a news
reporter to freely associate and receive information from all: segments of the
population, including government. employees (Cf. NAACP v: 413fittQn):1`
.There are dozens of important cases which uphold the. doctrine that the
government can have no proprietary ownership interests in governmental
reports. (Cf. Public Affairs Press. v.: Rickover,5 Pearson v..Dodd,1e U.S. v.
First Trust Co. of Saint Paul.)" The latest is Judge Richey's decision in The
10 People. v. Kunkin, 24 Cal. App. 3d 447. (1972). . 11
it People v. Kunkin, 0 Cal. 3d 245, 107 Cal. Rptr. 184 (1973).
n State v. Norris, (Laconia, N.H. Dis. Ct., April 5, 1973).
30 283 U.S. 697 (1931).
14371 U.S. 415 (1963).
If 284 F. 2d 262 (D.(.. Clr. 1960).
1e410 F. 2d 701 (D.C. Cir. 1968).
17 251 F. 2d 701 (D.C. Cir. 1958).
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Reporters Committee v. Sampson" in which he ruled that most of President
Nixon's papers and tapes belonged to the people and not to the former Presi-
dent.
In addition, there is the strong line of cases defending the public's right to
be informed of news. This right, even more than the personal right of a public
official to be protected from defamation, is certainly a more ancient and
strongly rooted right than the right of the government to own information. ((11f.
New York Times v. Sullivan, ? Associated. Yress v. TValker'a' Rosenbloom v.
Metromedia, Inc.,d' Cox Broadcasting v. Cohn," Gertz v. Robert Welch, Inc.).''
Then, there is the specific right to republish government information contained In the 1909 Copyright Act. 17 U.S.C. Sec. 1 et. seq. which provides.
"No copyright shall subsist * * * in any publication of the United States
government, or any reprint, in whole or in part, thereof * * *"
We respectfully suggest that the Department of Justice approach which is
incorporated into this bill-permitting a criminal prosecution against a news-
man for republication of a government document based on a claim of govern
meat ownership-would completely void the 1909 Copyright Act and most o
the Freedom of Information Act. Certainly the freedom which the Copyright.
Act gives the press to republish government information is a meaningless right
if a newspaper can be criminally prosecuted for exercising its republication,
rights under the Copyright Act. The Freedom of Information Act requires the
government to prove specific information should not be released. It would be-
an anomoly to criminally prosecute a reporter for receiving stolen government.
information which could be obtained under the Freedom of Information Act.
Against the Constitution, the case law and the statutes, what does the Justice.
Department offer as its justification? 71ass v. Hinkle,"' a 1910 case in which..
three cotton speculators were accused of bribing a Department of Agriculture
employee in order to obtain advance information of cotton futures and also to.
have false cotton future information given out to defraud the general public.
We note that the Court severely limited the Hass case in the unanhnOns
opinion by Chief Justice Taft in Ilemmcrxclzmddt v. U.S.", in 1924, in which he
said that fraud against the government could certainly be used to prosecute non-
government employees who use false government reports in a conspiracy, in-
volving "trickery * * * bribery of an official, deceit and false pretenses." The
government has chosen to ignore Chief Justice Taft and to rely mainly on
the Hass opinion bolstered by Dennis v. U.S..'? in 1966. But here again, the
Dennis case involved the filing with the government of false information in
Order to obtain free government services, very much as if one filed a false
credit report to obtain a government loan.
It seems that the Justice Department has adopted an unreasonable in.terpre-
ta.tion of two Supreme Court cases in order to cut off from the public all
unauthorized government information by analogizing good faith reporting of
government studies and reports with a couple of cotton profiteers in 1910'
and a labor racketeer in 1966.
PARTICULAR PROVISIONS OF 8-1 AUTIIORI'/ZING PROSECUTIONS At:Ah7ST TUE PRESS FOR
FRAUD, TIIEFT, RECEIVING STOLEN PROPERTY, ET CETERA, FOR PUBLISHING GOVERN-
MEN'r ItiFOR\fA'iION WITHOUT GOVERNMENT PERMISSION
(1) "Section 1301 Obstructing a Government Function. by .Fraud "(a) Of-'
fense---- aperson is guilty of an offense if he intentionally obstructs, impairs, or
pervert's a government function by defrauding the government in any manner."
As-, we have explained above, the Justice Department ha's stated that the-
government has *the exclusive right to control the release of government infor--
oration and that releasing government information'without Its approval is, in
the opinion of the Justice Department, defrauding the government of its law-
fill function of controlling the release of its own infortllation.
Extimple: A newspaper or television station publishes a government report
showing that the 111hite House had an "enemies list." Under the Justice De--
"'Consolidated In Nixon. v. Sampson, No. 74-1033, (D.D.C. January at, 1975).
19 376 U.S. 254 (19(14).
20 388 U.S. 130 (1(467).
21403 U.S. 29 (1971).
22 No. 73-938 (II.S. Sup. Ct. March 3, 197.:3). 4 1 S U.S. 323 (1974).
24 216 U.S. 462 (1910).
2635, U.S. IR2 (1924).
-384 U.S. 855 (1966).
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p :rtment view, this would clearly be defrauding the White House of its lawful
function of controlling the release of its own information.
(2) Section 1731. Theft (a) Offense-A person is guilty of an offense if
he obtains or uses the property of another with intent * * * to appropriate
the property to his own use or to the use of another person."
This crime carries the penalty of seven years in prison if the property "re-
gardless of its monetary value" is "a record or other document owned by, or
under the care, custody, or control of, the United States."
(3). Section 1733. Receiving Stolen Property (a) Offense-a person is guilty
of. an offense if lie " * * receives, possesses, or obtains control of property
of another-:that has been stolen."
As we have demonstrated above, one of the main legal barriers to govern-
ment prosecution of the press for receiving stolen government information
has been the requirement, under present law, that it have a monetary value,
a requirement which is eliminated in S-1 specifically by stating that the
government property does not have to have any value.
And subdivision "d" defines the property back to any government property
regardless of its value.
Example : A newspaper or television station publishes a document showing
that the CIA has a list of persons it has wiretapped or subjected to other
harassments. And the reporter knows that the document has been taken with-
out authorization, or even stolen, by a government employee from his agency's
files. Clearly the reporter would be "obtaining control of property of another
that has been stolen," and appropriating it for his own use and under the
Justice Department theory could be prosecuted for theft or receiving stolen
property.
(4) Section 17311. Executing a Frandnicnt Scheme (a) offense-a person
is guilty of an offense to defraud if lie engages in conduct with intent to execute
such scheme or artifice * * "
Example: Once again, this would mean, in terms of the Justice Department
prosecutions against Dr. Ellsberg, that a reporter agreeing ahead of Hint,
to accept government information-even if the plan was never completed-
would be guilty of executing a fraudulent scheme.
Section 131/11. Tampering with a Government Record (a) Offense-a person
is guilty of an offense if he * * * conceals * ' * or otherwise impairs the in-
tegrity or availability of a. government record."
Example : A newspaper reporter is given a government document showing
P.B.I. wiretapping which lie uses to write a news story. Clearly, he would be
impairing "the availability. of a government record" and could be prosecuted
under S-1.
(5) Section 1523. Intercepting Correspondence (a) Offense--a person Is.
guilty of an offense if he intentionally * * * reads private correspondence to:
another person knowing that such contents were obtained without the con-
sent of the sender or the intended recipient." This applies to private cor-
respondence which is "mail" or is being trai iSiuitted over the facilities of a
communications common carrier."
Without any further explanation in'the `statute, we could easily see a news
reporter being prosecuted for being given R. copy of a letter of "private cor-
respondence" indicating a government contract pay off or for publishing the
contents of private correspondence wh1cii was. improperly removed by' a news
source.
orFICIAL SECRET PROVISIONS
Having already subjected the press` to the blanket threat of automatic
criminal prosecution for receiving stolen property and fraud for publication
6f 'any government report regardless of ifs content, S41 adds an, additional
thumbscrew by asking Congress to change current ' law and. to 'subject the
press to automatic criminal prosecution for "espionage" "disclosing' iiationitil
defense information" and "mishaifdl'ing national 'defense i,nforrntion" 'for 'the
publication of virtually any govern ment''inf6rniation involving' "national dull
fence." : ' t1 .,, the existing espionage 'statute (18 U.S.C.' 793)' only makes' It a crime to
obtain "defense" Information with intent or reason' to believe that the in,,
formation is to be used to the injury of the United States, or to the advantaie
of 'aaip foreign nation." P'urtheirinor'e, Sections 793 gncl 794 both specifically
in 'the statute and by court interpi'etatibn "have been ~ aimed ' at conventional
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saboteurs interested in "a sketch, photograph, blueprint, map, model, instru-
ment * * * writing or note."
Thus, the existing law requires a clear "intent" to substantially harm the
national security.
This, of course, was the great stumbling block for the Administration in
the Pentagon Papers case. S-1 clearly attempts to rewrite the existing espionage
statute and the Pentagon Papers decision by making it a crime for a news
reporter to engage in "disclosing national defense information" (See. 1122).
"(a) Offense-A person is guilty of an offense If, knowing that national
defense information may be used to the prejudice of the safety or interest of
the United States, or to the advantage of a foreign power, he communicates
such information to a person he knows is not authorized to receive it.
Thus, a news reporter may be prosecuted for publishing "national defense
information" if he reasonably knows that the information "may be used to the
prejudice" of the United States "or to the advantage of a foreign power."
It is a well-known fact, in the relations between the United States and
hostile foreign powers, that virtually any information from the State Depart-
ment or the Defense Department that is embarrassing to the United States
politically will certainly be used by a foreign power in a way which is
prejudicial to the interests of the United States and to the advantage of
the foreign power.
Take for example the recent disclosure that the CIA may have been involved
in plans to assassinate persons in foreign countries or that the CIA was en-
gaging in domestic spying. Does anyone doubt that the reporter who published
that information could easily be "used to the prejudice of . . . the interests
of the United States."
The blanket nature of this Official Secrets Act is compounded by the
definition of national defense information, which includes, as Senator Hart
correctly pointed out in the hearings last year, virtually any information
which is.published every day on the front page of every newspaper in this
country; that is, "military capability of the United States or of an associate
nation * * * military planning or operations of the United States * * * mili-
tary communications of the United States * * * military installations of
the United States * * * military weaponry, weapons development or weapons
research of the United States * * * intelligence operations activities, plans,
estimates, analyses, sources or methods of the United States * * * intelligence
with regard to a foreign power * * * communications intelligence information
or cryptographic information * * *"
A third difficulty with the statute is that it is not even a defense-as it
was in the Pentagon Papers litigation--that the information had previously
been published in the news media based on informed sources in the American
government or by named officials of a foreign government. The statute specif-
ically precludes the defense of prior publication based on confidential
sources or the Prime Minister of a foreign nation, because it limits the
defense to "information that haspreviously been made available to the public
pursuant to the authority of Congress or by the lawful act of a public servant."
For example, the story in the Jack Anderson column about the United States
tilting toward India would be no defense to a subsequent prosecution against
another newspaper for publishing exactly the same "national defense
information."
"Sec. 1121-Espionage: A person is guilty of an offense, if, knowing that
national defense information may be used to the prejudice of the safety or
interest of the United States, or to the advantage of a foreign power, he * * *
obtains or collects such information, knowing that it may be communicated to
a -foreign power * * *" -
Here of course, publication in a newspaper or by a television station would
obviously result in communicating the information to a foreign power.
We would assume that the government, in this situation, would use the lesser
felony of disclosing national defense information, but there would be nothing
under this Act to bar a government prosecution against a newsperson for
"espionage" for publishing information out of the State Department, the CIA,
or the Defense Department, which, because it was embarrassing to the
government, could be "used to the prejudice of the * * * interests of the
United States."
Sec. 1123-Mishandling Defense Information "A person is guilty of an offense
if * * * being in unauthorized possession or control of national defense infor-
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mation he, * * * engages in conduct that causes Its * * * communication to
another person who is not authorized to receive It-; or * * * fails to deliver
it promptly to a public federal official who is entitled to receive it."
A news reporter, for example, publishes information on cost overruns or
corruption in Defense Department contracts, or changes in policy in State
Department negotiating attempts in the Middle East, and he is automatically
subjected to the threat of prosecution because he is "in unauthorized posses-
sion * * * of national defense information ;" and because he published it, he
has caused "its communication to another person who is not authorized to
receive It."
And if, in fact, the government makes a demand on him to return the
information-even if it is a Xerox or is in the form of notes because he
Interviewed a government official, he is subject to prosecution a second time
because he "fails to deliver it promptly - to the federal public servant who
Is authorized to receive it."
Conclusion : We think that the Congress ought to, in every possible way,
encourage the press to inform the public about the way its government oper-
ates in - all areas, whether it be the Department of Health, Education and
Welfare, the Department of Justice or the Departments of State and Defense.
Certainly there is presumption that information which the government with-
holds is based on a reasonable justification in the public interest. But once
a news reporter obtains information about Watergate or about Vietnam or
about the Middle East or about the SALT talks or about thalidomide, then,
under our system of laws, the government has the burden of proving in a
criminal prosecution that the publication of the information possess a "clear
and present danger" to some overriding and compelling national interest.
Reporters should not be faced with possible jail terms for publishing in-
formation the government has not released. Reporters should not face jail
terms for publishing any "national security information" regardless of its
content.
In the Pentagon Papers case, Dean Griswold told the United States Court
of Appeals that the Constitution did not authorize the courts to "second
guess" President Nixon's determination that the publication of the Pentagon
Papers would harm the national securtly.
THE SUPREME COURT DISAGREED
S-1 would, in effect, void the Pentagon Papers decision. It would permit
the government to criminally punish any reporter for publishing any "national
defense information" based on the untested and self-serving conclusions of
the Executive Branch. Our Committee cannot believe that the Congress will
authorize any such blanket Official Secrets Act to be imposed upon the public
of our nation.
The only standard which we believe would be acceptable to the working
reporters and editors would be a standard that would conform the federal
criminal law to the prior restraint doctrines of Year v. Minnesotan and New
York Times v. U.S." because, after all, a criminal law operates just as much
as a prior restraint on publication as an injunction barring the publication
itself. Therefore we would suggest that this whole section on national se-
curity, as it applies to members of the public and the press who obtain
"national defense information" should only be operative if the government can
prove beyond a reasonable doubt that publication of the information would
pose a "clear and present danger" to the national security of the nation, or
would pose a "direct, immediate and irreparable injury" to the national se-
curity of the nation.
S-1'S RESTRICTION ON THE RIGHT OF GOVERNMENT EMPLOYEES TO GIVE TO THE CON-
GRESS, TO LAW ENFORCEMENT AND TO THE PRESS INFORMATION ABOUT GOVERNMENT
CORRUPTION, GOVERNMENT MISREPRESENTATION, ET CETERA
In addition to constructing new criminal penalties against the press for
publication of any government information without permission, and for pub-
lication of any national defense information, S-1 also discourages government
employees from exercising the constitutional right of all citizens to -give in-
2"Near v. Minnesota, 283 U.S. 697 (1931).
28 New York Times v. U.S., 403 U.S. 415 (1971).
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formation to the press of public importance, including evidence that the
government officials themselves are breaking the laws or, are lying to the
public. It has done this in various ways.
"Sec. 1124-Disclosing Classified Information "(a) Offense-A person is
guilty of an offense, if, being or having been in authorized possession or con-
trol of classified information, or having obtained such informaiton as a re-
sult of his being or having been a federal public servant, lie communicates
such information to a person who is not authorized to receive it."
"It is not a defense to a prosecution under this section . . . that the infor-
mation was not lawfully subject to classification at the time of the offense."
The government official who believes that he has evidence that a C.I.A. or
F.B.I. or White House official is breaking the law; or evidence that govern-
ment officials are issuing public policy statements about relations with the
Soviet Union which, in fact, secretly the government is contracting in diplo-
matic negotiations, should be certainly encouraged to give to the public this
type of information. Perhaps, we would have heard about the so-called Houston
Plan, or the CIA domestic spying much earlier if the government did not
have as an axe over the honest civil servant's head the ability to criminally
prosecute him, fire him under various regulations, and to otherwise destroy
his reputation. Certainly, as newspersons, we believe that the Congress should
encourage government employees to come forward with information which
contradicts the public statements of high government officials or which
shows that these officials may have engaged in illegal conduct. We have had
enough experience in recent years to indicate that we cannot trust the public
statements of many of our officials on foreign affairs and national defense
policies.
This statute does just the opposite. It threatens a public spirited public
servant with jail for attempting to inform the public about this type of
news, and offers an additional shield of silence to the dishonest or corrupt pub-
lic official.
See, 1523-Intercepting Correspondence "(a) Offense-A person is guilty of
an offense if he intentionally * * * intercepts, opens, or reads private cor-
respondence without the prior consent of the sender or the intended re-
cipient ; or * * * discloses, or uses, the contents of private correspondence to
another person knowing that such content were obtained without the per-
mission of the sender or the recipient." Here, once again, the public spirited
civil servant-who sees a letter from or to a high government official which
indicates a political payoff or conflict of interest, or any other type of law
violation, or which raises a flat contradiction with the public statements of
the public official, is discouraged-is specifically threatened with criminal
prosecution if he makes this information public to "any other person" includ-
ing a news reporter or a Congressman.
Sec. 1524-Revealing Private Information Submitted for a. Government Pur-
pose "(a) Offense-A person is guilty of an offense if, in violation of a
specific servant by a statute, or by a regulation, rule, or order issued pur-
suant thereto, he discloses information, to which he has had access only in
his capacity as a public servant, that had been provided to the government
by another person, other than a public servant acting in his official capacity,
solely in order to comply with * * * it requirement of * * * employment,
or * * * a specific duty imposed by law imposed upon ,uch other person."
Now here, of course, we have the classic case of the corrupt contract or
the payoff for a government grant. The information, of course, would be
supplied to the government by "another person other than a public servant"
and it would be supplied in order to comply with "a specific duty imposed by
law" in government contracts.
We would think that Congress would wish to encourage public servants to
come forward when they have evidence of corruption in the expenditure of
public monies, not to penalize them by sending them to jail. In addition, this
provision silences the public servant forever because it applies to "a former
public servant" who obtained the information "as a federal public servant."
Therefore, even civil servants who are loyal to the system-hut who get
disgusted because they discover corruption and quit-are silenced from com-
ing to the news media and complaining about the behavior of their superiors.
Sec. 1301-Obstructing a Government Fnnetion hg Fraud (a) Offense-A
person is guilty of an offense if he intentionally obstructs, impairs, or per-
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yerts a government function by defrauding the government in any manner."
Under the Justice Department's theories in the Ellsberg prosecution, cer-
tainly a government civil servant can attempt to defraud his superior out
of his function of controlling the release of public information.
We have tried respectfully to show this Subcommittee that these pro=
visions which restrict the access of public servants to the news media would
only aid those officials who are interested in hiding from the public evidence
of their own misconduct. We would urge the Congress to draft this legislation
in such a way as to encourage this type of information to be brought forwards
and not, as this legislation is now drawn, to put even more severe obstacles
in the way of citizens and taxpayers who have a right to know how their
government is operating.
CONFIDENTIALITY
As this Committee is aware, the question of forcing a newsperson to reveal
confidential news sources in connection with a criminal proceeding being
conducted by a grand jury or a court is perhaps the most sensitive legal
issue which working news reporters deal with today. As this Committee
knows, there have been several proposals for federal shield laws in order
to solve this problem,20 but there is no uniform agreement among the news
media as to what kind of substantive or affirmative protection Congress
ought to give.
Some members of the media believe in the so-called absolute shield law,
Which would prohibit a newsman from being forced to disclose any unpub-
lished information in any proceeding. Some believe in the so-called qualified
shield law which would permit some unpublished information to be dis-
closed in some types of proceedings. Some newspersons argue against any
shield law on the grounds 'that implementation by Congress of the protection
contained in the First Amendment would themselves imply the ability of
Congress to limit the First Amendment. While this Committee has testified
in favor of an absolute shield law, for the purposes of this testimony, we
make no substantive recommendations.
However, it is one thing to say that Congress will leave to the inherent
Article 3 powers of the courts their power to impose contempt upon a news-
person for his refusal to disclose a. confidential source. It is quire another,
as is contained in S-1, to authorize a federal court to issue a criminal
contempt citation against a newsperson who "disobeys or resists a writ,
process, order, rule, decree, or command of a court" to disclose a.confidential
news source.
We would therefore respectfully submit to the Subcommittee that it, under
its power to control the federal criminal law, remove the statutory power of
the federal courts to hold a newsperson in contempt for refusing to disclose
the source of unpublished information obtained during his news-gathering
activities. This would remove federal statutory authority for the contempt
prosecutions. We would further suggest that the Congress bar the federal
government. via the Attorney General, from prosecuting such a claim on
behalf of the, court. This would leave the court in a common law positiom
of enforcing its own decrees without the help of the federal government.
.We suggest this `because we have little confidence, based on past experience,
that the federal government's attitude toward the protection of confidential
news sources is in any way consistent with the First Amendment guarantees.
Sect. 1311-Hindcring Law Enforcement-(a) Offense-A person is guilty
of an offense if he interferes with, hinders, delays, or prevents, the discovery,
apprehension, prosecution, conviction, or punishment of another person, know-
ing that such other person has committed a crime or is charged with or
being sought for a crime, by * * * concealing him or his identity."
As this Subcommittee is well aware, one of the most common methods
of investigation reporting is to actually interview persons, frequently on a
confidential basis, who have evidence of a crime, and who may themselves
have participated in a crime.
The disclosures in the Watergate scandal, for example, were based in large
part upon persons who had participated in the cover-up. There is reason tq
believe that the disclosures of the CIA surveillance and of the FBI surveil-
lance came from members of those agencies who themselves had some part
29"See, e.g., S. 86, ;y. 1,158, S. 31.8, S. 461, S. 037, S. 750, S. 870, S. 917, S. 1128 and
S.J. Res. 8, all 1st Session 93rd Congress, 1973.
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in what seems to have been illegal activity. Recent disclosures of corruption
in the Immigration and Naturalization Service seem to have been based, in
some part, on persons who may have been peripherally or directly engaged
in the process of permitting illegal aliens to come across the border in viola-
tion of the laws. And the frequent disclosures of commercial favoritism by
various government agencies, including the favored treatment given to the
international Telephone and Telegraph Company in its merger with the Hart-
ford Fire Insurance Company, show that more frequently than not, the best
information about government misbehavior may come from persons inside
or outside government who have been involved in the crimes, but who for
one reason or another wish the public to know what has happened.
This section of the criminal code would be clear authority to prosecute a
newspaper reporter criminally for his refusal to aid law enforcement in the
"discovery" or "apprehension" of "another person knowing that such a per-
son has committed a crime or is charged with or being sought for a crime
by * * * concealing him or his identity."
Furthermore this section provides that it is not a defense to a prosecution
under this section that the record document or other object which the re-
porter has, indicating that the person interviewed has committed a crime,
"would have been legally privileged." This would appear to imply that a
reporter could not claim that his notes, which identify the informant, would
be privileged under any reading of Caldwell v. U.S.' or subsequent cases in
the federal courts which have protected reporters confidential sources " This
particular statute seems to be a blanket authorization to prosecute a reporter
who refuses to disclose a confidential source when that source has been in-
volved in any way in a conspiracy to break the law.
Sec. 1853-Refusing to Testify or Produce Information--(a) Offense-A
person is guilty of an offense if * * * in any other official proceeding, he * * *
refuses to answer a question after a federal court or federal judge * * * has
directed him to answer and advised him that his failure to do so might
subject him to criminal prosecution," meaning criminal contempt.
Here again we have an affirmative congressional authorization to prose-
cute a reporter under the federal criminal statutes if he wishes to protect
a confidential news source. The effect of this statute may be somewhat miti-
gated by Subdivision (a) "Affirmative defense-It Is an affirmative defense
to a prosecution under this section that the defendant was legally privi-
leged to refuse to answer the question or to produce the record, document,
or other object."
However, we would point out to the Congress, that under the Caldwell
case, there is a substantial question as to whether the press is "legally
privileged" in federal criminal proceedings to refuse to identify confidential
news sources, and to refuse to produce notes of confidential information given
by informants.
We would hope that the Subcommittee would consider inserting in this
bill an affirmative defense to all of these various provisions which could be
utilized against a newsperson seeking to protect the identity of confidential
sources or other unpublished information obtained during the legitimate
course of news-gathering. As this Subcommittee knows, one of the biggest
stumbling blocks to the passage of a shield law has been opposition in the
Congress to giving a privilege in libel proceedings, As libel is a civil pro-
ceeding, we can see no substantial Congressional objection to giving the press
an affirmative defense to refuse to produce confidential sources in response
to any use of the federal criminal law powers.
Another solution to the confidentiality problem would be to permit a news-
person-subpoenaed to give information in any federal criminal proceeding-
to plead the shieldlaw of the state.
' Because there are 26 states which have passed shield laws, this would make
uniform the protection in the state and federal proceedings and would not
permit federal grand juries and judges to undermine the protection offered
to a newsperson by his own state legislature.
"0408 U.S. 665 (1972).
.,, Baker v. F d F Investment Co., 470 F. 2d 778 (8d Cir. 1972) . Democratic National
ommittee v. McCord, 356 F. Supp. D.D.C. 1073) ; Burley v. United States, 466 F. 2d
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In criminal trials governed by Rule 20 of the Federal Rules of Criminal
Procedure-which conform to Rule 26 in the Proposed Rules in S-1-federal
courts generally will not apply state law on the privilege of a witness,
United states v. Woodall, 2 through one Circuit has held to the contrary, Love
v. United States ' Rule 26, however, by its terms is not applicable to grand
jury proceedings, and neither the Supreme Court nor any other federal court
has previously decided the question of whether or to what extent a privilege
embodied in state law is binding on a federal court in the context of a grand
jury proceeding.
In the most closely analogous context-a proceeding to enforce an IRS
Summons in an investigation likely to lead both to criminal prosecution and
civil liability, see Donaldson v. United States 2h-the privileges established by
law, at least insofar as they are not in conflict with any established federal
law or public policy, are controlling. Baird v. Koerner,' United States v.
Cromer," United States v. Ladner." No federal law or policy requires disre-
gard of a newsman's privilege under state law. Indeed the Supreme Court
in Branzburg v. Hayes," while refusing to create "a virtually impenetrable
constitutional shield, beyond legislative or judicial control," to protect news-
men's sources, strongly indicated that a state newsman's privilege law should
be respected in federal courts:
There is also merit in leaving state legislatures free, within First Amend-
ment limits, to fashion their own standards in light on the conditions and
problems with respect to the relations between law enforcement and
press in their own areas. It goes without saying, course, is limited in its powers to bar state courts from responding in their own
way, construing their own constitutions so as to recognize a newsman's
privilege, either qualified or absolute.
The response of Congress thus far has been very much the same. The New
Federal Rules of Evidence, as passed by Congress, leave "the law of privi-
lege in its present state * * * H.R. Rept. No. 93-650, 93rd Cong., 1st Session,
p. 8. The rationale was "that federal law should not supersede that of the
States in substantive areas such as privilege absent a compelling reason."
The lack of any federal law or policy against protection of the confidential-
ity of news sources is in sharp contrast to the strong state policies in favor
of such protection within their respective boundaries. No fewer than twenty-
six states have enacted legislation affording some measure of protection
against compelled disclosure of newsmen's sources, and eleven of those statutes
have been enacted or broadened within the past five years. One federal court
of appeals, discussing two of these state statutes (Illinois and New York), re-
cently stated that they "reflect a paramount public interest in the mainten-
ance of a vigorous, aggressive and independent press capable of participating
in robust, unfettered debate over controversial matters, an interest which has
always been a principal concern of the First Amendment * * *," Baker v.
F d F Investment Co 80
Allowing federal courts to override a state shield law in the context of grand
jury proceedings will effectively nullify the attempts by the state legislatures
to protect this paramount public interest" within their respective borders. The
premise of shield laws-that an assurance of confidentiality will encourage the
flow of information to the public and advance the cause of truth-is under-
mined by any substantial exceptions to the applicability of the privilege.
Almost any crime committed in the United States today raises, at least at
the initial stage of the investigation, the possibility that a federal law may
have been violated, and a federal grand jury investigation or trial may be
initiated. A refusal to apply a state shield law in a federal grand jury pro-
ceeding or trial, therefore, will effectively negate the purpose of the privilege
In every situationwhere a potential. news source has information involving
possible criminal conduct.
39 439 -F. 24 1317 (5-tb Cir. 1970) (en bane), cert. A.enied, 390 U.S. 985 (1972).
as 330 F. 2d 200 (4th Cir. 1967). cert. dented, 390 U.S. 985 (1972).
84 400 U.S. 517, 534--535 (1971).
65 279 F. 2d 623, 632 (9th Cir. 1960).
96483 F. 2d 99, 101 (9th Cir. 1973).
sa 230 F. Sean. 383. 496 (S.D. Miss. 1965).
se408 U.S. 665 (1972).
ao Baker v. F & I' Investment Co., 470 F. 2d 778 (2d Cir. 1972).
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GAG ORDERS
A second issue which is increasingly concerning the press is the increase
in the use of gag orders to restrict the press from covering criminal justice
proceedings. A great deal of this confusion is the result of the Supreme
Court's silence on the subject in view of the implications of Sheppard v.
Maxwell.40
The lack of guidance by the Court in regard to the implications of Sheppard
has encouraged a sharp increase in the issuance of these restrictive `orders
against the news media, especially in the past two years. The scope of the
litigated orders ranges from conventional gag orders covering court person-
nel to such bizarre actions as excluding the press from reporting public
record pretrial judicial proceedings,41 sealing all records of all cases filed
in a court of Public Record,42 barring publication for six months of the names
of public witnesses;" hearing a secret witness,44 forbidding publication of a
change of plea in open court," forbidding publication of a defendant's prior
criminal indictment,;," forbidding publication as to any opinion as to inno-
cence of guilt," hearing two secret witnesses,' forbidding memory sketches of
an open court proceeding,4D sealing off an entire criminal trial,50 limiting news
media coverage to a single pool reporter,L1 banning publication of a public
jury verdict,52 and requiring reporters to sign an agreement not to report
parts of a public trial proceeding as a condition for admittance into the
courtroom.?3
There have also been orders directed toward third parties restricting all
access to defendants;'` witnesses," and potential witnesses' and voiding a
criminal indictment because the news media republished public information
distributed by the Food and Drug Administration " As a result of all this con-
fusion, reporters have frequently been held in contempt ?s and sometimes even
fined and jailed.
The confusion has confounded the courts as well. Even judges trying similar
cases in the same court have reached different results. For example, defend-
ants in the Watergate cover-up case were forbidden to talk to the press by
order of Chief Judge Sirica of the United States District Court for the
District of Columbia." But a trial order issued by Judge Gesell of the same
court in the Watergate-related trial of former White House aide Dwight
Chapin authorized the defendant to "communicate with the press as lie
chooses." eD One news organization has broken an order decreed invalid on
40 Sheppard v. Martoell, 384 U.S. 333 (1966).
41 State v. Sperry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), cert. denied sub. nom.
McCrea v. Sperry, 404 U.S. 939 (1971).
42 Charlottesville Newspapers, Inc. v. Berry, Nos. 740463 and 740464 (Va. Sup. Ct.,
June 19, 1974).
sa Sun Co. v. Superior Court, 29 Cal. App. 3d 815, 105 Cal. Rptr. 873 (1973).
41 14idgett v. McClellan, No. 71-1076HM (D. Md., June 12, 1974).
45State v. Payne, No. 74-71i' (Mantee Cty., Fla. Cir. Ct., April 4, 1974).
17
0 United People vaGreen,SNosvL28145FrthroughnL281 0J (San lancsco,usCa.,1Mun. Ct.,
May 9, 1974).
4s United States v. Iiloenaker, No. S-CIV-73-80 (S.D. Ill., March 26, 1974).
S9 United States v. Columbia Broadcasting System, 497 F. 2d 102 (5th Cir. 1974).
50 Oliver v. Postel, 30 N.Y. 2d 171, 331 N.F.S. 2d 407, 282 N.E. 2d 306 (1972).
51 State v. Dauber, No. 6855 (Marshall, Ind., Cir. Ct., April 11, 1973).
12 Wood v. Goodson, 485 S.W. 2d 218 (Ark. 1972).
4UnitedeStateswv. Tijerina, Times F. 2d Record, 661 April
(10 h Cir.), denied, 396 U.S. 990
(1969) ; United States v. Mitchell, Crim. No. 74-110 (D.D.C., filed March 1, 1974) ;
Hamilton v. Municipal Court, 270 Cal. App. 2d 797, 76 Cal. Rptr. 168, cert. denied,
396 U.S. 985 (1969). aa
05 United EB Ham States v.
v. Municipal Afitohell. 74-110 (D.D.C 2d 7971776 1eCal. Rptr.1161 7cert. denied,
396 U.S. 9S5 (1969).
67 United States v. Abbott Laboratories, No. 2897 Crim. (E,D. N.C., filed December 17,
1973), rev'd, No. 74--1230 (4th Cir., flied October 2, 1974).
Ea United States v. Columbia Broadcasting System, 497 F. 2d 102 (5th Cir. 1974)
United States v. Dickinson, 465 F. 2d 496 (5th Cir. 1972), cert. denied, 414 U.S. 979
(1973) ; Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 418 P. 2d 594 (1966)
(contempt reversed by Ariz. Sup. Ct.) ; State v. Meek, 9 Ariz. App. 149, 450 P. 2d 115,
cert. denied, 396 U.S. S47 (1969) ; Wood v. Goodson, 485 S.W. 2d 213 (Ark. 1972).
(contempt reversed by Ark. Sup. Ct.) ; Farr v. Superior Court, 22 Cal. App. 3d 00, 99
Cal. Rptr. 342 (1971), cert. denied, 409 U.S. 1011 (1972) ; In re Ithaca Journal News,
Inc., 292 N.Y.S. 2d 920 (1965) ; State v. Sperry, 79 Wash. 2d 69, 483 P. 2d 608 (1971),
cert. denied sub. nom. (contempt reversed by Wash. Sun. Ct.).
69 United States v. Mitchell, Crim. No. 74-110 (D.D.C., filed March 1, 1974).
00 United States v. Chapin, Crim. Case No. 990--73 (D.D.C., filed February 28, 1974).
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appeal and yet has been held in contempt of the invalid order in Dickinson v.
U.S." while another appellate court has upheld a newspaper's right to violate
an invalid gag order ?a
Some members of the media. have felt they ought to obey gag orders, even
when they directly forbid publication of editorials and stories about a particu-
lar case, in flat contradiction of the doctrine of Near v. Minnesota."
Today, no one in the news media, in the bar or on the bench, knows what
the law is and we respectfully submit that the Congress, as a matter of public
policy, has an opportunity to resolve the growing conflict.
We think of course that any order against the press prohibiting publication
of any information relating to the criminal justice process is an unconstitu-
tional prior restraint under the doctrine of Rear v. Minnesota.` However, we
also believe that the Supreme Court may find that there are rare instances
when these orders may be justified; and for that reason we would not ask
the Congress in the Federal Rules of Criminal Procedure for the United States
district courts to bar all orders of whatever nature under any circumstances.
We would, however, suggest to the Congress that it may be able to ofi'er a
solution to this problem by giving the press a procedural due process guarantee
in the issuance of any orders which restrict publication about the criminal
justice process.
In 1072, this Committee conducted a survey of most of the significant media
gag order cases, and this study revealed the rather startling fact that in no
single litigated case that was surveyed had there been a semblance of pro-
cedural due process afforded to the parties most affected-the news media.
That is, in no case were the media given notice, an opportunity to be heard
or the chance to present evidence in advance of an order restricting their
coverage of public proceedings.
Therefore, we would suggest to the Congress that they bar the federal
courts from holding any newspaper in contempt of any order barring publica-
tion of information about federal criminal trials if the order has not been
published and if the news media has not been published and if the news
media has not been given an opportunity to present evidence on its behalf,
to obtain written findings of fact and to appeal on an. extracted basis before
the order goes into effect.
Perhaps the most controversial development in this field occurred in the
Dickinson case when the United States Court of Appeals for the Fifth Cir-
cult ruled that a newspaper in Baton Rouge was properly held in contempt
because it violated a gag order which the Fifth Circuit subsequently found
was invalid under the First Amendment ?6 We would hope that the Congress,
under its powers to control the use of criminal contempt and under its power
to control the federal rules of criminal procedure, would attempt to settle
the gag order situation insofar as it applies to federal criminal proceedings
by drafting a provision which would prohibit the execution of any contempt
order against the news media and it has been heard on appeal and the auto-
matic voiding of the contempt citation if the appellate court finds that the
underlying order was itself invalid under the statutes of the United States or
the Constitution.
OTT-TER ACCESS PROBLEMS TO THE CRIMINAL JUSTICE PROCESS : ARRESTS
Another problem which the news media is now being faced with is a growing
move under the guise of privacy, to seal arrest records. Proposals were sub-
mitted by former Senator Ervin to limit the availability of public arrest and
conviction records. There is a regulation which has been published but not
implemented by the Law Enforcement Assistance Administration, and there
are numerous court decisions in cases filed by individuals seeking to seal
their arrest records.
The most notable of these cases has occurred in the District of Columbia in
Murphy v. Sullivan 68 in which the United States Court of Appeals has ordered
61 Dickinson v. United States, 414 U.S. 979 (1973).
a+- State V. Snerry, 79 Wash. 2d 69, 483 P. 2d 608 (1971), cert. denied sub. nom.
81 Near v. Minnesota, 283 U.S. 697 (1931).
aS Id.
65 Dickinson v. United States, 414 U.S. 979 (1973).
-ea Murphy v. Sullivan, 478 P. 2d 938 (D.C.D. 1973).
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the expungdment of the identities of thirteen thousand persons arrested in
the May Day demonstrations and the identities, when known, of the police-
men who arrested them.
It is the position of this Committee that the most fundamental power of
the state is to deprive a person of his liberty and that the act itself of depriv-
ing a person of his liberty should always be a matter of public record regard-
less of whether the act itself is subsequently declared unconstitutional or
whether the act is subsequently declared invalid for other reasons such as
lack of evidence for prosecution, death of the witness, or just a mistake in
law.
The advantages of maintaining public access to arrest records are obvious,
especially to arrests which are subsequently dismissed. They may be dis-
missed because the law enforcement officer was subjected to undue political
pressure to drop the arrest. They may be dismissed because the law officer
was bribed. The arrested person may be a public figure now, or he may be
a public figure in the future, and it certainly would be of interest to the
public to know that he was arrested and the circumstances under which he
was able to have the arrest dismissed. It is the position of this Committee
that the news media and the public must have free access to records which
indicate the deprivations of liberty of a citizen and that these records should
contain at least the minimum information indicating conformity with the
probable cause requirements of the Fourth Amendment the identity of the
person who was arrested, the location where he was arrested, the charge he
was arrested upon, the person who arrested him and the complaining witness.
We would hope, in view of the extensive litigation in the courts on this
subject, that the Congress would find it appropriate in these Federal Rules to
insure for the public by some affirmative statement that records of arrests
with warrants and arrests without warrants (and searches with warrants
and without warrants) shall forever be a matter of public record for any
citizen to inspect at his will.
ACCESS TO CONVICTION RECORDS
We would raise a similar suggestion with reference to Section 527, the
proposed amendment in S-1 to the Judicial Procedure Act relating to con-
viction records. That section authorizes the Attorney General to maintain in
the Department of Justice "a repository of records and convictions and de-
terminations of the validity of such convictions." We are, however, disturbed
by Subdivision (c), "Records maintained in the repository shall not be public
records, but certified copies of the records" and they "may be furnished for
law enforcement purposes on the request of a court, la-;v enforcement officer,
or, officer of a facility for the confinement of convicted offenders * * `"
We cannot understand why a public record on file in a United States
District Court should not be available upon request from the justice Depart-
ment It the Justice Department maintains a certified copy of such record. The
Justice Department is a public agency and certainly it should be able to
use the certified copies of records for its own purposes. But under the statute
the public is denied the benefit of the Justice Department file. However, any
law enforcement agency whether it be federal, state or local, can simply
query the Justice Department on how many convictions it has on file for
Mr. X. and the local county police chief can obtain the information and yet
the local newspaper cannot. We can see no reason for denying to the public
or the Press the benefits of the collection and collation system maintained
in the Justice Department at public expense and not. giving the press the
same access to certified copies of public records that this statute would give
to any local police chief or court.
ACCESS TO FEDERAL CORRECTION INSTITUTIONS
As this Subcommittee knows, the correctional institutions in this country
are the subject of a great deal of controversy and public interest because the
public depends so much on the correctional facilities to rehabilitate convicted
offenders.
However, the Subcommittee must be aware that prisons are probably the
least reported and least understood public institutions in the country be-
cause traditions have developed which have denied news reporters any effec-
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37
tive access to the institutions. This tradition of internal secrecy was furthered
recently by the Supreme Court when it held in the cast of Washington Post
v. Srcxbe o7 by ti, vote of 5 to 4 that the news, media had no constitutional
riggh~.t to have, codential, interviews with inmates.
The news media! of course, considers the confidential interview with a par-
ticular inmate to be the most effective way to obtain information about a
prison system. Inmates'who'are interviewed in the presence of prison officials
are likely to be less than candid about conditions because of the ease of
physical retribution and the power that prison, officials have over their early
release on parade.
Thus, while the Supreme Court has said that the news media has no
constitutional right to talk to the inmate nor does the inmate have a consti-
tutional right to talk to the news media, the Congress certainly has the
power to require the Federal Bureau of Prisons and any state prisons re-'
ceiving Federal funds interviews between news reporters and inmates during
normal working hours and under'normal prison conditions.
S-1 has given extensive consideration to the organization of the Federal
Bureau of Prisons in Chapter 38. But unfortunately, we see no-provision for
confidential interviews or other news media access to the prison system, in
order to inform the public' how these vital institutions are operatin to
rehabilitate our convict population. We would respectfully hope that the Sub
committee would take the opportunity that it has in issuin rules and regu-
lations or the I ederal Bureau of prisons to affirmatively re%ulre the, prison
administrators to permit confidential interviews.
In the Supreme Copra case of Washington Post V. Saxbd'8 a 5-4 majority
agreed-with the Federal Bureau of Prisons that interviewing a particular in-
mate would make him a. "biq man" and would encqurae him to be a lgader
of internal prison disorders, and therefore the Court permitted` the $u{eau
to bar all confidential interviews.
However, several st~tea have policies of permitting conijde ial irterviews
and their prison administrators believe that permitting inmates to, talll; to,
, hgieause,
the press in fact decreases internal tensions inside penal institutions
it offers tkie innate the opportunity to get 1~is dissatis?action and criticisms
out to the public. We would hope that this Subcommittee would bellgve tat
Tor the good of the inmate, for the good of'the prison admhiistrators and;
certainly fa the good of the public which is bearing the extraordinary cost
of these institutiops that the Congress, would take this opportunity to en-
courage the freest flow of information about prison institutions; within. the
limitations imposed by the penal setting.
CONCLUSION
We know that this has been a rather long statement about S-1, and cer-
tainly there are many provisions,, such as the question of news media access,
to pre-trial discovery informatio, news media ability to get at parole
xnation records,' and other teatures, of the 1~{7,1 which are. pf great {nteFest.
However, we believe that this statement is long enough and this Committee
would, upon the inyitation of the Subcommittee, be pleased to co-operate in
any further way and to offer to this Subcommittee its, expertise on legal prob-
lems which now concern the press in; its. desire to inform the public about
the type of society we live in. We thank you..
Senator HnusKA. That is J~pp. Again, I. say your appearance here
is very much appreciated. You have dpubly enriched our record
with your first appearance and your appearance this morning.
Thank you for the comprehensive memorandum that you left
with us.
The committee will take a brief recess, and it will be resumed at
the order of the Chair.
[A recess was taken.]
67 Washington Post V. Saobe, U.S. Supreme Court Case No. 73-1265.
u Id.
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Senator HIiUSKA. The subcommittee will come to order.
We will now hear from Mr. Robert Pirtle, who has submitted a
statement which we will put in the record in its totality.
Mr. Pirtle, you may now proceed to highlight it so that we can
abide by the time limitation which are forced upon us.
[The prepared statement of Mr. Robert Pirtle follows:]
PREPARED STATEMENT or MR. ROBERT PIRTLE
Mr. Chairman and Honorable Subcommittee Members: This statement is
being filed on behalf of the Colville, Lummi, Makah and Suquamish Indian
Tribes whose reservations are situated in Washington, the Metlakatla Indian
Community whose reservation is situate in Alaska, and.the Northern Cheyenne
Indian Tribe whose reservation is situate in Montana.
Like most of the Indian tribes in America today, our tribes have been mak-,
ing steady progress year by year in modernizing and expanding the operation
of tribal government to the end that our reservations will be well governed and
the lives of all reservation residents improved. In the process, we have mod-
ernized our governmental systems, expanded our governmental programs, up-,
graded the quality of our staff personnel and made nse of every source of
technical knowledge available to us.
We have learned from hard experience that long disuse of governmental
power has in many cases resulted in the usurpation of this power by local
state and county units of government. Often the assertion of tribal rights of
self-government have been met by ridicule and opposition from non-Indians
unfamiliar with the law governing the rights of Indian tribes. But we are
committed to the principle of self-government or "home rule" in accordance
with the President's enunciation of our new national Indian policy made in
the historic speech to Congress on July 8, 1970:
.. Self-determination among the Indian people can and must be encouraged
without the threat of eventual termination. In my view, in fact, that is the
only way that self-determination can effectively be fostered.
"This, then, must be the goal of any new national policy toward the Indian
people ; to strengthen the Indian's sense of autonomy without threatening his
sense of community."
This policy of Indian self-determination has now been embodied in the
Indian Self-Determination and Education Assistance Act, Public Law 93-638
(S. 1017) on January 4, 1975. In Section 2 of the Act, Congress finds that "the
Indian people will never surrender their desire to control their relationships
both among themselves and with non-Indian governments, organizations, and
persons." And in Section 3 of the Act, Congress declared its policy to be the
following :
"The Congress declares its commitment to the maintenance of the Federal
Government's unique relationship with and responsibility to the Indian people
through the establishment of a meaningful Indian self-determination policy
which will permit an orderly transition from Federal domination of programs
for and services to Indians to effective and meaningful participation by the
Indian people in the planning, conduct, and administration of those programs
and services." (Emphasis supplied).
We believe we have the full support of the United States government in our
efforts toward achieving a real self-determination including revitalization of
our Law and Order Codes and our court systems.
It is for that reason that we think it would be tragic if your Subcommittee
were to act upon federal criminal legislation in a way which inadvertently
dealt a damaging and perhaps fatal blow to our efforts at home rule. We
applaud your effort to modernize the existing federal criminal laws through
S. 1 as we applauded the effort of the 93rd Congress. Many provisions of S. 1
will be of benefit to Indian tribes everywhere. However, we wish to address
ourselves to those provisions which we think would create a serious invasion
of sovereign governmental rights of Indian tribes.
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9
1. S. 1 WOULD NEEDLESSLY EXPAND FEDERAL CRIMINAL JURISDICTION OVER INDIANS
AND INDIAN RESERVATIONS
S..1 includes 33 new crimes not included in the existing Federal Criminal
Code and, as drafted, would make them applicable to all Indians on all Indian
reservations. Time has not permitted that we analyze each of the newly added
33 crimes, but experience dictates that ,because of the special status of Ameri-
can Indians and Indian tribes, activities which are properly criminal if per-
formed by non-Indians might. be appropriately performed by Indians because
of cultural or sociological factors and might even be protected by treaty
agreements. The status of Indian reservations as "distinct political commu-
nities", Worcester v. Georgia, 6 Pet. 515 (1832) Williams v. Lee, 358 U.S. 164
(173), dictates that an in-depth analysis.be made of the 33 crimes to determine
which if any. are. properly applicable to Indians and Indian reservations.
We urge that S. 1 not be enacted in its present form because of its needless
expansion of federal. criminal jurisdiction over Indians and Indian reserva-
tions. We also urge that field hearings be held to develop a factual background
regarding these 33 crimes with emphasis on existing law enforcement and
judicial systems on Indian reservations and their ability to deal with the
subject matter involved.
2 S. :1 WOULD NEEDLESSLY :ASSINfILATE ALL STATE LAW INTO FEDERAL CRIMINAL
JURISDICTION OVER INDIANS AND INDIAN RESERVATIONS
Section 1863 of S. 1, entitled "Violating State or Local Law in an Enclave"
Is the revised version of The Assimilative Crimes Act, 18 U.S.C. ? 13 which is
a part of the existing Federal Criminal ;Code. Section 1863 provides, in effect,
that a person is guilty of a crime as a matter of federal law if his conduct
violates the law of the state in which the Indian country is situate even
though his conduct does not violate the Federal Criminal Code otherwise. This
Section, operating through Section 203(a) (3) which defines the special terri-
torial jurisdiction of the United States as including "the Indian country, to
the extent provided under section 685 of the Criminal Justice Reform Act of
1975 (25 U.S.C. -)" results in an enormous expansion of federal criminal
jurisdiction. The net effect is to make every state law sanctioned by criminal
penalties applicable in all Indian country in the United States. This result is
a major change in existing law and is exactly contrary to the will of Congress
expressed in Public Law 90-284, the Indian Civil Rights Act of 1968 (62 Stat.
696).
The present state of the law is the following:, 18 U.S.C. Section 1152 provides
that the Federal Criminal Code, including the "Assimilative Crimes Act" (18
U.S.C. Section 13) applies in Indian countries with the following major limita-
tion :
"This section shall not extend to offenses committed by one Indian against
the person or property of another Indian, nor to any Indian committing any
offense in the Indian country who has been punished by the local law of the
:tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction
over such offenses is or may be secured to the Indian tribes respectively."
No such limitation appears in Section 203(a) (3).
Further, in the Indian Civil Rights Act of 1968, 62 Stat. 696, Congress re-
sponded to the unanimous plea of American Indians to stop further encroach-
ment of state laws in Indian country. A close examination of the almost 1280
pages of testimony elicited by Senator Ervin reveals that state law on Indian
reservations has been a disastrous failure ever since it first began with the
enactment of Public Law 83-280, 67 Stat. 588, in 1953. Section 406 of Public
Law 90-284 requires the consent of a majority of the adult Indians in any
Indian country prior to acquisition by the state of civil and criminal juris-
diction within the Indian country.
To allow a massive encroachment of state criminal law into Indian country
through the back door of revision of the Federal Criminal Code with S. 1 as
presently drafted, would frustrate the will of Congress expressed in the
Indian Civil Rights Act and betray not only our tribes but all Indian people
in the United States.
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~. S. I WOULD NEEDLESSLY EXPAND STATE CRIMINAL JURISDICTION OVER" INDIANS
AND INDIAN RESERVATIONS
The Major Crones Act, 18 USC Section 1153; vests federal courts with juris-
diction over 13. major crimes committed on Indian reservations by Indians
against the person or property of other Indians or other persons. This federal
jurisdriction is exclusive of state jurisdiction but is- not exclusive. of tribal
jurisdiction.
Section 205 of S. 1, however, entitled "Federal Jurisdiction Generally Not
Preemptive" provides in subsection (a) that unless. expressly provided; the
existence of federal jurisdiction over an offense does not preclude state or local
government- from exercising criminal jurisdiction over the same offense.
This provision would' again make every state laws sanctioned by criminal
penalties applicable in all Indian country in the United States. But in this
case the jurisdiction would lie in state courts rather than: iti the federal courts.
Thus the end result would be a wholesale application: of" state law and. state
criminal penalties in Indian country as a concurrent federal, and state matter.
The failure of Section 205 of S. I to preclude state jurisdiction would again
frustrate the will of Congress' expressed in the Indian Civil Rights Act and
betray the American Indian people.
Further, as Senator Ervin and this Subcommittee discovered in hearings
preliminary to the Indian Civil Rights Act of 1968, state and local governments
act in a very heavy-handed fashion in enforcing criminal laws on Indian
reservations. The statement of the United States Supreme Court in United
States v. Kaganaa, 118 U.S. 375, 30 L. Ed. 228; 6 S. Ct. 1109 (1885) applies
with equal force in 1975: That statement is:
"Because of' the local ill feeling, the people of the States where they are
found are often their deadliest enemies. From their very weakness and- help-
lessness. so largely due to the course of dealing with the Federal Government
with them and the treaties- in which it has been promised, there arises the
duty of protection, and with it the power. This has always' been recognized by
the Executive and by Congress, and by this court whenever the question has
arisen."
State jurisdiction on Indian reservations is a one-edged sword that cuts in
the direction of prosecution of Indians accused of crimes but does not cut in
the direction of protecting Indian lives and property: We are now taking part
in a computerized nationwide process of gathering evidence of the flagrant
misapplication of state criminal laws to Indians and Indian property in Indian
country to present to the United States Senate to support our effort to amend
Public Law 83-280. It behooves this Subcommittee and the entire Congress to
wait until that study is completed before enacting any legislation which would
expand the application of state criminal laws in Indian country.
4. S. 1 WOULD VIOLATE TRIBAL SELF-DETERMINATION BY DECREASING TRIBAL
CRIMINAL JURISDICTION
The question whether an Indian tribe has jurisdiction over non-Indians
who commit offenses in Indian country is not finally determined by the United
States Supreme Court. States invariably take the position that Indian tribes
do not have jurisdiction over non-Indians for any purpose, but their conclusion
does not withstand analysis.
Enactment of the Major Crimes Act of 1886 did not constitute a withdrawal
of tribal jurisdiction over felonies named therein but, instead, established
concurrent tribal and federal jurisdiction. This conclusion is borne out by the
decision of the United States Supreme Court in Keebic v. U.S., 412 U:S. 205,
03 S. Ct. 1993, 36 L. Ed: 2d 844 (1973), in which the Supreme Court held that
an Indian prosecuted under the Major Crimes Act of 1885 is entitled to a jury
instruction on lesser-included defenses. The Supreme Court held that such an
instruction would not expand the reach of the Major Crimes Act of 1885 or
constitute an infringement on the residual jurisdiction of Indian tribes. This
conclusion of the United States Supreme Court is consistent only with the
notion of concurrent tribal and federal jurisdiction on Indian reservations
respecting both felonies named in the Major Crimes Act of 1885, other felonies,
and misdemeanors.
Supporting this conclusion that Indian tribes have criminal jurisdiction over
non-Indians on their reservations is the decision of the Federal District Court
for the Western District of Washington in Oliphant v. Schlie, No. 511-73C2
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dated April 4, 1974. in 'OUpheat, tribal law enforcement. officers of the Su-
auamish Indian Tribe arrested Mr. Mark Oliphant for a criminal charge on the
Port Madison Indian Reservation. In a habeas corpus proceeding in federal
court, .Mr. Oliphant attacked the jurisdiction of the tribe. The federal judge
noted that 'Indian tribes have all the powers of any sovereign state except those
specifically taken -away by the Congress, citing Worcester Y. Georgia, 31 U.S.
515 (1832) and denied the petition. The case is now on appeal to the Ninth
Circuit -Court of Appeals.
Enactment of Public Law 83-280 in 1953 did not constitute a withdrawal of
tribal criminal jurisdiction but, instead, established concurrent tribal and state
jurisdiction. We recognize that the concept of full tribal jurisdiction over all
offenses committed on Indian reservations is one which may trouble many
persons and may be considered a novelty by others. However, all tribes have
experienced the serious-frustration of tribal government as a result of their
inability to enforce their laws over violators on their reservations who are
non-Indians. The offenses most troublesome to Indian tribes are normally
misdemeanors and may consist of willful disobedience of tribal hunting and
fishing laws, or refusal to abide by tribal zoning and building code regulations.
It is =vital to the functioning 'of tribal government that they have the same
authority to enforce their laws over all persons within their boundaries re-
gardless of race.
Perhaps there will be those who will claim that this conclusion leads to
unjust treatment. To those persons we answer that the federal government
will surely fulfill its duty in prosecuting those accused of committing felonies
within the compass of the Major Crimes Act of 1885, and that regarding
remaining offenses, our tribal judges are entitled to as much confidence as is
accorded local magistrates in any town or village through which one happens
to be passing in the United States. Our tribal judges are in fact subject to
repeated training in .tribal judges schools.and seminars operated by the Bureau
of Indian Affairs and the National American Indian Court Judges' Association.
Additionally, the Indian Civil Rights Act of 1968, Public Law 90-284, guaran-
tees all persons a bill of rights substantially similar to that of the 'United
States Constitution.
It would be tragic if the 94th Congress, in a worthy effort to revive the
Federal Criminal Code, inadvertently destroyed an inherent tribal right which
has fallen into disuse but which is now being vigorously exercised by Indian
tribes in their effort to govern their reservations properly. The Subcommittee
should be aware that Indian tribes operate under tribal law and order codes
carefully drawn to 'preserve the rights of all persons persons and that wherever such
laws affect non-Indians, :they-have been carefully examined by the Bureau of
Indian Affairs and its solicitors for constitutionality.
In:no:case do the treaties, executive orders, or statutes Involving our tribes
yield -up to the 'federal or state governments authority over offenders on our
reservations. We.think:the legal principle.is,clear,and.should remain, inviolate
that Indian .tribes must berecognized by Congress as having Inherent authority
to try offenses committed by all persons within the boundaries of their reser-
vations.
Even though .Section 205(a.) (2) of S. 1 attempts to preserve the rights of
Indian tribes-to exercise their own jurisdiction in Indian country, the manner
in which that :setion is phrased and keys into other sections already dis-
cussed, is -likely ,to lead both federal and state courts _to conclude that Indian
tribes. do not have criminal jurisdiction over.non-ln,dians._on their reservations.
This .is especially so since the Indian Civil Rights Act of 1908, Public Law
90-284, limits;punishment meted out by tribal courts to six months' imprison-
ment and a $500 fine. If S. 1 is enacted in its present form, both state and
federal courts will .be strongly persuaded to : find that Indian tribes retain
neither -felony :nor misdemeanor Jurisdiction over non-Indians on their own
reservations and, =at most, misdemeanor jurisdiction over Indians on their
reservations.
r6.TIIE SAY TRPATY 'oF 17 9,4, 8 STAT. 11 6
We would-like to call the Subcommittee's.. attention to what may .be an over-
sight in S. 1, Section :1211, entitled "Unlawfully. Entering the United States
as an Alien." The Subcommittee should be aware that the Jay Treaty of 1794,
8 Stat. 116, which is still in effect, authorized ludians from Caiif0p and the
United States to pass freely back and forth across their common border.
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In the publication Treaties In Force on January 1, 1970, compiled by the
Treaty Affairs Staff of the Office of the Legal Advisor, Department of State, a
footnote to the listing to the Jay Treaty indicates that Article III, "so far as
it relates to Indians" is one of the three Articles of the Treaty which appears
to remain in force. Accordingly, to avoid any implication that S. 1 would
overrule or repeal that Jay Treaty, we suggest the addition of the following
proviso to Section 1211:
"Provided that nothing herein shall affect the rights of Indians under the
Jay Treaty with Canada of 1794, 8 Stat. 116."
6. STATE CRIMINAL JURISDICTION AND THE INDIAN CIVIL RIGHTS ACT
Finally, we must protest Section 685(a) of S. 1 entitled "Juisdiction over
Offenses Committed in the Indian Country." Essentially this statute is reenact-
ment of Section 2 of Public Law 83-280, the statute that first allows states to
assume jurisdiction over Indians and Indian reservations.
We call the attention of the Subcommittee to one of the basic precepts of
our American form of government, namely, that the legitimacy of any govern-
ment derives from the "consent of the governed." This concept was foremost in
the minds of the members of this very Subcommittee when it recommended
enactment of the Indian Civil Rights Act of 1968 which required consent by a
majority vote of adult Indians prior to any further state assumption of juris-
diction over Indian country.
We respectfully submit that the Congress should make clear that all states
presently exercising Indian jurisdiction, as well as states which seek to do so
in the future, should be subject to the consent requirements of the Indian Civil
Rights Act of 1968. We think it is wholly inappropriate and unfair for those
states that have heretofore assumed jurisdiction to be able to deprive Indians
of home rule without their consent while other states, not yet having acted,
must first secure the consent of the Indian tribes before assuming such juris-
diction.
The law governing criminal violations in Indian country is extremely com-
plex, involving state, federal and tribal jurisdiction, and does not lend itself
to simple analysis. Sociological and cultural factors on Indian reservations are
very different from those in even nearby non-Indian communities. These factors,
together with the trust relationship between the United States and Indian
tribes, and Congress' policy of fostering Indian self-determination, require that
careful thought and planning precede any major change in criminal jurisdic-
tion in Indian country.
A national effort is now under way to amend Public Law 83--280 to require
that all states exercising Indian jurisdiction must do so only upon consent
of the Indian people. Senator James Abourezk introduced S. 1328 on March
12, 1975 for that purpose. Senator Abourezk has scheduled hearings on S. 1328
before the Subcommittee on Indian Affairs of the Senate Interior and Insular
Affairs Committee on June 23 and June 24, 1975.
On January 2, 1975, Congress enacted Public Law 93-580, 88 Stat. 1910, to
provide for establishment of the American Indian Policy Review Commission.
The Commission has now been appointed and is in the process of initial
organization. We suggest that the Commission must be given an opportunity
to make the comprehensive review of conduct of Indian affairs mandated in
Public Law 93-580 in conjunction with Congress' proceeding upon S. 1328 if
the matter of criminal jurisdiction in Indian country is to be resolved in an
intelligent fashion.
Accordingly, we propose that S. 1 be amended by the addition of a new
subsection 203(d) entitled "Special Indian Country Jurisdiction" based upon
existing 18 U.S.C. Section 1153. We also suggest that S. 1 be appropriately
amended to maintain the status quo in Indian country until a thorough-going
study can be made of the newly added 33 crimes in S. 1 and the need for
amending Public Law 83-280.
We thank the Subcommittee for the opportunity givep to our representatives
to appear before it to testify and we request permission of the Subcommittee
to file a more extensive legal analysis of S. 1 to be included in the record of
hearings upon the Bill by the Subcommittee.
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Mr. PIRTLE. Thank you, Senator. I will be brief.
I speak today, Senator, on behalf of the six tribes in whose be-
half I have submitted a written statement. Also I speak on behalf
of Mel Tonasket, who is President of the National Congress of
American Indians and who was unable to be here today.
As pointed out in the statement that we have submitted, Senator,
we would like to argue that S. 1, as presently drafted, has one
major flaw with respect to criminal jurisdiction in Indian country.
The major flaw is that S. 1 constitutes a large expansion, both State
and Federal, of criminal jurisdiction.
The problem stems in part from the difficulties of dealing with
the very complex jurisdictional problems in Indian reservations in
which you have a tripartite criminal jurisdiction which is partly
tribal, partly State, and partly Federal. Any attempt to deal with
the difficulties leads to serious problems in terms of concepts of
overlapping jurisdictions, checkerboarded areas and the like. There
is currently a major drive that is being pursued by all Indians in
the country to amend Public Law 83-280, the act that first allowed
States to take jurisdiction in Indian reservations in 1953. I am par-
ticipating in that, and leading the fight, so to speak, is Senator
Abourezk, who has introduced S. 1328 into the Senate, a bill de-
signed to correct some of the tragic wrongs that have been done to
our Indian people. I will be working with Senator Abourezk and
his staff all afternoon today.
Just to be very short, Senator, Section 203(a) (3) of S. 1. is a
section that defines the special territorial jurisdiction of the United
States in a way that differs from current law. Whereas today there
is no jurisdiction over crimes committed by Indians against other
Indians or other persons of their property, there is no such limita-
tion in the special territorial jurisdictional definition in S. 1. That
means in part that the Assimilative Crimes Act now brings into
play every State law to which there is a criminal sanction, and
makes it-the crime committed-a crime as a matter of Federal law
in Federal courts.
That is not the State of the law today. That constitutes a major
change and, we think, a major flaw in S. 1.
I will not go into--
Senator ABOUREM. Mr. Chairman, may I just interrupt?
I did not quite understand what you said. You said the assimila-
tive crimes statute takes care of every crime that is not delineated
in the now 13 or 14 major crimes acts. Is that correct? .
Mr. PIRTLE. It is a little bit complicated because you have three
statutes that you have to put together.
Senator ABOUREZK. I do not mean that.
I just want to try to understand what your statement was a minute
ago. I honestly did not understand what you said.
Mr. PIRTLE. I think I can explain it by saying that section 1152
makes the Federal Criminal Code apply in Indian country, and sec-
tion 1153 is the Major Crimes Act and it says, it specifies-let me
turn to section 1152, Senator. Section 1152 is the act that now makes
the Federal Criminal Code apply in Indian territory.
Senator ABOUREVK. That is the Assimilative Crimes Act?
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Mr. PIRTLE. The Federal Criminal Code includes the Assimilative
Crimes Act; so section 1152, that makes the entire code apply to
Indian country. You then look at section 1-that is the Assimilative
Crimes Act-which makes any act that is not a Federal crime but
is a State crime, henceforth a Federal crime in Indian country.
Senator ABOUREZK. You went on to say there was serious flaw in
S. I. That is the part I do not understand.
Mr. PIRTLE. The serious flaw is this. Under the present state of
the law, section 1152 says the Federal Criminal Code does not
apply to offenses committed by one Indian against the property of
another Indian or another person; or where t}ie offender has been
punished by the local law of the tribe; or finally in cases where by
treaty stipulation exclusive jurisdiction over such offenses is given
to the tribe itself. In those situations, which are numerous and very
important, the Federal Criminal Code does not apply, and there-
fore the Assimilative Crimes Act does not apply. Therefore State
laws which make e?ertain offenses crimes do not apply. That should
certainly be preserved.
Senator ABOURE'LK. In your opinion, the flaw in S. 1 is that it does
not preserve tribal jurisdiction?
Mr. PIRTLE. It does not preserve tribal jurisdiction,; it does not
preserve Federal jurisdiction exclusively in certain areas. It brings
in a great deal of State law that we think should not be applicable.
Senator ABOURE'ZK. Now I understand.
Mr. PIRTLE. We also think that S. 1 makes a major expansion of
Federal criminal jurisdiction itself because it includes some 33 new
crimes that are suddenly forced upon the Indian people. Some of
these may well involve acts which
committed b
I
di
,
y non
n
ans are
- properly offenses, but which, committed by Indians, should not be.
In other words, there are certain cultural factors, sociological fac-
tors, and treaty guarantees to Indians, such that things which they
do may not properly be considered crimes, some things having to
do with their religion and other things. I will not get into that be-
cause that gets into very close detail and I know our time is limited.
I would suggest that what needs to be done is - very deep analysis
of the jurisdictional problems on Indian reservations and the pres-
ent difficult state of the law, and that S. 1 should, at the very
minimum, preserve the status quo until 'this effort is done, and that
the major effort of the Congress should be amending Public Law
83-280 and trying to establish proper criminal restrictions.
Senator HRUSKA. May I ask a question on the portion of your
statement in which you make this proposition, that instead of
applying the entire Criminal Code to Indians-I am partuphrasing
now, trying to get the thrust of your statement- -instead of apply-
ing the entire Federal Criminal Code to Indians, we should examine
whether each crime is appropriate to Indians or in conflict with
their customs and religion, and then take that into account in
making S. 1-the balance of S. 1-applicable.
Instead of putting the burden on S. 1, should not the burden be
with you and you could give us a list of those things which are
contrary or in conflict with customs and religions, or whether or
not the crime is appropriate to Indians, and then come here and
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J
gay, these are hot : bdd. `These things which are included in S. 1 are
not good as to Indians because they are contrary or in conflict, and
we,aSk special treatment.
Would hot that be a better apprdacli to this process?
Mr. PIIiTLL.Senator, I do hink that that kind of a "task has to be
undertaken. The question is who should undertake it.
I represent s'ix tribes, lour in the State of Washington, one in
Moitana, one "-in Alaska. There are very different kinds of factors
that have to be considered with respect to Indians generally. In
the Southwest there wte`some very different situations.
We have now established the Indian Policy Review Commission.
I would think that Cointnission would be exactly the instrument of
Congress which should have a 'look into this entire problem and
come 'up with 'recommendations to Congress. It seems to me that is
a prime -task for that Commission.
Senator 1-IRuSKA. It puts quite a'burden on us on just how we go
"about it. Here we hs;ve a Nation of 213 million people and we de-
vised the Criminal 'Code for them; then should we put a provision
in there:
ITOwever, 'if any of these provisions are 'in violation of Indian law or in
conflict with their customs and religion, they will not apply.
That is quite an order. It is very difficult. I do not know how that
would be received. It would be so vague, it would be so difficult.
It might not meet constitutional 'limitations according to the 'very
nature of it.
Do you have some suggestions?
'Senator ABou REZK. I would like to suggest, Senator llruska-in
a sense, I agree with the witness-that the Judiciary Committee of
'the Congress ought not to 'just blanket any reservations with an-
other system of penalties for or offenses that may or may not be ac-
cording to Indian traditions.
I would just like to `tell the chairman what my efforts, as Chair-
man bf the Indian Affairs Subcommittee of Interior and as Chair-
Ynan bf the new Amer'i'can Indian Policy Review Commission, are
in this line. We dointend to undertake a`study of Indian jurisdic-
tion `in'the Policy 'Review 'commission. We intend to assign one of
the task forces to that job. The final report of the Commission will
be out 'within' years' time according to the `law, and we expect to
meet' that deadline 'quite easily.
Second, I have introduced a bill which in some cases would repeal
Tublic Law %8-28O,'the State Jurisdiction Assumption Law, and in
'Other 'Case's wbuld strictly define Indian jurisdiction by limiting
who has jurisdiction d Ver 'what. As an 'effort, 'the bill I have intro-
duced-S. 1328 is the number given the bill-it is an effort to under-
take adialog and 'debate on the limits of Indian jurisdiction which
we'hbpe, in ?he'Indiari Affairs Siibcoinniittee, tb'get underway within
a very stort time, within a month for -th'e'initial hearings-arid initial
study of: that. a ;
`fib, what I `would like to request * of the subcommittee and the
Judiciary Committee is *that" the Jtidici'aVy Committee maintain the
'statiz's'tjtib 'b'tre'r'fifidiaii law.'The're is no need 'to immediately change
Indian law because things are moving along good in some 'places
54-39&--75-4
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and pretty rocky in some other places with what existing Indian
law we have. But there is no immediate change required. The Com-
mission that I talked of and the Indian AtFairs Subcommittee of the
Interior will be doing this. So, I would just add that you associate
my remarks with Mr. Pirtle's in asking the Judiciary to maintain
the status quo.
Senator HRUSKA. Of course, we went through all of these things at
the hands and very dedicated and extensive efforts of Senator Ervin.
We have an Assimilative Act in this area.
How are we going to unweave it? That takes some doing, does it
not ?
Mr. PIRTLE. It does, Senator, but we can help you do it. I think
we could come up with proper provisions to do that.
Senator HRUSKA. Well that will be part of our job, to consider
the attempt you are making in your bill, Senator Abourezk, and
find out if that is practical. If it is going to result in violence
to the overall picture here, that will probably not be desirable
either, and leave voids that may be even more undesirable than we
have proposed in S. 1.
That would be a factor that we would have to take into considera-
tion.
Mr. PIRTLE. That is very true, Senator. If I may summarize, and
then I want to give Mr. Hovis the microphone.
First, the jurisdictional situation is very complex on Indian reser-
vations, and a great deal of it is unresolved at the present time and
in the process of resolution in various courts.
Second, Senator Abourezk's bill, S. 1328, which proposes to amend
Public Law 83-280, when carefully worked through the Indian
Policy Review Commission and its procedures, will result in a good,
integrated, overall plan for jurisdiction, both criminally and civilly
on Indian reservations.__
I think the committee should keep in mind that the end result
to be achieved is so important that it should not be glossed over
at this time by an attempt which is not fair and not enought in depth.
I would be happy to offer our services to your committee to pre-
serve the status quo of the law in S. 1, until Senator Abourezk and
that Commission can complete its work.
Senator HRUSI.A. That is a very generous offer and it would be
activity in the field that would be very helpful to the committee.
We have consulted the best authorities we could find in formulat-
ing what we have included in S. 1. In due time, Senator, we will
get into the bill you have, and also the position which you have ex-
pressed support for that has been given to us by the witness.
Mr. PIRTLE. Thank you, Senator.
Senator ABOUREzx. I would like to offer to this particular sub-
committee, in a joint responsibility in this area, that we should
at least hold hearings together.
Senator HRUSKA. I think you will find cooperation at the highest
levels of the committee. However, if we are going to be asked to
hold this bill in abeyance until we solve the problems of the Indian
rights, we will consign this bill to the ash can, because that is going
to be a long process.
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The big question, it seems to me, Senator, will be can we set
aside these problems in some sensible and satisfactory way to allow
the rest of the bill to go forward because of the pressing need for it?
And, if anything has come from the last 12 years of effort for
codification of the Federal law, we ought to have some respect for
the conclusion that we have reached.
Senator ABOUREZK. Senator, on page 45 of the bill, S. 1, 1 think
there is one section, subsection (3) that includes Indian country as
special territorial jurisdiction. That might be amended to say "Of-
fenses in Indian country shall remain under the status quo," or
some other language appropriate to the bill.
Senator HRUSKA. Subparagraph (3) ?
Senator ABouREZK. Yes. I think that might accomplish, very sim-
ply, what we want to accomplish. And that is, to maintain the status
quo and to allow us to go on with our more indepth study.
Senator IIRUSKA. That is a good suggestion. Let us consider it
when we go into a markup session.
Senator ABOUREZK. We may get the advice from Mr. Pirtle.
Senator HRUSK.A. Could you give us a memo on that particular
point?
Mr. PIRTLE. I would be happy to, Senator.
Senator HRUSK.A. That would be very helpful.
[The information referred to follows:]
ZIONTZ, PIRTLE, MORRISSET, ERNSTOFF & CHESTNUT,
ATTORNEYS AT LAW,
Seattle, Wash., July 17, 1975.
Re Indian Amendments to S. 1.
Mr. PAUL C. SUHMITT,
Chief Counsel, U.S. Senate, Committee on the Judiciary, Subcommittee on Crimi-
nal Laws and Procedures, New Senate Office Building, Washington, D.C.
DEAR PAUL : In accordance with my promise to Sen. Hruska at the time I testi-
fied at the last hearing and our discussions when I was in Washington last month,
I enclose a draft of the Indian Amendments to S. 1 which should be inserted into
the Bill. My idea was to take the Committee Amendments which you and Dennis
Thelan worked out and conform them both to the position of the National Con-
gress of American Indians and the National Tribal Chairmen's Association re-
garding Amendment of P.L. 83-280, and in keeping with what I perceive to be the
feeling of the Indian community on the whole concerning a number of individual
points. Consider the following :
1. Sec. 1217(e) :
You will note that I have changed the wording in this subchapter to conform
to the original language of the Jay Treaty. It is interesting that nowhere in the
legislative history of 8 USC ? 1359, the statute embodying Article III of the Jay
Treaty, is there any explanation for the constricted language of 8 USC ? 1359.
2. See. 685 (a) (/F)
You will note that we reincluded subsection (4) which is certainly needed in the
definition of "Indian country" to include trust allotments outside Indian reser-
vations but in the ceded territory of the tribes.
3. See. 685 (d)
As you can see, I have ' eliminated negligent homicide, maiming, aggravated
battery, terrorizing, reckless endangerment; kidnapping, aggravated criminal
restraint, aggravated property destruction, criminal entry, trafficking in stolen
property and receiving stolen property from this subsection since the inclusion of
all those crimes would greatly expand the present law. If you examine the defi-
nitions of those statutes, you will see, time and again, that they encroach on
tribal sovereignty in ways which should not be done lightly but only after a
.thorough-going study.
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4. Sec. 685(e):
The language of this subsection has`been cleaned up:*ince-the intent is to make
subsections '(c) and (d) inapplicable not only to Indian country within the six
states harmed in subsection (f) (1), but areas of Indian country in other states
Which was assumed under section 6 or 7 of P.L. 83-280.
5. Sec. 685(f) (3):
Again, this subsection has been cleaned up as was Sec.'f85 (e) above.
6. Sec. 685(g)-(j):
These subsections (g through j) provide for the reacquisition by the United
States of crinun'al jurisdiction assumed by any state pursuant to one of the acts
enumerated. These subsections represont the desire of the National Congress of
American Indians and the National Tribal Chairmen's Association and, as you
know, resulted from the National Convention on Public Law 280 which was held
in Denver on February 23-24. See S. 2010.
7. Sec. 686:
Subsections (a) through (f) represent reenactment of the present liquor
statutes regarding Indian country. Subsection (c) is a reenactment of 18 USC
? 1161, and you will notice that I have added a paragraph preserving tribal
liquor ordinances already adopted by Indian tribes, ccrtified by the Secretary
of the Interior, and published in the Federal Register pursuant to 67 Stat. 586.
This is necessary to prevent Indian tribes who have already acted from having to
begin anew.
8. Sec. 693:
This section. which would repeal the Act of July 2, 1$18, 25IJSC ? 232, should
be deleted since not all-New York Slate jurisdiction over indian -tribes should
be removed automatically. Rather, New York Indian tribes shodtd act pursuant
to See. 685(g).
9. Sec. 698:
In subsection (1) I provide for changing the maximurn penalty of tribal courts
of "six months or a fine of $500" to "one year or a flue of $10,000." Such an
amendment would make tribal courts much more effective.
10. Sec. 698(2):
This subsection amends See. 403 (a) of the `Indian Civil Rights Act, 2 T'SC
?1323(a) by deleting references to Public Law 83--2S0 and inserting instead all
of the acts whereunder states acquired criminal jurisdl,tion in Indian country
enumerated in Sec. 685(g), see page 7.
Paul, I would appreciate your advising me at your earliest possible convenience
concerning the addition of these amendments to the Committee Draft of S. 1.
If you have any questions, please advise me.
Very truly yours,
AMENDMENTS TO S.1
1. "?203. Special Jurisdiction of the United States
"(a) Special Territorial Jurisdiction: --The special territorial jurisdiction of
the United States includes:
"(3) the Indian country, as defined in section 685(a) of the Criminal
Justice Reform Act of 1975 (25 U.S.C. -) ;
2. "? 205. Federal Jurisdiction Generally Not Preemptive
"(a) In General.-Except as otherwise expressly provided, the existence of
federal jurisdiction over an offense does not, in itself, preclude :
"(1) a state or local government from exercising its concurrent jurisdic-
tion to enforce its laws applicable to the conduct involved ;
"(2) ~an Indian tribe, band, community, group, or pueblo from exercising
its concurrent jurisdiction in Indian country to enforce its laws applicable
to the conduct Involved ; or
3. "? 1217 General Provisions for Subchapter B
"(a) Definition s.-As used in this subchapter:
"(1) 'alien', 'application ; for admission', 'border crossing ,identification
card', 'entry', 'Immigration officer', 'passport', 'United States', 'immigrant
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visa', and `nonimmigrant visa' have the meaning prescribed in section 101 of
the Immigration and Nationality Act, as amended (8 U.S.C. 1101), and
,alien' includes an alien `crewman' as defined'inthat Act ;
" (2) `fraud' includes conduct described in sections 1301 (a) and 1343 (a)
(1) (A) through (E).
"(b) Proof' of Materiality:-To the extent that materiality is an element of
an offense described in sections 1211 through 1215, the provisions of section
1345(b) (2) that apply to section 1343 (making a False Statement) apply also
to such sections.
"(c) Exception-Nothing in this subchapter shall be construed to affect the
right of Indians dwelling on either side of the boundary line between the United
States and Canada, freely to pass and repass the borders of the United States.
4. Title II-Technical and Conforming Amendments.
Part T-Avaem:dnxcnts Relating: to Indians, Title 25, United States Code
Sec. 685. Jurisdiction Over Offenses Committed in the Indian Country.-
(a) AA used in this section, the term "Indian country" includes
(1) all land within the limits of any Indian reservation under the juris-
diction of the United States, notwithstanding the issuance. of any patent,
and including any right-of-way running through a reservation ;
(2) all, dependent Indian communities within the borders of the United
States, whether within the original or subsequently acquired territory
thereof; and whetl3er, within or. without a State; and
(3) all Indian allotments, the Indian titles to which have not been ex-
tinguished, including any rightrof-way running through such an allotment;
and
(4) all land outside the limits of any Indian reservation, the title to which
is held in trust by the United States for any Indian tribe, band, community,
group, or pueblo.
"(b) Except to the extent specifically set forth in this Act, nothing herein is
intended to diminish, expand, or otherwise alter in any manner or to any extent
Federal, State, or tribal jurisdiction over offenses within Indian country, as such
jurisdiction existed on the date immediately preceding the effective date of this
Act.
"(c) Except as provided in subsection (d) of this section, the general laws of
the United States as to the punishment of offenses within the special jurisdiction
of the United States shall not extend to offenses committed by one Indian against
the person or property of another Indian or to any Indian committing any offense
in the Indian country who has been punished by the local law of the tribe or to
any case in which, by treaty stipulations, the exclusive jurisdiction over such
offenses is or may be secured to the Indian tribes respectively.
"(d) Any Indian who commits against the person or property of another In-
dian or other person any of the following felony offenses as defined in title 18,
United States Code, namely, Murder (section 1601), Manslaughter (section 1602),
Rape (section 1641), Sexual Assault (section 1642), Sexual Abuse of a Minor
(section 1643), Arson (section 1701), Burglary (section 1711), Robbery (section
1721), Theft (section 1731), or incest shall be subject to the same law and
penalties as all other persons committing any of the above offenses within the
special jurisdiction of the United States. As used in this section, the offense of
incest shall be defined and punished in accordance with such laws of the State in
which the offense was committed as are in force at the time of such offense. In
the event of a criminal prosecution of an Indian for one or more of the foregoing
offenses. this subsection shall not be construed to preclude a finding of guilty of
a lesser included offense of such offoose or offenses.
"(e) The provisions. of subsections (c) and (d) of this section shall not be
applicable within the areas of Indian country listed in subsection (f) (1) nor to
any areas of Indian country subject to. state criminal jurisdiction in any state
which assumed such criminal jurisdiction pursuant to Section 6 or 7 of the Act
of August 15, 1083 (07 Stat. 588).
"(f) (1) Each of the States listed in the following table shall have jurisdic-
tion over offenses committed by or against Indians in the areas of Indian country
listed opposite the name of the State to the same extent that such State has
jurisdiction over offenses committed elsewhere within the State, and the criminal
laws of such State shall have the same force and effect within such Indian coun-
try as they have elsewhere within the State :
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Alaska.-All Indian country within the State, except that on Annette Islands
the Metlakatla Indian Community may exercise jurisdiction over offenses com-
mitted by Indians in the same manner in which such jurisdiction may be exer-
cised by Indian tribes in Indian country over which State jurisdiction has not
been extended.
California.-All Indian country within the State.
Minnesota.-All Indian country within the State, except the Red Lake Reser-
vations.
Nebraska.-All Indian country within the State.
Oregon.-All Indian country within the State, except the Warm Springs
Reservation.
TYisconsin.-All Indian country within the State.
"(2) Nothing in this section shall authorize the alienation, encumbrance; or
taxation of any real or personal property, including water rights, belonging to
any Indian or any Indian tribe, band, or community that is held in trust by the
United States or is subject to a restriction against alienation imposed by the
United States ; or shall authorize regulation of the use of such property in a
manner inconsistent with any Federal treaty, agreement, or statute or with
any regulation made pursuant thereto ; or shall deprive any Indian tribe, band,
or community of any right, privilege, or immunity afforded under Federal treaty,
agreement, or statute with respect to hunting, trapping, or fishing or the control,
licensing or regulation thereof.
"(3) The areas listed in subsection (f) (1) and areas of Indian country sub-
ject to state criminal jurisdiction in any state which assumed such criminal
jurisdiction pursuant to Section 6 or 7 of the Act of August 15, 1953 (67 Stat.
588), are excluded from the special jurisdiction of the United Stater described
in Section 203 of Title 18, unless the United States has reacquired jurisdiction
pursuant to Section 685 of this Act.
"(g) (1) In any case in which, pursuant to the provisions of Sections 2, 6, or 7
of the Act of August 15, 1953, 67 Stat. 588, the Act of February 8, 1887, 24 Stat.
390, the Act ofMay 8, 1906, 34 Stat. 182, the Act of June 25, 1948, 62 Stat. 827,
the Act of July 2, 1948, 62 Stat. 1224, the Act of September 13, 1950, 64 Stat. 845,
the Act of August 8, 1V)8, 72 Stat. 545, the Act of April 11, 1968, 82 Stat. 78, or
the Act of November 25, 1970, 84 Stat. 13158, or court decisions, any area of Indian
country or person therein is subject to state criminal jurisdiction or law, the
Indian tribe affected is authorized to adopt resolutions indicating its desire (1) to
have the United States reacquire all or any measure of such criminal jurisdiction
and to have all or any measure of the corresponding criminal law of the state
no longer applicable, and (2) to determine whether tribal criminal jurisdiction'
or law shall be concurrent with all or any measure of federal or state criminal
jurisdiction or law.
"(2) Any such resolution shall be adopted by the tribal council or other gov-
erning body of such tribe, or shall be adopted by the initiative or referendum.
procedure contained in the tribal constitution and bylaws,; provided, however,
that if the tribal constitution and by-laws contain no initiative or referendum
procedure, the resolution may be adopted by majority vote of the eligible voters
who are enrolled members of the tribe residing on its reservation in a referendum
election upon a petition signed by at least 25c%o of the eligible voters of the tribe
who are enrolled members residing on its reservation.
"(3) Ninety days following receipt by the Secretary of the Interior of any such
resolutions adopted in accordance with the provisions of this Act, the resolution.
shall be effective unless the Secretary of the Interior has within that period
formally disapproved the resolution for the reason that (1) the tribe has no ap-
plicable existing or proposed law and order code, or (2) the tribe has no plan
for fulfilling its responsibilities under the jurisdiction sought to be reacquired or
determined.
"(4) Whenever the resolution shall become effective, (1) the United States
shall reacquire, in accordance with the provisions of the resolution, all or any
measure of such criminal jurisdiction in such area of Indian country or parts
thereof occupied by the tribe, and all or any measure of the corresponding crimi-
nal law of the State shall no longer be applicable therein, and (2) tribal criminal
jurisdiction or law shall, in accordance with the provisions of the resolution, be
concurrent with all or any measure of federal or state criminal jurisdiction or
law.
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"(5) Upon disapproval by the Secretary of any such resolution, the Secretary
shall immediately assist the tribe under subsection (j) hereof in preparation of
a law and order code or plan,. and when such inadequacies are alleviated, the
Secretary shall approve the resolution. In the event of disapproval by the Secre-
tary of any such resolution, the tribe affected may appeal the disapproval to the
Federal Court for the District of Columbia in which original jurisdiction for any
such appeal is hereby vested, and the Secretary shall have the burden of sustain-
ing his findings upon which the resolution was disapproved.
?' (h) No action or proceeding pending before any court or agency of any State
inmiediately prior to the reacquisition or determination of jurisdiction pursuant
to this Act shall abate by reason thereof. For purposes of any such action or pro-
ceeding, such reacquisition or determination of jurisdiction shall take effect on
the day following the date of final determination of such action or proceeding.
(i) Section 6 of the Act of August 15, 1953 (67 Stat. 588) is hereby repealed,
but such repeal shall not affect any cession of jurisdiction validly made pursuant
to such section prior to its repeal.
"(j) (1) The Secretary of the Interior is authorized and directed to establish
and implement programs to improve law enforcement and the administration of
justice within Indian reservations and Indian country.
"(2) ' In implementing such programs the Secretary is authorized to make
grants to, and contracts with, Indian tribes, to implement programs and projects
to
"(a) determine the feasibility of federal reacquisitions of jurisdiction and
determination of jurisdiction over such Indian country or parts thereof occupied
by such tribes, including preparation of law and order codes, codes of criminal
procedure, and establishment of plans for fulfilling tribal responsibilities under
the jurisdiction sought to be reacquired or determined ;
"(b) establish and strengthen police forces of the tribes, including recruitment,
training, compensation, fringe benefits, and the acquisition and maintenance of
police equipment ;
"(c) establish and improve tribal courts in order to assure speedy and just
trials for offenders, the appointment, training and compensation of qualified
judges, and the appointment, training and compensation of qualified Indian
prosecution officers, and the establishment of competent legal defender programs ;
"(d) establish and maintain correctional facilities and establish and strengthen,
correctional personnel departments, including recruitment, training, compensa-
tion, and fringe benefits.
5. Sec. 686. Application of Indian Liquor Laws.
(a) Into.Ticants Dispensed in Indian Country.-
(1) Whoever sells, gives away, disposes of, exchanges, or barters any malt,
spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or
other intoxicating liquor of any kind whatsoever, except for scientific, sacra-
mental, medicinal or mechanical purposes, or any essence, extract, bitters, prepa-
ration, compound, composition, or any article whatsoever, under any name, label,
or brand, which produces intoxication, to any Indian to whom an allotment of
land has been made while the title to the same shall be held in trust by the
Government, or to any Indian who is a ward of the Government under charge
of any Indian superintendent, or to any Indian, including mixed bloods, over
whom the Government, through its departments, exercises guardianship, and
whoever introduces or attempts to introduce any malt, spirituous, or vinous.
liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any
kind whatsoever into the Indian country, shall, for the first offense, be fined
not more than $500 or imprisoned not more than one year, or both ; and, for each
subsequent offense, be fined not more than $2,000 or imprisoned not more than
five years, or both.
(2) It shall be a sufficient defense to any charge of introducing or attempting
to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the
Indian country that the acts charged were done under authority, in writing,
from the Department of the Ariny or any officer duly authorized thereunto by the
Department of the Army, but this subsection shall not bar the prosecution of
any officer, soldier, sutler or storekeeper, attache, or employee of the Army of
the United States who barters, donates, or furnishes in any manner whatso-
ever liquors, beer, or any intoxicating beverage whatsoever to any Indian.
(3) The term "Indian country" as used in this section does not include fee-
patented lands in non-Indian communities or rights-of-way through Indian reser-
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vations, and this section does not apply to such] lane: or rights-of way in the
absence of a treaty or statute extending the Indian liquor laws theretq,
(b) Intoxicants Possessed Unla-wfuily.-Whoever, qxcept for scientific, sacra-
mental, medicinal or mechanical purposes, possesses intoyiq:3ting liquors in,
the Indian country or where, the introduction is prolzlbiteci; by treaty or an At
of Congress, shall,, for the first offense. be fined. not more tl}gn. $ Q9 or im.-
prisoned not more than one. year, or both ; and, for egeb subsequent Offense, be
fined not more than $2,000? or iinprisoned not more than, five years, or both.
The term "Indian. country" as used in this section clogs net include fee-patented
lands in non-Indian communities. or rights-of-,way thrpugll Indian resgrvations,
and this section does not apply to such, lands or rights;of-way in the absence of a
treaty or statute extending the Indian. Iiq.Rgr laws. thereto.
(c) An Indian tribe having jurisdiction goer Indian country, as defined in
Section 685 (a) of this Act, may adopt ordinanges.congerning dispensing, posses-
sign, and use of liquor in Indian country over which it bag juristlictiop,in eon
formity with the laws of the State in which the Indian country is locaxgd_, the
provisions of subsections (a), (b), (d), (e) and (f) hereof notwithstanding.
Such ordinances shall be certified by the Secretary of the Interior anti, published
in the Federal Register.
Nothing in this subchapter shalL alter the effectiveness ofordinances hgretoiore
adopted by Indian tribes, certified by the Secretary of the. I,tQ14y, d pub-
lished in the Federal Register pursuant to the Act of August 15, 1953, (67 Stat.
586).
(d) Liquor Violations in Indian Country.-If any superintendent of Indipn,
affairs, or commanding officer of a military post, or special agent of the Office of
Indian Affairs for the suppression of liquor traffic among Indians and; in the
Indian country and any authorized deputies under his supervision has probable
cause to believe that any person is about to introduce or has introduced any
spirituous liquor, beer, wine, or other intoxicating liquors named in,
Section E3,?,,(a.)
and (b) of this title into the Indian country in violation of law, he may cause the
places, conveyances, and packages of such person to be searched. If any such in-
toxicating liquor is found therein the same together with such conveyances and
packages of such person shall be seized and delivered to the proper officer, and
shall be proceeded against by libel in the proper court, and forfeited, one-half
to the informer and one-half to the use of the TTnited Sty?tes. If such person be a
trader, his license shall he revoked and his bond put in suit.
Any person in the service of the United States authorized by this section to
make searches and seizures, or any Indian may take and destroy any ardent
spirits or wine found in the Indian country, except such as are kept or used
for scientific, sacramental, medicinal, or mechanical purposes or such as may be
introduced therein by the Department of the Army.
In all cases arising. under this section and Sections 686(a) and (b) of this
title, Indians shall be competent witnesses.
(e) Intoxicating Liquor in Indian Country as Evidence of Unlawful Introduc-
tion.-The possession by a person of intoxicating liquors in Indian country where
the introduction is prohibited by treaty or Federal statute shall be prima facie
evidence of unlawful introduction.
(f) Conveyances carrying liquor.-Any conveyance, whether used by the owner
or another in introducing or attempting to introduce intoxicants into the Indian
country, or into other places where the introduction is prohibited by treaty or
enactment of Congress, shall be subject to seizure, libel, and forfeiture.
6. See 687. Destroying Boundary and Warning Signs.
Whoever knowingly destroys, defaces, or removes any sign erected by an
Indian tribe, or a Government agency (1) to indicate the boundary on an Indian
reservation or of any Indian country as defined in Section 685 of this Act, or (2)
to gill- notice that hunting. trapping, or fishing is not permitted thereon without
lawful authority or permission, is guilty of an offense under Section 1703 of title
18, United States Code.
7. See. 688. Hunting, Trapping, or Fishing on Indian Land.
Notwithstanding the provisions of Section 1713 of title 18, United States Code,
whoever, without lawful authority or permission, knowingly goes upon any land
that belongs to any Indian or Indian tribe, band, or group and either is held by
the United States in trust or is subject to a restriction against alienation imposed
by the United States, or upon any lands of the United States that are reserved for
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Indian use, for the hii'piose of hunting, trapping, or fishing thereon, or for the
rdnio6ftl of game, peltries, or fish therefrom, is guilty of a Class B misdemeanor ;
and all game, fish, and peltries in his possession shall be forfeited.
Sec. 695. Section 6 of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 4504) is repealed.
Sec. 696. Section 105(j) of the Indian Self-Determination Act (25 U.S.C. 450i)
is amended by deleting "sections 205 and 207 of title 18" and inserting in lieu
thereof "sections 9104 and 9106 of title 5."
Sec. 697. Section 10(c) of the Act of April 19, 1950 (25 U.S.C. 640(c) ), is
amended by deleting "sections 102 to 104, inclusive, of the Revised Statutes, and
Inserting in lieu thereof "sections 103 and 104 of the Revised Statutes of the
United States and sections 1332 and 1333 of title 1.8, United States Code."
Sec. 698. The Act of April 11, 1968 (25 U.S.C. 1301 et seq.), is amended as
follows:
(1) Section 202(7) (25 U.S.C. 1302(7)) is amended by deleting "six months
or a fine of $500" and inserting in lieu thereof "one year or a fine of $10,000."
(2) Section 403(a) (25 U.S.C. 1323(a)) is amended by deleting "section 1162
of title 18 of the United States Code," section 1360 of title 28 of the United States
Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect
prior to its repeal by subsection (b) of this section", and inserting in lieu thereof
"sections 2; 6, or 7 of the Act of August 15, 1953, 67 Stat. 588, the Act of Feb-
ruary 8, 1887, 24 Stat. 390, the Act of May 9. 1906, 34 Stat. 182, the Act of June 25,
1948, 62 Stat. 827, the Act of July 2, 1948, 62 Stat. 1224, the Act of September 13,
1950, 64 Stat. 845, the Act of August 8, 1958, 12 Stat. 545, the Act of April 11, 1968,
82 Stat. 78,.the Act of November 25,1970, 84 Stat.195S, Sec. 685 (f) of the Criminal
Justice Reform Act of 1975, or court decisions.
Senator HI.usKA. Our next witness will be Mr. James B. Hovis;
who has given us a very extensive treatment of the subject he deals
with. His statement will be placed in, the record in its totality.
Mr. Hovis. Mr. Chairman, I would like to request that the staff
and the committee look at that appendage very closely. It is a
report that has been done by a professor from the University of,
Washington, making a total overview of the effect of Public Law
83-280 in the State of Washington, and all the citations and all of
the material therein.
And it also deals with the effect of Public Law 83-280 and the
status, of Public Law 88-280 in every State in the United States.
I think it would be helpful to have it all in the record.
Senator HRtJ KA. Very well, you will find we are very liberal in
these things.
[The prepared statement of JaineS B. Hovis follows:]
8TATEMENT.O5 YAKIMA INDIAN NATION
SUMMARY sTA'taie N'T
While S-1, introduced January 15, 1971, is more sensitive to the special
problems in Indian Country than It's predecessors; it still leaves much to be
desired. The Yakima Indian Nation, must therefore object to its passage in
its present forrii and does request that the Judiciary Committee amend S--1.
S-1 would extend the entire federal code of enclave laws- from murder to
disorderly conduct-to Indian Country without tegaid to the laws of the
Indian Tribe or the wishes of the soveteign Indian Nations involved. We sug-
gest an amendment to cover this area.
While Section 205(a) (2) states that jurisdiction of the tribes or states
shall, not be pie-emfltef, it does not make clear that this bill does not In-
crease the present jiirisdittion of states or tribes nor does it make clear that
tribal and state jurisdiction is concurrent. We suggest an amendment to cover
this tfea.
S-1 does not provide ail "exception clause" as contained in 25 USC 1152. so
as to prohibit actual double jeopardy Where an Indian has been punished by
the local law of the tribe:
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In order to prevent double and triple jeopardy, this clause should be re-
tained and expanded to include those punished by either tribal or state law.
We suggest an amendment in this regard.
Section 685(b) (State jurisdiction over Indian Country) is simply a re-
enactment of 18 USC 1162. There are several objections to this approach.
First, S-1 makes no provision for the retrocession of state jurisdiction, in
whole or part, where state jurisdiction is not working and where the trible
is capable of maintaining law and order. It fails to clear up the question of
whether state jurisdiction in state assumption areas is exclusive or concur-
rent and whether states may assume jurisdiction without the consent of the
tribes. Likewise, S-1 should make clear that state jurisdiction does not in-
clude the power to tax or regulate trust resources. We suggest amendments
in this regard.
STATEMENT
A. Tribal consent should be required
The place of Indian tribes and nations in our federal scheme of things
is a special area. They are dependent sovereigns who were to have, as regards
their internal affairs, exclusive control of their destiny and their territorial
reserved areas.
The reading of Chancellor Kent's Opinion in Goodell v. Jackson, 20 John
693 (N.Y. 1823) and Chief Justice Marshall's opinions in Johnson, v. McIntosh,
8 Wheat 543, 5L. Ed. 681 (1823), Cherokee Nation v. Georgia, 5 Pet. 1, 8 L.Ed.
25 (1831) and Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1823) together
with the discussion of the status of Indians justice in Story's Commentaries
on the Constitution. Vol. III See. 1101 and in Chancellor Kent's Commentaries
on American Law (Vol. III, P. 382, 386), cannot lead anyone to other than
the conclusion that at the time of the formation of our union, the Indian
Nations or tribes took their place in our scheme of government as dependent
sovereigns and as regards their internal affairs, were to have the exclusive
control of their destiny.
Our Supreme Court continues to follow this rule of law. (For example, see
McClanahan v. Arizona State Tax Commission, 411 US 164, 36 L.Ed. 2d 129,
93 Sup. Ct. 1257 (1973) .
The Yakima Nation's treaty contains these promises and guarantees. Article
2 of the Treaty of the Yakimas, (12 Stat. 951), provides that the Yakflms
Reservation shall be "for the exclusive benefit of said confederated tribes
and bands of Indians, as an Indian Reservation ; nor shall any whiteman,
excepting those in the employment of the Indian Department be permitted
to reside upon said reservation without permission of the tribe and the
superintendent or agent." Persons residing on the Yakima Reservation have
given their implied consent to be subject to federal and tribal jurisdiction.
The Yakima Nation has not given its consent to be subject to federal laws
except as to matters within the commerce clause (Article I, ?8 C1. 3) of
the United States Constitution, matters regarding the administration of
resources held in trust by the United States, or matters based on the depend-
ency of this nation on the United States (See: United States v. Kagama, 118
U.S. 375, 6 S. Ct. 1109, 30 L.Ed 228 (1803) cited with approval in McClanahan,
supra). Article 8 of the Treaty with the Yakimas (see appendix page 5), as
compared with other concurrently executed treaties (see for example, Article
6 of the Treaty with the Tribes of Middle Oregon (12 Stat. 951, appendix pace
'7), provides that the Yakima Nation is not subject to federal laws as regards
its internal matters. Likewise, the State of Washington, at the time of its
formation, as required by Congress, disclaimed all jurisdiction over Indian
lands in the State of Washington (Washington Constitution Article XXVI,
appendix page 11). This article is mandatory (Article 1. Section 29, Appendix,
p. 11). Article XXVI of the Washington Constitution has not been amended,
as provided in Article XXIII. (See appendix, p. 11).
It is the contention of the Yakima Indian Nation that federal enclave
jurisdiction should not, and cannot under treaties like the Treaty with the
Yakimas, be Impressed upon Indian tribes or nations without their consent.
We therefore suggest the following amendment be added to Section 103:
"This title shall not apply to Indian country, as defined herein, until such
time as the consent of the Indian tribe, nation, band, community, group or
pueblo, occupying the particular Indian country or part thereof which would
be affected has been obtained and published in the Federal Register. Thirty
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days after such publication, this title shall apply to said Indian Country to
the exclusion of any state assumption where the consent, in whole or part.
of said Indian governing body 'has not been previously or concurrently given."
B. Clarify that title does not expand State or tribal jurisdiction and that this
jurisdiction is concurrent
While Section 205(a) (2) ' states that jurisdiction of the tribes or states
shall not be pre-empted, it does not make clear that S-1 does not increase
present tribal or state jurisdiction and that state or tribal jurisdiction is
concurrent. We believe that this will cause considerable litigation unless
Congress clearly expresses itself. For example, here are a few of the present
pending cases where state powers under authority of Public Law 83-280 is
contended and resisted. Some of the cases now pending are Omaha Tribe of
Indians, et al v. Peters, 383 F. Supp. 421, Appeal Docketed, 8th Cir. (whether
the State has power to impose an income tax on reservation Indians pursuant
to P.L. 280) ; Russell Bryan, et al v. Itasca County,.No. 44947, before the Su-
preme Court for_ the State of Minnesota (whether the State has authority to
impose a personal property tax on themobile home of a reservation Indian) ;
The Confederated Salish and Kootenai Tribes of the Flathead Reservation,
Montana, et al v. John C. Moe, et al., Civil No. 2145, U.S.D.C, Montana, Mis-
soula Division (Lawfulness of State sales tax on reservation sales by an
Indian retailer to a Non-Indian consumer) ; U.S.A. v. State of Washington,
Civil No. 3909, U.S.D.C. E.D. Wash. (filed July 18, 1973), (amended com-
plaint filed October 4, 1974), (whether the State may impose its excise tax,
laws on transactions of tribally licensed retailers on the Yakima Reservation
on their sales to Indians and non-Indians) ; Confederated Tribes of the Colville
Indian Reservation v. State of Washington, Civil No. 3868, U.S.D.C. E.D.
Wash. (filed May 17, 1973), (whether the State can impose taxes on Tribal
and individual sales transactions ; retail sales of cigarettes to Indians and
non-Indians) ; Quileute Indian Tribe, et at v. State of Washington, U.S.D.C.
W,D. Wash. (filed Dec. 19, 1974) (whether Quileute Tribe and individual
members can carry on tribal functions, Indian economic enterprises and
other activities free from state taxation) ; U.S. v. Ilumbolt County, Civil No.
C-74-2526-RFP, U.S.D.C., N.D. California, (whether the State has authority
to apply its zoning, building, sanitary and environmental laws to construction
on the Hoopa Reservation).
On February 18, 1975, in two cases, (Comenaut v. Burdman 74-707 and
Tonasket v. Washington 74-807) ; involving jurisdiction problems under Pub-
lic Law 83-280, the Supreme Court refused to grant review. With all the
present jurisdiction confusion, we suggest that this bill should be drafted so
that it will not add to the confusion. We suggest the following amendment
be added to Section 205:
(d) Nothing in this title shall be construed to increase the existing jurisdic-
tion of a state, local government, Indian nation tribe, band, community, group
or pueblo and it is provided that their jurisdiction shall be concurrent with
the federal jurisdiction established by this title.
C. Triple jeopardy problem
It is possible that a person committing an offense under S-1, would be sub-
ject to double or even triple jeopardy unless this bill is amended. The follow-
ing statement from United States v. Lanza, 260 U.S. 377, 67 L.Ed. 314 (1922)
presents the problem.
"We have here two sovereignties, deriving power from different sources,
capable of dealing with the same subject matter within the same territory.
Each may, without interference by the other, enact laws to secure prohibition,
with the limitation that no legislation can give validity to acts prohibited
by the the Amendment. Each government in determining what shall be an
offense against its peace and dignity is exercising its own sovereignty not
that of the other."
We do not believe that this committee would wish to subject an offender
to prosecution by state, local, tribal and federal jeopardy where one of these
governments has already punished the offender. Congress has previously pro-
vided in 25 U.S.C. 1162, that where a tribe has punished an offender, that
the federal government shall not prosecute. This exception clause is omitted
from S-1. We suggest that it should be retained and expanded and submit
the following amendment as Section 694:
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"This title shall not extend to offenses committed by a person in Indian
Country, who has been punished by the law of an Indian Nation, tribe, com-
munity, group or pueblo or by a law of a state."
D. Provision for retrocession.
It is in the field of state assumption of jurisdiction, that the greatest prob-
lem exists. State assumption of jurisdiction over Indian Country has in the
main been a total failure. In most cases state jurisdiction in Indian country
has resulted in law without order rather than law and order. (See Volume I.
"The Impact of Public Law 280 upon the administration of Criminal Justice
on Indian Reservations." Justice and the American Indian, appendix p. 13 and
following. Also see Indian Reservation Criminal Justice, Task Force Analysis
1974-75, Bureau of Indian Affairs, (1975) presented for filing in the record
of this committee).
Apart from Public Law 280-and a few similar statutes affecting Kansas,
Iowa and New York-states do not have jurisdiction over reservation Indians,
or over transactions between Indians and non-Indians (Except with the
consent of the Indian) on Indian Reservations. Alaska, Arizona, California,
Florida, Idaho, Minnesota, Montana, Nebraska, Nevada, Oklahoma, Oregon,
Washington and Wisconsin have assumed at least some jurisdiction under
Public Law 280. (Note: The Nevada legislature has voted to retroceed state
jurisdiction). Under Washington Statutes (R.C.W. 37.12), provision is made
for assumption of state jurisdiction by the Tribes petitioning the governor
and the same chapter imposes, without Indian consent, state criminal and
civil jurisdiction over all reservation lands for eight subject matter areas,
and state criminal and civil jurisdiction over all nontrust lands. I have infor-
mation regarding 22 tribes in Washington and 11 have petitioned for state
jurisdiction and 11 have not. Three of these 11 petitioning tribes have obtained
a Governors proclamation retroceeding jurisdiction in whole or part before
the Washington State Attorney General ruled, the Governor could not retroceed
without legislative action. Many of the Washington tribes under full or
partial jurisdiction wish to remove themselves from state jurisdiction in
whole or in part. The Yakima Nation wishes to remove itself from state
jurisdiction. Even though the Governor proposed retrocession legislation, it
failed to be enacted by the state legislature because of political problems.
At a conference held in Denver during the last week of February, a large
number of tribal leaders met and with the approval of both the National
Congress of American Indians and National Tribal Ohairmans Association,
pledged themselves to support legislation that would provide :
1. For the repeal of the Public Law 83-280 and other like acts.
2. That tribes are authorized to reacquire Federal aid Tribal jurisdiction
in whole or in part by action of governing body or referendum requested by
a set percentage of resident members.
3. That tribes can by resolution clarify or establish that any jurisdiction a
state retains in concurrent (and is not exclusive) with the jurisdiction in the
same matters existing in the tribe and Federal government.
4. That reacquisition of Tribal and Federal jurisdiction shall be considered
automatically approved unless the Secretary of the interior shall, within
ninety days formally disapprove the reacquisition and give his reasons there-
fore.
5. That the affected tribe may appeal any such disapproval to an appro-
priate Board of Appeals and thereafter to the Federal Courts.
6. That feasibility and implementation funding must b authorized.
Whatever laws are passed by Congress. we would find it hard to believe
that it could be less productive of law and order than the present state assump-
tion, partial, checker boarded system that prevails on the Yakima Indian
Reservation, and we request that Congress take some action to bring some
order to this mess created by the enactment of Public Law 83--280. As our reser-
vation is checkerboarded with trust and non-trust (patented) lands. jurisdic-
tion is presently dependent upon who holds title to the land. If the land is not
trust, the State has assumed jurisdiction over almost all crimes. If it is trust
the state has jurisdiction over eight undefined categories, i.e., "Compulsory
school attendance ; public assistance ; domestic relations : mental illness ; juve-
nile delinquency ; adoption proceedings : dependent children and operation of
motor vehicles upon the public streets, alleys, roads and highways.
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Law enforcement officers must use a tract book and determine title to see
if they have jurisdiction. Then if it is trust lands, they must make a field
determination of whether the crime fits into one of the eight categories. You
lawyers on the committee would have a most difficult time in determining if
you could, what fits into the category of domestic relations. It is not even
defined in a law dictionary. How on one expect an untrained law officer to
make this type of determination. It is even more difficult for a victim to
determine where offenses should be reported. How would this committee like
to be constantly getting the run around when you do report? The Washington
assumption statutes, and the resulting system is so indefinite that it fails to
give a person of ordinary intelligence notice of where he can get protection
of his person and property and. fails to give a person of ordinary intelligence
notice of what conduct is forbidden by statute.
Also, where an offender is standing, determines whether or not he is entitled
to. certain civil rights. For example, if he is on trust property and not within
the eight categories he is entitled to a grand jury, federal bail act and many
federal protections. If he is not, then he is not entitled to these protections in
state court. We believe this system fostered by the enactment of Public Law
83-280 does not meet constitutional standards. Lanzetta v. New Jersey, 300
'U.S. 451 (1938) ; Connally v. General Construction Co., 269 U.S. 3$5 (1925).
In Papa.christou v. City of Jacksonville, 405 U.S. 150 (1972) the Supreme
Court again enunciated this void for vagueness rule:
"Living under a rule of law entails various suppositions, one of which is that
,all persons are entitled to be informed as to what the State commands or
forbids.'
"This ordinance is void for vagueness both in the sense that it fails to give
a, person of ordinary intelligence fair notice that his contemplated conduct is
forbidden by the statute .... and because it encourages arbitrary and erratic
arrests and conviction."
The legislative power of Congress is contained in Article I of the Constitu-
tion and the judicial powers of Congress are contained in Article III. (appendix
page 8). By the passage of Public Law 83-280, Congress purported to delegate
both the United States' legislative and judicial function, as regards criminal
and civil matters among Indians, to the states without the consent of the
governing bodies of the tribes involved and without providing any standards
for state assumption of either this legislative or judicial function. This dele-
gation 'of unfettered discretion to Washington to make whatever laws it may
think is needed to regulate crimes and civil matters regarding Indians and
Indian lands and granting jurisdiction vested in federal courts to state courts
over these matters is unconstitutional. Congress' power to legislate regarding
Indian tribes is limited to that conferred by the commerce clause and under
the. national purpose reasoning contained in United States v. Kagarna, 1 Cranch
137, 118 U:S. 375 (1803). In Kagama, the Supreme Court found that the pro-
tection of Indians constituted an exclusive national problem and referred to
the practical necessity of withholding such power from the states :
"It seems to us that this (protection of Indians) is within the competency
of Congress. These Indian tribes are the wards of the nation. They are com-
munities dependent on the United States. Dependent largely for their daily
food. Dependent for their political rights. They own no allegiance to the states
and receive,from them no protection. Because of the local ill feeling the people
of the state where they are found are often their deadliest enemies. From their
very weakness and helplessness, so largely due to the course of dealing of the
Federal government with them and the treaties in which it has been promised,
there arises the duty of protection, and with it the power. This has always
been recognized by the executive and by Congress, and by this court wherever
the question has arisen . . .
"The power of the general government over these remnants of a race once
powerful, now weak and diminished in numbers, is necessary to their pro-
tection as well as to the safety of those among whom they dwell. It must exist
in that government, because it never has existed anywhere else, because the
theater of exercise is within the geographical limits of the United States, be-
cause it has never been denied, and because it alone can enforce its laws on
all the tribes." (Bracketed material supplied. Emphasis Supreme Courts. See
also U.S. v. Thomas, 151 U.S. 577 (1893) and McClanahan approval of Kayama.
It is .this limited power that Congress has purported to delegate to the
states. Such unfettered delegation of this limited legislative power is uncon-
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stitutional Schechter Poultry Corp. v. United States, 295 U.S. 495 (19355). That
this failure of states to provide protection for Indians, still exists is conclu-
sively demonstrated by the appendix hereto and the hearings and records of
this committee.
Also, since Article 111, ? 1 provides that "the judicial power of the United
States, shall be vested in one Supreme Court and such inferior courts as the
Congress may from time ordain and establish", this unfettered delegation of
federal judicial power is likewise unconstitutional. Under Article III ? 2, this
judicial power shall extend to all cases, in law and equity, arising under the
Constitution, the laws of the United States, and treaties made. This vested
federal judicial power regarding jurisdiction over Indians cannot be delegated
to state courts acting in the exercise of state jurisdiction. The unconstitutional
action of the 83rd Congress should be corrected by this Congress enactment
of retrocession of state jurisdiction.
To correct this error, we suggest the following amendment being new Sec-
tion 695:
That (a) in any case in which a State, pursuant to the provisions of section
1162 of Title 18, United States Code, section 1360 of Title 28 United States
Code, or the Act of August 15, 1953, Public Law 83-280, 67 State 588, and
section 103(b) of the Act of April 11, 1968, respectively, acquired all or any
measure of jurisdiction over criminal offenses committed by or against Indians,
and which arise in areas of Indian country situated within such State, any
Indian tribe occupying the particular Indian country or part thereof affected
by such State assumption shall be authorized, acting through its tribal council
or other governing body, to adopt a resolution indicating its desire (1) to
have the United States re-acquire any or all of such jurisdiction, (2) to make
the jurisdiction of the tribe, in whole or in part, coextensive with tribal juris-
diction as it was prior to such assumption of jurisdiction by such State, and
(3) to provide that the jurisdiction of the tribe in any or all state retained
jurisdiction shall be concurrent.
(b) Within thirty days following the receipt by him of any such resolution
adopted in accordance with the provisions of this Act, the Secretary of the
Interior, unless he finds the tribe involved is incapable of reacquiring juris-
diction, shall issue a proclamation (1) to the effect that the United States
reacquires, in accordance with the provisions of such resolution, in whole or
in part, its jurisdiction over such offenses in such Indian country or part
thereof occupied by such tribe and affected by such state assumption, (2) to
the effect that the jurisdiction of the tribe thereafter is coextensive with the
tribal jurisdiction as it was prior to such assumption of jurisdiction by such
state and (3) to the effect that any jurisdiction retained by the state is con-
current with tribal jurisdiction.
If the Secretary of Interior shall fail to approve or deny the reacquisition
of federal and tribal jurisdiction within ninety days of the receipt of said
resolution said reacquisition shall become effecitve upon the publication of
said tribal resolution in a newspaper of general circulation in the state or
states in which it is located.
The Secretary's findings that the tribe is incapable of reacquiring jurisdic-
tion, in whole or in part, may be appealed to the appropriate federal district
court and the Secretary shall have the burden of sustaining his finding.
(c) Within ten days following the issuance of such proclamation, the Secre-
tary of the Interior shall publish such proclamation in the Federal Register.
Effective upon the date of such publication, the United States and the Indian
tribe shall exercise their respective jurisdictions as provided by such proclama-
tion.
(d) Effective upon and after the date of such publication in the Federal
Register, or newspaper of general publication where the Secretary has failed
to act, all criminal laws of the united Stateii and of such Indian tribe, in
whole or in part which, on the date immediately preceding such date of publi-
cation. would have been applicable to such Indian country but for such as-
sumption of jurisdiction by such State shall be applicable within such Indian
country in accordance with the provisions of such proclamation.
Sec. 2. No action or proceeding pending before anv court or agency of any
State immediately prior to the reacquisition of jurisdiction by the United
States pursuant to this Act shall abate by reason thereof. For purposes of any
such action or proceeding, such reacquisition of jurisdiction by the United
Slates shall take effect on the day following the date of final determination
of such action or proceeding.
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Sec. '3. The Act of August 15, 1953 (67 Stat. 588) is hereby repealed, but such
repeal shall not affect any cessation of jurisdiction validly made pursuant to
such section prior to its repeal.
APPENDIX
1. Treaty with the Yakima, 1855, 12 Stat. 951, 2 Koppler 524
Articles of agreement and convention made and concluded' at the treaty-
ground, Camp Stevens, Walla-Walla Palley, this ninth day of June, in the
year one thousand eight. hundred and fifty-five, by and between Isaac I.
Stevens, governor and superintendent of Indian affairs for the Territory Of
Washington, on the part of the United States, 'amt the under,si:gned heads
chiefs, chiefs, head-men, and delegates of the Yakama, Palouse, Pisquouse,
14 enatshapam, Klilcatat, Iilinquit, Aoa.-was-say-cc, Li-ay-was, Skin-pah, Wish-
ham, Shyiks, Ocltechotes; KKah-milt-pah, and Se-ap-cat, confederated tribes and
bands of Indians, occupying lands hereinafter bounded and described and
lying in Washington Territory, who for the purposes of this treaty are td be
considered as one nation, under the name of "Yakaina," with Kavnaiakun as
its head chief, on behalf of and acting for said tribes and bands, and being
duly authorized thereto by them.
. ARTICLE 1. The, aforesaid confederated tribes and bands of Indians hereby
cede, relinquish, and convey to the United States all their right, title, and
interest in and to the lands and country occupied and claimed by them, and
bounded and described as follows, to wit :
Commencing at Mount Ranier, thence northerly along the main ridge of the
Cascade Mountains to the point where the northern tributaries of Lake Che-lan
and the southern tributaries of the Methow River have their rise; thence
southeasterly on the divide between the waters of Lake Che-lan and the
Methow River to the Columbia River ; thence, crossing the Columbia on a
true east course, to a point whose longitude is one hundred and nineteen de-
grees and ten minutes, (119? 10',) which two latter lines separate the above
confederated tribes and bands from the Oakinakane tribe of Indians ; thence
in a true south course to the forty-seventh (47?) parallel of latitude ; thence
east on said parallel to the main Palouse River, which two latter lines of
boundary separate the above confederated tribes and bands from the Spokanes ;
thence ' down the Palouse River to its junction with the Moh-hah-no-she, or
southern tributary of the same ; thence in a southeasterly direction, to the
Shake ` River,' at the mouth of the Tucannon River, separating the above con-
federated tribes from the Nez Perce tribe of Indians ; thence down the Snake
River to its junction with the Columbia River ; thence up the Columbia River
to the "White Banks" below the Priest's Rapids; thence westerly to a lake
called "La Lac ;" thence southerly to a point on the Yakima River called Tah-
Mah-Luke; thence, in a -southwesterly direction, to the Columbia River, at
the western extremity of the "Big Island," between the mouths of the Umatilla
River and Butler Creek ; all which latter boundaries separate the above con-
federated tribes and bands from the Walla-Walla, Cayuse, and Umatilla tribes
and bands of Indians; thence down the Columbia River to midway between
the months of White Salmon and Wind Rivers ; thence along the divide be-
tween said rivers to- the main ridge of the Cascade Mountains ; and thence
along said ridge to the place of beginning.
ARTICLE 2. There is, however, reserved; from the -lands above ceded for the
use and occupation of the aforesaid confederated tribes and bands of Indians;
the tract of land included within the following boundaries, to wit : Commencing
on the Yakama River, at the mouth of the Attab-Hain River ; thence westerly
along said Attah-Ham River to the forks ; thence along the southern tributary
to the Cascade Mountains ; thence southerly along the main ridge of said moun-
tains, passing south and east of Mount Adams, to the spur whence flows the
waters of the Klickatat and Pisco Rivers ; thence down said spur to the divide
between the waters of said rivers ; thence along said divide to the divide sepa-
rating the waters of the Satass River from those flowing into the Columbia
River ; thence along said divide to the main Yakama, eight miles below the
mouth of the Satass River ; and thence up the Yakama River to the place of
beginning. surveyed and
All which tract shall be set apart and, so. far as necessary,
marekd out, for the exclusive use and benefit of said confederated tribes and
bands of Indians, as an Indian reservation ; nor shall any white man, excepting
those in the employment of the Indian Department, be permitted to reside upon
the said reservation without permission of the tribe and the superintendent
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and agent. And the said confederated tribes and bands agree to remove to, and
settle upon, the same, within one year after the ratification of this treaty. In
the mean time it shall be lawful for them to reside upon any ground not in the
actual claim and occupation of citizens of the United States ; and upon any
ground claimed or occupied, if with the permission of the owner or claimant.
Guaranteeing, however, the right to all citizens of the United States to enter
upon and occupy as settlers any lands not actually occupied and cultivated by
said Indians at this time, and not Included in the reservation above named.
And provided, That any substantial improvements heretofore made by any
Indian, such as fields enclosed and cultivated, and houses erected upon the
lands hereby ceded, and which he may be compelled to abandon in consequence
of this treaty, shall be valued, under the direction of the President of the
United States, and payment made therefor in money ; or improvements of an
equal value shall be furnished hint as aforesaid.
ARTICLE 3. And provided, That, if necessary for the public convenience, roads
may be run through the said reservation; and on the other hand, the right of
way, with free access from the same to the nearest public highway, is secured
to them ; as also the right, in common with citizens of the United States, to
travel upon all public highways.
The exclusive right of taking fish in all the streams where running through
or bordering said reservation, is further secured to said confederated tribes and
bands of Indians, and also the right of taking fish at all usual and accustomed
places, in common with the citizens of the Territory, and of erecting temporary
buildings for curing them ; together with the privilege of hunting, gathering
roots and berries, and pasturing their horses and cattle upon open and un-
claimed land.
ARTICLE 4. In consideratiop of the above cession, the United States argee
to pay to the said confederated tribes and bands of ]axdians, in addition to the
goods and provisions distributed to them at the time of signing this treaty, the
sum of two hundred thousand dollars, in the following manner, that is to say:
Sixty thousand dollars, to be expended under the direction of the President of
the United States, the first year after the ratification of this treaty, in pro-
viding for their removal to the reservation, breaking up and fencing farms,
building houses for them, supplying them with provisions and a suitable outfit,
and for such other objects as he may deem necessary, and the remainder in
annuities, as follows : For the first five years after the ratification of the treaty,
ten thousand dollars each year ; commencing September first, 1856; for the next
five years, eight thousand dollars each year ; for the next five years, six
thousand dollars per year; and for the next five years, four thousand dollars
per year.
All which sums of money shall be applied to the use and benefit of said
Indians, under the direction of the President of the United States, who may
from time to time determine, at his discretion, upon what beneficial objects to
expend the same for them. And the superintendent of.,Indian affairs, or other
proper officer, shall each year inform the President of the wishes of the Indians
in relation thereto.
ARTICLE 5. The United States further agree to establish at suitable points
within said reservation, within one year after the ratification hereof, two
schools, erecting the necessary buildings, keeping them In repair and providing
them with furniture books and stationery, one of which shall be an agricultural
and industrial school, to be located at the agency, and to be free to the children
of the said confederated tribes and bands of Indians, and to employ one super-
intendent of teaching and two teachers ; to build two blacksmiths' shops, to one
of which shall be attached a tin-shop, and to the other a gunsmith's shop ; one
carpenter's shop, one wagon and plough maker's shop, and to keep the same in
repair and furnished with the necessary tools; to employ one superintendent of
farming and two farmers, two blacksmiths, one tinner, one gunsmith, one car-
penter, one wagon and plough maker, for the instruction of the Indians in
trades and to assist themIn the same; to erect one saw-mill and one flouring-
mill, keeping the same in repair and furnished with the necessary tools and
fixtures ; to erect a hospital, keeping the same in repair and provided with the
necessary medicines and furniture, and to employ a physician ; and to erect,
keep in repair, and provided with the necessary furniture, the building acquired
for the accommodation of the said employees. The said buildings and establish-
ments to be maintained and kept in repair as aforesaid, and the employees to
be kept in service for the period of twenty years.
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And in view of the fact that the head chief of the said confederated tribes
and bands of Indians is expected, and will be called upon to perform many
services of a public character, occupying much of his time, the United States
further agree to pay to the said confederated tribes and bands of Indians five
hundred dollars per year, for the term of twenty years after the ratification
hereof, as a salary for such person as the said confederated tribes and bands
of Indians may select to be their head chief, to build for him at a suitable point
on the reservation a comfortable house, and properly furnish the same, and to
plough and fence ten acres of land. The said salary to be paid to, and the said
house to be occupied by, such head chief so long as he may continue to hold
that office.
And it is distinctly understood and agreed that at the time of the conclusion
of this treaty Kamaiakun is the duly elected and authorized head chief of the
confederated tribes and bands aforesaid, styled the Yakama Nation, and is
recognized as such by them and by the commissioners on the part of the United
:States holding this treaty ; and all the expenditures and expenses contemplated
in this article of this treaty shall be defrayed by the United States, and shall
not be deducted from the annuities agreed to be paid to said confederated tribes
and band of Indians. Nor shall the cost of transporting the goods for the
annuity payments be a charge upon the annuities, but shall be defrayed by
the United States.
ARTICLE 6. The President may, from time to time, at his discretion, cause
the whole or such portions of such reservation as he may think proper, to be
surveyed into lots, and assign the same to such individuals or families of the
said confederated tribes and bands of Indians as are willing to avail them-
selves of the privilege, and will locate on the same as a permanent home, on
the same terms and subject to the same regulations as are provided in the
sixth aritcle of the treaty with the Omahas, so far as the same may be
applicable.
ARTICLE 7. The annuities of the aforesaid confederated tribes and bands of
Indians shall not be taken to pay the debts of individuals.
ARTICLE 8. The aforesaid confederated tribes and bands of Indians acknowl-
edge their dependence upon the Government of the United States, and promise
to be friendly with all citizens thereof, and pledge themselves to commit no
depredations upon the property of such citizens.
And should any one or more of them violate this pledge, and the fact be
satisfactorily proved before the agent, the property taken shall be returned, or
in default thereof, or if injured or destroyed, compensation may be made by
the Government out of the annuities.
Nor will they make war upon any other tribe, except in self-defense, but
will submit all matters of difference between them and other Indians to the
Government of the United States or its agent for decision, and abide thereby.
And if any of the said Indians commit depredations on any other Indians
within the Territory of Washington or Oregon, the same rule shall prevail as
that provided in this article in case of depredations against citizens. And the
said confederated tribes and bands of Indians agree not to shelter or conceal
offenders against the laws of the United States, but to deliver them up to the
authorities for trial.
ARTICLE 9. The said confederated tribes and bands of Indians desire to ex-
clude from their reservation the use of ardent spirits,, and to prevent their
people from drinking the same, and, therefore, it is provided that any Indian
belonging to said confederated tribes and bands of Indians, who is guilty of
bringing liquor into said reservation, or who drinks liquor, may have his or
her annuities withheld from him or her for such time as the President may
determine.
ARTICLE 10. And provided, That there is also reserved and set apart from
the lands ceded by this treaty, for the use and benefit of the aforesaid con-
federated tribes and bands, a tract of land not exceeding In quantity one
township of six miles square, situated at the folks of the Pisquouse or
Wenatshapa.m River, and known as the "Wenatshapam Fishery," which said
reservation shall be surveyed and marked out whenever the President may
direct, and be subject to the same provisions and restrictions as other Indian
reservations.
ARTICLE 11. This treaty shall be obligatory upon the contracting parties as
soon as the same shall be ratified by the President and Senate of the United
'States.
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In testimony whereof, the said Isaac I. Stevens, governor and snperintendeni,
of Indian affairs for the Territory of Washington, and the undersigned head
chief, chiefs, headmen, and delegates of the aforesaid confederated tribes and
bands of Indians, have hereunto set their hands and seals, at the place and on;
the day and year hereinbefore written.
ISAAC I. STE ENS,
Governor and Superintendent.
Kamaiakun, his x mark ; Skyloom, Ills x mark; Owhi, his x mark;
Te-cole-kun, his x mark; La-boom, his x mark ; Me-ni-nock, his x mark:
Elit Palmer, his x mark ; Wish-och-kmpits, his x mark ; Koo-la-toose, his
x' mark; Shee-ah-cotte, his x mark; Tuck-quille, his x mark; Ka-loo-as, his
x
mark ; Scha-noo-a, his x mark; Sla-kish, his x mark.
Signed and sealed in the presence of-
James Doty, secretary of treaties,
Mie. Cles. Padosy, O.M.T.,
W. H. Tappan, sub Indian agent, W.T.,
C. Chirouse, O.M.T.
Patrick McKenzie, interpreter,
A. D. Pamburn, interpreter,
Joel Palmer, superintendent Indian affairs, O.T.,
W. 'D. Biglow,
A. D. Pamburn, interpreter.
2. Treaty with Tribes of Middle Oregon 1855, 12 Stat. 951, 2 Iioppler 556-
ARTICLE 7. The confederated bands acknowl
d
i
e
ge the
r dependence on the
Government of the United States, and promise to be friendly with all the citi-
zens thereof, and pledge themselves to commit no deprdaLiari on the property of
said citizens ; and should any one or more of the Indians violate this pledge,,
and the fact be satisfactorily proven before the agent, the property taken shall
be returned, or in default thereof, or if injured or destroyed, compensation may
be made by the Government out of their annuities; nor will they make war on
any other tribe of Indians except in self-defence, but submit all matters of
difference between them and other Indians to the Government of the United
States, or its agents for decision, and abide thereby ; and if any of the said
Indians commit any depredations on other Indians, the same rule shall prevail
as that prescribed in the case of depredations against citizens: said Indians
further engage to submit to and observe all laws, rules, and regulations which
may be prescribed by the United States for the government of said Indians.
(at 12 Stat. 971)
3. Constitution of United States
? 1. Legislative powers
SECTION 1. All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consist of a Senate and house of Ree -
sentatives. pr
?8. Powers of Congress
SECTION S. The Congress shall have Power to lay and collect Taxes, Duties,
Imposes and Excises, to pay the Debts and provide for the common Defence
and general Welfare of the United States; but all Duties, Imposes and Excises
shall be uniform throughout the United States ;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the seeeral States,
and with the Indian Tribes ;
? 10. Restrictions upon powers of States
SECTION 10. No State shall enter into any Treaty, Alliance, or Confederation
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver coin a Tender in payment of Debts; pass any
Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Con-
tracts, or grant any Title of Nobility.
ARTICLE TIT
SECTION 1. The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congres may from time
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time ordain and establish. The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behaviour and shall, at stated Times, re-
ceive for their Services, a Compensation which shall not be diminished during
their Continuance in Office.
SECTioN 2. The judicial power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority ; - to all Cases affecting
Amba,ssadlrs, other public Ministers and Consuls ; - to all Cases of Admiralty
and maritime Jurisdiction;'- to Controversies to which the United States shall
be a party ; - to Controversies between two or more States ; - between a State
and Citizens of another State; between Citizens of the same State claiming
Lands under Grants of different States, and between a State, or the Citizen's
therreof, and foreign States, Citizens or subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, andl
those in which a State shall be Party, the supreme Court shall have originaii
Jurisdiction. In all the other Cases before mentioned, the supreme Court shalt
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury
and such Trial shall be held in the State where the said Crimes shall have
been committed ; but when not committed within any State, the Trial shall be
at such Place or Places as the Congress may by Law have directed.
ARTICLE IV
SECTION 2. The Citizens of each State shall be entitled to all Privileges andi
Immunities of Citizens in the several States.
AMENDMENT 5
No person shall be held to answer for a capital, or otherwise infamous crilne~
unless on a presentment or indictment of a Grand Jury, except in cases arising
in the land or naval forces, or in the Militia, when in actual service in time ofi
War or public danger ; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb ; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use;,
Without just compensation.
AMENDMENT 1.4
SECTION 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shalt
abridge the privileges or immunities of citizens of the United States; nor shall
any State deprive any person of life, liberty, or property, without due process:
of law; nor deny to any person within its jurisdiction the equal protection of
SECTION 29. Constitution ifandatorj. The provisions of this Constitution are
mandatory, unless by express words they are declared to be otherwise.
ARTICLE II
SECTION 22. Passage of Bills. No bill shall become a law unless on its final
passage the vote be taken by yeas and nays, the names of the members voting'
for and against the same be entered on the journal of each house, and a major-
ity of the members elected to each house be rcorded thereon as voting in its,
favor.
SECTION 1. I1ow Made. Any amendment or amendments to this constitution
may be proposed in either branch of the legislature ;' and if the same shall be
agreed to by two thirds of the members elected to each of the two houses, such
proposed amendment or amendments shall be entered on their journals, with
the ayes and. noes thereon, and be submitted to the qualified electors of this
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state for their approval, at the next general election ; and if the people
approve and ratify such amendment or amendments, by a majority of the
electors voting thereon, the same shall become part of this Constitution, and
proclamation thereof shall be made by the governor; Provided, that if more
than one amendment be submitted, they shall be submitted in such a manner
that the people may vote for or against such (each) amendment separately.
The legislature shall also cause the amendments that are to be submitted to
the people to be published for at least three months next preceding the election,
in some weekly newspaper, in every county where a newspaper is published
throughout the state.
The following ordinance shall be irrevocable without the consent of the
United States and the people of this state : -
First. That perfect toleration of religious sentiment shall be secured and that
no inhabitant of this state shall ever be molested in person or property on
account of his or her mode of religious worship.
Second. That the pe'>ple inhabiting this state do agree and declare that they
forever disclaim all right and title to the unappropriated public lands lying
within the boundaries of this state, and to all lands lying within said limits
owned or held by any Indian or Indian tribes ; and that until the title thereto
shall have been extinguished by the United States, the same shall be and
remain subject to the disposition of the United States, and said Indian lands
shall remain under the absolute jurisdiction and control of the congress of the
United States and that the lands belonging to citizens of the United States
residing without the limits of this state shall never be taxed at a higher rate
than the lands belonging to residents thereof ; and that no taxes shall he im-
posed by the state on lands or property therein, belonging to or which may be
hereafter purchased by the United States or reserved for use: Provided, That
nothing in this ordinance shall preclude the state from taxing as other lands
are taxed any lands owned or held by any Indian who has severed his tribal
relations, and has obtained from the United States or from any person a title
thereto by patent or other grant, save and except such lands as have been or
may be granted to any Indian or Indians under any act of congress containing
a provision exempting the lands thus granted from taxations, which exemption
shall continue so long and to such an extent as such act of congress may
prescribe.
Third. The debts and liabilities of the Territory of Washington and payment
of the same are hereby assumed by this state.
Fourth. Provision shall be made for the establishment and maintenance of
systems of public schools free from sectarian control which shall be open to all.
the children of said state.
Jusvica AND THE AMERICAN INDIAN
Volume 1: The Impact of Public Law 280 upon the administration of Crim-
inal Justice on Indian Reservations. Prepared by Professor Ralph Johnson of
the University of Washington, under a grant obtained by the Yakima Nation
for the National American Indian Court Judges Association. Reproduced hereto
for the benefit of the Committee.
In the forty years since passage of the Wheeler-Howard (Indian Reorganiza-
tion) Act and the birth of Indian courts as we now know them, "the germ of
future problems", then planted, has grown and multiplied. That germ-the con-
fused and limited scope of Indian court jurisdiction-forms the core of this
five-part study, made possible by a grant award from the Law Enforcement
Assistance Administration of the Department of Justice.
This project set out with one clearly identifiable goal to foster and stimulate
thought and investigation by all appropriate parties towards the end of formu-
lating and applying specific remedies to the pressing legal and judicial problems
we discuss. We set out to accomplish our goal by attempting: 1) to reflect the
concerns of those people who must live with the recurrent law and order
problems on Indian reservations ; and 2) to provide a vehicle for the expression
of possible alternatives to the present system.
The first element of this program was accomplished through extensive inter-
viewing. Over 500 Indians in more than 55 tribes were personally interviewed
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during the course of this project. The second element required a decision to,
produce a set of documents which would be more than a mere restatement of
current law. Legislative, judicial? and administrative alternatives to present
methods have, therefore,, been included. All were reviewed by knowledgeable
persons prior to publication. We hope these alternatives will form the spring-
board for future discussion and action, whether they or similar proposals are
adopted or not. Numerous points of view were, of'"necessity, included in this
study in order to generate healthy discussion. The views and opinions in these
documents, however, do not necessarily represent the position of the Yakima
Indian Nation, the National American Indian Court Judges Association, or its
members.
We believe the publications in this study will be valuable aids to Indian
Court Judges and others in the criminal justice system. They are beginnings,
not conclusions. How valuable they will prove will depend upon the actions of
those who read them. The call is out. Let us hope it will be heard.
THE BOARD OF DIRECTORS,
NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION.
Honorable Virgil Kirk, Sr., President
Chief Justice, Navajo Nation Judicial Branch
Window Rock, Arizona 86515
Honorable George R. Armstrong
Chief Judge, Ute Mountain Ute and Southern Ute Tribes; Chief Judge, Hopi
Nation
Cortez, Colorado 81321
Honorable Henry Upchego
Chief Judge, Uintah and Ouray Ute Tribe
Ft. Duchesne, Utah 84026
Honorable Cranston Hawley, Vice President
Chief Judge, Ft. Belknap Indian Reservation
Harlem, Montana 59526
Honorable Lawrence Miller
Chief Judge, Shoshone and Arapho Tribes
Ft. Washakie, Wyoming 82510
Honorable Coquelle G. Thompson
Chief Judge, Confederated Tribes of the Warm Spring Reservation of Oregon
Warm Springs, Oregon 97761
The Impact of Public Law 280 upon the Administration of Criminal Justice
on Indian Reservations is being published at a time when conditions have
reached a point where the Indian community feels that political action is re-
quired to make it possible for civil and criminal jurisdiction to be returned to
Indian tribes and the federal government from the states. Tribes feel that their
very survival may be at stake and, therefore, seek to exercise tribal, civil and
criminal jurisdiction, as may be limited by Congress, as one of their major
attributes of sovereignty. The fact that some tribes are taking legislative and
judicial actions to achieve these objectives is evidence of their strong feelings
about this issue.
This paper was written in an attempt to find answers to two questions in
this area : 1) How can the damage caused by termination legislation he undone?
and 2) How can the policy of self-determination for the American Indian be
effectively implemented? The history and present operational structure of state
jurisdiction over Indian reservations serves to clarify the need for the remedies
which are proposed. A separately-written background paper provides the per-
ceptions of Washington State Indians about state assumption of jurisdiction.
Important appendices offer for discussion some legislative guidelines and
proposals on retrocession and related subjects.
It is hoped that this study will put the issues of state, civil and criminal
jurisdiction in the perspective in which Indians view them and that a necessary
outgrowth of this study will be both understanding and action on the part of
state and federal governments. It is further hoped that this study will help to
elicit the opinions of people throughout the country on this subject.
Although the State of Washington was selected for most of this study, it was
not intended to single out Washington alone because like situations exist in
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mther states that have assumed civil and criminal jurisdiction over Indian
tribes.
We are grateful to the many individuals and organizations who contributed
their time and talents to this undertaking. To Ralph V. Johnson, who wrote
.this study, we are particularly thankful. A Professor of Law at the University
,of Washington in Seattle, Ralph Johnson's background in Indian law and
ndian problems is impressive. He has taught courses in Indian law, including
"Indian Legal Problems", at the University of Washington ; and he has au-
thored various articles on the subject including "The States versus Indian
Off-Reservation Fishing: A United States Supreme Court Error" (Washington
Law Review, 1972). He has served as an instructor for the National American
Judian Court Judges Association Training Program since fall of 1972 and has
,authored a number of lessons in that program. He has met and worked with
leaders of tribes throughout Washington State concerning state jurisdictions,
Public Law 280, and other Indian legal matters. As an attorney with experience
in the legal problems of Washington State Indians, his background is un-
snatched.
Prof. Johnson was assisted in background research by law students James
E. Walsh III, Rod Peterson and Nicholas C. Newman. and by Philip La Cours,
Vrank S. LaFontaine, Leo LaClair, Earl R. McGimpsey, and Lloyd Pinkham.
Material gathered by Gerald P. Boland and by Roderick Simmons appears
In thw appendices. David Kader helped with organization and editing. Compre-
hiensive and insightful comments on earlier drafts of the study were made by
Vine Deloria, Jr., Bill. Wilson, and Mark D. Steisel. The background paper,
"Indian Perceptions on Public Law 280 Jurisdiction" was written by the
.editorial staff from materials supplied by Judge Steisel. Judge Steisel was
aided in this effort by Orville Olney, Laurita Olney, Gene Joseph and Philip
La Course.
We would also like to acknowledge the efforts of organizations without which
this project could not have been undertaken. The Law Enforcement Adminis-
tration of the Justice Department made this study possible through an award
to the Yakima Nation and the National American Indian Court Judges Asso-
ciation. The National Council on Indian Opportunity offered counsel and
,encouragement from the inception of the program. The Honorable George
R. Armstrong, Chief Judge of the Ute Mountain TJte and of the Southern
IJte Tribes and Chief Judge of the Hopi Nation, was the Project Director.
'EIe. along with the other members of the Board of Directors of the National
American Indian Court Judges Association. served as the Steering Committee
for the project, establishing policy and directing the efforts of the staff.
Arrow, Inc., a Washington, D.C.-based. non-profit corporation, and its Execu-
tive Director, E. Thomas Colosimo, assisted with program management.
We would also like to recognize the efforts of the Ihte Robert Jim. While
Chairman of the Yakima Nation, he helped to initiate this program. His entire
life was dedicated to furthering the Indian cause.
To all individuals who contributed to this publication, we extend a sincere
thank you.
Kstroduction
The following report is an attempt to study the impact of Public Law 280
on the lives of the Indians of Washington State who have, for the past twenty
years. been subject to state jurisdiction. While the operations of the system
were examined objectively. our main concern was to provide Indian input
on the subject. The result is a paper which deals mainly with the perceptions
of Washington State Indians concerning state jurisdiction. Some comments
regarding state, local, and federal actions subsequent to state assumption
of jurisdiction over Indian reservations :!re included. Tt should he stressed
that -Washington State was chosen as the focal point of our analysis for
Illustrative purposes only. The problems related to Pu.hlic Law 280 in the
state of Washington are common to other states as well.
Jurisdiction analysis
Before we look at Indian attitudes concerning the jurisdictional system
they must live with. it will be helpful if we outline the various forms of
jurisdiction over Indian reservations which now exist in the State of Wash-
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ington. Though it is neither uniform nor consistent, the jurisdiction can be
divided into four basic categories. They are :
1. Partial Jurisdiction-The state has assumed jurisdiction over eight areas,
including compulsory school attendance, public assistance, domestic relations,
mental illness, juvenile delinquency, adoption proceedings, dependent children,
and operation of motor vehicles upon the public streets, alleys, roads and high-
ways. While the state has assumed jurisdiction over these eight areas on all
Indian reservations, some tribes, such as the Yakima, Lummi, Alakah, Spokane
have retained their tribal courts to deal with all other matters. This situation
does not extend to fee-patent lands on Indian reservations. The state exerts
total jurisdiction over all such lands within the state.
2. Total Jurisdiction (with the exception of hunting, fishing, and trapping
violations, which have been expressly exempted from state assumption by
.Public Law 280)-Most of the tribes in the state fall into this category. Some
originally petitioned the state to take over all of their jurisdiction. A few tribes
have retained theii tribal courts, but these are limited to jurisdiction over
hunting, fishing and trapping offenses. One tribe, the Colville, also asserts
jurisdiction over non-Indians for hunting and fishing offenses.
3. Partial "de facto" Tribal Jurisdiction-This condition exists only at the
4 uinault Reservation,, which would normally fall into category #1 (partial
jurisdiction). The Quinaults, through a cooperative arrangement with the
Greys Harbor County Court (in whose jurisdiction the Quinault Reservation
lied), have regained jurisdiction over juvenile matters. In addition, the Qui-
naults have asserted jurisdiction as to tribal law over all individuals within
their borders, including a twelve mile portion extending into the adjacent
Pacific Ocean. The tribe has done so by virtue of the adoption of an implied
consent ordinance incorporated into its recently revised tribal code. All persons
who enter the area specified by the tribe are impliedly giving their consent
to be subject to the laws of the Quinaults as a condition precedent to such
entry.
4. No State Jurisdiction-The one federally recognized tribe in the State
of Washington over which the state has not assumed civil and criminal
jurisdiction pursuant to Public Law 280 is the Lower Elwah Tribal Community.
This discrepancy arose because the Bureau of Indian Affairs purchased land
for the Lower Biwah Tribe. in late 1936 and early 1937 under the authority
of the Indian Reorganization Act of June 18, 1934. This land was held in
trust by the United States Government for the Lower Elwah Tribal Com-
munity. The Secretary of the Interior, on January 19, 1968, officially pro-
,claimed this "purchased" land as the Lower Elwali Reservation. Since this
reservation was not formed until after the enactment of Public Law 280 and
Public Law 280 did not anticipate any future tribes being recognized, it is
the official position of the Bureau of Indian Affairs that the federal govern-
ment and the tribe have exclusive jurisdiction over the reservation. The tribe
is now engaged. in developing an effective law and order code and other
ordinances for the reservation. The tribe has employed a tribal policeman
who is considered a federal officer. Ile is charged with exclusive responsibility
for law enforcement. The tribe recently established an Indian Court to provide
for the fair and equitable application of the law.
A possible -fifth category is exemplified by the Sauk-Suiattle Indian tribe.
This tribe is one of the two in Washington which is federally recognized but
has no land base upon which its tribal members reside. Instructions have not
yet been given to the Western Washington Indian Agency on how to assist
the tribe, which was only recently federally recognized. The tribe held
interim elections and approved a constitution which is now being sent to the
Secretary of the Interior for approval, pursuant to the Indian Reorganization
Act. Pending approval, the tribe remains in a "vacuum state".
The Sauk-Suiattle have no reservation as such, but have received assurance
that they will shortly receive land for use as a reservation. Upon receipt
of the land the question of state jurisdiction will arise, as this tribe had
not been recognized prior to state assumption of jurisdiction. Unlike the Lower
Elwah Tribal Community, it will not have received its land until after state
assumption of jurisdiction. If other groups, presently unrecognized, receive
federal recognition in the future, more complicotions can be expected. -
Our analysis of the categories of state jurisdiction shows that the dissatis-
faction of the Indian people rises in proportion to the level of state jurisdic-
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tions. For instance, there appears to be more dissatisfaction at Colville where
there is total jurisdiction; less at Yakima where there is partial jurisdiction;
and even less at Quinault where "de facto" tribal jurisdiction exists. Lower
Elwah, which is under no state jurisdiction, complains only about lack of
state health and social services to its members.
Past to present
This dissatisfaction which Indian people evidence is not a new feeling.
Present attitudes of Indians toward the State of Washington can be better
understood if something is known of the State/Indian relationship prior to
state assumption of jurisdiction. Many Indians viewed official state policies as
anti-Indian. State services to Indian citizens living on reservations were few.
Many contend that few Indians held state jobs.
Police activities were considered particularly harsh and unfair. It was not
uncommon for police to enter areas where they had no jurisdiction, such as
Indian homes on reservations, to make Improper searches and arrests. Indians
also felt they were treated prejudicially when off the reservation. Indians
were often detained or apprehended although their white companions were
released. Many Indian men said they were invariably stopped by local police
when they walked out of bars. Arrests, beatings and being held without
charges often followed, they said. Police spot-checks immediately outside the
reservation resulted in Indians frequently being stopped, while non-Indians
were waved on through.
As a result of these activities, state and local police personnel were viewed
by the Indian community more as harassers than as prosecutors. To this day,
much of that feeling remains ; most of the Indian population of Washington
distrusts and fears outside police. Why that feeling continues to exist is the
subject of the next section.
Present-day perceptions-methodology
In order to assess the present attitudes of Indians in Washington concerning
state jurisdiction we employed the techniques of field interviewing, both
formally and informally, and of distributing questionnaires. Interviewers, all
American Indians, were selected on the basis ofgeographical origin. They were
representative of the Yakima area, the Colville area, the Quinault-Olympic
Peninsula area, and the Seattle-Everett area.
The Interviewers distributed individually several hundred questionnaires,
Because only forty (40) questionnaires were returned completed (some of the
reasons for this are discussed later), formal interviewing with tape recorders
and writing pads was attempted. This was found to retard candid communi-
cation. Therefore, more informal interviewing techniqu^s were utilized. Though
more successful in eliciting information, these methods made documentation
difficult. In all, about 250 Indians from twenty tribes in Washington State
provided us with some information. We also interviewed federal, state, and
local judicial and law enforcement personnel. Interviewing and research took
place during four separate field trips, the first lasting two months, the others
of shorter duration. All activity stressed `grass roots' information.
The results of our inquiry form a group of perceptions by Indians of state
administration of criminal justice. The information below is an analysis
of the 40 formal responses to our questionnaires and of the information
gathered in the more informal interviews. It does not purport to be a scientific
sociological study. However, we do believe it to be a valid expression of the
cares of the Washington State Indian community regarding state jurisdiction
of Indian criminal matters.
Findings
1. Very few Washington State Indians understand the jurisdiction which
their tribes, their police and their courts have over criminal matters on the
reservation. Members of tribes which have retained jurisdiction only over fish
and game laws best understand their tribe's jurisdiction.
2. Members of tribes under partial state jurisdiction seldom responded with-
out criticizing the state's mode of carrying out its jurisdictional responsibili-
ties. The legality of state assumption of jurisdiction was also challenged.
3. About half of the Indians feel they are treated poorly or indifferent
by state, county and local police. About a third categorize the treatment they
receive as good or fair.
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4. Inadequate services and over-enforcement, harsh treatment and discrimina-
tion (particularly at per capita payment times) are the major complaints
against the state, county and local police.
5. About half of the respondents stated they personally have had law
.and order problems since the state has assumed jurisdiction over their tribes.
Very few of these were satisfied with the outcome of the matter. Dissatisfac-
tion stemmed from inaction or too slow response by authorities, alleged racial
discrimination and alleged unfair treatment. Cases reported involved traffic
problems, juvenile delinquency, thefts and family matters.
6. Indians feel they receive better treatment from, and are better under-
stood by, Tribal or Bureau of Indian Affairs Police.
7. Juvenile matters are of greatest concern to most Indians. All law and
order areas, traffic laws, narcotics and trespass and theft are of next greatest
concern. Civil jurisdiction, police prejudice, domestic relations, family problems,
fish and wildlife, death investigations, need for more police protection and
regaining tribal jurisdiction are also important.
8. A majority believe they are not fairly treated by state, county and municipal
courts. They believe non-Indian courts do not care about their problems.
9. A majority feel they are treater prejudicially because they are American
Indians.
10. Very few Indians believe that authorities off the reservation understand
Indians and their problems.
11. Almost unanimously, Indians favor a return of jurisdiction to the tribes.
Specific Complaints-The perception of `outside' law enforcement officials as
hostile and uncaring extends to the judicial branch as well. Indian communities
pride themselves on their ability to solve the problems of their own people.
Since the imposition of state jurisdiction there have been numerous complaints
that problem-solving is more difficult, if not impossible. Every tribe visited
expressed particular concern for its youth, but is often unable to exert any
:authoritative influence. Members of the Qulnault Tribe stated that it was for
their youth that they were going out on a limb and asserting full jurisdiction.
Some specific complaints of the Indian community concerning state juris-
d.iction can help illustrate why many tribes desire to regain jurisdiction over
their own law enforcement and judicial affairs. These complaints are derived
,directly from field interviews of about 250 people from some twenty tribes in
the State of Washington. We also interviewed state and local police, probation
officers, and judicial officers.
Insufficient Local Police Coverage (For the purpose of this discussion the
term "local police" shall refer to all off-reservation non-Indian police). This
complaint was made by all who were interviewed. Reservation residents de-
-clared that local police are never around when they are needed and that many
places, especially highly populated areas with a history of trouble, are seldom
patrolled. Rural areas also receive little attention ; those which have few non-
Indian residents receive least. The number of unsolved robberies and break-ins
seems to be increasing. When additional police are employed, they are detailed
to patrol reservation areas only if those areas have a high percentage of non-
Indian habitants. Reservation residents claim there is no effort to practice
"preventive medicine" ; few crime prevention programs are directed toward
the reservation.
The counties have responded to charges of inadequate coverage in two ways:
first, they say Indians receive the same services as non-.Indians in the same
area ; second, the counties claim they cannot afford to provide such services
as the Indians feel necessary. The State of Washington itself has admitted
this deficiency as late as December, 1972.
"Although the State assumed jurisdiction over major crimes and juvenile
delinquency on reservations, counties have not been provided with resources to
effectively assume the responsibilities of patrol, apprehension and investigation
of offenses committed on reservations. , 4
The Colville Reservation, located in both Ferry and Okanogan counties. has
initiated action in the financial areas. The Colvilles voluntarily contributed
:$2(1,800 per year, or a total of $160,800 from 1965 until 1971 to these two
counties to help bear the costs of law enforcement. They also allowed the
counties use of their tribal jail and gave other support. In August 1971, the
1 State of Washington, Comprehensive Plan for Law Dnforoemen.t and Vie Adrntnistra-
tion of Jasti.ce, January i-December 31, 1973, Washington State, Dec. 1972, p. 109.
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tribe discontinued financial support and refused to make future payffients
because adequate police services were not being provided by the counties.
Response of Local Police-Our interviews revealed unanimous dissatisfaction
with police responses to problems on the reservation. The Quinaults stated
that failure of local police to come when needed, as well as their delay in
arriving, made the local police "worthless". The same complaints were voiced
in Lummi. At Yakima we were told, "When we call the outside police and
they don't respond or take too long in arriving, we are forced to act our-
selves. This is to keep the problem from becoming worse. In many cases we
have no jurisdiction, but must act because no one else will." Most local law
enforcement officers interviewed indicated that Indian problems on the reser-
vation receive a low priority,
Specific Enforcement of the Law-We repeatedly heard the allegation, "I was
stopped (arrested) just because of the color of my skin." There were numerous
complaints that local police conduct road blocks, spot checks, etc., at places
where mostly Indians pass. For instance, Indians said that almost all Indians
are stopped but most non-Indians are waved on through at the entrance of the
road leading to the Indian health Service Hospital.
During tribal celebrations more pollee than are required appear at the cele-
bration. The Indians feel they are being harassed. While these police are
keeping surveillance on celebration areas, burglaries occur throughout the un-
protected and unpatrolled portions of the reservation. It was also alleged that
when monies are distributed to tribal members through tribal dividends or
per capita payments the incidence of Indian arrests seems to rise.
Complaints about state policemen were widespread, mainly involving harass-
ment. We were told of several incidents in which faultless Indian drivers were
followed by state policemen for unreasonable distances, sometimes despite obvi-
ous violations committed by other drivers in the area.
The tenor of the reports and interviews indicates that Indian opinion of
local and state police is very low. Most Indians do not consider these officials
protectors. Some Indians consider the actions of these police officers as tanta-
mount to extortion.
Distance-There were- uniform complaints that the local authorities work
out of offices too far away from reservations to render good service. The Mlakah
Tribe is 73 miles from the county seat in Port Angeles. At Spokane, one
county seat is 65 miles away, the other 40. At Colville, a similar situation
exists. The distances at Quinault, Lummi, Kalispel and Yakima also cause
serious problems. Because of these distances, much time is lost in responding
to reservation complaints and with court appearances.
Untlcrsta.nrding of Indians and Indian Problents-Lack of understanding by
local authorities was a constant complaint. Likewise, runny reservation resi-
dents do not understand the systems off the reservation. The tribal judges at
Makah were particularly vocal on this point. Tribal members frequently con-
tact them in order to find out what has happened in their off-reservation cases.
Local officials rarely give explanations, even when asked. Many tribal judges
spend much time investigating the outcome of county court matters in order
to provide explanations to Indian parties in the cases.
The Swinomish Tribal Business Committee made comments which were
echoed by leaders of other small tribes. The tribe petitioned for total state
jurisdiction for financial reasons, the tribe being unable to afford the cost
of law enforcement services. The law enforcement is better now, but not
satisfactory. There is one Bureau of Indian Affairs trespass officer who spends
part of one day at the reservation every two weeks. If the Swinomish could
be funded to run their own law and order department they would do so. They
would try to regain their jurisdiction because, they said, the local authorities
do not understand Indians and some authorities don't even try.
Courts and Commitments-Many Indians are bitter over what they consider
unfair treatment of Indians and Indian problems by the courts. A tribal police
officer who is commissioned as a county sheriff stated that he cannot get
convictions when he arrests non-Indians, but "when I bring in an Indian they
throw the book at him". Officers of the Colville Reservation have filed over
800 complaints in the local county courts but have obtained only four convic-
tions. County authorities have refused to serve legal papers on the reservation
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because, they claim, it's too hard to find people. Tribal officials, however, never
have this difficulty.
As reported earlier, the Greys Harbor County Court remands all cases in-
volving Quinault juveniles back to the tribal court, under a cooperative ar-
rangement with the tribe. Complaints were widespread about violations which
had led to juveniles being removed from their families. There were charges
that parents had not been informed when their children were scheduled to be
in court or that they had been notified at the last moment. In some of -these
instances, county judges viewed the failure of the parents to attend as lack'
of concern for the children and the children were, therefore, removed from the
home. 'Many Indians consider this "stealing" of children.
There were frequent complaints that County Court Judges doriot explain
defendants' rights to Indians. Indians also cite harsh sentences, claiming they,
receive greater punishment than non-Indians for the same offenses. In general,
there appeared to be extensive distrust, hostility and frustration concerning
local courts. -
Quality of Local Lawn Enforcement-Tribal police officers were outspoken
about the quality of law enforcement. Their greatest complaints concerned
juvenile problems. One officer reported, "The juvenile situation is sad. There
is one juvenile officer who covers about three or four counties. Ile seldom
comes to the reservation and when he does he just scolds the kids and lets
then off. The kids laugh in his face and then they laugh in my face because
they know we cannot do a thing with them. When this juvenile officer leaves
the reservation, .I have to live with these kids." Others made the same com-
plaint and lamented that there was no action taken by the local authorities.
on juvenile problems. "Sheriffs Officers release kids without holding them or
doing anything. When we call them they come -too late, if they even bother to
show up. We are getting a real hard time from kids who know we have ate'
jurisdiction over them. Half of the time we don't let on that we have no author
ity over them because they would run wild."
Other officers reported, "State and County authorities do not enforce the,
laws. The problem has become worse since the state took over. The kids know
we have no authority and make it hard for us. State officials will not even'
go onto deeded property where Indian families live, even though they have
the authority to do so. The tribal police have to go there when the situation
seems desperate. The tribal members don't trust the local police and courts,
so they make complaints to the tribal court even when they know that the
court does not have jurisdiction. All the tribal judge can do is give advice,
but that's better than they get from the outside courts."
The specific problems we have discussed were examined in depth by the
Colville Tribe. That tribe hired a survey team from Washington State Univer-
sity to study their law enforcement problems. The study was divided into two
major phases : -
(1) Examination of the arrest and court records of Okanagon and Ferry
counties.
(2) Survey of the opinions of 85 Indians living on the reservation and of
132 non-Indians living both on- and off the reservation.
After learning of this survey and examining its results, we interviewed the
survey team for a better understanding of their findings. They admitted that
they encountered much difficulty with the examination of the county records
and that that portion of their work was inconclusive. With reference to the
opinion sampling, they were convinced that their findings were representative."
Some of their findings are as follows :
Qtcestiox. Generally speaking, when a crime is committed in this area, how.
hard do you believe the law enforcement officers try to solve the crime?
Indian percentage--------------------- 18 14 33 18 27
Non-Indian percentage----------------- 20 36 29 10 6
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Question. Generally speaking, how would you rank local police for promptness,
respectfulness, attention to complaints, and protection?
Very
good
Pretty
good
Not so
good
Promptness:
Indian percentage ------- ------------------ ___-----------------
21
24
54
Non-Indian percentage________________________________________
42
46
13
Respectfulness:
Indian percentage---------------------------------------
49
26
Non-Indian percentage_____________________________________
69
26
5
Attention to complaints:
Indian percentage------------------- --------------------------
- 21
24
54
Non-Indian percentage ----------------------------------------
40
46
14
Protection;
Indian percentage ---------------------------------------------
19
32
49
Non-Indian percentage________________________________________
41
48
11
Question. Generally speaking, do you think the law enforcement officers in this
area are doing an excellent, good, fair or poor job of enforcing the laws?
Indian percentage--------- --------- ---------- --_--_ 8 20 43 30
Non-Indian percentage_-____ ______________________ 13 52 27 8
Of the Indians interviewed, 73% felt the police did a fair or poor job, while
only 35% of the non-Indians agreed. Of the non-Indians, 65% believed the
police did an excellent or good job, whereas; 28% of the Indians felt that way.
It must be remembered that all the Indians questioned lived on the reservation
while the non-Indians interviewed lived both on and off the reservation.
In order for such a strong opinion to be present, there must be some problem
with the present system which cannot be dismissed as imagined or without
merit. Many investigators have tried to obtain specific data to buttress these
opinions but this is difficult.
The record examination phase of the Washington State Survey did not sub-
stantiate the Colville's charges of racial bias on the part of local authorities.
The tribe counters the survey results by stating that valid conclusions could
not be attained merely by examining bare Bounty arrest and court records.
A Bureau of Indian Affairs representative assigned to the Colville, and an
individual with vast experience in the State of Washington, including proba-
tion work in Yakima County, has stated :
"1. Ten percent of the total population of Okanogan and Ferry counties (In-
dians) account for 50% of the total persons arrested by :he two counties.
"2. The process of "two-counting" * by enforcement ofieia'.s is much more
prevalent as applied to Indian people than it is for non-Indian people. The
process of "two-counting", no matter what the perceived justification, grossly
affects the Indian's ability to post bail.
"3. A far greater proportion of Indians received combinations of fine and
jail sentences than their non-Indian counterparts. Again, no matter what the
categorical justification, it appears to me that, in reality, the Indian is being
punished for being an Indian, and, secondly, for being poor. This concept is
supported further by the much higher percentage of Indians who must serve
jail sentences In lieu of paying a fine."
Soc1a7. services
Public Law 280 was v step towards the eventual termination of the special
relationship between the federal government and all Indian tribes and com-
munities. By adopting a policy of termination, the federal government sought
to discontinue federal services provided to Indians and Indian tribes. They
theorized that terminating federal services would place Indians on an equal
basis with all other citizens and force them into. the mainstream of American
life. To do so, special services, such as law and order, along with many social
services, were discontinued ; Indians were then forced to turn to the states
rather than to the federal government.
*Citing an arrested person for more than cone offense eommli.ted at one time; for
example, being drunk and disorderly and disturbing the peace.
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The State of Washington was a key state for the policy of termination.
There were many Indian tribes located within Washington. Some of these
tribes controlled vast lands and resources while others had little or no re-
sources. Reservations had large non-Indian populations living within their
exterior borders. In some cases, these residents outnumbered the Indians living
there. Reservation land had fallen into non-Indian ownership. To the non-
Indians the special services provided to Indians were impossible to comprehend.
They rationalized that Indians received all they required from the federal
government, supported by their tax dollars, and thus,. that Indians need not
work. The myth that all Indians receive a monthly support check from the
federal government is still widely believed.
Yet, in assuming jurisdiction over the Indians within its borders, Washington
State expressly promised to assume responsibility for providing social services
to its Indian citizens. Despite this express assumption of responsibility, even
a cursory look at available statistics' seems to indicate that Washington State
to delivering fewer assistance benefits to its Indian citizens than to its non-
Indian residents. Since Indians have a lower median age, educational level,
and earnings level in the state, one might justifiably have expected the opposite
to hold true.
Again, the Incomplete figures available seem to indicate that Indians are
incarcerated in state penal facilities at a greater rate than non-Indians. Con-
versely, they receive probation and parole at a lesser rate than do non-Indians.
(The problems related to Indian probation have been recognized to the extent
that the Indian Desk of the Law Enforcement Assistance Administration and
the Indian tribes in the State of Washington are now evaluating a possible
major program to deal with the problem.)
A detailed statistical study might well show that Washington State has not
been discharging the duty it voluntarily took upon itself when it assumed
jurisdiction over Indian reservations within its borders. The failure of the
state to recognize its own failing in this matter, much less correct the situa-
tion, has, to a great degree, been responsible for the Indians' attitude toward
the state.
Attitude of the Federal Government
If the reasons for Indian attitudes toward the state and toward state and
local police have, in large part, been due to the attitudes of those in the state
charged with responsibility for Indian problems, the same holds true for the
federal government. The stance of the powers in Washington, D.C. regarding
Public Law 280 has been as aggravating to Indians as the state's position.
A policy statement, in answer to the twenty questions propounded by the
recent Caravan of Broken Treaties, was released by Presidential Advisors
Leonard Garment and Frank Carlucci. They stated :
"Public Law 280 permits a state to acquire civil and criminal jurisdiction in
Indian areas but only with the consent of the involved tribe. A state's assump-
tion, of jurisdiction under Public Law 280 is voluntary and whether a state
repeals the law involved (or any other state law) is also within the discretion
of the state. There is a provision in the Indian Civil Rights Act of 1968 which
permits the states which have acquired jurisdiction under Public Law 280 to
retrocede their jurisdiction back to the U.S. They are not required to do so at
the request of the tribe.
"It is not true that Public Law 280 deprived any Indian Tribe of any of its
civil or criminal jurisdiction over its members. The jurisdiction of the federal
government over "major crimes" and under the Assimilated Crimes Act was
divided and transferred to the states, but nothing in the Act strips the tribes
of its powers. .
"The Congress possesses the power to provide for the resuming of federal
jurisdiction in Indian country where the states have acquired it under Public
Law 280. The Congress, no doubt, would want to have the views of tribes
which. had consented to state jurisdiction before taking the action recommended
under this proposal."
The above statement, issued on January 9, 1973, is the most current govern-
mental policy statement on this issue. Much of this statement is erroneous,
misleading and, at best, arguable. It is true that today a state may only acquire
of extend its present jurisdiction with the consent of the' tribes involved. But
this was not the case from 1953 to 1968 when all jurisdiction was assumed.
8 All conclusions in this section are based upon 1972 statistics provided by the Wash.
ington State Department of Social and Health Services. figures found in the Council of
Governments Book of States, 1972 and 1973, and upon 1970 census figures.
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It is a fact that several tribes vigorously opposed states' attempts to assume
;jurisdiction. The first sentence of.the statement makes it appear that all of the
tribes under Public Law .280 consented to it. The following sentence is also
misleading. There is no question that a state's' decision about whether to as-
sume jurisdiction was, between 1.953 and 1968. solely a matter to be decided
by that state; however, the wording in the statement makes it appear that all
tribes volunteered to be taken under the jurisdictional Wing of the states.
In citing the 1968 Indian Civil Rights Act, the President's advisors stated
that Congress permits the states to retrocede jurisdiction back to the United
States. Technically, this is not true. Section 402(a) only allows the United
States to accept retrocession by a state; the act is silent as to state initiative
or procedure. The Indian Civil Rights Act does not prescribe how retrocession
is to be accomplished ; it does not call for legislative action, executive procla-
mation, etc. It merely allows the federal government to accept the retrocession
of any state.
Prior to presenting and analyzing the available means of returning either
part or all of the jurisdiction to Indian reservations, we shall trace generally
the history of vacillation in federal policy toward Indian's, emphasizing events
since 195?. Also to be examined in considerable detail' is the assumption of
jurisdiction over Indian reservations in the State of Washington under Public
Law 280.
CafAPTF;a 1
The history of federal policy toward Indians through the 19th Century and
the first half of the 20th Century is marked by wide variations running the
gamut from Supreme Court recognition ofIndian tribes as sovereign, domestic
dependent nations in the early 1830's, to a policy of dispersion and relocation
in the late 1830's, to an allotment and assimilation policy in the 1880's, to
rejection of the allotment policy and adoption of a tribal enhancement police
in the 1930's, and finally to a policy of paying off Indian tribes for lands
,, rongfully taken from them during the preceding 100 years or so.
1. About sovereignty-conquest
Chief Justice John Marshall of the United States Supreme Court in Cherokee
Nation, v. Georgia,' decided in 1831, and Worcester v. Georgia' decided in 1833,
defined the basic relationship of Indian tribes to the federal and state govern-
ments in terms that are still reiterated today. The court through Marshall said
that an Indian tribe is a sovereign entity--a "distinct, independent, political
community," "capable of managing its own affairs and governing itself but,
lie said, the sovereignty of tribes is limited. Although they still retain qualified
internal sovereignty, i.e., power to govern themselves as they see fit, they no
longer have external sovereignty, i.e., the power to engage in international
relations, such as making treaties with foreign nations, or in more modern
times, belonging to the United Nations or bringing cases before the World
Court. The external sovereignty of Indian tribes, as well as of the states, is
exercised exclusively by the United States federal government.
The internal self-governing powers of an Indian tribe continues to exist,
except as they have been modified by express federal legislation. This con-
gressional power to enact such modifying legislation was first recognized by
the United States Supreme Court in Cherokee Nation v. Georgia in 1831, and
is there said to be based on conquest. This principle has since been affirmed
in other cases, and is now generally conceded.
As in the external. sovereignty area, the federal government has-as against
the states--exclusive power in the internal sovereignty area. Thus, a state
cannot apply its laws on an Indian reservation, thereby affecting Indian in-
ternal affairs and government,. unless the federal Congress expressly delegates
such power. Public Law 280 is an example of such specific federal authoriza-
tion to the states.
The federal plenary power to enact laws concerning Indian internal tribal
affairs may be exercised regardless of Indian opposition. In recent years. how-
ever. Congress has been giving increasing importance to Indian views and
consent.
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The treaty-making power of Indian tribes,;. which had been recognized by
Chief Justice Marshall in_ Worcester v. G,eorgta in'1S83, was finally eliminated
'ley Congress in 1571 s Thereafter no further treaties Were to be signed with
Indian tribes, is1'thougl the `1871-Act specifically provided that. it 'did not "in-
validate'oz impair" existing treaties.'
2. President Jackson.s statement, 1$35-relocation
One of the earliest presidential statements of policy toward Aierredn In-
-dians' is contained in President Jackson's Seventh Annual Message to Congress
of December 7, 1835, and contains the attempted justification for the 'tragic
"trail of tears" where the Cherokee Indians were driven from their ancestral
homes in Georgia and vicinity to the area later to' become Oklahoma. President
Jackson deemed it certain that Indians'"cannot live in contact with a eivilazed
community and prosper". Thus,' under the duty of treaty stipulation and moral
command, President Jackson, in order to "protect and if possible preserve and
perpetuate" the existing Indian tribes, raised a protective geographic barrier
by purporting to create an extensive region in the West to be the "pertnanen't
re?idence".'?of the displaced Indians. This assigned' area was to be 9oecupied
solely by Indians and "into which the white settlements are not to be pushed'%
During the next fifty years western United States was settled. Gold-was dis;
covered .in, California, Alaska, Nevada, and elsewhere. Rich agricultural lands
were fouhd throughout the West. The notion of "manifest destiny" was born by
which much of the non-Indian population came to believe that their God had
created the West for their `settlement and that they. were destined to settle
the land and fight off. the savage Indians. 't'housands of settlers moved into the
western part of the continent. Inevitably, clashes occurred with the Indians
who correctly saw this invasion as a.. threat to their way of life, if not to their
very existence. Although the Indians won some important battles, the number
and power of non-Indians was too great, and the Indians were unable to pre-
vent the new arrivals from taking and occupying their land.
The policy of the federal government was to create reservations for Indians
and to put Indians on these relatively small tracts of land so that the remaip.-
inig western lands would be available for settlement. Time and time again,
however, the pressures of increasing numbers of settlers forced relocation of
reservation boundaries and diminution of their size, It was during this time,
particularly (luring the 1850's, that the reservations in the State of Washington
and some nearby states were created.
3. President Arthur's statement, 1881-assimilation
The tragedy of the Indian situation was recognized by President Arthur. in
1881, when, on December 6, he delivered his First Annual Message to Congress,'
describing both the problem and his proposed solution. Unfortunately, his
"solution", when put into effect, resulted in further erosion of the Indians'
land base, culture, religion, and independence. The plan was designed to draw
the Indian into the "mainstream" of American life. President Arthur's speech
foreshadowed the enactment of the Dawes Act of 1887.
The President` concluded that the policy (epitomized by President Jackson)
of relocating Indians to the seemingly illimitable vastness of the West, thereby
encouraging their "savage life" and protecting them from the "influence of
civilization", was unsatisfactory in result. The disagreeable results were con-
stant Indian relocation and frontier collisions between ambitious settlers and
Indans.
The solution was legislation to assimilate the Indian. In the President's
words: "to introduce among the Indians the customs and pursuits of civilized
life and gradually to absorb them into the mass of our citizens". The first
legislative action sought by President Arthur was designed to introduce to
the Indian "the protection of the law". This was to be advanced by an act
making state and territory law applicable to Indian reservations within their
borders. The second was to permit allotment to Indians of land secured by
patent for 20 or 25 years to encourage "their present welfare and their perma-
nent advancement". The allotment scheme's goal was to induce Indians to
"sever their tribal relations", engage in "agricultural pursuits", and to "con-
form their manner of life to the new order of things". This assurance of title
to soil would, hoped President Arthur, dissolve tribal bonds which perpetuated
"savage life".
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4? The Allotment Act-termination
The Allotment Act of 1887 was allegedly designed to encourage civilization
of the Iudiazls by giving them private, individual ownership of a particular
parcel of land. The theory was that they would become family farmers like the
non-Indian western settlers. In further implementation of this theory, the
Act of May 8, 1906 gave the Secretary of the Interior power to issue a patent
in fee simple whenever he was satisfied that any Indian allottee was compe-
tent and capable of managing his or her affairs. The Secretary's action did not
require consent of the Indian allottee before the patent was issued, and, in
fact, numerous patents were issued against the wishes of the Indians.
The allotment system failed miserably. The Indians were not instructed in
agriculture, and were apparently not too interested in farming, As a result,
much Indian land quickly fell into the hands of non-Indians. In fact, total
Indian landholdings were reduced from 136,397,985 acres in 1887 to 48,000,000
acres by 1934.8 It is interesting that it was only in 1938 that the court, in
U.S. v. Perry County, Washington,7 held that the United States as trustee
could no longer liquidate the trust and issue a fee simple patent without the
consent of the Indian allottee.
5. The 1924 Citizenship Act
In 1924 Congress enacted legislation granting citizenship to all American
Indians born within the territorial limits of the United States. Some Indians
received citizenship under earlier, special statutes, but this one applied to all
Indians who still remained non-citizens. An argument frequently heard after
the enactment of this legislation was that Indians had thereby lost all their
treaty rights. This argument failed, however, in the face of directly contrary
language in the 1924 Act itself, and in light of court decisions which affirmed
that treaty rights were not affected by the Act.
6. The 1934 Indian Reorganization Act-a Pause
The Dawes Act policy of allotment continued without significant change
until 1934 when Congress again changed the direction of federal policy by
enacting the Indian Reorganization Act of 1934.8 Among other things this Act
recognized the failure of the Allotment Act policy and prohibited any further
allotments of Indian lands. To help correct the Allotment Act error, the Secre-
tary of the Interior was authorized to return to tribal ownership lands which
had been withdrawn for homestead entry but had not yet actually been home-
steaded. The Act authorized an annual appropriation of $2 million to purchase
or reacquire land and add it to the diminished resources of the tribes, and a
revolving credit fund of $10 million to enable the Indians to improve their
land holdings and buy equipment. The tribes were authorized to form self-
governments and to incorporate for business purposes.
As explained by one of its sponsors, the Act was designed to make the Fed-
eral Indian Service the "adviser" rather than the "ruler" of the Indians.
The Federal government will continue its guardianship of the Indians, but
the guardianship envisaged by the new policy will constantly strengthen the
Indians, rather than weaken them."
7. The 1946 Indian Claims Commission Act
In 1946 Congress recognized the existence of numerous unsettled claims by
tribes and bands of Indians for lands wrongfully taken, and enacted the
Indian Claims Commission Act. The Act permitted suits against the United
States for claims based on fraud, duress, unconscionable consideration, the
taking of lands without payment of the agreed compensation, and claims based
on fair and honorable dealings not recognized by existing rules of law or
equity. The Commission had a specific lifetime, is now concluding its deter-
mination on the final claims filed with it.
Introducton: In the late 1940's and early 1950's, federal policy toward In-
dians turned sharply and strongly toward "termination". Bureau of Indian
Affairs actions between. 1948 and 1953 reflected this policy. In 1953 Congress
adopted House Concurrent Resolution 108 expressing the policy of termination,
and followed this in the same year with enactment of Public Law 280, and
then in 1954 with laws terminating the Klamath and Menominee Reservations.
By the early 1960's, however, Indian opposition to this policy had increased
considerably, and the policy was being recognized as a failure, if not a disaster.
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1. Land policy of $I9. 1948-57-termination
In the 1950's the assimilation or termination policy of the 1887 Allotment Act
again became the dominant federal policy toward Indians and found its way
into federal legislation. As a precursor to. this policy, the Bureau of Indian
Affairs, beginning in 1948,. reversed its basic land policy of acquiring land to
add to the Indians' depleted resources ; and placed emphasis on the removal
of restrictions against the sale, thus allowing Indian land to pass out of Indian
ownership. From 1948 to 1957 a total of 2,595,414 acres of individually-owned
trust land was removed from trust status. Public. purposes alone used 2,174,518
acres. The amount. of.land removed from trust status and put up for sale was
more than one-half of the area which had been painstakingly acquired since
the enactment of the Indian Reorganization Act of 1934 i0
2. House Concurrent Resolution 108-termination revisited
On August 1, 1953 Congress passed House Concurrent Resolution 108, which
announced the new federal policy termination. This new policy sought to end
the ward status of Indians by granting them all the rights, privileges, and
responsibilities of citizenship, including subjection to the same laws which,
rule non-Indians. The Resolution declared termination by ending federal super-
vision and control over tribes, and individual members thereof, located in
California, Florida, New York, and Texas, and also over other named tribes
and members. This declaration ordered the abolishment of Bureau of Indian
Affairs offices in the states named, and any other Bureau of Indian Affairs.
offices that served tribes or individuals "freed from federal supervision" in
any other states.
S. Public Law 280
Congress in 1953 enacted the now infamous Public Law 280," designed to.
further the termination process declared in House Concurrent Resolution 108,
by giving certain states outright jurisdiction over Indian reservations within
their borders, and authorizing others to enact legislation or amend their con-
stitutions to assume jurisdiction over Indian reservations.
Under Public Law 280 the states were divided into three different categories,
each being treated somewhat differently with regard to how they might assume
jurisdiction over Indian reservations. The Act ceded criminal and civil juris-
diction directly to one group of states. A second group of states was empowered
to take jurisdiction over reservations by enactment of appropriate state legis-
lation. A third group of states was empowered to assume such jurisdiction by
amending their state constitutions. The Act said nothing about requiring con-
sent of the Indian tribes for such actions. Subsequent amendments change(]
the Act with reference to a few particular reservations, but the overall effect
of Public Law 280 and amendments (prior to the 1908 Civil Rights Act) was
as follows :
(a) Criminal jurisdiction was automatically granted to the following states:
State : Indian country a,ff ectea
Alaska ------- All Indian country within the State, except that on Annette
Islands, the Metlakatla Indian community, may exercise
jurisdiction over offenses committed by Indians in the
same manner in which such jurisdiction may be exer-
cised by Indian tribes in Indian country over which State
jurisdiction has not been extended.
California All Indian country within the State.
Minnesota All Indian country within the State except the Red Lake
Reservation.
Nebraska All Indian country within the State.
Oregon All Indian country within the State except the Warm
Springs Reservation.
Wisconsin __,_ All Indian Country within the State.
The Red Lake Reservation in Minnesota, the Warm Springs Reservation in
Oregon, the Colville and Yakima Reservations in Washington, and the Menomi-
nee Reservation in Wisconsin, all objected strenuously to being subjected to
state jurisdiction, and their objections were forwarded by the Secretary of the
Interior to Congress, with the statement that "each of [these reservations]
has a tribal law-and-order organization that functions in a reasonably satis-
factory manner" .12 Although the Secretary said that other "Indian groups in
[the affected states] were, for the most part, agreeable to the transfer of
jurisdiction", it is clear from subsequent events that only a few of the other
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groups of Indians were contacted, and that there was copsiderably more oppo-
sition to Public Law 280 among the affected Indians than was`reflected in the
Secretary's letter. In any event, Congress did recognize the objections of the
Red Lake Reservation and. the Warm Springs Reservation, , and explicitly
ee_ cluded them from the reach of the Act, so that the States of I innesota'and
Oregon were not authorized to assume jurisdiction over these reservations. The
Colville and Yakima Reservations had similarly objected, saying they feared
"inequitable treatment in the state courts" and that "the extension of state law
to their reservations would result in the loss of various rights".' Congress ig-
nored their objections, however, and authorized the State of Washington to
assume jurisdiction over these reservations if it desired to do so, even without
the Indians' consent.
Upon becoming a state in 1958, Alaska was given jurisdiction over "all Indian
country" within its borders. However, in 1970 Congress recognized that it
had made a mistake as to the Metlakatla Reservation and expressly returned
to that reservation concurrent jurisdiction over minor crimes. The House Re-
port in support of this return of jurisdiction noted that this "community which
had been operating a perfectly satisfactory law enforcement system for over
a century was simply forgotten", at the time of the 1958 Act" Nobody had
asked the Indians, or taken the trouble to look and see what kind of law and
order system they had developed for themselves on the Reservation.
(b) Under Public Law 280, civil jurisdiction was automatically granted to
states as follows :
State : Indian country affected
Alaska ------- All Indian country within the State.
California ____ Do.
Minnesota ____ All Indian country within the State, except the Red Lake
Reservation. _
Nebraska ----- All Indian country within theState'.
Oregon ------- All Indian country within the State, except for the Warm
Springs Reservation.
Wisconsin ---- All Indian country within the State.
Two other groups of states were identified in Public jaw 280 with different
procedures created by which they were to assume jurisdiction over Indian
reservations.
(e) Section 7 of Public Law 280 was directed at Nevada. but also covered
some 36 other states. These states were authorized to enact state legislation to
assume either criminal or civil jurisdiction, or both, over Indian reservations
within their borders, again either with or without the consent of the Indian
tribes involved.
Pursuant to the authority of the federal statute, Nevada enacted a statute
providing for state assumption of criminal and civil jurisdiction over public
offenses committed or civil causes of action arising in areas of Indian country
in Nevada 90 days after July 1, 1955. Exception was matte for counties where
the boards of county commissioners petitioned the governor to exclude the area
of Indian country within that county from the operation of the statute, and
the governor, by proclamation, honors that petition.
(d) Section 6 of Public Law 280 provided the means by which Washington,
Arizona, Montana, New Mexico, North Dakota, Oklahoma, South Dakota and
Utah could assume either criminal or civil jurisdiction, or both, over Indian
reservations with or without tribal consent. These states were treated sepa-
rately because each had a constitutional disclaimer of jurisdiction over Indian
land within their borders, either similar to, or identical with, the one in the
Washington State Constitution, Article 25, Section 2, witch provided:
"[T]he people inhabiting this State do agree and declare that they forever
disclaim all right and title to all lands lying within said (State) owned or
held by any Indian or Indian tribe ; and that until the title thereto shall, have
been extinguished by the United States, the same shall be and remain subject
to the disposition of the United States, and said Indian land shall remain under
the absolute jurisdiction and control of the Congress of the United States * * *"
The report of the United States Senate Committee on Interior and Insular
Affairs anticipated that these states would have to amend their constitutions
before they could exercise jurisdiction over reservations within their borders.'
However, Public Law 280 was construed by the Washington Supreme Court in
the 1959 case of State v. Paul` as authorizing the assumption of jurisdiction
merely by enactment of state legislation. A federal court subsequently held, in
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Quinault Tribe v. Gallagher," thatAhe State Supreme Court decision was con-
trolling on this question of whether the constitutional provision need; be
amended prior to exercising jurisdiction because the State Supreme Court is
the final interpreter of its state constitution.
The result of these decisions was that the State of Washington (and the
other states if their courts so held) could assume jurisdiction over Indian
reservations within its borders merely by enacting appropriate legislation,
there being no duty to amend the State Constitution. This result continues to
perplex those who have -read what seems to be a clear disclaimer of such power
in Article 25, Section 2, of the Washington Constitution. -It is questionable
whether Congress would have enacted Public Law 280 in this form if only
mere legislative action rather than a constitutional amendment would permit
those: states to assume jurisdiction without the tribal consent.
(c) Public Law 280 explicitly denied authority to the states for the alienation,
encumbrance, or taxation of trust property, either real or personal (including
water rights), or of any property subject to a restriction against alienation
(such as allotted land)18
The Act also specifically denied the states the power for using such property
in a manner inconsistent with any federal treaty, agreement, or statute, and
said that it did not confer on the states jurisdiction to probate such property.'"
These limitations on state power over Indian legal and treaty rights were
ie-enacted in the 1968 Civil Rights Act.
1, Implementation of Publio Lain 280: A summary of State actions
A summary of the :jurisdictional pattern throughout the United States fol-
lows. A more complete analysis of state action .under Public Law 280 can be
found in Appendix 1).
(a) The six states that were given a specific grant of jurisdiction by Public
Law 280 are :
Jurisdiction.
State:
Alaska ------- Criminal and civil jurisdiction, except 112etlakatla Reserva-
tion. The passage of the Alaska Native Claims Settle-
ment Act substantially changed, if not abolished, reser-
vations other than the Metlakatla.
California ____ Criminal and civil jurisdiction. No retrocession of jurisdic-
tion by the State.
Oregon ------- Criminal and civil jurisdiction, except Warni Springs Res-
ervation. No retrocession.
Minnesota _--- Criminal and civil jurisdiction, except for Red Lake Res-
ervation. No retrocession.
Nebraska ----- Criminal and civil jurisdiction. Conflict over jurisdiction
of the Omaha Tribe, caused by differing responses by
the 2 governments. as to the retrocession of the tribe.
The State court held the State may withdraw its offer of
retrocession despite Federal acceptance, with the Federal
court holding the opposite. Presently, a petition for cer-
tiorari is before the U.S. Supreme Court.
Wisconsin Criminal and civil jurisdiction. No retrocession.
(b) States under Section 6 of Public Law 280 are eight in number. The
various states in this group, having state constitutional disclaimers of jurisdic-
tion, have approached the assumption of jurisdiction in various ways. Some
states have amended 'their constitutional disclaimer provisions ; others have
acted simply by legislation. '
JuAsdietion
State :
Arizona ------ No constitutional amendment to remove disclaimer. Dis-
claimer provision narrowly construed by State courts to
refer to title to land only. To date, jurisdiction has been
extended only to air and water pollution laws. Such
extension raises the controversy of whether Public Law
280 permits such partial assumption of jurisdiction.
Montana The State supreme court has held that a constitutional
amendment is not necessary. Criminal jurisdiction was
assumed over the Flathead Reservation, concurrent with
the tribe.
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State-Continued Jurisdiction
New Mexico--- A 1969 disclaimer amendment to the New Mexico Constitu-
tion was rejected in a popular election. Though no asser-
tion of jurisdiction under Public Law 280 is made, the
State claims criminal jurisdiction for particular crimes.
The validity of this assumption has not yet been tested in
c
ourt, but the Pueblos of Sandia are seeking declaratory
relief rebutting the State's claini.
North Dakota_ The disclaimer prbvis on was amended in 196,5" to authorize
legislative action under Public Law 280. Enactments per-
mit civil jurisdiction over tribe or individual, if such
tribe or individual consents. No tribes have given con-
sent, but numerous individuals have
-_-_ No attempt at constitutional mendment, nor any legisla-
tion enacted pursuant to Public Law 280. However, under
various Federal statutes extending jurisdiction to the
State, the State holds extensive jurisdiction over Indian
reservations.
South Dakota_ No constitutional amendment. A 1965 referendum provid-
ing for gubernatorial assumption of jurisdiction was re-
jected by the voters.
Utah --------- No constitutional amendment, but 1971 legislation assumes
criminal and civil jurisdiction and provides for Indian
consent to the extension of jurisdiction and for retro-
cession.
Washington __ (Detailed discussion is contained in ch. 2.)
(c) Section 7 of Public Law 280 authorizes the various States in this group to
assume jurisdiction by,afhrma'tive legislative action and has no State constitu-
tional disclaimer provisions. Section 7 required no Indian consent, but the 1968
Civil Rights Act now requires such consent. Following are the 17 States in this
group.
State : Jurisdiction
Colorado ----- No assumption of jurisdiction under Public Law 280.
Connecticut __ No exercise of jurisdiction under Public Law 280. The
P
equot Reservation is subject to State supervision be-
cause it was estblished by the
Florida ------ -The State has assumed exclusive criminal and civil juris-
diction.
Idaho -------- The State exercises civil and criminal jurisdiction in 7
subject areas, concurrent with the Federal Government
and the tribes.
Iowa -------- The State exercises criminal and civil jurisdiction but
asserts grounds independent from Public Law 280 for
authority. (State once held Indian land in trust.) It
appears these grounds are Inadequate, resulting, at the
Kansas No Jurisdiction Jurisdiction Pover ublic? Law Sac and Fox Reservations.
280, although the State
exercises jurisdiction over offenses by or against Indians reservations.
Louisiana ____ No jurisdiction under Public Law 280.
Maine No jurisdiction under Public Law 280, but extensive exer-
cise of jurisdiction pursuant to State law.
Michigan -___ Yo jurisdiction under Public Law 280, but some regulation
under State law.
Mississippi ___ No jurisdiction under Public Law 280 or State law.
New York____ The State exercises criminal and civil jurisdiction pur-
suant to special Federal statutes.
Nevada ------ The State exercises criminal and civil jurisdiction pur-
suant to Public Law 280, but several counties under State
law have petitioned the Governor for exclusion, which
means that In those counties State law does not apply on
the Indian reservations.
North No jurisdiction under Public Law 280, but the Eastern
Carolina. Band of Cherokee Indians is subject to State laws, as
they are deemed State citizens. Thus, unchallenged con..
current jurisdiction exists.
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Jurisdiction
State-Continued
South No jurisdiction under Public Law 280. The Catawba Reser-
Carolina. vation was terminated from Federal supervision in 1962
and is under State control.
Texas ------- No jurisdiction under Public Law 280, but the State does
exercise jurisdiction over Indians based on the State's
special history with the Republic 'and as the State of
Texas. The State exercise of jurisdiction is subject to
doubt but no challenge has been mounted.
Virginia ----- No jurisdiction under Public Law 280. Existing reserva-
tions established by the State.
Wyoming _--- No jurisdiction under Public Law 280.
5. Termination of specific reservations
Congress, in 1954, continued to implement the termination policy enunciated
in House Concurrent Resolution 108 and carried forward Public Law 280 by
enacting the Menominee and the Klamath termination bills, thus ending the
special treaty status and the federal relationship with these reservations. The
termination of these reservations is now widely conceded to have been a grave
mistake. The Menominees, especially, had established a viable and stable eco-
nomic and social base, which disintegrated badly after termination.
Upon its enactment, Public Law 280 was subjected to prompt and persistent
attacks by Indians. These attacks became increasingly effective as the results
of the Menominee and Klamath terminations became more widely known.
Finally, in 1958 the Federal Termination Policy was partially halted by Sec-
retary of the Interior Fred Seaton, when he announced that no Indian tribe
would thereafter be terminated without its consent. However, House Concur-
rent Resolution 108, the termination resolution, still remained on the books
as the announced policy of Congress, and it was thus understandable that
Indians continued to view with suspicion new bills in Congress or Bureau of
Indian Affairs directives.
President Nixon, in his 1970 Message to Congress concerning American
Indians. explicitly recognized the wrongness of the termination policy and
its practical damaging effect on Indian people. The practical results of termi-
nation, according to the President, were disorientation among terminated
Indians left to relate to myriads of governmental branches and levels, and
the worsened economic and social condition of Indians. Because of this, the
President concluded that termination was both "morally and legally unac-
ceptable."
Clearly, this was not the prevailing view during the Menominee and Klamath
terminations and, during the 1950's and 1960's, other bills(were proposed for
terminating additional tribes in furtherance of the intent of House Concur-
rent Resolution 108.
One of the most recent, attempts to terminate an Indian reservation con-
cerned the Colville Reservation in Washington, A law enacted in 1956, Public
Law 722, set the framework for termination of the reservation and provided
That the Colville Business Council should submit a plan for termination to
the Secretary of the Interior not later than July 24, 1961. In compliance with
the 1956 Act, the Colville Business Council did submit a draft of legislation
providing for a two-stage termination program. A bill incorporating these ideas
was introduced in the 89th Congress as Senate Bill 1442. In 1963 this bill
passed the Senate but did not receive action in the I-louse. On January 12,
1965 the Colville Business Council requested the reintroduction of Senate Bill
1442 with certain amendments, and Senator Jackson introduced this proposal
as Senate Bill 141.3. Testimony of representatives of the Business Council,
purporting to represent the majority of Colvilles (both on- and off-reservation
Indians) supported the bill. The amended bill passed the Senate on July 22,
1965 but again failed in the House. In February, 1970, still another bill was
introduced for the termination of the Colville Reservation (this was the sixth
such bill) as Senate Bill 3518. This bill eventually also died. Subsequently,
after a vigorous internal struggle, the leaderstip- of the tribe shifted and those
opposing termination carne into power. It now appears that the question of
Colville termination is dead.20
It is worth noting here that one of the bitterest struggles during the Colville
termination controversy was between Colville Indians who lived on the reser-
vation and those who lived off. It was said that those living off the reserva-
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tion tended to favor termination and distribution of the assets (allegedly
up to 40,000 per person) because they were more interested in the money and
less in the continuation of the reservation. On the other hand, those living
on the reservation and deriving their way of life from that land base tended,
by a larger margin, to favor its preservation.
During the 1960's the federal policy of termination came under increasing
attack. Both Indians and non-Indians increasingly objected, pointing to the
failure of termination on the Menominee and Klamath Reservations, and to
the general tendency of termination to destroy not only the Indian's land
base but their economic and cultural identity as well. The Indian attitude
toward this law was summed up by Wendell Chino, President of the National
Congress of American Indians, when lie said:
"Public Law 280 gives to the various states the right to assume civil and
criminal jurisdiction on Indian reservations without Indian consent, and as
far as the American Indians are concerned, it is a desp;cable law.
"Public Law 280, if it is not amended, will destroy Indian self-government
and result in further loss of Indian lands. Of those reservations where states
have assumed jurisdiction under the provisions of Public Law 280, lawlessness
and crimes have substantially increased and have become known as no man's
land because the state and federal officials will not assume the responsibility
of Public Law 280. We urge that the Public Law 2811 be amended to allow
for Indian consent.
"The National Congress of American Indians declared in 1969 that `the cur-
rent alleged policy of the federal government enunciated in House Concurrent
Resolution 108 is a policy for the eventual termination of Indian tribes and
reservations and serves as an obstacle to the development of our tribes and
reservations." _"
1. 1968 Civil Rights Act
A change in federal policy toward Indian self-determination occurred when
termination became recognized for its impairment of Indian progress and
planning. President Johnson, In his April. 1968 :Message to Congress proposed
a new goal for our Indian programs ; a goal that ends the old debate
about termination and stresses self-determination".
These and similar views resulted in the enactment of two important parts;
of the 1968 Civil Rights Act. First, the Act ended the authority in Public
Law 280 by which Washington, Nevada, and most other states were per-
mitted to assume jurisdiction over Indian reservations without Indian con-
sent. Second, the Act requires Indian Reservation Courts to apply United States
Constitutional principles such as due process and equal protection (to be dis-
cussed later).
As to the first significant part, the 1968 Act specifically provided that, in
the future, no state could assume either civil or criminal jurisdiction over
Indian country without "the consent of the Indian tribe occupying the par-
ticular Indian country or part thereof which could be affected by such as-
sumption". The Act goes even further and specifies the procedures by which
Indian consent is to be obtained, (providing that state jurisdiction over either
criminal or civil matters can be assumed).
" only where the enrolled Indians within the affected area of such
Indian country accept such jurisdiction by a majority vote of the adult Indians
voting at a special election held for that purpose. The Secretary of the In-
terior shall call such special election under such rules and regulations as he
may prescribe, when requested to do so by the Tribal Council or governing
body, or by 20 percentum of such enrolled adults.""
The 1968 Act also empowers the states and the Indians to agree on retro-
cession ; that is, the return of civil or criminal jurisdiction from the states to
the Indians. Public Law 280 was designed as a one-way street, authorizing the
states to assume jurisdiction over Indian reservations but not providing any
means for returning jurisdiction to the Indians. This power was provided in
the 1'1368 Act, in which Congress authorized retrocession by any state of all
or any measure of the criminal or civil jurisdiction, or both, acquired by such
state pursuant to Public Law 280.2' By Executive Order in November 1068,.
President Johnson authorized the Secretary of the Interior to accept retro-
cession from any state. Thus, if the Indian tribe, the Secretary of Interior. and
the state government all agree, jurisdiction can be retroceded back to the
reservation.
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2. President Nixon's Policy
The change in federal policy toward Indians has become increasingly ap-
parent in the years since enactment of the 1968 Civil Rights Act, Jn 1969,
after the Nixon administration took over, Secretary of Interior Walter Hickey'
declared that:
"This administration is dedicated to improving -not destroying that spe.
cial relationship that exists between government, the Indians, and the land.
We are not a pro-termination administration."
Probably the most significant evidence of this change, and one of the most
eloquent indictments of the termination policy, came from President Richard
M. Nixon in his Message to Congress of July 8, 1970. The President acknowl-
edged the "centuries of injustice" to which the Indian had been subjected by
the "white man's frequent aggression, broken agreements, intermittent re-
morse and prolonged failure". During this period of oppression and brutality
the Indians were "deprived of their ancestral lands and denied the oppor-
tunity to control their own destiny". The President also acknowledged that,
in the face of such a history, the Indian has made "enormous contributions to
this country" in art, culture, strength, spirit, and sense of history and pur-
pose. The President stated that justice and enlightened. social policy required.
the nation "to break decisively with the past and to create the conditions for
a new era in which the-Indian future is determined by Indian acts and Indian
decisions".
In his message, the President deemed the policies of termination and federal
paternalism as "equally harsh and unacceptable extremes". Termination was
proclaimed wrong for three reasons. First, it operates on the erroneous premise
that the federal government may act unilaterally in discontinuing its legal
and moral responsibilities to the Indian community, as if it were a benevolent
entity without duties. Second, the practical results of termination have been
"clearly harmful" in those cases in which it has been tried. Third, the policy
itself creates among Indian groups who have not been terminated an appre-
hension and a suspicion that federal action, regardless of merit, is only a step
to federal disavowance of responsibility. In this fashion, termination dis-
courages Indian self-sufficiency.
Thus, the President rejects the policy of termination but also disapproves
excessive Indian dependence on the federal government. A policy of Indian
self-determination is seen as the means of insuring a federal-Indian relation-
ship which serves the interest of the Indian peoples. The President's goal then
is "to strengthen the Indian's sense of autonomy without threatening his sense
of community * * * [to] >.. * * assure the Indian that he can assume control
of his own life without being separated involuntarily from the tribal group
* " * [and to] * * * make it clear that Indians can become independent of
Federal control without being cut off from Federal concern and Federal sup-
port".
To achieve this goal, the President recommended that Congress pass a new
concurrent resolution "which would expressly renounce, repudiate, and repeal
the termination policy as expressed in House Concurrent Resolution 108 of
the 83rd Congress". In addition, the new resolution should affirm the integrity
of all tribes, pledge government loyalty to treaty and trusteeship obligations
so long as the Indians desired such, and guarantee continuation of adequate
federal financial support when and if the Indian group decided to assume con-
trol for its governance. In short, this resolution would, in the President's
words : "reaffirm * * ,.. that the historic relationship between the Federal gov-
ernment and the Indian communities cannot be abridged without the consent.
of the Indians".
The President also announced proposed legislation to correct the dilemma
facing the Indian of self-determination of federal funds and services. Recogniz-
ing that this choice is fostered by the assumption that the government alone,
must administer its Indian services and finding the assumption unnecessary,
the President stated :
"I am proposing legislation which would empower a tribe or a group of
tribes or any other Indian community to take over the control or operation
of Federally funded and administered programs in the Department of the
Interior and the Department of Health, Education and Welfare whenever the
Tribal Council or comparable community governing group voted to do so."
This view of Indian administration of certain federally funded programs was
also deemed appropriate by the President for education. Noting the poor level
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of Indian education achievement in federally supervised schools, the Presi-
dent stated `every Indian community wishing to so do should be able to con-
trol its own Indian schools".
Finally, the President acknowledged the conflict of interest existing within
the federal government when it (1) exercises its trust duties as to Indian land
and water interests, and (2) exercises its duty to the national resource use
interest. To avoid the inevitable losing situation of the Indian in such circum-
stance, and to alleviate the credibility damage done to the federal government
when its duties are at odds, the President asked Congress to establish an
Indian Trust Counsel Authority. This Authority, composed of three mem-
bers, two of which would be Indian, would assure independent legal representa-
tion for the Indians' natural resource rights". This Authority would be inde-
pendent of the Departments of Interior and Justice, and would be empowered
to sue. The United States would waive its immunity from suit in Authority
litigation.
The President concluded his message proclaiming that this "new and bal-
anced relationship" will make for better programs and more effective use of
public monies because "the people who are most affected by these programs
[will be] responsible for operating them".
3. Other evidence of the self-discrimination policy
In addition to the 1968 Civil Rights Act and the 1.970 Presidential Message,
further recent evidence of a change in federal policy away from termination
has been forthcoming, and is illustrated by the following.
Large land areas taken away from various Indian tribes in the past, often
by allegedly "mistaken surveys" are being returned to the tribes. In 1907 gov-
ernment surveyors surveyed the Yakima Reservation to set the boundaries
established by the 1855 Treaty, and "mistakenly" excluded 21,000 acres of
land, including Mt. Adams-a sacred mountain in the Yakima religion. Some
of this 21,000 acre area was later opened to homesteading and passed into
white ownership. The balance was included in the Gifford Pinchot National
Forest. Although the Yakima tribe has tried over the past 80 years to obtain
the return of their land, it was May 1972 before the President signed an
executive order returning the land that had been included in the national
forest. The land that had been homesteaded was not returned, although the
Indians received some compensation for its loss.
A similar "mistaken survey" of the Warm Springs Reservation many years
ago caused the exclusion from that reservation of some 66,000 acres of land.
This land was returned in September 1972 to the Warta Springs Tribe by
Presidential action.
On December 16, 1970 President Nixon signed into law a bill returning to
the Taos Pueblo Indians 48,000 acres of land in the Blue Lake area of the
Carson National Forest in northern New Mexico. This action came after a
long effort by the Taos Pueblos to obtain recognition of their aboriginal claim
to this land. From ancient times they had used the Blue Lake area as a
religious shrine where they held private religious ceremonies and trained
young members of the tribe.
Other lands have been returned to the Pala and Pauma Bands of Mission
Indians in Southern California in the past few years.
It will be recalled that, in 1970, Congress reutrned criminal jurisdiction to
the Metlakatla Indian Reservation in Alaska.
On May 14, 1971 Senator Henry M. Jackson, Chairman of the Senate In-
terior Committee, introduced Senate Concurrent Resolution 26, which would
explicitly reverse the termination policy of House Concurrent Resolution 108.
Senate Concurrent Resolution 26 passed the Senate on December 11, 1971, and
is now being considered in the House. The Senate Interior Committee Re-
port" which supported Senate Concurrent Resolution 26 said that its "pri-
mary purpose * * * is to replace the national Indian policy set forth in
House Concurrent Resolution 108 * * ''. In addition, Senate Concurrent Reso-
lution 26 embraces the principles of maximum Indian control and self-determi-
nation * * *" The report recognizes that federal policy toward Indians has
vacillated widely over the history of the country: "In the most sweeping
terms, these [policies] have ranged from according tribes the full dignity and
respect as separate and sovereign nations to treating the Indians in a de-
meaning and, paternalistic guardian-ward relationship". The report argues
that :
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"A new national Indian policy [is needed] that is compatible with the
Indians' unique relationship with the Federal government . . to restore the-
confidence of the Indian people in the Government to permit them to work
together to resolve. the adverse social. and economic conditions which beset
Indian reservations and communities. House Concurrent Resolution 108 con-
tributed significantly to the loss of such confidence and continues to be viewed'
with suspicion by the Indian community."
The Senate passed Senate Concurrent Resolution 26, declaring it to be the
sense of Congress that:
(1) A government-wide commitment shall be made to enable Indians to de-
termine their own future to the maximum extent possible ;
(2) This statement of policy replaces that set forth in House Concurrent
Resolution 108 approved by the 83rd Congress on August 1, 1953;
(3) Indian self-determination and development shall be a major goal of
our national Indian policy * * *.
On August 2, 1972 the Senate also passed Senate 3157, entitled the Indian
Self-Determination Act of 1972. Introduced by Senator Jackson in February
1972, this Act would allow tribes to contract with the Secretaries of Interior
and Health, Education and Welfare to conduct and administer a number of
projects under existing federal programs. A similar bill entitled the Assump-
tion of Control Bill was introduced by the Administration. Both bills are
now being considered by the House.
On April 20, 1972 Senator Proxmire and four other senators introduced a
bill, Senate 3514, to repeal the Menominee Termination Act of 1954 and rein-
stitute the Menominee Indian Tribe as a federally recognized sovereign Indian
tribe.
The rejection of the termination policy has also been apparent at the state
level, especially in the State of Washington. Reflecting this change in attitude,
the Indian Affairs Task Force was created in Washington in 1970, with Indians
holding a majority of the memberships, including Chairman and two Vice
Chairmen. The task force met with Indian people throughout the state and
invited other Indians to submit oral or written statements. The product of
their efforts, published in 1971 by the State of Washington under the title
"Are You Listening, Neighbor?", is one of the most comprehensive, thoughtful,.
and creative reports ever produced on the subject of the relationship of a
state to the Indians living in that state.
The report notes the rejection by the Johnson and Nixon Administration of
the policy of termination, but pragmatically observes that :
"The Indians are aware, as the average white is not, that the President
and Congress have authority only over Federal Indian Policy. The President
may cry out against termination but he is powerless to stop the insidious
forms of de facto termination being practiced daily by the State of Washing-
ton. Although more subtle, these practices are threatening the very survival
of this state's citizens."
The report notes that the termination concept was based on the so-called
"melting pot" notion that was so dominant in non-Indian thinking during the
19th century.
"The melting pot philosophy was a convincing idea. The only trouble with
it was : it didn't work. The blacks never melted into the mainstream. The
Mexican-Americans lumped themselves together in barrios and refused to
bubble with the proper accent when the heat was applied. But the Indian has
been the most resistant lump of all. The red man has persistently thwarted
every effort to stir him into the broth. The Indian has refused to be as-
similated.
"The right to maintain a separate way of life is a basic treaty obligation
of the United States towards the Indians. But the right to preserve one's
identity as a people should be viewed as a. basic human right. For many groups
in America this freedom can be exercised without a special land base and
without special legal status. But Indians are historically place-oriented rather
than job-oriented. Their identity is tied inextricably to the land and to the
water that arises from or laps upon the shores of that land. They feel strongly
that the preservation of their land base is a precondition of their existence as
a people. For more than a hundred years the Indians in Washington have de-
veloped and maintained their separate way of life.
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"The Bill of Rights spells out the basic nature of our democracy and the
relationship between the citizen and his government. lbr the American Indian,
survival as an Indian is as basic as individual freedom is to the rest of us.
The ancestors of the Indians of Washington State forever surrendered their
power to the United States in exchange for protection of their right to exist
as a people. They did not bargain for, nor did the United States contract for,
a training program in assimilation into the white society. The President said
the goal of any new national policy toward the Indian people must be to
strengthen the Indian's sense of autonomy without threatening his sense of
community. To assure the Washington State Indian that he can assume con-
trol of his own life without being separated from tribal life involuntarily,
must also be the Indian policy of the State."
Based on its studies, the Task Force made four specific recommendations,
having to do with : (1) jurisdiction on the reservation; (2) zoning on the
reservation; (3) tribal fishing rights; and (4) Indian water rights. The
.first recommendation urged the state legislature to announce a procedure
for retrocession. Such a bill would permit, to the extent agreed to by in-
dividual tribes, a return of law and order authority from the state to the
tribes. Thus, jurisdiction would be exclusive in either the state or tribe, or
-would be held concurrently, dependent upon the tribe's choice.
In addition, the Task Force recommended that all -Indian reservation police
officers should be deputized by the appropriate counties (so that unlawful
non-Indians on Indian land may be legally arrested) and tribal judges should
be made Justices of the Peace (so that they may hear cases of non-Indians
arrested for crime on Indian land). Also county law enforcement officials
should be required to provide equal services to the entire county, including the
Indian reservation land within the county.
Pursuant to the recommendations of the Task Force, executive request bills
were introduced in both houses of the Washington State Legislature in 1071.
House Bill 1001 and Senate Bill 6855 would, if enacted, have directed the Gov-
ernor of Washington to retrocede civil or criminal jurisdiction, or both, to the
federal government "whenever the governor * * * shall receive from the gov-
erning body or tribal council duly rcognized by the Buerau of Indian Affairs
of any tribe, community, or band, a resolution expressing its desire for such
retrocession". Unfortunately, neither of these bills was enacted. These pro-
posals, and alternative possibilities, will be discussed more fully in the next
chapter of this report.
Similarly. other states are considering retrocession proposals. In Nevada,
for example, a state law was enacted empowering counties to make the
decision about retrocession. and eight counties have now returned jurisdiction
over reservation lands within their borders to the federal government. It is
noteworthy, too, that in New Mexico a proposed constitutional amendment was
defeated which would have removed the state's constitutional disclaimer of
jurisdiction over Indian lands and thus would have allowed the state to as-
sumne Public Law 280 jurisdiction.
In summary, we have seen great vacillation in the policies of the federal gov-
?ernaaaent toward Indians in the period since 1800. Those policies have ranged
from enlightened action aimed at providing real opportunities for self-deter-
mination to patenalistic action aimed at terminating cultural identity and
7lestroying the Indian's land base. The termination policies are illustrated by
House Concurrent Resolution 1.08, Public Law 280, the termination nets for
the Meuomi.nees and Klamaths, and the 10(13 Washington statute--all of which
provided for the loss of jurisdiction and authority of Indian tribes without
their consent. The more recent self-determination poliOles are illustrated by
tlae reversal within the Department of the Interior of Us termination policy;
by the authorization of retrocession in the Civil Rights Act of 19(18 and the
requirement in that Ac-t of Indian consent prior to any further state assump-
tion of jurisdiction under Public Law 280: by ','resident Nixon's Message to
Congress of July 19, .1970; and by the increasing support from the chairman
of the U.S. Senate Interior Committee and from the Governor of the State of
Washington. The policy that "self-determination" should be the guide in
relations between the state and federal governments in(] the Indians follows
the idea that the traditions, cultural values, legal systems, treaty rights, and
reservation base of Indian peoples should be preserved and respected.
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CHAPTER 2
State Jurisdiction Over Indian Reservations In The State of Washington
A. WASHINGTON LAW UNDER PUBLIC LAW 280
This chapter will examine the legislative action taken by the State of
Washington under the authority of Public Law 280, the policies supporting such
action, the judicial interpretations of assumption of jurisdiction enactments
and the Indians' response to these events.
The initial question is: Why did the State of Washington implement the
authority granted it by the Public Law 280? Implementation occurred by state
legislation in 1.957 and 1936 ."
The intent of the legislation must be discerned directly from its text be-
~cause there is no statutory preamble, legislative history; or other helpful
relevant- public documents. One of the unfortunate aspects of state legislation
in Washington, and most other states with similar budgetary constraints, is
that little legislative history (such as committee reports, committee hearings,
or floor debates) is kept which can help in determining the background or
intent of legislation. In some instances, newspaper accounts will reflect what
was said on the floor of the House or Senate about the proposed bill. This
usually happens only when the legislation is of major importance, or has
captured the public imagination. We have been unable to find such helpful back-
ground information for the 1957 or 1960 legislation.
1. The 1957 Washington Statute-self-determination
The terms of the 1957 Act reveal that it was intended to permit agreement
between the state and Indians, if they so desire, on the assumption by the
state of jurisdiction over Indian reservations. This Was it laudable piece of
legislation in that it could only go into effect upon the consent of the Indian
reservation. Section 1 of the Act provided that the state :
11* 'r * obligates itself to assume * * * criminal and civil jurisdiction over
Indians and Indian territory, reservation, country and lands within this
state * * whenever the governor of this state shall receive from the tribal
council or other governing body of any Indian tribe *` * * a resolution express-
ing its desire that its people and lands be subject to the criminal and civil
jurisdiction of the state * * to the extent authorized by federal law * * *"
In Section 2' the statute set forth the procedure by which such jurisdiction
was to be proclaimed :
*` * * the governor * * * shall (within 60 days of receipt of the request
from the Indians) issue * * * a proclamation to the effect that such jurisdic-
tion shall apply to all Indians and all Indian- territory, reservation, country
and lands of the Indian body involved * * *"
In the case of the Colville, Spokane, or Yakima Tribes, Section 2 provided
at special procedure for obtaining consent to state jurisdiction in which the
tribal council's request must be ratified by -a two-thirds majority of the adult
enrolled members of- the tribe voting in it referendum. The Yakima, Colville,
and Spokane Reservations had- raised special objections in Congress at the
time of enactment of Public Law 280 to the possibility that the State of
Washington might under any circumstances lie empowered to assume juris-
?diction over those reservations. The Washington State Law of 1957 recognized
the weight of these objections and enacted the special conditions on the
procedure by which consent of these three tribes was to be obtained.
This 1957 statute precluded any state assumption of jurisdiction over trust
property or over treaty hunting and fishing rights' (which is consistent with
the- Public Law 280 limitations in this respect). It also provided tribal
custom would prevail, if not inconsistent with state law,' in civil cases arising
from Indian country.
Under the Washington Laws of 1957 state jurisdiction was requested by and
extended to nine tribes, the Chehalis, Aluckelshoot, Nisqually, Quileute, Quin-
-ault, Skokomish, Swuaxin Island, Suquamish, and Tulalip ao
Though the 1357 Act was based on a policy of self-determination, it had three
flaws. First, it did not provide for a tribal period., during which both the
Indians and the state could find out whether the situation on the reserva-
tions was actually improved by the assumption of jurisdiction, either for non-
Indians or Indians, before making a more permanent arrangement. Second,
it did not provide a method of returning jurisdiction to the Indians if state
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jurisdiction was found to be nasal isfactory. Third, the belief ? f the Indians,
in consenting to state jurisdiction, was that the system of justice on the
reservation would he improved, and they would receive better law enforce-
ment, better services for their juveniles, more social services. etc. This ex-
pectation proved incorrect. Most of the reservations that accepted state juris-
diction have now requested that it be returned.
2. The 1963 TVashisgton Statute
The 1963 Act represented a policy shift in the State of Washington from
self-determination toward termination and assimilation, and thereby toward
an emphasis on the state legislature as a body in which the fate of the
Indians, either with or without their consent, was to he determined.
The policy shift toward termination and assimilation at the federal level
had hit a peak in the early 1950's, but seemed to find its strongest expres-
sion at the state level in the enactment of Chapter 36, Laws of 1963.
The most important change was imposition of total jurisdiction over some
Indian land and partial jurisdiction over all of the Indian reservation land
located in the State of Washington, without the consent of the tribes involved.
The new scheme provides for state criminal and Civil jurisdiction over all
fee patent land on the reservation, i.e., those lands owned by either Indians
or non-Indians. (Fee patent lands are not owned by the United States in
trust for the tribe, or by individual Indians subject to restraint or alienation,
i.e., allotted lands. In addition, the state assumed jurisdiction in eight sub-
ject areas over all reservation lands. The eight are: (1) compulsory school
attendance; (2) public assistance; (3) domestic relations; (4) mental illness;
(5) juvenile delinquency; (6) adoption proceedings; (7) dependent children;
and (8) operation of motor vehicles upon the public Streets, alleys, roads and
highways.
The 1963 Statute re-enacted, with only slight modification, the provision
contained in the 1957 .Act declaring that It was not intended to authorize
the "alienation, encumbrance, or taxation of any real or personal property,
including water rights and tideland" n belonging to Indians as d held in trust
by the United States or subject to a restriction against alienation imposed by
the United States. The 1963 Act also disclaimed any control over hunting or
fishing rights. It retained the provision that tribal custom would prevail in a
civil case if not inconsistent with any state law."
The 1963 Act re-enacted, with some modifications, the procedure for a tribal
petition and the Governor's proclamation in the event a tribe desired full
state jurisdiction.' One important change in this procedure was in allowing
a tribe to request either civil or criminal jurisdiction instead of both or
neither choice provided under the laws of 1957. Another new provision in
the 1963 Act required the Bureau of Indian Affairs recognition of the tribal
body issuing a petition requesting state jurisdiction. A related change in the
1963 Act deleted the previous special election procedures on the consent ques-
tion for the Yakima, Colville, and Spokane Reservations. The new statute
placed these tribes in the same class as other tribes in the state. requiring
only a decision by the tribal governing body "recognized by the Bureau of
Indian Affairs".
Jurisdiction over the nine tribes that had earlier ecnsented to that j>ris-
diction under the 1957 Statute was expressly retained in the 1963 At by a
savings clause.' Two additional tribes, the Colvilles and the Swinomish, re-
quested jurisdiction over the new 1963 Law. The Swimomish asked that
only criminal jurisdiction be extended to their reserv. lion. Needless to say,
the 1963 Act suffers from some basic defects of the 19:17 Act in that it: (1)
ignores Indian views; (2) does not provide for any experimental period dur-
ing which Indians and non-Indians can find out whether the situation is im-
proved by the assumption of state jurisdiction : and (3) does not provide a
means of returning jurisdiction to the reservation, even if Indians and non-
Indians alike want to do this,
2. Court interpretation of the 1957 and 1963 acts
It will be recalled (ante p. 79) that eight states, including Washington, re-
ceived separate treatment in public Law 280 because of their respective con-
stitutional disclaimers of right and title to all lands lying within the boun-
daries of the state, held by any Indian or Indian tribe. The Washington Gan-
stitution "forever" disclaimed all such land rights and titles and provided
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these Indian lands "shall remain under the absolute jurisdiction and control
of the Congress of the United States".-
At first it was thought that these eight states would have to amend their
constitutions before they could assume jurisdiction over Indian lands under
Public Law 280. Carr and Johanson, writing in the Washington Law Review
in 1958,3 thought it "probable" that the 19,57 Washington Statute would be
held unconstitutional under the Washington Constitution. These authors be-
lieved Congress intended that states with constitutional disclaimers would have
to amend their constitutions to come within the provisions of Public Law 280,
and that the legislatures of these states could not, by state legislation, give
the "consent of the people" for state constitutional law purposes.
Litigation arose following the enactment of the 1957 and 1963 statutes in
Washington testing their validity. The important cases from the Washington
Supreme Court and the U.S. Court of Appeals for the 9th Circuit have made
it clear that the Washington legislative method of coming within Public
Law 286 is constitutionally effective. Three cases that deserve consideration
are State v. Paul," Quinault Tribe v. Gallagher," and Btakah Tribe v. State,"
In 1959 the first challenge to the validity of the 1957 law occurred in State
v. Paul, An Indian was charged with second degree assault on the Tulallp
Reservation, a reservation which had requested state civil and criminal juris-
diction. The Washington Supreme Court upheld the validity of state jurisdic-
tion over the Tulalips, saying "the consent of the people" in terms of Article
20 of the Washington Constitution could be accomplished through legislation,
without a constitutional amendment, thus permitting Washington to take ad-
vanage of Public Law 280. The court relied on Boeing v. 1lcconstruotion Fi-
nance Corporation, ? which concerned a section of Article 26 of the Washington
Constitution whereby the state disclaimed the right to levy taxes on federal
property within the state without the consent of Congress and the consent of
the people of Washington. A federal law granted consent for the state to tax
certain classes of property and the state sought to take advantage of the pro-
visions by legislative action.
The court in Boeing concluded that the legislature could validly grant "the
consent of the people" for the purpose of Article 26. The court reasoned that
the meaning of the Washington Constitution was. fixed as of the date of its
adoption in 1.889 and at that time there was neither the initiative nor the
referendum available for the submission of a question to the people of the
State of Washington. Since the one method of granting consent, amending
the Constitution, was so cumbersome, the court felt that, for the purposes
of the compact with the United States, as embodied in Article 26:
"* * * it is clearly apparent that the makers of our constitution had In
mind that the people would speak through the mouth of the legislature In
agreeing that Federal property might be taxed" "
The court in Paul felt this reasoning from Boeing applied equally well to
the disclaimer of jurisdiction over Indians and concluded that :
"Congress did not require that this compact clause be irrevocable, absent a
Washington State constitutional amendment. Rather, Congress insisted on
bilateral action by the people of the United States (speaking through Con-
gress) and the people of the State of Washington (speaking through the legis-
lature) . " "
The Paul opinion is confusing in that it cites Section 6 and Section 7 of
Public Law 280 as authority for assumption of jurisdiction under the Laws
of 1957.i3 While no states are specifically mentioned in the statute, it can
he seen from the legislative history that Congress drafted Section 6 with
Washington and seven other similarly situated states in mind." Section 7 was
a catch-all for the other states.
The second important case is Quinault Tribe v. Gallagher, in which the
Quinaults sought declaratory and injunctive relief in federal court to prevent
the state from asserting jurisdiction over the tribe under the provisions of
the Laws of 1957 as amended by the Laws of 1963'6
The Quinaults argued the Washington Constitution, the Enabling Act, and
Public Law 280 require amendment of Article 26 of the Washington Consti-
tution before the "consent of the people" required for the State of Washing-
ton to come within the provisions of Public Law 280 can occur. The 9th
Circuit Court said the consent of the people of Washington for the purposes
of Article 26 of the Washington Constitution is a question of state law and
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federal courts are thus bound by the state court pronouncement in Paul and
later cases on this issue.
To answer the arguments that the Enabling Act and Public Law 280 re-
quired an amendment of the Washington Constitution, the 9th Circuit Court
looked to the legislative history for an indication of Congressional intent.
The court said it was understandable Congress might assume an amendment
was necessary to change the disclaimer provision since the provision was
embedded in the state constitution. However, the real concern of Congress, the
court continued, was not the particular method used, but rather that the
disclaimer "be removed in some way which would be valid and binding
under the state law".'~ The court held that Congress did not preclude the
possibility of a legislative assumption of jurisdiction under Section 6 of
Public Law 280.
The Quinaults urged another ground for the invalidity of Revised Code of
Washington (R.C.W.) 37.12.010 (the codification of the 1963 Act) : that the
assumption of total state jurisdiction over non-trust lands and over the eight
subject-matter areas was a partial assumption of jurisdiction and thus not
authorized by the terms of Section 6 of Public Law 280. The 9th Circuit Court,
however, avoided the question of whether a partial assumption would be justi-
fied under Section 6 of Public Law 280, by interpreting R.C.W. 37.12.010 as
not being a "partial" assumption of jurisdiction by the State of Washington.
The court characterized the law as being a full assumption of jurisdiction.
but subject to the condition precedent that the tribe request total jurisdiction.
It should be remembered, R.C.W. 37.12.010 extends total jurisdiction to all
non-trust lands and jurisdiction over the eight subject matter areas to the
entire reservation, trust and non-trust lands alike.
It is difficult to see the logic of the 9th Circuit Court's holding that R.C.W.
37.12.010 is a total assumption. As the court recognized, the operation of
R.C.W. 37.12.010 is to extend state jurisdiction over the state's Indian reserva-
tions in a less than total manner. Some 2 million of the approximately 3.5 niil-
lion acres of the reservations in the state are subject to full state jurisdic-
tion" The remaining 1.5 million acres are subject to state jurisdiction only
in the eight subject areas, except for the Swinomish Reservation which re-
quested and received state jurisdiction only in criminal matters. Thus, on the
Swinomish Reservation some 3,784 acres are subject to full state jurisdiction
since they are not held in trust. The remaining 3.488 acres, being trust lands,
are subject to state jurisdiction in the eight subject matter areas as imposed
by R.C.W. 37.12.010 and to the state criminal jurisdiction as requested by the
tribe. This situation seems clearly to place less than total jurisdiction in the
state. It is both a partial territorial assumption of jurisdiction over non-
trust areas and a partial subject matter assumption over the eight areas listed
in R.C.W. 37.12.010.
Relevant here is the South Dakota Supreme Court holding In re Harkins
Petition that a South Dakota law assuming state jurisdiction only over those
areas of highway that crossed Indian country to be an invalid partial assump-
tion. The court reasoned that Congress clearly intended Section 6 of Public
Law 280 to apply to South Dakota and when a federal power is being re-
linquished, the assumption of that power by the state must be in a manner
clearly permissible under the federal statute. The court found Section 6 of
Public Law 280 did not authorize a state to asume jurisdiction over only a
portion of a reservation. The court also said that even though the question
was not before them that they had doubts Section 7 would authorize a
partial, territorial assumption.
The third important case is Makah, Tribe v. State,99 in which the 1963 amend-
ment to the Washington statutory scheme was first challenged in state court.
The case arose from a declaratory judgment action brought by the Makahs
to test whether the state had authority to enforce its motor vehicle laws
within the reservation. Jurisdiction over motor vehicles was one of the eight
subject matter areas which R.C.W. 37.121.00 extended to Indian reservations
without the consent of the tribes. The bMakahs had not requested any state
jurisdiction under either the Washington Laws of 1957 or 1963 and thus there
could be no argument that the tribe had consented as had the Quinaults in
Gallagher and the Tulalips in Pazrl.
In Makah, the arguments made in Paul and Gallagher were reasserted. These
were: (a) the legislative method assuming jurisdiction under Public Law
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280 was contrary to the Washington Constitution, and (b) the Enabling Act,.
Public Law 280, and R.C.W. 37.12.010 constitute a partial assumption of
jurisdiction contrary to the provisions of Public Law 280. The Washington
court affirmed its holding in Paul that, for state law purposes, the legislature?
independent of constitutional amendment, can grant the consent of the peo-
pie to accept the jurisdiction offered by Public Law 280. It agreed with the -
Gallagher federal court in concluding that all Congress wanted under Public-
Law 280 was some form of binding consent of the state. The court also adopted-
the Gallagher court reasoning that the partial assumption of jurisdiction under
R.C.W. 37.12.010 was not partial at all." Lastly, in a statement remarkable for
its lack of understanding of the Makah's objections, the court said if the-
Makahs are aggrieved because there is less than total state jurisdiction over
the reservation, all they need to do is request from the Governor total state
jurisdiction for the reservation.
The December 1972 Federal District Court decision in Yakima Nation v..
State of Washinggton 61 affirms most of the above case law concerning the
validity of R.C.W. 37.12. The Federal District Court held: (1) that Washing-
ton State Supreme Court decisions are controlling on the lack of need for a,
constitutional amendment in Washington to implement Public Law 280; and
(2) that the question of whether R.C.W. 37.12 was a partial assumption of
jurisdiction and thus invalid under Public Law 280 "has been determined
adversely" to the Indians in the earlier Federal Court of Appeals decision,
of Quinault Indian Tribe v. Gallagher.
The effect of the case law is to hold valid the Washington legislature's
response to the opportunities afforded by the provisions of Public Law 280.
The questions involved have never been ventilated in the United States Su-
preme Court, and it is possible they never will be argued in that court. The
Supreme Court has consistently refused to hear the cases that would settle
the arguments. Certiorari was dismissed in Paul for a defect in the pleadings
and certiorari was denied in Seattle Disposal and in Gallagher. Finally, the
appeal in the most recent case, Makah Tribe v. State, was dismissed on March
23, 1970 for want of a substantial federal question. For the present, at least,.
R.C.W. 37.12.010 must be regarded as a valid exercise of legislative power.
4. Current litigation
The question of concurrent versus exclusive state jurisdiction is an issue-
presently before the courts. In the past, it seemed to have been assumed that
state jurisdiction over the eight subject-matter areas was exclusive, and that
the Indian tribes could no longer exercise any jurisdiction over these mat-
ters in Washington. The Attorney General of the State of Washington rendered'
an opinion to this effect in 1964. More recent investigation casts doubt on this
view. Although it is not our purpose to exhaustively analyze this issue, we
will nonetheless briefly summarize the arguments pro and con on this issue,
which has recently been decided by the Federal District Court for the Eastern
District of Washington in the case of Confederated Bands and Tribes of the-
Yalcinaa Nation v. State of Washington, et al., Civil No. 2732.
The principal question is whether Congress intended, in Public Law 280,.
to authorize the states to assume exclusive (rather than concurrent) juris-
diction over Indian reservations. Assuming that Congress authorized such an
assumption of jurisdiction, a secondary question is, did the 1963 Washington.
Act in fact assume exclusive jurisdiction over Indian reservations-or only
concurrent jurisdiction.
The courts have repeatedly said that a Congressional intent to. empower the.
states to interfere with tribal self-government will not be lightly attributed,
and to find such power in federal legislation ordinarily requires a clear state-
ment by Congress to that effect.
To say the least, Public Law 280 is not as clear as it might be on this
question. If Congress had intended that state jurisdiction, once assumed, was
to be exclusive, it could have said so plainly and simply. It did not. This
suggests that what Congress did intend was merely to permit the states to
also exercise jurisdiction on reservations, leaving to the various Indian tribes
the power to continue applying their own law, especially as to Indians, if
they wished to do so.
On December 1, 1972 the Federal District Court determined that the Wash.
ington State assumption of jurisdiction over Indian reservations under Pub-
lie Law 280 and Washington statutes was "exclusive", not "concurrent".
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Yakima Nation v. Washington also raises the question whether the pro-
visions of R.C.W. 37.12 which impose total state jurisdiction over all fee
patent lands and partial state jurisdiction (eight subject areas) over all
Indian lands is unconstitutionally vague, and fails to meet the constitutional
standards of due process and equal protection. The Yakima Nation has
argued the geographical and subject matter checkerboard pattern makes im-
possib'le a fair and equal law enforcement system. The geographical checker-
board pattern is created by the imposition of total state jurisdiction over fee
patent lands, the eight subject areas. The subject matter checkerboard is
created by the imposition of state jurisdiction over the eight subject areas.
The legal system on the reservations has become so confusd as to deny Indians
the opportunity to have the same quality of legal protection as non-Indians
(equal protection) and denies the chance of a fair legal process (due process).
It will be recalled, the Yakima Reservation never requested state jurisdic-
tion under either the 1957 or 1963 Statutes, and thus is subject to state
jurisdiction only to the extent imposed without its consent under the 1963 Act.
In its December 1, 1972 decision the Federal District Court held that R.C.W.
37.1.2 was not unconstitutionally vague ; it also held that this state law is
not, as written, violative of the Federal Constitution due process and equal
protection principles. The court held, however, that the question of whether
R.C.W. 37.12 as applied on Indian reservations in Washington is violative of
these federal constitutional principles is a question of fact to be determined
at a full-scale trial.. Upon later hearings, the court rejected the Yakima con-
tentions.
Another argument raised by the Yakima Nation in this litigation is that,
because tribal jurisdiction and federal jurisdiction arise from two different
sources, the federal government may not delegate tribal governmental power
to the states without the consent of the sovereign Indian nation. In other
words, the United States does not have "plenary" power over Indian tribes
in this respect. Its power stops short of the ability to delegate to the states
authority to assume jurisdiction over Indian reservations. The Federal District
Court rejected these arguments and held that Public Law 280 and R.C.W.
37.12 were valid even without the consent of the Indians.
If the Yakima Nation can obtain it reversal of the Federal District Court
decision on appeal, presumably the effect will be to strike down R.C.W.
37.12.010 and the State of Washington will no longer have complete jurisdic-
tion over free patent lands, or partial jurisdiction over all lands as to the
eight subject matter areas. A victory in the case, however, would still leave
the state with jurisdiction over those reservations which had previously
consented to jurisdiction under either the 1957 or 1963 statutes. Furthermore,
it would still leave the question of how to obtain retrocession for those tribes
that had previously consented to state jurisdiction.
1. Indian requests for retrocession
The Indians in the State of Washington, as elsewhere, have become in-
creasingly disenchanted with the "improvement" in reservation life that was
supposed to result from state assumption of jurisdiction. Some of their views
are illustrated by the report "Are You Listening Neighbor?", prepared by
the Indian Affairs Task Force for the State of Washington.
The report tells of the repeated Indian charges of state failure In adequate
law enforcement on reservations which creates "almost insurmountable prob-
lems within the reservation". The problems ranged from inability to mount
comprehensive delinquency planning because of the state's total jurisdiction
over juveniles but lack of jurisdiction over their parents to the law enforce-
ment problems due to confusing physical boundary 'lines between trust or
non-trust land within the reservation.
Indian complaints, serious and often bitter, charged racial discrimination in
law enforcement, resulting in unsolved and uninvestigated homicides and
highway accidents involving Indians. Police harassment was widely charged.
The Task Force report tells of the Colvilles' 1965 petition for state juris-
diction to that tribe's subsequent support of full retrocession of law and
order jurisdiction from the state. The Colvilles had agreed in 1965 to pay
the cost for the maintenance of law and order but concluded "law enforce-
ment on the reservation, even with their tribal funding as a subsidy, was
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woefully inadequate. Thus the tribe has withdrawn the subsidy and the county
has closed the reservation jail and reduced the law enforcement personnel
assigned to the area." 6'
From Indians across the state. complaints were brought to the Task Force
of restrictions in the Indian arrest powers over non-Indians committing crimes
on the reservation, as well as forfeiture of collected fines which were imposed
on non-Indians. Cross-deputizing of tribal and Bureau of Indian Affairs police
was seen as a solution to, problems related to arrest.63
Additional concern was raised as to the lack of recognition and lawful
Authority of the tribal courts. In the past, at least, non-Indian violators on
.Indian land could not be tried before tribal courts, and tribal court decisions,
when announced, were not binding on non-Indian state courts. The result
is that the Indians often exercise physical force agaist those trespassing and
infringing on federal treaty rights. The Quinault Indians have assumed
jurisdiction over non-Indians on the treaty of implied consent. This is in
part due to the County Sheriff's admission that his office has neither man-
power nor funds to adequately protect invaded and damaged Indian areas and
'the referral of juvenile cases from the County Court to the Tribal Court.
It was in response to persistent objections by Indians throughout the na-
tion and the reality that, in too many cases, Indian life simply worsened
under state jurisdiction that Congress was forced to act. The Indian Civil
Rights Act of 1968 contained a provision authorizing states to retrocede or
return jurisdiction assumed over Indian reservations. The act enabling retro-
cession did not formulate any procedure to effectuate retrocession. It merely
stated-that the federal government could accept retrocession from a state.
Hence, the action was first with the state and secondly with the government.
Neither the tribe nor the federal government could force a state to relinquish
jurisdiction acquired pursuant to Public Law 280.
The 1968 Civil Rights Act also provided that he state could, in the future,
assume jurisdiction over any Indian reservation unless with the consent of
the tribe,, indicated by an affirmative vote at a special referendum election
conducted under the supervision of the Secretary of the Interior. As indicated
earlier, this legislation expressed a, major policy shift for the federal govern
went in removing federal consent for state assumption of jurisdiction over
Indian reservations without the consent of those Indians. Unfortunately, the
1963 statute was already on the books in Washington and, was not repealed by
the 1968 federal law.
It was on the basis of the existence of this new federal authority for retro-
cession that the Indian Affairs Task Force recommended that , .
"The State Legislature pass a bill outlining the procedure for retrocession.
Retrocession would return to the State's Indian tribes whatever degree of
law and order authority over their reservations that the individual tribes
agree they can assume. This type of legislation would include provision for
the tribe to asuuie 'full jurisdiction over law and order,. or would provide for
the tribe to assume with the State concurrent. jurisdiction If the tribe pre-
ferred, or would permit the tribe to assume just those areas of jurisdiction
which tribe chose to pay for and administer."
2. Who can act for the State in .retrocezttnt7 j rtsdietittn'to the Indian tribes?
Washington's Governor Dan Evans has, indicated ?that be favors returning
jurisdiction to the Indian tribes. The Governor, by executive order, retro-
ceded state jurisdiction over the Port Madison Reservation (upon the Indians'
request), and the Secretary of the Interior has' accepted the retrocession.
However, a question has been raised whether the Governor of Washington
has legal authority to retrocede jurisdiction to 'an Indian reservation without
enactment of new Woodall, ite legislation specifically authorizing him to do so. State
Senator Perry B Woodall, from Toppenish, Washington, requested an opinion
from the State Attorney General on this question :
"When state jurisdiction has been validly extended over an Indian people
and reservation pursuant to and in 'conformity with R.C.W. 37.12.010 [1963
'consent' statute] or R.C.W. 37.12.010 [1957 `consent' statute, now repealed
by the 1963 Act], can this jurisdiction be retroceded by action of the governor
without any change in existing statute law?"
The Attorney General responded" saying that the Governor could not retro-
cede jurisdiction to an Indian tribe unless new authorizing legislation was
enacted by the state legislature. First, the Attorney General noted, the Gov-
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ernor did not have'power to retrocede the "partial jurisdiction which was as-
sumed" over the eight subject-matter areas covered by R.C.W. 37.12.010, en-
acted in 1963. He stated he could find no source of authority for such guberna-
torial action, either express or implied. Nor could the Attorney General find
authority for the Governor to retrocede jurisdiction which had been proclaimed
by the Governor under either the 1957 or the 1963 Act pursuant to a petition
by a particular Indian tribe. The Attorney General did confirm the Gov-
ernor's power to effectively rescind a "previous gubernatorial proclamation
on the basis of some later discovery of error in its initial issuance", thus
validating the recission of the Governor's proclamation of jurisdiction over
the Quinault Reservation. The Attorney General, however, could not find
authority either in the statutes or the Constitution for the Governor to retro-
cede jurisdiction to a reservation where the state's initial assumption of same
was without defect.` The Attorney General noted in passing that two execu-
tive request bills were introduced in the 1971 legislative specifically designed
to empower the Governor to retrocede jurisdiction to Indian reservations. He
stated "their introduction at the Governor's request would seem to imply at
least some degree of doubt on his part as to the extent of his authority
with regard to retrocession and a need to clarify this matter".
Whether the Attorney General is or is not correct in his analysis of the
law, the question that he has raised about the Governor's power to issue
retrocession proclamations has caused the Governor to decline to issue further
such proclamations. It appears doubtful that the Governor will want to
issue any proclamations in the future if his action will leave an ambiguous
question of jurisdiction to be resolved by the courts.
As for the Port Madison Reservation, it will be recalled that the Governor
had already proclaimed retrocession, and that proclamation had been accepted
by the Secretary of Interior, prior to the announcement of the above Attorney
General's opinion. This poses a perplexing question about the status of juris-
diction on the Port Madison Reservation. If the Attorney General is correct,
then the State of Washington may still have jurisdiction there. If the At-
torney General is not correct, then jurisdiction has been returned to the
United States, and, in fact, is in the hands of the Suquamish Indian tribe
except for the eight subject-matter areas and, in certain respects, as to fee
patent land.
It is important to the Indian community in Washington to know whether
the Governor can, without further legislation, retrocede jurisdiction taken
under the 1957 and 1963 Acts. Thus, a court-test of the correctness of the
Attorney General's opinion should be seriously considered. Such a test may
result from some future attempt by the Suquamish Indians to enforce tribal
law on the Port Madison Reservation. Thus, someone charged with an offense
under tribal law may take the case to the federal courts on the grounds
that the tribal court has no jurisdiction. There are also other ways in which
the issue might be raised in the courts and a definitive opinion obtained,
some of which would produce a federal court decision, and, others of which
would produce a state court opinion.
0. PRESENT JURISDICTION IN OPERATION
'1. Comment on eight subject areas covered by 1963 act
It is not the purpose of this study to either decide or recommend pre-
cisely where jurisdiction over these eight subject arcs should reside. This
is for the tribes, the state, and the federal government to decide. Rather, the
purpose here is to explore some of the ramifications of the imposition of
state jurisdiction over these areas, and describe alternative means of iYn-
proving the system, specifically through the return of jurisdiction to the
Indian reservations in a number of these areas.
The eight subject areas covered by the 1963 Washington Statute are: com-
pulsory school attendance; public assistance: domestic relations: mental Ill-
ness; juvenile delinquency ; adoption proceedings : dependent children : and
oneration of motor vehicles upon the public streets, alleys, ;roads and high-
wa vs.
Operation of motor vehicles on the public streets, alleys, roads, and' high-
ways.-Undoubtedly, the. strongest argument for state jurisdiction can be made
here. At best, however, this argument supports only a claim for concurrent
jurisdiction, leaving the Indian communities involved. it they wish, ,jurisdic-
tion over Indians who violate tribal laws it operating motor vehicles on the
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public highways. The persistent Indian claims of racial discrimination and
selective law enforcement by state and local police would be best met by
having Indian police enforce the law as to Indians.
Certainly one of the most desirable solutions to this problem Is recom-
mended by the Indian Affairs Task Force, and illustrated by the arrange-
ments now substantially in existence among the Warm Springs Indians, tile
adjacent counties, and the State of Oregon.
"All Indian police officers who serve reservations be deputized by the
sheriffs of the counties within which the reservations lie so that Indian
officers may legally arrest non-Indians who commit crimes on Indian land."
Also, as noted earlier, Arizona has recently enacted legislation to give
tribal police officers power to arrest non-Indian offenders on the reservation.
Compulsory school attendance.-Attitudes in the non-Indian community to-
ward compulsory school attendance have changed significantly over the past
few years. Whether for good or ill, considerably less emphasis is placed on
attendance now than a few years ago, and certainly less enforcement of
attendance is visible now compared to years past, when truant officers regu-
larly checked upon students failing to show at school.
Apparently, the 1963 statute was enacted on the assumption that the high
dropout rate of Indian children from the public schools would be slowed
or reversed if the state took over the policing of school attendance by Indian
children. There is no evidence of such a change in school attendance of Indian
children, certainly not from this cause. The problems that Indian children
have with schools run much deeper than those that can be solved merely by
having state or county officials enforce their school attendance.
In any event, this particular part of the 1963 Act is probably invalid be-
cause it conflicts with a more specific, and pre-existing, federal law. A fed-
eral statute adopted in 1929, and amended in 1946, says in part:
"The Secretary of the Interior may authorize the states * * * (21) to en-
force the penalties of state compulsory school attendance laws against Indian
children * * * except that this paragraph (2) shall not apply to any Indians
of any tribe in which a duly constituted governing body exists until such
body has adopted a resolution consenting to such application.""
The policy expressed in this federal statute is consistent with the policy
of self-determination in that it requires the approval of the governing body
of the Indian tribe as a condition to state enforcement of school attendance.
It is, in fact, difficult to see how the state could operate effectively in this
highly personal and intra-family area unless it had the full cooperation and
support of the Indian parents and community from whence the children came.
Public Assistance.-The State of Washington also took jurisdiction over
public assistance in the 1963 Act. It is hard to believe the state intended to
assume exclusive jurisdiction over these matters, and to oust the tribes from
handling their own public assistance problems if they wished to do so. Public
assistance is something people seek out themselves, and is regularly pro-
vided by the states to Indian people living in Indian communities within
their borders, regardless of the existence of statutes such as R.C.W. 37.12.
Thus, the state did. not need the 1963 Act to justify providing assistance
to Indians.
Mental Illness-Again, it Is difficult to understand R,hy the state would
feel it necessary to impose its jurisdiction over mental illness' on the reshk-
vation without the consent of the tribe involved. If an Indian is mentally
ill and goes off the reservation he is immediately subject to state law. On
the reservation there would seem to be little 'reason to insist that state law
applies. In addition, as we have especially seen, in recent years. the quostion
of When a person is mentally ill is exceedingly difficult to. establish, and fbo
result often depends_ significantly on the cultural attitudes of the community
towards such matters. This is all the more reason why this particular area
should be und'er'the jurisdiction of the Indian community, unless they volun-
tarily consent otherwise.
There is sound argument why Indian reservations might wish to volun-
tarily consent to state jurisdiction over mental illness matters. State mental
illness treatment facilities are only available to an individual who is com-
mitted by a state court. Thus, if an Indian tribe wished to have access to
these facilities for its mentally ill, acceptance of state jurisdiction for this
purpose would be essential. If commitment is through state court, confine-
ment must be furnished to all citizens wherever they reside.
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Domestic relations and juveniles.-The state took jurisdiction over domestic
relations, juvenile delinquency, adoption proceedings, and dependent children.
Included in this category are the most important and private inter-personal
relationships. These are relationships which the federal government has his-
torically left entirely up to the Indians. They are subjects over which, under
a policy of self-determination, the Indian people should, themselves, have
the greatest control-unles the Indian community voluntarily agrees otherwise.
The Indian Affairs Task Force thought this aspect of state jurisdiction was
particularly invidious.
"It is obvious that with this sweeping jurisdiction over Indian juveniles
and family affairs, it is possible for the state to violate the intention of the
U.S. Constitution and our tribal customers. The state may reduce or destroy tra-
ditional family control which is vital to the Indian communal way of life,
abolish undocumented marriages rendering the children of such unions illegiti-
mate, change inheritance laws and confuse a people accustomed to simple
,tribal law with the sophisticated legal maze of the white man.
"It is also meant that counties which hired bigoted law officials and elected
racially prejudiced commissioners and lawmakers could withhold law enforce-
ment from Indian Country, thus encouraging lawlessness. In other cases, the
law has been applied selectively. In almost every instance, the county govern-
ment has lacked sufficient funds and personnel to enforc the law equally in
the remote rural areas where the reservations are located. Perhaps most frus-
trating of all to the Indians is their inability to control their own children
under state imposed jurisdiction." (Emphasis added.)
One charge often made by Indians is that law enforcement officials fail to
provide the same quality of service and enforcement to Indian juveniles as to
non-Indians. Certainly, one of the widely recognized law enforcement prin-
cipls for handling juveniles is that people of the same racial and cultural
backgrounds can do the job best.
If state jurisdiction over juveniles is exclusive under the 1963 Act, then
tribal police may not arrest Indian juveniles. Most of the Indian tribes in
Washington operate as if state jurisdiction is exclusive and have declined
to handle juvenile problems on the reservation for fear of violating state
law.. However, the Quinaults have taken a pragmatic approach to the prob-
lem and have reached an understanding with the Superior Court of Grays
Harbor County. If an Indian youth is picked up by juvenile authorities in
that County and brought before the Superior Court, the judge simply refers
the case to the Quinault Tribal Court where the matter is heard and dis-
posed of according to Indian ways. This de facto system has now been in op-
eration for several years and is recognized as a distinct Improvement over
leaving Indian youths under the control of the non Indian court.
2. The Indian tribal legal system and its recent enhancement
It is a little known fact in the non-Indian community that most Indian
tribes in the State of Washington, and elsewhere, have legal systems of their
own, with constitutions, criminal codes, judges, courts, jails, and the capacity
to handle civil matters. One of the more significant developments in this area
in recent years has been the creation of the National Amrican Indian Court
Judges Association, composed of the majority of Indian Court Judges in
the United States. This Association has moved forward positively to provide
an unusually competent continuing education program for tribal judges.
The National American Indian Court Judges Association judicial seminars
have been under way since 1970, and are conducted at seven locations through-
out the West. They are taught by lawyers and law professors. Most, if not
all, of the Tribal Court Judges attend the sessions and participate In the
program. Funded by Law Enforcement Assistance Administration funds, the
seminars have covered virtually every aspect of criminal law and court pro-
cedure normally used in the lower courts-whether tribal or non-tribal.
As background study material for the tribal judges, the National American
Indian Court Judges Association prepared and distributed to each tribal judge :
(1) Research Document in Support of the Criminal Court Procedures Man-
va.7, published by Arrow. Inc., in 1971, (a comprehensive survey of federal
court.cases on civil rights).
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(2) Criminal Court Procedures Manual, A Guide for American Indian Court
Judges.
(3) About 1,500 pages of lesson plan text and teaching aids, covering vir-
tually all aspects of criminal law and trial court procedure that might be useful
in the tribal courts.
(4) A set of cassette tapes specially prepared as supplements to the lessons
(distributed with a tape recorder to each judge).
(5) McCormick on Evidence, Black's Law Dictionary, Webster's Dictionary,
and various other books and documents. of value to tribal courts.
These continuing education seminars are held for two days each month.
During this time the judges and the seminar leaders have covered the mate-
rials in the above lessons, conducted mock trials, and visited and observed
various state and federal court proceedings.
It should be remembered that the Indian reservation courts normally have
jurisdiction, under tribal constitutions and law and order codes, over all minor
offenses, with a maximum limit on punishment of $500.000 and six (6) months
in jail. Some courts had greater criminal jurisdiction prior to 1968, but the
Civil Rights Act of that year limited their jurisdiction as above.
Indian reservation courts also have comprehensive civil jurisdiction. Ordi-
narily, they can adjudicate any civil case that comes before them, without
limit as to amount, and without limit as to subject matter. Thus, they can
handle tort, contract, probate, property, and other types of cases. The actual
exercise of this power varies considerably from reservation to reservation,
with some tribal judges handling a wide range of civil cases.57
The training program for the tribal judges is continuing for an additional
year. At the same time, the tribes are generally revising and improving their
law and order codes, and their ordinances on civil litigation. The Warm.
Springs and Yakima Reservations, for example, recently adopted comprehensive
probate codes. Other reservations are in the process of evaluating the desir-
ability of such additional ordinances and laws.
The reason for reporting this information here is to explicitly debunk any
notion that the Indians living on reservations are either not interested or not
trained to handle their own law and order and civil jurisdiction problems. The
National American Indian Court Judges Association seminar program, and the
general upgrading of the reservation court system throughout the nation, is
an example of an emphasis and desire for continuing education. It demonstrates
the fact that the Indian communities are both willing and able to handle
their own legal systems. Every effort should now be made to encourage this
movement and to remove state jurisdiction from those reservations that wish
to operate their own judicial and law and order systems.
One of the, arguments made in support of Public Law 280 and the various
state statutes implementing same was that Indian reservation legal systems
were less than adequate. It was generally believed that tribal- courts were not
required to, and often did not, provide defendants the same degree of due
process and equal protection provided in the non-tribal courts under the federal
Bill of Rights. The early case of Talton v .Mayes,' decided in 1896, was widely
construed as holding that the federal Bill of Rights did not apply to Indian
reservation courts (although recent decisions cast doubt on that proposition).
This question has now become considerably less important, however, since the
Civil Rights Act of 1968 was enacted. That Act imposes a statutory requirement
on reservation courts to recognize and apply most of the rights (including due
process and equal protection) that are guaranteed in the Federal Constitution.
Thus, either an Indian or non-Indian who appears before a reservation court
must now be accorded essentially the same rights he or she would receive in
non-Indian courts. If denied those rights, the defendant can apply for review,
through habeas corpus, to the federal courts.
The Indian Civil Rights Act of 1968 permits all parties appearing before
Indian courts to be represented by an attorney-even a non-Indian attorney-
if they wish. Expense for the attorney must still, under the 1908 Act, be paid
by the defend nt.
With these events, tribal courts have been developing rapidly and the argu-
ment citing their inadequacy in order to continue state jurisdiction must fall.
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CHAPTER 3
The Remedy
A. INTRODUCTION
The goal of this chapter is to describe the various means by which Indian
reservations in the State of Washington, and elsewhere, might obtain a return
of either part or all of the civil and/or criminal jurisdiction previously as-
sumed by the state.
Four problem areas need to be considered:
(1) Jurisdiction over persons. Should the Indian reservation exercise juris-
diction over Indians only, or over certain groups of non-Indians also?
(2) Jurisdiction over subject matter. Should the Indian reservation exercise
jurisdiction over all civil and criminal matters arising on the reservation, or
only over some of these areas?
(3) Jurisdiction over geographical area. Should the _Indian reservation exer-
cise jurisdiction over the entire land and water area covered by the reservation
(4) What is the best means of
- - -- ------- -
achieving the desired jurisdiction?
Each of these questions must be answered for both criminal and civil juris-
diction.
B. CBI\IINAL JURISDICTION
1. Jurisdiction over persons and subject matter-alternative possibilities
Because of the close inter-relationship of the issues involved in jurisdiction
over persons and jurisdiction over subject matter, these two matters are here
discussed together.
Presently, federal law does not empower reservation courts with jurisdiction
over Indians or non-Indians charged with offenses covered in the Major Crimes
Act, including murder, manslaughter, rape, carnal knowledge, assault with
intent to commit rape, incest, assault with intent to kill, assault with a danger-
ous weapon, assault resulting in serious bodily injury, arson, burglary, robbery,
and larceny. Thus, the commission of these offenses in Indian country is sub-
ject to the exclusive jurisdiction of the federal courts.
The Civil Rights Act of 1968 limits the maximum punishment that can be
meted out by a tribal court to any defendant (Indian or non-Indian) to, a
$500.000 fine and/or six months imprisonment for each offense.
The following are some of the alternative goals to Consider on jurisdiction
over persons and subject matter.
(a) The tribal courts could exercise jurisdiction over Indians only. Thus, if
an Indian committed an offense in Indian country, the tribal court would have
jurisdiction over that Indian. The Indians covered by such jurisdiction would
include enrolled members of that tribe or enrolled members of any other tribe
in the United States. Non-Indians would not be covered under this alternative.
Thus, an offensecommitted in Indian country by a non-Indian, whether against
an Indian or another non-Indian, would not be under tribal jurisdiction, but
would be under the jurisdiction of the state courts.
The tribal court would not have jurisdiction over major offenses covered by
the Federal Major Crimes Act. These would continue to be under the exclusive
jurisdiction of the federal courts.
Tribal courts have historically exercised jurisdiction' over Indians, whether
from that reservation or some other reservation. Such jurisdiction is author-
ized for Courts of Indian Offenses by Title 25 of the Code of Federal Regula-
tions. Section 1i2. This type of jurisdiction would continue.
(b) The tribal court, could exercise jurisdiction over all Indians and over
non-Indians who violate certain types of tribal ordinances. Tribal ordinance
violations creating jurisdiction over non-Indians would be those designed to
protect the resource base of the reservation, and those especially important
to the customs and traditions of the tribe. Such ordinances would include
ordinances on hunting and fishing, the use of dune buggies, blasting, logging, etc.
Most tribal courts have not exercised jurisdiction over non-Indians, although
no federal statute prohibits them from doing so. Bureau of Indian Affairs
policy has undoubtedly played a part in this decision, for, in the Bureau of
Indian Affairs reviews of tribal ordinances, they have discouraged ordinances
which covered non-Indians. Secondly, some tribes adopted constitutions which
denied the tribal courts jurisdiction over non-Indians. Lastly, even if the tribal
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law was phrased broadly enough to cover non-Indians, if a non-Indian was
involved, tribal and Bureau of Indian Affairs police seldom arrested such
persons, preferring to call state or local police.
This practice is now changing. The Colville Tribe recently enacted an ordi-
nance (for which it did not seek Bureau of Indian Affairs approval) which
covers non-Indians as, well as Indians who violate Colville hunting and fishing
laws.
The Colorado River Indian Reservation took a different course of action to
control dune buggies,'which were threatening to destroy reservation lands. The
reservation does not attempt to exercise jurisdiction over the driver of the
vehicle, but simply takes possession of the dune buggy and holds a trial for it,
imposing a period of confinement or temporary confiscation upon conviction.
The recent. federal decision in ljuecharl Tribe v. Roseno appears to lend sup-
port to this procedure. The Salt River and Gila Bands of Indians in Arizona
and the Quinaults in Washington have used a slightly different technique for
assuming jurisdiction over non-Indians. These tribes recently enacted ordi-
nances providing for the installation of signs on highways entering the reser-
vation, announcing that any person coming on the reservation thereby "con-
sents" to the jurisdiction of the tribal court for the commission of offenses.
No definitive court test of the validity of these ordinances as applied to non-
Indians has yet occurred. An Indian tribe can, of course, request the U.S.
Attorney to prosecute non-Indians who fish or hunt in violation of tribal laws.
or cut timber in violation of law. Such prosecutions can occur under federal
statutes dealing with hunting, trapping, or fishing on Indian land (Section
1165),60 and tree injuries or cutting on Indian land (Section 1553) 81
Some tribes have been successful in controlling non-Indian activities on the
reservation by this means, and have worked out cooperative arrangements with
the local U.S. Attorney's office and the U.S. Commissioner. Other tribes corn-
plain that either the U.S.: Attorney or the U.S. Commissioner, or both, are
either (1) too far away, and too busy with other things to tend to reservation
complaints, or (2) simply uncooperative, if not hostile to Indian concerns. In
any event, many Indians feel their interests should be better protected and
justice for all guaranteed.: through the tribal courts. The tribal legal system
would be certainly more flexible in handling new and changing problems.
(c) :The, tribal courts could, exercise jurisdiction over all persons, whether
Indian.or non-Indian, who violate any part of the tribal law and order code,
where either the. violator, or the victim was Indian. Thus, the tribal court
would have jurisdiction if any Indian violated tribal law or if any non-Indian
committed an offense against an Indian (either from that reservation or some
other) or an. Indian's property.
This option would. provide maximum protection to the Indian community
and would assure that the safety of Indian persons and Indian property was
under the jurisdiction of the tribal law and order system.
(d) The tribal courts could emercise jurisdiction over all persons, whether
Indian or non-Indian, who violate any part of the tribal law and order code.
Under this proposition tribal jurisdiction over non-Indians would be the same
as for Indians. Under this option a non-Indian who stole a bicycle from another
non-Indian or who assaulted another non-Indian on the reservation would be
subject to trial before the tribal court.
2. Jurisdiction over geographical area
This section is essentially concerned with one question : Should the Indian
tribal court exercise jurisdiction over the entire area covered by the reserva-
tion, or only only trust and restricted lands'?
Under the 1963 Washington statute, the state imposed its jurisdiction with-
-out Indian consent over all fee patent lands on the reservation, whether owned
by Indian or non-Indian. Of course, it also imposed its jurisdiction without
Indian consent-jurisdiction over all lands, trust, restricted, or fee patent-
for the eight subject-matter areas. On those reservations which consented to
state jurisdiction, this partial assumption poses no particular problem because
it is swallowed up in the larger assumption of jurisdiction by consent. How-
-ever, on the Yakina, Quinault, and other reservations not consenting to state
jurisdiction, and on the Port Madison Reservation where the state has returned
jurisdiction, the partial jurisdiction -imposed by the state under the 1963
statute poses an almost impossible problem of law enforcement. A checkerboard
pattern of jurisdiction is created which defies rational enforcement.
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One means of resolving this problem is to return all criminal law jurisdiction
to the Indian reservation so that all lands on reservations are governed by one
set of laws. This would mean eliminating state jurisdiction on fee patent lauds
and eliminating state jurisdiction over the eight subject areas.
Congress was aware of the confusion that could be expected from a checker-
board system of state and tribal jurisdiction. Public Law 280 envisioned that
the states would either take all criminal jurisdiction, or none. Unfortunately,
the courts have misconstrued this provision and have allowed partial assump-
tions of jurisdiction to stand, with the expected and unfortunate results in
confusion.
3. What is the best means of achieving the desired jurisdiction?
Several alternative procedures might be considered for achieving one or more
of the results outlined above. Some of these procedures involve the enactment
of laws by Congress, others involve enactment of laws by the state legislatures
and still others involve litigation in the courts.
(a) New federal laws on the question of jurisdiction over persons and sub-
ject matter. One of the most troubling questions here is the extent to which
Indian reservation courts can, or should, exercise jurisdiction over non-Indians
on the reservations.
As explained earlier, the question of tribal court jurisdiction over non-Indians
is presently unsettled. Different tribes are attempting to exercise such juris-
diction by a variety of means. They are presently basing this jurisdiction on
the inherent sovereignty of Indian reservations, a sovereignty arising out of
their status as independent governing entities, and from their treaty relation-
ships with the United States. It seems likely that the validity of this basis of
jurisdiction will be decided in the courts soon as Indian courts attempt to
exercise jurisdiction over more non-Indians.
Rather than leaving the issue to the courts, Indians could request Congress
to enact a law clearly providing Indian reservations with jurisdiction over
non-Indians. Such a law could spell out in detail the extent and nature of
tribal court jurisdiction over non-Indians. It could provide, for example, that
an Indian reservation had jurisdiction over non-Indians under terms such as.
those discussed above.
Congress also has the power, even over the opposition of the state, to return
either part or all of the subject matter or geographical area jurisdiction to
Indian reservations. Indians could seek a federal law eliminating state juris-
diction in Washington over the eight subject areas, or over part of them.
Going further, Congress could, for example, enact a law providing that when
an Indian reservation meets certain standards it could insist upon the return
of state jurisdiction to the reservation. The standards could be:
(1) Has the tribal court appropriate power?
(2) Has the reservation an up-to-date and effective law and order code?
(3) Has a majority vote of the adult Indians enrolled and living on the
reservation been obtained?
(4) Has the concurrence of the Secretary of the Interior been obtained?
(5) Has appropriate notice to the Governor of the State been given?
Thus, in Washington, the Colville Reservation could, under such a law,
obtain return of the jurisdiction formerly ceded by consent to the state. The
Yakima Reservation could eliminate state jurisdiction over any or all of the
eight subject matter areas imposed without their consent in 1963.
The five conditions stated above are merely illustrative. Some could be
eliminated, or others added. Careful thought should be given to such conditions
to assure that: (1) the tribe in fact wants a return of jurisdiction; (2) the
tribal law and order system is prepared to handle such jurisdiction; (3) a
system of justice, fair to Indian and non-Indian alike, will result from such
a return of jurisdiction.
Another request that could be made to Congress involves the question of
concurrent versus exclusive jurisdiction. It is still unsettled whether Public
Law 280 authorized the states to take any more than concurrent jurisdiction
over Indian reservations. Congress could enact legislation clarifying this issue,
and firmly bestowing concurrent jurisdiction on the Indian reservations where
they choose to exercise it.
One possible approach to this matter would be to obtain federal legislation
authorizing the reservations to exercise concurrent jurisdiction. This legisla-
tion would require the state, as a matter of policy, to refrain from using its
own law enforcement system on the reservations when a tribe has or creates
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a tribal court and law and order system.. The practical effect would be to return
jurisdiction to those Indian reservations wanting to assume it and taking
appropriate action to achieve that goal.
The major point made in this section is that the federal Congress has the
constitutional power to return either part or all of the criminal or civil juris-
diction to Indian reservations, under terms and conditions deemed wise. Con-
gress can act with the consent of the states involved, or in spite of them.
(b) New state laws on the question of jurisdiction over persons and subject
matter. The Washington State Legislature could also enact legislation to re-
turn jurisdiction to Indian reservations. It could, for example, under the retro-
cession authority, of the Civil Rights Act of 1968, enact a law authorizing the
governor of the state to return jurisdiction to an Indian reservation upon the
request of the tribe, or it could provide for the return of jurisdiction under
other conditions, such as the five listed in the last section.
The Indian Affairs Task Force recommended enactment of such state legis-
lation in 1970 and a bill to accomplish this was introduced in the Washington
Legislature but did not get out of committee. It could be introduced and con-
sidered for passage again, either in the same form or modified.
An appendix is included at the end of this study describing what the various
sections of such a bill might contain. The various Indian communities in
Washington and elsewhere will want to decide whether this type of bill, or
some other form, will best serve their purposes, and will have the best chance
for passage by the state legislature(s) concerned.
(c) Proceeding through the courts. The Yakima Nation has sued the State
of Washington to establish that the Washington law imposing state jurisdic-
tion over the eight subject-matter areas under the 1963 Act is unconstitutional
under the Federal Constitution..?a If the Yakima Nation is successful in this
litigation then no state or federal legislation would have to be enacted to re-
turn jurisdiction over these eight subject areas from the state to the reservation.
A second issue raised in the Yakima case is whether state jurisdiction is
exclusively or only concurrent. Again, if the Yakima Nation wins the case, and
the federal courts hold that Public Law 280 authorizes only concurrent juris-
diction, then no state or federal legislation will be necessary to assure that
the Indian reservations have such concurrent jurisdiction.
Court action might also be taken to determine whether the Governor of
Washington presently has the power to retrocede jurisdiction to those Indian
reservations that earlier consented to state jurisdiction or whether he can only
do so if the legislature enacts further laws explicitly giving him that authority.
Court action might be initiated to determine the extent to which non-Public
Law 280 reservations have jurisdiction over non-Indians.
C. CIVIL JURISDICTION
Civil jurisdiction does not pose as many difficulties as criminal jurisdiction.
The principal civil jurisdiction exercised by the State of Washington over
Indian reservations is through the consent provisions of the 1957 and 1963
statutes. A number of reservations in the State of Washington consented to
state assumption of civil jurisdiction. Those reservations may now wish a
return of that jurisdiction. The same two legislative routes are available for
such action.
Congress could enact a law returning civil jurisdiction to an Indian reser-
vation,
tribal court andt enactment coft appropriate nc vil llaws fore handlings civil
of
cases.
Similarly, a state legislature could, under the authority of the Civil Rights
Act of 1968, enact legislation retroceding jurisdiction to Indian reservations.
Again, such a law might authorize the governor to simply return jurisdiction
upon receipt of a duly authenticated request from the tribe and concurrence
by the Secretary of the Interior, or it could require that certain additional
conditions be met, such as the creation of a tribal court with, appropriate
authority to handle civil matters.
It will be recalled from the earlier discussion that where a tribal court has
civil jurisdiction, that jurisdiction is ordinarily very broad. Criminal juris-
diction is limited by the Federal Major Crimes Act, and by the Civil Rights
Act of 1968 punishment limitation of six months and $500,000. No such federal
statutory limits exist for civil jurisdiction. Thus, at present, if a reservation
has civil jurisdiction the tribal court has power to handle any civil case prop-
erly brought before it, regardless of the amount or of the field of law involved.
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APPRNDIx A
SUGGESTED FORM OF BILL TO AUTHORIZE RETURN OF JURISDICTION TO INDIAN
TRIBES IN WASHINGTON
One possible form of a bill to return jurisdiction to the Indian Reservations
in the State of Washington might contain the following :
1. A statement of purpose, that the law is designed to promote the policy of
self-determination and to encourage the development of viable legal systems
on the reservations in that state, and to promote greater cooperation between
the State of Washington and the governing bodies of the Indian tribes within
the state.
2. This section would contain definitions. The most important one would be
the definition of "Indian Country" which would cover all lands within the
boundaries of the reservation, including fee patent land.
3. The effect of this section would be to provide authority for retrocedin,
jurisdiction over seven of the eight subject areas taken by the 1963 Act, when
the Indians and the state agree to suchactions, i.e., (a) compulsory school
attendance; (b) public assistance; (c) domestic relations; (d) mental illness;
(e) juvenile delinquency ; (f) adoption proceedings; (g) dependent children.
If implemented this would mean the Indian tribes would have exclusive (or
concurrent) jurisdiction over Indians coming under these areas. The state
would have jurisdiction over Non-Indians. The eighth subject area, the opera-
tion of motor vehicles on public rights-of-way, can also be included here if the
Indian tribes desire. They might, however, decide that there is more reason
to have concurrent jurisdiction in this case. Thus in practice the Indian tribe
would exercise jurisdiction over Indians, and the State would exercise juris-
diction over Non-Indians, although legally the state could exercise jurisdiction
over Indians, and the Indians could exercise jurisdiction over Non-Indians.
(This section does not affect those reservations which requested the state
to take jurisdiction. That is covered later.)
The section might also provide that Indians are citizens of the state and are
eligible for public services on an equal basis with Non;Indians, a situation that
already exists but world thus be confirmed.
4. This section would provide that the Governor shall, by official proclama-
tion, retrocede any state jurisdiction taken on the request of any Indian tribe
within 60 days of receiving satisfactory evidence that the Indian tribe desires
retrocession, provided that. said retrocession will include criminal jurisdiction
or civil jurisdiction or both and shall not be a retrocession of. only part of, the
criminal or civil jurisdiction previously taken.
This section could be designed to remove any discretion from the Governor.
i.e., to make the Governor's proclamation automatic upon receipt of the tribal
request. Alternatively the section might describe other conditions that might
be required to precede the Governor's proclamation, such as a showing that
(1) the tribe had a tribal court with appropriate power, and that (2) the tribe
had an effective law and order or civil law' code. The tribes In the State of
Washington will want to decide whether these or other conditions are desir-
able, or acceptable.
5. This section might describe the procedure by which the intention or con-
sent of the tribe would be determined. It could use a procedure that requires
a vote of a majority of the adult members of the tribe at a special referendum
election conducted under the supervision of the Secretary of the Interior. (This
is the procedure currently required under the 1968 Civil Rights Act for deter-
mining when a tribe wishes to consent to the assumption of state jurisdiction.)
This section would also preclude the possibility of a situation which re-
cently arose in Nebraska, in Go ham v. Nebraska (187 Nev. 35, 187 N.W.2d 305
(1971) where the state apparently retroceded jurisdiction against the will of
the Indians involved.
6. This section could request prompt consideration of a retrocession request
by the Secretary of the Interior. It might also include a savings clause to
handle criminal or civil cases that had started prior to retrocession but were
still pending after the effective date of that action.
7. This section could continue the option of an Indian tribe to request the
state to assume jurisdiction. It should make clear, however, that only complete
civil, or complete criminal jurisdiction, could be assumed. This would eliminate
the possibility of the confusion that now exists under the 1963 Act where the
state has imposed partial jurisdiction over the reservations. The section could
also provide that no jurisdiction shall be created by implication.
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The section could also include a description of the procedure by which tribal
consent to the assumption of state jurisdiction might occur. This must, of
course, comply with the Civil Rights Act of 1968, which says that tribal con-
sent will be determined by a majority vote of the adult enrolled members of
the affected tribe voting in a special election called for that purpose by the
Secretary of the Interior. (See Section 406, Title IV, Public Law 90-284, 82
Stat. 80.)
8. This section is intended to clarify an obscure area of the law. If a: tribal
court has jurisdiction over a specific case, either civil or criminal, and a judg-
ment is reached, that judgment is entitled to respect in the state courts. Since
the state courts generally would lack jurisdiction to hear a case when the
tribal courts had jurisdiction over it, there are likely not to be many cases of
conflict. However, there are areas of concurrent jurisdiction and in those areas
the state and tribal courts ought to show respect for each other's judgments.
This section requires that the judgments of tribal courts shall be given full
faith and credit in the courts of the State of Washington, and vice versa.
9. This section could attempt to provide a practical solution to the confusion
that may exist even if retrocession is legislated. The state would have some
jurisdiction over Indian country even if all the Public Law 280 jurisdiction
were retroceded. The tribes would have some jurisdiction over Indian country
even if the fullest possible Public Law 280 jurisdiction were extended to all
Indian country. The most unfortunate aspect of these problems is that law
enforcement officers are often unclear about their authority to arrest a particu-
lar suspect. As described earlier, the jurisdiction over a particular crime might
depend upon the age of the criminal or whether he is an Indian. This section
could be designed to create clear authority for the police to arrest and hold
the suspect pending a determination of jurisdiction. The section might provide
that the state could, on its own authority, extend to the tribal police the power
to temporarily detain persons who might be outside the jurisdiction of the
tribe. However, the U.S. Constitution forbids the state from authorizing the
arrest of Indians in Indian country unless there is a federal statute delegating
that authority. At the present time, the existing federal statute which provides
for the extension of state jurisdiction requires tribal consent to that extension:
Therefore this section could not be self-executing : it requires tribal consent.
The powers described here should be strictly defined to ensure the prompt
handling of cases and to prevent the long-term detention of non-tribal members
by tribal police and/or tribal members by state or local police.
10. This might spell out that the statute does not affect hunting or fishing
rights of Indians. Such an exclusion is specifically provided for in Public Law
280, and would be restated in this statute to provide wider notice.
APPENDIX B
POSSIBLE LEGISLATIVE PROPOSALS
OUTLINE OF SUGGESTED STATE (WASHINGTON) LEGISLATION
Section 1 Short title
Section 2 Purpose and Construction
Section 3 Definitions
(1) Indian Tribe
(2) Indian Country
(3) Tribal Court
Section 4 Repeal of state laws assuming jurisdiction and exclusion for juris-
diction obtained by petition.
State. retention of jurisdiction over the operation of motor vehicles
upon the public streets, alleys, roads and highways-Not recom-
mended.
If state retains its highways and road jurisdiction, then is it to be
concurrent with the tribes'?
State's Indian citizens are eligible for all public services.
Section 5 Retrocession by proclamation. Allows Governor to grant retroces-
sion by executive order. Requires petition and tribal resolution. Sets
time limit for Governor to act and automatic retrocession if he fails
to act.
Section 6 Withdrawal of consent. Allows tribes who petitioned for state juris-
diction to withdraw their consent to state jurisdiction.
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Section 7 Effective date of retrocession. Sets period of 60 days and automatic
passage feature. Preserves any actions which are pending.
Section 8 Allows state to assume jurisdiction (new) when requested by a tribe.
Section 9 Sets forth procedure for Section R.
Section 10 Sets effective date for new assumption of state jurisdiction--60 days.
Preserves actions which are pending.
Section 11 Inherent right of Indian tribes. Reiterates the rights of Indian
tribes to self-government and provides full faith and credit of de-
cisions in tribal court to state courts, agencies and chartered bodies.
Section 12 Hunting, fishing and trapping is in the exclusive jurisdiction of the
tribes if the violations occur within Indian Country. Allows seizures
and forfeitures. Makes no distinction as to race or identity of
offender.
If total retrocession cannot be obtained, the following alternatives can
strengthen the law and order capabilities of the Indian tribes and are compro-
mises.
(a) Declaration that state jurisdiction is concurrent wth Indian tribes' and
not exclusive with the state.
(b) Tribal court to handle all: (1) criminal and civil cases arising on the
reservation ; (2) civil matters where parties reside or work on reservation :
(3) civil matters where disputed property is located on the reservation. States
that appeals are through the tribal system and then into the county district
courts.
(c) Recognition and deputization of tribal and Bureau of Indian Affairs
police as state police deputies. Powers, certification, qualification, special board
and credentials.
DRAFT OF SUGGESTED STATE (WASHINGTON) LEGISLATION
Chapter
AN ACT to restore the administration and execution of local control of criminal justice
to Indian tribes within the State of Washington; and amending and repealing
RCW 87.12.070.
Be it enacted by the ]legislature of the State of Washington:
SECTION 1: Short title: Sections 1 through 12 of this act may be cited the
"Indian Retrocession Act".
SECTION 2: Purpose and Construction
This chapter is designed to effectuate more efficient: administration and
execution of law and order services in the State of Was'icington and to insure
optimum participation by local governments in the resolution of their local
problems. This chapter further intends to promote greater cooperation between
the State of Washington and the governing bodies of the Indian tribes within
the State.
This chapter shall be liberally construed to effectuate its purposes.
SECTION 3: Definitions
(1). "Indian Tribe" means any tribe, band, community or organized group
of Indians recognized as possessing the right of self-government by the United
States.
(2). "Indian Country" means any and all land lying within the exterior
boundaries of any Indian Reservation recognized by the United States, irre-
spective of the issuance of any and all patent or patents, allotments, unex-
tinguished titles or grants, including all rights-of-way running through such
lands.
"Indian Country" shall further mean any and all lands not lying within
the exterior boundaries of an Indian Reservation which are owned by the
United States and whose use is reserved exclusively or primarily for Ameri-
can Indians.
(3). "Tribal Court", means any court of any Federally -recognized Indian
Tribe, band, community or group which has duly established said court by
virtue of Treaty with the United States, by executive order of the United
States or by Tribal enactment of constitutions, by-laws, codes of law and
order or ordinances.
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SECTION 4: Laws Repealed and Jurisdiction Retroceded
Chapter 240 of the Laws of 1957 and Chapter 36 of the Laws of 1963 are
hereby expressly repealed, and all jurisdiction obtained by virtue of said
laws is hereby retroceded except as follows :
(1). Jurisdiction taken upon the request and petition of any Indian tribe
is not retroceded by the provisions of this section.
(2). NOTE-this section is not recommended; however, it is included herein
for the purposes of bargaining since this section emobdies serious concerns
of the State of Washington.
Jurisdiction over the operation of motor vehicles upon the public streets,
alleys, roads and highways is not retroceded by this section, but it specifically
retained as it applies to all Indian country within the State and may not
be retroceded by any action under Section 5 of this Chapter.
(3). The State of Washington explicitly states and recognizes that the state
jurisdiction retained by Section 4, sub-section (2) is not exclusive and that
Indian tribes have concurrent jurisdiction over Indians while they are op-
erating motor vehicles on public streets, alleys, roads and highways within
Indian country.
(4). Indians, residing within the State of Washington, are eligible for all
public services provided by public agencies on an equal basis with all other
citizens of the State.
SECTION 5: Retrocession by proclamation
The Governor shall be and is hereby empowered to grant, by Official Procla-
mation, retrocession of part or all of any state jurisdiction which was ob-
tained by the state by Chapter 240 of the Laws of 1957 and/or by Chapter
36 of the Laws of 1963; provided that the Indian tribe requesting such retro-
cession shall petition the Governor for said proclamation. The petition sub-
mitted shall set forth the precise area or areas of state jurisdiction to be
retroceded and shall contain a certified copy of a resolution passed by the
governing body of said Indian tribe authorizing said petition. The petition
shall further contain satisfactory evidence that the majority of the Ipdian
tribe desires retrocession.
The Governor shall act upon the request of each Indian tribe within sixty
(60) days of receipt of the petition requesting retrocession. If no action is
taken by the Governor by the sixty first (61) day after the receipt of said,
petition, the requested retrocession shall automatically be granted.
SECTION 6: Withdrawal of Consent
A petition signed by the majority of the adult members of any Indian
tribe who are enrolled tribal members according to the census roles of the
Bureau of Indian Affairs shall be sufficient evidence that said Indian tribe
desires retrocession. Adult members shall include those eighteen (18) years Of
age or older as of a date set by the growing body of said Indian Tribe.
The petition for withdrawal of consent shall state that the named Tribal
member, with full knowledge of the facts, hereby withdraws his or her con-
sent to the jurisdiction of the State In the specific areas where retrocession
is being requested.
SECTION 7: Effective Date of Retrocession
Retrocession under Section 4 of this Chapter shall become effective sixty
(60) days after this bill becomes law. Retrocession under Section 5 of this
Chapter (Retrocession by proclamation) shall become effective sixty (60)
days after the retrocession is proclaimed or sixty (60) days after failure
of the Governor to act. All actions pending before state, county or local
courts or before administrative agencies which were instituted prior to the.
effective date of retrocession shall continue as if retrocession had not taken
place.
SECTION 8: Assumption of State Jurisdiction
The Governor shall be and is hereby authorized to accept or to refuse,
at his own discretion, state jurisdiction over any Indian reservation and
tribe upon the presentation of a petition requesting State assumption of
jurisdiction which complies with Section 9 of this Chapter. Any jurisdiction
so obtained shall be strictly limited to the authorizations embodied in the
federal act of April 11, 1968 (Public Law 90-284, 82 Stat 78).
SECTION 0: Request for State Jurisdiction
All petitions for state jurisdiction must comply with the provisions set
forth in Section 6 of this Chapter. A majority vote of the adult members,
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eighteen (18) years of age or older, who are enrolled tribal members accord-
ing to the census rolls of the Bureau of Indian Affairs, voting in a special
election called for that purpose by the Secretary of the Interior of the United
States, duly certified, will be deemed sufficient evidence.
SECTION 10: Effective Date of State Jurisdiction Taken by Request
State jurisdiction obtained by virtue of the provisions of Section 8 of this
Chapter shall become effective sixty (60) days after it Is proclaimed by the
Governor. All actions pending in any Tribal Court, which were instituted
prior to the effective date of the assumption of jurisdiction by the State,
shall continue as if the new State jurisdiction had not been obtained.
SECTION 11: Inherent Right of Indian Tribes
Nothing in this Chapter or in any other law enacted in the State of Wash-
ington shall be construed to diminish the inherent right of Indian tribes to
self-government. All judgments of Tribal Courts shall be given full faith and
credit in the Courts of the State of Washington, in all administrative pro-
ceedings and before all bodies chartered by the State of Washington.
SECTION 12: Hunting, Fishing and Trapping
NOTE-This is an optional section which is recommended on the strength
of the case of QUECII&N TRIBE v. ROWE. Its implications in the State of
Washington are great as this subject is the core of numerous problem areas.
Any and all hunting, fishing and trapping in Indian Country is subject
to the sole and exclusive jurisdiction of the Indian Tribe where these occur-
enees take place, regardless of the identity of the hunter, trapper or fisher-
man. Any and all property utilized or involved in the violation of tribal
laws regarding hunting, fishing and trapping may be seized by tribal law
enforcement officers and may be subject to forfeiture in Tribal Court pro-
ceedings.
This section shall not be construed to change or alter the jurisdiction in any
other subject matter.
(A) The State of Washington explicitly states and recognizes that the state
jurisdiction over criminal and civil matters adopted pursuant to Chapter 240
of the Laws of 1957 and Chapter 36 of the Laws of 1963 are not exclusive
with the State and are to be exercised and enforced concurrently with Indian
Trib'es within the State.
(B) In the exercise of any measure of. criminal or civil jurisdiction, or
both, over any Indian Tribe within the State, pursuant to Chapter 240 of
the Laws of 1957 and Chapter 36 of the Laws of 1963, any and all actions
where a crime occurs In Indian Country ; or where in civil. matters the
parties all reside or are employed in Indian Country; or disputed property
is located in Indian Country, said actions shall be tried by the Tribal Courts
and 'all peace officers shall cite such matters for tr a1 and disposition to
Tribal Court. Any appellant from the decision of a Tribal Court must, first
exhaust all Tribal. remedies, such as appealing to the Tribal Appellate Court
where established. If no Tribal Appellate system is in existence, appeals
shall be taken to the Federal District Court.
(C) The State of Washington explicitly states and recognizes that any
member of a police department of an Indian Tribe or any member of the
Bureau of Indian Affairs Police, who is certified by the Director of the State
Police Department, shall be deputized as a State Policeman by said Director.
upon receiving said certification. Deputization. as a State Policeman shall,
entitle any qualifying Indian Peace Officer to enforce the Laws of the State
of Washington and the Indian Tribe where he is employed in Indian Country
and in pursuit of any offender fleeing from Indian Country irrespective of
the race or identity of the offender. Said deputies shall be further empowered
to enforce the laws Of the State of Washington at any place within the State
that they evidence a violation of said laws occuring in their presence.
In order to be certified by the Director of the State Police Department
a formal application must be submitted to the Department. Said application
shall be identical in every respect to the application for employment by the
State Police. Said applicant must prove that he has received ^. hours of
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police training from a competent Federal or State law enforcement training
agency. The Director must conduct a personal interview of the applicant
and administer such testing of the applicant as will be provided herein.
The Director of the State Police Department shall appoint four persons
with at least five (5) years of law enforcement experience to a board to be
known as the "Indian Police Qualification Board". This Board must consist
of at least two American Indians who are enrolled members of a Tribe lo-
cated in the State of Washington. The Director shall preside over this Board.
The Board will set the qualifications for the deputization of Indian police
applicants and shall take into consideration the work experience of the appli-
cant in the area of law enforcement. The Board shall formulate a test or
tests to judge the qualifications of all applicants and all successful applicants
must be certified by the Director. The Board may recommend additional train-
ing for unsuccessful applicants and may determine the place, length and
nature of additional required training.
Upon deputization, the Indian Police Officer shall be issued proper State
Police credentials and identification, without restriction or limitation.
DRAFT-OF SUGGESTED TRIBAL IMPLIED CONSENT ORDINANCE
Whereas, numerous acts-against the peace and safety of the community have
arisen as a result of the continued presence of non-community (Reservation,
etc.) members, and,
-Whereas, the __ I (name of Tribe) have not received satisfactory
assistance from State, County and local Authorities to prevent and punish
these continued acts, and,
Whereas, the (name of Tribe) has reviewed the best means
to. counteract these problems, and,
_\Yhereas; it is the recozilinendation of the - (name of Tribe)
that the Law and Order Code (constitution where applicable) be amended
to, include a presumption of implied consent to all. persons. within the exterior
boundaries: of the Reservation.
Now therefore be it resolved that the Law and Order Code (constitution)
beand is, hereby amended to include . the foregoing ordinance. ..,
Be if further resolved that the following Ordinance shall become effective
thirty (30) days from the date hereof. (or if required, within- thirty (30)
days from the date approved by the Agency Superintendent or Secretary..of
Interior as required)
Ordinance _ No.
The Tribal Court of, (name of Tribe) shall have jurisdiction
over all 'offenses enumerated in,' the Lae'and Order Code when committed by
any person within, the exterior boundaries of. the Reservation.
Any person who shall,entllr'within the exterior boundaries of the -''
Reservation shall be deemed to have ' impliedly consented to the jurisdiction
of the Tribal 0ourt and therefore shall be subject ,to prosecution for, Qiola-
tions of the Lawv and Order Code in said Court Sa14 persons also shall have.
been deemed to. have imp fedly consented to the jurisdiction of the Tribal police,
sheriffs; game wardens,' etc. and therefore shall be subject to arrest, a.ppre
hension,,Confinement by said Tribal authorities as well as having their personal
possessions confiscated and held subject to forfeiture in Tribal Cour't,
The --- Reservation shall be defined as all territory within the
exterior boundaries including fee patented lands, rights-of-ways, roads, waters,
bridges and lands used for schools, churches, agencies or any other purposes.
Any person.. entering---within the boundaries of this reservation shall become
subject to the Laws and Regulations of this Reservation.
Signs shall be posted at each roadway entering the Reservation and on each
waterway entering the Reservation, stating "You are now entering the
(name of Reservation) Reservation. By so entering you have
been `deemed to have given your consent to he subject to the Laws and Regu-
lations of this ' Reservation xnursuant to Ordinance No. (set forth
number of this ordinance). If you do not consent to said jurisdiction, DO
NOT ENTER".
Therefore be It further resolved that the Tribal Secretary prenere and met
said warning signs upon final approval of this ordinance as set forth herein.
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OUTLINE SUGGESTED AMENDMENTS OF P.L. 90-284--INI)[AN CIVIL EIGHTS ACT
(a) Same as 1968 Act-Allows U.S. to accept retrocession by a state.
(b) Same as 1968 Act-Repeal of Section 7 of P.L. 280 enabling states to
assume jurisdiction.
(c) New-Sets forth procedures for states to request retrocession absent in
1968 Act.
I. State may request retrocession by using the same method it used to
assume original jurisdiction, i.e., if jurisdiction was obtained legislatively it
must retrocede legislatively ; if by executive proclamation it must retrocede by
proclamation.
ii. Spells out (1) more with direct reference to legislative retrocession.
iii. Spells out (i) more with direct reference to executive action (procla-
mation).
(d) New-Sets up another method of retrocession by election (state election
-either referendum or special state election).
I. Sets standards and procedures of election method and makes them con-
sistent with other elections.
ii. Makes elections federal elections not state elections (optional).
iii. Makes Secretary of the State submit formal retrocession request to
U.S. 10 days after certification of election. Waiver if Secretary of State does
not act-tribes can act directly.
(e) New-Enables state legislatures to allow their executive branches to re-
quest retrocession on their own and to call for tribal elections for retro-
cession.
I. Sets up procedure for tribal election for retrocession and makes the
executive submit a formal request to the U.S. Waiver and failure provision.
(f) New-Safeguards against reneging by state-as in Nebraska-or over-
ruling by the legislature of the executive or vice-versa. Requires U.S. authori-
zation to repeal validly executed retrocession request.
(g) New-Allows tribes who have retroceded to return under state jurisdic-
tion. Sets up election procedure, majority of enrolled adults requirement and
waiver and failure clauses.
(h) New-Enables state which has granted retrocession to reacquire juris-
diction over retroceded tribe or tribes.
(I) New-Requires states to pass provisions for retrocession e$., ,.,that
their failure to do so will subject them to a cut-off of federal funds which
inure either directly or indirectly to the benefit of the state's Indian popula-
tion. Sets forth time for action, hearing, time extensions, holding of funds,
or forfeiture and allocation to the tribes.
(j) New-Provides for concurrent jurisdiction in states which have pre-
viously assumed jurisdiction or obtain it in the future.
(k) New-Provides for cases to be brought into tribal courts, to go through
the tribal appellate system and then to he appealed to U.S. District Court.
Repeal of Section 404-Consent to Amend State Laws -The consent of the
United States allowing states to amend the enabling acts of their constitu-
tions which were required for admission to the United States is withdrawn.
It is specifically stated that no state may pass any law not in conformity
with its enabling act.
All other provisions of P.L. 90-284 are retained and remain in full force
and effect.
SUGGESTED AMENDMENT OF P.L. 90-284 (T1.R. 2b 1 G-TITE INDIAN CIVIL. RIGHTS ACT)
Title IV.-Jurisdiction Over Criminal and Civil Actions
Retrocession of jurisdiction by state
Sec. 40S. (a) the United States is authorized to accept a retrocession by
any State of all or any measure of the criminal or civil jurisdiction. or both,
acquired by such State pursuant to the provisions of sec. 1162 of title 18 of
the United States Code, or section 1360 of title 28 of the United States Code,
or section 7 of the Act of August 15, 1953 (67 Stat. 588), as it was in effect
prior to its repeal by subsection (b) of this section.
(b) Section 7 of the Act of August 15. 1953 (67 Stat. 588), is hereby re-
pealed, but such repeal shall not affect any cession of jurisdiction made pursu-
ant to section prior to its repeal.
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(c) The consent of the United States is hereby given to any State to request
retrocession of. all or any measure of the criminal or civil jurisdiction, or
both, acquired by such State pursuant to the provisions of Section 1102 of
Title 18 of the United States Code, section 1.360 of Title 28 of the United States
Code, or section 7 of the Act of August 15, 1953 (67 Stat. 588) as it was in.
effect prior to its repeal by subsection (b) of this section in the following;
manner.
L Any State which has assumed jurisdiction over any Indian Tribe, be it
civil jurisdiction, criminal jurisdiction, or both, may request the United States.
to grant retrocession to said jurisdiction by acting in the same manner said
State acted to originally obtain jurisdiction.
ii. The United States will accept a request for retrocession from any State
which has assumed jurisdiction over any Indian Tribe, be it either civil
jurisdiction, criminal jurisdiction, or both, by legislative action of the State
legislature when original jurisdiction over said Indian Tribe or Tribes was
obtained by legislative action.
iii. The United States will accept a request for retrocession from any State
which has assumed jurisdiction over any Indian Tribe, be it either civil juris-
diction, criminal jurisdiction, or both, by executive action only when the State.
legislature has authorized such executive action or when jurisdiction over said
Indian Tribe or Tribes was originally obtained by executive proclamation.
(d) The United States is authorized to accept a retrocession by any State of-
all or any measure of the criminal or civil jurisdiction, or both, acquired by
such State which is requested by the electorate of such State voting by majorw
ity vote during a referendum held on regular State election days or by a
special State election held for that purpose.
1. Any referendum or special State election held on the subject of retro
cession shall proceed in the same manner as any other State referendum or
special election and no procedures or standards shall be set which are stricter
or not consistent with procedures or standards for other general State elections.
if. Any referendum or special election held by the State on the subject of
retrocession shall be considered a Federal election and State Officials shall be
bound by the same procedures and provisions which govern all Federal elections.
iii. In the event the majority of the electorate of said State approves in a
referendum or Special State election granting request for a retrocession or
retrocessions, the State Secretary of State shall, within ten (10) days after
the certification of said election, submit a formal request to the United States,
through the Secretary of the Interior, requesting such retrocession. Failure of
the State Secretary of State to act as prescribed shall be deemed as a waiver
by such State and formal request for retrocession may then be submitted to.
the United States, through the Secretary of the Interior by any and all Indian
Tribes located in the State, whether or not they were a party to said referendum
or special State election.
(e) The United States hereby authorizes any State which has obtained crimi
nal jurisdiction, civil jurisdiction, or both, over any Indian Tribe or Tribes,
to act by and through its State legislature to authorize its executive to submit
requests for retrocession to the United States and to empower its executive to,
call special elections for any Indian Tribe or Tribes who submit petitions to
said executive or to the State legislature requesting retrocession.
1. Said special election by each Tribe shall require that a majority of the
enrolled Indians within the affected area of such Indian country, eighteen (18)
years of age or older vote to request rfetrocession. Upon certification of said,
election whereby a majority of the enrolled Indians within the affected area
of such Indian Country, eighteen (18) years of age or older vote to request
retrocession, the executive must submit a formal request to the United States,
through the Secretary of the Interior, within ten (10) days, requesting retro-
cession on behalf of said Tribe or Tribes. Failure of the executive to so act
shall be deemed a waiver by such State and formal request may then be sub-
mitted to the United States, through the Secretary of the Interior by the
Indian Tribe or Tribes whose request was not properly submitted to the United
States by the executive.
(f) Any State which enacts legislation or authorizes executive action to.
request retrocession on behalf of any Indian Tribe or Tribes, or any State
where the executive is authorized to request retrocession without legislative
authority (where jurisdiction was originally obtained by executive action) may
not thereupon revoke the action taken by either subsequent legislation in the.
54-398-75-8
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went of executive action or by executive action in the event of legislative
;,ranting of retrocession, until specifically authorized to do so by the United
States.
(g) Any Indian Tribe which obtains retrocession or has obtained retrocession
may petition the United States, through the Secretary of the Interior, to return
to State jurisdiction. Upon receiving a petition from such Indian Tribe, the
United States through the Secretary of the Interior shall call a special elec-
tion where the majority of the enrolled Indians within the affected area of
such Indian country, eighteen (18) years of age or older vote to return to State
Jurisdiction. The United States, through the Secretary of interior, shall within
ten (10) days after the certification. of said election, submit a formal request
to the State Governor or State legislature, whichever originally granted retro-
cession for that specific Indian Tribe, for a resumption of State jurisdiction.
Failure of the United States to so act shall be deemed a waiver, and the
affected Indian Tribe may then submit a formal request for resumption of
State jurisdiction to the State.
(h) Any State which has previously requested retrocession of any or all of
the jurisdiction it obtained over any Indian Tribe or Tribes within the State,
and which said request has been accepted by the United States, is hereby
authorized by the United. States to re-obtain jurisdiction over any or all areas
of jurisdiction requested by any Indian Tribe which request is in accordance
with the provisions of section 403, paragraph (g) above and the majority vote
'of the enrolled Indians within the affected area of such Indian Country;
eighteen (18) years of age or older.
(i) Any State receiving or participating in funds of the United States, which
said funds inure to and for the benefit of Indians residing within such State,
either directly or indirectly, shall enact provisions for the requesting of retro-
cession and for the requesting of re-obtaining of jurisdiction once retrocession
is granted, at its next regular session of the State legislature, but in no event-
at any date later than one hundred and eighty (180) days after the enactment
,of the act. Said State provisions shall be consistent with the provisions- and
procedures set forth herein and shall not create a burden greater than- set
forth in this act. Failure of any State to so act shall be deemed a waiver: of
any and all funds allocated to the State by the United States in such portion
or portions as the United States, through the Secretary of the Interior, deter-
mines to inure to either the direct or indirect benefit of said States' Indian
citizens, and will be subject to forfeiture. In the event anq State fails to act as
prescribed herein, within the time specified, the United States through the
Secretary of Interior shall call for and hold a hearing on said State's failure,-
within forty-five (45) days of the specified time for the State to act has
elapsed. At said hearing the Secretary of the Interior, or his appointee, shall
preside and all concerned parties shall be present. Upon hearing and evaluating
all evidence the Secretary or his appointees may extend the time for the State
to act, but only in the event that good cause is shown and. for a period not,to
exceed ninety (90) days from the final day of said hearing.
'SUMMARY OF STATE .JURISDICTION OVER INDLIN RESERVATIONS IN WASHINGTON
Under the 1957 Washington State Legislation, Reservations in Washington
could petition the Governor to assume either state criminal or civil jurisdiction,
or both, over reservations in that State. This power to request state jurisdiction
was reiterated in the 19003 Washington legislation, althoOgh the 1953 Act also
imposed, without Indian consent, state jurisdiction over all Indian reservation
lands for eight subject: matter areas, and total state jurisdiction for all fee
patent land. The summary below describes those reservations that req-aestel state
jnr'isdiction, and the state's response to those requests.
RESERVATION-BASED TRIBES IN WASHINGTON STATE
1. Che/ca-/is-Confederated Tribes of the Chehalis Reservation. Membership:
approximately 116. Tribal Resolution : September 20, 197)7 requesting state
jurisdiction. Governor's Proclamation : October 14, 1957, effective December 13,
1957. Jurisdiction : Criminal and CiviL
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Acreages
Total acreage on reservation------------------------------------------
4,225
Land in tribal trust--------------------------------------------------
21
Individual trust land-------------------------------------------------
1,637
Total in fee----------------------------------------------------------
2,566
2. Colville-Confederated Tribes of the Colville Reservation. Membership:
approximately 5,350, Tribal Resolution : January 14, 1965, requesting state juris-
diction. Washington State Senate Resolution : Nr. 1965-28. Governor's Proclama-
tion : January 29, 1965, effective January 29, 1965 proclaiming state jurisdiction.
Jurisdiction : Criminal and Civil. Petition for Retrocession : August 12, 1971.
Total acreage on reservation--------------------------------------
1,800,000
Land in tribal trust----------------------------------------------
937,247
Individual trust land---------------------------------------------
71,851
Total In fee------------------------------------------------------
790,902
3. Floh--Hoh Indian Tribe. Membership : 60. The Hoh Indian Tribe has not
petitioned for state jurisdiction, nor has the governor issued any proclamation.
4. Kalispel-Ialispel Indian Community. Membership : 167. Kalispel Indian
Community has not petitioned for state jurisdiction, nor has the governor issued
proclamation.
5. Lower Elwha-Lower Elwha Tribal Community. Port Angeles, Washington
98362. membership : 250. Lower Elwha Tribal Community Council. has not peti-
tioned for state jurisdiction, nor has the governor issued proclamation.
6. Lummi-Lummi Tribe of Indians. Membership : 1,225. Lummi Business
Council has not petitioned for state jurisdiction, nor has the governor issued ex
Total acreage on reservation----------------------------------------- 12,442
Land in tribal trust------------------------------------------------- 12
Individual trust land---------------------------------------------- 7,073. 07
Total In fee------------------------------------------------------- 5,356.03
7. Makah-Makah Indian Tribe. Membership: 805. Makah Tribal Council has
not petitioned for state jurisdiction, nor has the governor issued proclamation.
Acreages
Total acreage in reservation-------------------------------------- 27,012.66
Land in tribal trust---------------------------------------------- 24,525.87
Individual trust land-------------------------------------------- 2,486..Total in fee------------------------------------------------------ 6-
S. Muckelshoot-Muckelshoot Indian Tribe. Membership : 408. Tribal Resolu-
tion : July 24, 1957 requesting state jurisdiction, Governor's Proclamation : EfPec,
tive October 25, 1967 assuming civil and criminal jurisdiction. Retrocession: I in
June 1971, a tribal vote was held on retrocession-vote was against retrocession.
Acreages
Total acreage in reservation--------------------------------------- 3,.440
Land in tribal trust----------------------------------------------- 0.29
Individual trust land---------------------------------------------- 1,188.28
Total in fee------------------------------------------------------- 2,251.43
9. 'Nisqually-Nisqually Indian Community. Membership : 85. Tribal Resolu-
tion : October 19, 1957 requesting state jurisdiction. Governor's Proclamation:
December 2, 1957 effective January 31, 1958. Jurisdiction: Criminal and Civil.
Acreages
Total acreage in reservation--------------------------------------- 4,717
Land in tribal trust----------------------------------------------- 2.50
Individual trust land---------------------------------------------- 813,05
Total in fee-------------------------------------------------------- 3,901.45
10. Nooksack-Nooksack River Indian Community of Washington, Member-
ship : Approximately 370. No petition for state jurisdiction,
11. Port Qamble (Clailum). Membership: 165. The Clallum Tribe has not peti-
tioned for state jurisdiction, nor has governor issued proclamation.
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Acreages
Total acreage in reservation-------------------------------------------
719
Land in tribal trust--------------------------------------------------
719
12. Port Madison (Suquamish)-Suquamish Tribe of the Port Madison.Mem-
bership: 275. Tribal Resolution : Requesting state jurisdiction. Governor's Proc-
lamation : May 15, 1958. Tribal Resolution for Retrocession : January 11, 1971.
Governor's Proclamation for Retrocession : August 20, 1971. Federal Register
copy of acceptance, Secretary of the Interior, dated April 5, 1972.
13. Puyallup-Puyallup Tribe. Membership : Approximately 450. The Puyallup
Tribal Council has not petitioned for state jurisdiction, nor has the governor
issued proclamation.
Acreages
Total acreage in reservation ------------------------ -----------------
18,050
Land in tribal trust-------------------------------------------------
33
Individual trust land------------------------------------------------
0
Total in fee---------------------------------------------------------
15,017
14. Quileute-Quileute Tribe. Membership : 450. Tribal Resolution : September
9, 1957 requesting state jurisdiction. Governor's Proclamation: October 3, 1957.
Jurisdiction : Criminal and Civil.
Acreages
Total acreage in reservation ------------------------------------------
594.09
Land in tribal trust------------------------------------------------
584.34
Individual trust land --------------------------------- __________._------
9.76
Total in fee---------------------------------------------------------
0
15. Quinault-Quinault Tribe of Indians. Membershilp: Approximately 1,200.
Tribal Resolution : Requesting state jurisdiction. Governor's Proclamation : Janu-
ary 12, 1965 (voids state jurisdiction). (There is no state jurisdiction by consent
at this time.)
Acreages
Total acreage in reservation ----------- --------------------------- 189,621
Land in tribal trust ---------------------------------------------- 5,414
Individual trust land--------------------------------- _____------ 123, 523. 95,
Total In fee---------------------------------------------------- 61,665.49
16. Shoelneater (Chinook)-Shoalwater Bay Indian Reservation. Membership
15. The Chinook Tribe has not petitioned for state jurisdiction, nor has governor
issued proclamation.
Acreage.,?
Total acreage in reservation----------------------------------------------- 135.
Land in tribal trust ------------------------------------------------------ 33.5.
17. Skokoni sh-Skokomish Indian Tribe. -Membership : 386. Tribal Resolution :
May 22, 1957 requesting state jurisdiction. Governor's Proclamation : July 13,
1.957 effective September 28, 1957. Jurisdiction : Criminal and Civil.
Acreages
Total acreage in reservation------------------------------------------ 4,987
Land in tribal trust--------------------------------------------------- 16,
Individual trust land------------------------------------------------- 2,1
905
Total in fee---------------------------------------------------------- 2,066'
18. Spokane--See Kalispel.
19. Squanin-Squaxin Island Indian Tribe. Membership : 165. Tribal Resolu-
tion: Requesting state jurisdiction. Governor's proclamation : Effective Sep-
tember 25, 1950. Jurisdiction: Criminal and civil.
Acreages
Total acreage in reservation ---------------------------------------- 1,49x;
Land in tribal trust----------------------------------------------- 1.84?
Individual trust land ----------------------------------------- .------ 826.05:
Total in fee--------------------------------------------------- -- 688.11
20. Swinoniish, Swinomish Indian Tribal Council. Membership: 495: Tribal
Resolution : August 21, 1062 requesting state jurisdiction. Governor's proclama-
tion : June 7, 1963 effective June 7, 1963. Jurisdiction : Criminal only.,
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Acreages
Total acreage in reservation--------------------------------------- 7,155
Land in tribal trust----------------------------------------------- 272.74
Individual trust land---------------------------------------------- 3,097.66
Total in fee------------------------------------------------------- 3,784.60
21. Tulalip-Tulali.p Tribe. Membership: 950. Tribal Resolution: April 4, 1958
requesting state jurisdiction. Governor's Proclamation : May 8, 1958 effective
July 7, 1958. Jurisdiction : Criminal and Civil.
Acreages
Total acreage in reservation--------------------------------------
22,490
Land in tribal trust----------------------------------------------
5,171.09
Individual trust land---------------------------------------------
3,706.94
Total in fee------------------------------------------------------
13,611.97
22. Yakima--Confederated Tribes of the Yakima Indian. Membership : 5,975.
The Yakima Tribe has not petitioned for state jurisdiction, nor has the governor
issued proclamation.
Acreages
Total acreage in reservation--------------------------------------
1,366,505
Land in tribal trust -----------------------------------------------
798,754
Individual trust land---------------------------------------------
296,459
Total in fee------------------------------------------------------
133,000
STATE By STATE ANALYSIS OF STATE JURISDICTION OVER INDIAN RESERVATIONS
TimouGnOUT THE UNITED STATES (EXCEPT WASHINGTON)
This appendix will outline those states who have asserted jurisdiction over
Indian tribes and the rationale behind said assertion. As will be illustrated,
the states justify their claims by the passage of state statutes, Public Law
280 and other special federal legislation conferring states authority over In-
dians and Indian reservations. This appendix will first show specific jurisdic-
tional statutes ; second, other federal regulations ; and third a jurisdictional
survey of states which have exercised jurisdiction over Indian tribes. The
materials prior to the survey section are included because it is often erroneously
1?resumed that Public Law 280 was the first federal authorization for states
to assume jurisdiction over Indians and Indian reservations. This introductory
material is not intended to point out every federal delegation to states, but
merely to illustrate that Public Law 280 does not stand alone as the sole con-
veyor of jurisdiction to states.
SPECIFIC JURISDICTIONAL STATUTES
Most of Title 25 of the United States Code deals with the operation of the
Bureau of Indian Affairs, or involves activities relating to specific tribes. The
same holds true for most of Title 25 of the Code of Federal Regulations ; how-
ever, there are a few significant exceptions that relate to jurisdictional matters,
-either involving a specific tribe, specific state, or specific problem.'
Both New York and Kansas were given jurisdiction by specific congressional
legislation' The New York Acts have interesting similarities and differences
-compared to Public Law 280.
The Act authorizing criminal jurisdiction may allow the concurrent exercise
of jurisdiction by the state and tribes. According to the legislative history, this
Act was passed because in some instances the tribes were not enforcing tribal,
or any, law.' New York was without any jurisdiction to protect the Indians so
the net result was a breakdown of law and order. Interestingly though, as
passed, the Act is permissive, so that New York is not bound to enforce the
laws. Rather, the state will act only if it is determined to be necessary, or if
the tribe is not doing the job. This approach is unlike Public Law 280, which
specifies that the states "shall" have jurisdiction. This latter language is manda-
tory and seems to preclude the tribes from exercising jurisdiction concurrently
(except as the state might allow).
With respect to civil jurisdiction, New York exercises exclusive jurisdiction.'
The tribes were given one year in which to certify tribal laws and customs to
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to be preserved. Those so certified are enforced in civil actions. This Act ap-
pears to be a direct outgrowth of the assimilation philosophy that became mani-
fest in Congress as acts of termination.
The Act giving jurisdiction to Kansas is limited to criminal matters.' The
exercise of jurisdiction is exclusive, and as it is self executing it requires no
act by Kansas. This is unlike Sections 6 and 7 of Public Law 280 which re-
quire the states to take affirmative action before they can assert jurisdiction
over the tribes.
OTISER FEDERAL REGULATIONS
Under the authority of 25 U.S.C. Section 2316 the Secretary of the Interior
can allow state authorities to enforce state laws respecting health and educa-
tion. According to 25 C.F.R. Section 31.4 the statute requires compulsory at-
tendance. This requirement of compulsory school attendance is effectuated by
25 C.F.R. Section 33.3. This regulation provides that all Indians shall be amen-
able to state school laws and the employees of the state can come on the reser-
vation and inspect school facilities and enforce such laws. An exception is
made for tribes that have a duly constituted governing body no inspection
until the governing body adopts a resolution consenting to the application of
this regulation.'
A far-reaching regulation is found in 25 C.F.R. Section 1.4.8 Part (a) specifies
that state and local laws relating to land-use regulation shall not apply to
lands belonging to an Indian tribe that have been leased. Part (b) authorizes
the Secretary to make such laws applicable in specific cases or geographic
areas.9 The purpose of this regulation is to enunciate and particularize the law
which makes such state land controls inapplicable to trust lands, and provide
a method by which such laws can be made applicable."
The Secretary has made extensive use of this regulation. The first action was
to make the laws of California and the city of Palm Springs applicable to the
Agua Caliente Indian Reservation. The next was to make applicable throughout
the State of California all laws existing or as they may exist.' This did not
include the laws of the cities or counties, as they were to be adopted by separate
action as needed. Nor was it intended to change the exemption provisions of
Public Law 280. This meant the extension of state land-use regulations would
not be allowed to operate in a fashion that would constitute an encumbrance.
This caveat is interesting as many courts consider zoning controls to be a legiti-
mate exercise of state power and therefore not an encumbrance. Which theory
is being adopted by this enactment is not known. Arguably, the exceptions in
Public Law 280 were meant to forestall the application of land-use laws such
that specific action is necessary to make them applicable. Presumably, as long
as. California promulgates regulations of a general nature there will be no con-
flict.
Later, the Secretary delegated his authority under 25 C.F.R. Section 1.4 to
the Bureau of Indian Aff_airsh This delegation gave the Commissioner the
option to make applicable state and local laws in those states with jurisdiction
pursuant to Public Law 280. As to other states, the state and local laws can be
made applicable only by appropriate provision in the lease or other agreement.
This authority has been further delegated to the area directors so that they
will make the final determination.'
This section presents a state by state analysis of jurisdiction over Indian
reservations. Essentially, it is limited to the application of Public Law 280, as
the application of the other statutes and regulations has been outlined above.
Alaska
This is one of the six states specified in Public Law 280 as being given juris-
diction without further action" There have been recent important changes in
Alaska following the passage of the Alaska Native Claims Settlement Act."
Prior to this Act, the state had criminal and civil jurisdiction as indicated in
Public Law 28016 The exception for the bletlakatla Reservation was provided
for in 1970; and in its operation there is concurrent state and tribal jurisdic-
tion over offenses committed on the reservation. The change followed a Reso-
lution of Alaska directed to Congress asking for such a modification."
Now that the Settlement Act has been passed, reservations other than the
Metlakatla are substantially changed, if not, in fact, abolished 18 Except for
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the Metlakatla Reservation, there is no way to evaluate the ultimate impact
of this new legislation 1B The Metlakatla Reservation remains unaltered and
continues to exercise jurisdiction concurrently with the State.
California
One of the six named states. As. specified, California has jurisdiction with
respect to all reservations for both criminal and civil matters.
There has as yet been no retrocession of jurisdiction by the state. According
to a letter from the Office of the Attorney General:
"The Department of Justice has received only one inquiry regarding the pro-
vision in Public Law 280 to allow for retrocession of jurisdiction. That in-
quiry came from a tribe of Yuma Indians who were unsatisfied in State ad-
ministration. The Department informed the attorney for the Tribe that there
is no statutory procedure to implement the provision." 20
Oregon
One of the six named states 21 Except for the Warm Springs Reservation, the
state has jurisdiction with respect to criminal and civil matters. The exception
for the Warm Springs Reservation was included when Public Law 280 was
proposed; probably because the tribes objected to the prospect of Oregon
jurisdiction and had sufficient law and order procedures to back up their views.
There has been no legislation dealing with retrocession as of this date."
Whether the various Indian tribes are planning any attempts in this area is
as yet unknown.
Since the Warm Springs Reservation is beyond state jurisdiction there has
been an accommodation worked out between the respective parties.26 The
agreement provides that the state police will act only in emergency situations
which are beyond the capacity -of the tribal police and where specifically, re-
quested. Such accommodations are a legitimate means of securing law enforce-
ment, while at the same time respecting the sovereign integrity of both parties.
Minnesota
One of the six named states. The state has jurisdiction, except for the Red
Lake Reservation, with respect to criminal and civil matters
With respect to retrocession, there is no evidence to indicate what the tribes
are considering.
Nebraska
One of the six named states. The state has complete criminal and civil juris-
diction.
There is an exception to this statement, but it will take a decision by the
United States Supreme Court to resolve its existence. The controversy arises
out of the claim by both the state and federal government to exclusive juris-
diction over: the Omaha Tribe. This has led to a breakdown of law enforce-
ment, as neither party is confident of their position.
The difficulty stems from the attempt by Nebraska to retrocede jurisdiction
pursuant to the 1968 Act as to two tribes. The federal government accepted the
retrocession only as to the Omaha Tribe.22 The state then decided to withdraw
its offer. In the case of State v. Gohamn,26 and State v. Tyndal',2R the state courts
held that Nebraska could withdraw its offer as it was an all-or-nothing propo-
sition. A contrary result was reached in Federal District Court in the case of
Omaha Tribe v. Village of Walt Hill.13 At present a petition seeking certiorari
is pending.
It seems likely the Supreme Court will follow the federal court decision.
Such a result would be consistent with the language of the retrocession provi-
sion. The statute clearly allows the federal government to accept any measure
of jurisdiction, and this is precisely what the Secretary has done.
Wisconsin-
One- of the six named states. The. state has complete criminal and civil juris-
diction.
So far no attempt has been made to obtain retrocession, though several tribes
are studying the feasibility of such action "
TIIE SECTION 6 STATES
Under Section 6, the federal government has given its consent to those states.
with constitutional disclaimers of jurisdiction to amend their constitutions a"
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11.6
These disclaimers were made part of the state invol ved constitutions when the states
,joined the Union, so such ainprocedure was deemed necessary. So far the states
have been rather dependent in their approach to this requirement:
seine have amended their constitutions, others have acted simply by legislatiou.
The state courts that have considered the issue have held that what this fed-
eral legislation requires is only a binding commitment by the state. Such a
view seems at odds with the intention of Congress, but so far the Supreme
Court has not chosen to review the decisions.
Prior to the enactment of Section 6 the states argued they had jurisdiction
because the various Acts of Adinission were phrased in terms of being "on an
equal footing with the original states in all respects whatever"." This argu-
ment was rejected in Donnelly v. United States.22 A California case, Lies v,
JTagen," had held this language to mean the state wa seized of all the rights
of sovereignty, jurisdiction, and eminent: domain whoh the other states had.
As the Donelly case indicated, there had been no express reservation by the
federal government of jurisdiction over the lands. Despite this, the offense
was held to be cognizable only in federal court. The court cited United States
v. McBratney,36 for the proposition that the states have jurisdiction over of-
fenses committed by whites against whites on the reservations. That case in-
volved a murder committed on the Late Reservation. The case of United States
v. Aagaana,'B indicated that as between Indians this decision does not apply.
Nor does it apply where an Indian on the reservation is a victim. In McBratney,
the act of admission had the usual language about egtaal footing."
The existence of the disclaimer has not been made academic by tile recent
cases. In Williams v. Lee,2" a non-Indian trader on the Navajo Reservation
brought suit in state court to collect a debt. The Supreme Court upheld a
motion to dismiss because the tribal court, and not the state court, had juris-
diction. According to the court, the test of jurisdiction has been modified over
time to allow state courts to take jurisdiction where essential tribal relations
were not involved and the rights of Indians would not be jeopardized." Absent
governing Acts of Congress, the court indicated, the quostion of allowing state
jurisdiction has always been one of whether the state action infringed on the
rights of reservation Indians to make their own laws and be ruled by them.'*
In this case, to allow the state court to exercise jurisdiction would undermine
the authority of tribal courts over reservation affairs and hence would infringe
on the right of the Indians to govern themselves.
The Williams case was thought to authorize a unilateral assumption of juris-
diction despite the disclaimers as long as there was no infringement of the
right of Indians on the reservations to make their own laws and be governed
by them." A per curtain opinion of the Supreme Court in 1971 changed this view.
In the case of Fiennerly v. District Court,'2 the court held that Public Law
280 is the kind of act referred to in Williams, such that it alone specifies the
means to obtain jurisdiction. The case involved a suit in state court to collect
a debt incurred by members of the Blackfoot Reservation at a store estab-
lished within the exterior boundaries of the reservation. Montana had done
nothing pursuant to Public Law 280 to obtain jurisdiction over the Blackfeot.
According to the Court, Section 7 specifies how Montana is to obtain jurisdic-
tion," With respect to the Blackfoot Reservation, Montana never took affirma-
tive legislative action concerning either criminal or civil jurisdiction .14 There
was a tribal council enactment of the Law and Order Code in 1967 that the
state relied on, arguing that this was an exercise of tribal powers of self-
government under the Williams test. However. the court said, Williams was
limited to the case where there was no Act of Congress. In this case. Section 7
of Public Law 280 applies, and there is no provision for tribal initiative, either
as a necessary or sufficient condition. Even the 1968 change requiring consent
didnot lend support to the state argument because it requires a vote of the
whole tribe, and not just thee council.
As the law now stands, a state must act in a manner consistent with Public
Law 280 in order for it to obtain jurisdiction over Indians on the reservations.
Arizona
The constitutional disclaimer is contained in Section 20 of the Enabling Act.
The state courts favor the finding of jurisdiction, theorizing that the disclaimer
deals with title to land." There has been no constitutional amendment despite
an arguable need for it.40
To date, Arizona has extended its jurisdiction only so far as to make appli-
cable the air and water pollution laws." These acts specify that they are
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adopted pursuant to Public Law 280 and apply to both civil and criminal
actions. It is not entirely clear whether Section 6 (and necessarily Section 7)
authorize partial assumption of jurisdiction. The State Attorney Genergl
thought it did not 48 The relevant language found in section 7 is "at such time
and in such manner". The argument is that this allows a partial assumption,
or only authorizes any type of binding commitment to assume complete juris-
diction. It is probably safe to say that no court is going to strike down a partial
assumption. Rather, that language indicates a desire by Congress to give the
states as much discretion as possible." This view is reasonable, given the
burden the state is undertaking when it extends its authority into the reser-
vations.
Montana
The disclaimer is contained in its Constitutional Ordinance No. 1, Section 2.
Under the law of the state the people must change the constitution ; however,
this has not prevented the state from acting. Following the Washington view,
the Montana courts, in McDonald, v. District Court,oD held that a constitutional
amendment is not necessary. According to the Montana and Washington courts,
all that Congress meant by Section 6 is that the people commit themselves in
some binding fashion; and it is a question of state law as to whether this
means proceeding by means of a constitutional amendment.
To date, the state has extended jurisdiction only over the Flathead Indian
Reservation 61 This jurisdiction is restricted to criminal matters 62 The rest
of the Montana statute allows other tribes to consent to criminal and/or civil
jurisdiction, with a requirement that the relevant county commissioners con-
sent also "" A further provision allows a tribe that has consented to -obtain
retrocession after two years."
With respect to the Flathead Reservation the jurisdiction is believed to be
concurrent with the tribe."
New Mexico
The disclaimer is contained in Article 21 ., Section 2. To change the constitu
tion the legislature must submit the proposal to the people.50 In 1969 an amend-
ment to the disclaimer was proposed by a constitutional convention, but it was
rejected in a popular election the same year.B7 Since this election there has
been no attempt to assert jurisdiction pursuant to Public Law 280.
The state claims criminal jurisdiction over the Indians for the offenses of
murder, manslaughter, assault with intent to kill, arson, burglary, and larceiy.?H.
This legislation is invalid since there was no congressional authorization for it."
So far there have been no court tests of the validity of this provision.
The state is seeking a declaratory judgment in federal court against the
Sangre De Christo Development Company, Inc., and the United States, declar-
ing that it has jurisdiction to regulate various aspects of a subdivision project
located on lands leased from the Pueblo of Tesuque.?? The state is seeking to
apply state laws relating to sale and consumption of alcohol, property and
gross receipt taxes, land subdivision controls, water supply and sewage dis
posal, building construction and promotional advertising. This suit, if success-
ful, will frustrate to a large degree federal policy designed to make Indiana
economically sufficient. The Supreme Court has been careful to preserve this
policy. Warren Trading Post Co. v. Arizona Tax Commission.?1
The state can exerese jurisdiction only as Congress provides. The state has
jurisdiction with respect to alcoholic beverages pursuant to federal law 82 and
the state can tax a non-Indian lessee of Indian lands, assuming such is the
case here 83 The remaining regulations cannot be applied unless the secretary
of the Interior has made provision. Public Law 280 clearly specifies that it
does not authorize the "encumbrance or taxation of any property belonging to
any Indian tribe"." As discussed above, the Secretary can make applicable
land-use regulations," and 25 U.S.O. Section 231 authorizes the Secretary to
allow states to enforce health and sanitation laws.
Unless this authority has been so utilized the state has no jurisdiction over
the Indians on their lessees. A contrary result would arguably constitute an
encumbrance on the land. A Washington case, Snohomish County v. Seattle
Disposal Co ?:,?? illustrates the problem. In this case the defendant leased land
from the Tulalip Indian Tribe for a sanitary land fill. The court ruled that the
county had no jurisdiction to require a conditional use permit as it was an
deflnition of
encumbrance.
encumbrance,' butlthelcourt the did follow Supreme Court a pronouncements that
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such words should be interpreted broadly and in favor of the Indians for whom
such legislation is passed."' Application of land use controls can be deemed an
encumbrance because it limits the use to which the land can be put. The state
cannot regulate the lessee either, because this would only be an indirect at-
tempt to do what cannot be done directly.
To allow New Mexico to apply its land-use controls would restrict the uses
to which the Indians can put their land." Congress has provided a mechanism
for the application of such laws. The only way the state can apply these land-
use controls is if the area director has elected to .make them applicable by
provision in the lease, because New Mexico has not obtained jurisdiction pursu-
ant to Public Law 280.70 No other method is permissible or effective.
Not to be intimidated by the state, the Pueblo of Sandia have filed in federal
district court seeking declaratory relief.' They are seeking a declaration that
the state has no jurisdiction to tax or regulate its operation. The outcome will
reflect the problems and analysis presented above with respect to the state's
claim."
NorthDakota
The disclaimer is contained in Article XVI, Section 203 of the State Consti-
tution. It was amended in 1965 to authorize the legislature to take such juris-
diction as Congress grants. The legislaton passed pursuant to Public Law 280
authorizes the state to assume civil jurisdiction over "a tribe or an individual,
if such tribe or individual consents.78 It is unclear if this legislation authorizes
concurrent state and tribal jurisdiction. Possibly an individual or tribe can
condition their consent so that concurrency is the end result.
So far no tribe has given its consent "' An unknown number of individuals
have signed statements accepting state civil jurisdiction.' I have no informa-
tion on how these statements are obtained, or where they are stored. The At-
torney General's office could not specify the number of individuals involved,
which indicates an absence of any central filing procedure. If this, indeed, is
the case, obvious questions of proof come to mind.7e
Oklahoma
The disclaimer is contained in Article I, Section 3 of the Constitution. There
has been no attempt to amend it, nor any legislation parsed pursuant to Public
Law 280.
The state has been given extensive jurisdiction pursuant to a variety of
other federal statutes. The degree of jurisdiction is so great that cases have
held the state to be acting in the capacity of a federal agency.
,South Dakota
The disclaimer is contained in Article 22 of the Constitution. The state at-
tempted to take jurisdiction over all civil and criminal matters within Indian
country pursuant to Public Law 280.10 The Governor was given the power to
assume the jurisdiction by proclamation." In 1965 this legislation was sub-
witted to a referendum and defeated.39
Since that time no further action has been taken, nor is any contemplated.
Utah
The disclaimer is contained in Article III, Section 2 of the Constitution. It
has not been amended.
The state passed legislation in 1971 to obtain criminal and civil jurisdiction
pursuant to the 106$ amendment of Public Law 280. 8' The changes incorporated
in the 196$ Act 82 seem to eliminate the necessity for an amendment of the die-
~claimer. This requirement has so far been successfully avoided in Washington
and Montana, so this change may be of little consequence. What it does: do,
though. is eliminate potential conflict. The Act specifies that consent is given to
amend where "necessary" the State Constitution. Presumably it is left for the
state to decide if such an amendment is necessary.
Consistent with the 1968 Act, the Utah statute requires the Indians to consent
to the extension of jurisdiction se Provision is also made for retrocession " The
latter is arguably unnecessary, but its inclusion forestalls the argument that
state machinery is needed before there can be a retrocession of jurisdiction to
the federal government. Under the state statute, retrocession is automatic on
receipt by the Governor of a tribal council resolution, or if a majority of the
tribal members so request a.; The final arbiter of whether the state takes juris-
diction is the Governor.`
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Washington
See Appendix C herein.
THE SECTION 7 STATES
This section of Public .Law 280 gives the consent of the United States to
those states without jurisdiction to assume it by affirmative legislative action.17
This section applies to those states without any disclaimer provision.
As first enacted, Section 7 gave the states the-option of action, or not, with-
out regard to the Indians themselves. This procedure provoked complaints by
the Indians.which led to the 1968 change making consent a. prior condition"B
Colorado
The state has. taken no action to assume jurisdiction under Public Law 280.
The question first came up in'Whyte v. District Court of Montezuma County."
This case involved an action for divorce brought in state court by the wife.
Both spouses were enrolled members of the Ute Reservation and were mar-
ried there. The coast indicated that the state has no jurisdiction in the absence
of congressional authority. There was no constitution disclaimer, but this was
not controlling as the test is whether Congress has authorized the exercise of
.jurisdiction. In this case Colorado had not complied with Public Law 280;
and as was confirmed in Kennerly v. District Court,90 such compliance is a
condition precedent.
Connecticut
The state exercises no jurisdiction pursuant to Public Law 280. The- single
reservation, Pequot, was established by the state," and is subject to state
supervision. The supervision is exercised through the welfare department.92
The state statute is comprehensive, and has been modified to fit changing
needs. The reservation is declared to be for the exclusive benefit of the In-
dians,?3 and the statute defines Indian ." It is the duty of the welfare commis-
sioner to enforce these provisions''
The original source of this jurisdiction is not ascertainable from the statutes.
The likely source is the original power of Connecticut to deal with Indians
before it became part of the United States.
Florida
The state has assumed criminal and civil jurisdiction"? The exercise of juris-
diction is exclusive B4
Idaho
The state exercises civil and criminal jurisdiction with respect to seven
subject areas 98 These subject areas are : (a) compulsory school attendance ;
(b) juvenile delinquency and youth rehabilitation; (c) dependent, neglected
and abused children; (d) insanities and mental illness; (e) domestic relations;.
(f) public assistance ; and (g) operation of motor vehicles.
Any further assumption of jurisdiction, criminal or civil, is made subject to
tribal consent." After 1968 this requirement was imposed by the federal statute,
of course.
The Idaho statute has been declared to confer jurisdiction that is concurrent
with that exercised by the federal government and tribes.
Whether there has been any extension of jurisdiction or requests for retro-
cession in specific cases is unknown.'
Iowa
The state exercises both criminal and civil jurisdiction.' The legislative
enactments involved were passed in 1959. and 1967, after the enactment of
Public Law 280, so the state claim is presumptively valid. Interestingly, the
state does not feel it necessary to rely on this fact for support' The Iowa
Code provides:
"Every person, whether an inhabitant of this state or any other state or
of a territory or district of the United States, is liable to punishment by the
laws of this state . . . except where it is by law cognizable exclusively in the
courts of the United States..4"
By its own terms this power of the state does not extend into Indian country
because offenses committed there are by law exclusively a federal matter, but in
Iowa the reservation was established by the state.5
In 1896 jurisdiction was given to the United States, which accepted it' This
transfer of jurisdiction contained a reservation by the state of certain rights
and powers ; such as jurisdiction to service process and enforce the criminal
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law on the reservation .7 In 1904 the land was patented to the United States
subject to these same restrictions.
This legislation raises serious questions as to the validity of the states'
claim to have jurisdiction with or without Public Law 280 as a basis. The
Act tendering jurisdiction in 1896 specifies that the rights retained apply
to land "now held or hereafter acquired". Even assuming the state has juris-
diction with respect to the lands granted by them, this does not mean it has
jurisdiction over trust lands given by the United States. Public Law 280 is not
supportive as it clearly denies to the states the right to tax the Indians or
encumber their land. The underlying assumption by the state seems to be that
the federal government is estopped to deny Iowa the right to act in this
fashion.8 Without an extended discussion, it is safe to say estoppel arguments
are not persuasive to courts when applied against the federal government.'
The state has at most civil and criminal jurisdiction over the Sac and Fox
Peservations.10 Claims to be able to exercise powers of eminent domain and
taxation are unfounded. The state had no original authority to treat with the
Indian tribes under the United States Constitution and they cannot bootstrap
themselves just because the state once held the land in trust.
Kansas
The state has jurisdiction only over offenses committed by or against Indians
on Indian reservations.' This is not jurisdiction pursuant to Public Law 280.
The grant of jurisdiction is exclusive." The legislation is self-executing.
Louisiana
The state exercises no jurisdiction over Indians pursuant to Public Law 280,.
or any other federal statute. The exceptions to those are those discussed above,
namely, enforcement of compulsory attendance,' and land-use controls',
Maine
The state exercises no jurisdiction pursuant to Public Law 280. It does exer-
cise extensive jurisdiction pursuant to state law." The reservations are under
state control because of. the historical development of the state. In 1820 the
state agreed to assume treaty obligations executed by the Commonwealth of
Massachusetts before establishment of the Federal Union. Prior to 1966 the'
Indians were under the supervision of the State Department of Health and
Welfare. Since that time a Department of Indian Affairs was established."
Michigan
The state exercises no jurisdiction pursuant to Public Law 280.17 Like Maine,
this state regulates Indians under state law. Indians can sue or be sued in any
court.'" There is no indication of state power over offenses committed on reser
vations, and Indians are deemed exempt from the game laws."'
Mississippi
The state exercises no jurisdiction pursuant to Public Law 280. All reserva-
tions are under federal control"
New York
As indicated above. the state exercises criminal and civil jurisdiction pursu-
ant to a federal statute'
Nevada
The state exercises criminal and civil jurisdiction pursuant to Public Law
280.22 The validity of the state law was tested in court and upheld.' In the
same case (Davis) an earlier statute was struck down as it was enacted before
the effective date of Public Law 280.24
Under the Nevada law, the effective date of the assumption of jurisdiction is
ninety (90) days after July 1, 1955. Prior to the end of the ninety days, the
Board of County Commissioners can petition the Governor to exclude the area
of Indian country within their county from the operation of the statute ; and the
Governor by proclamation honors that petition.' At a later time this exclusion
can be withdrawn.28
In the Davis case there had been an attempted murder of a non-Indian by
two enrolled members of the Pyramid Lake Pauite Tribe. of Indians within the
exterior boundaries of the Pyramid Lake Reservation. The court held that
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exclusive jurisdiction of the offense remained vested in the federal district
court because the County Board of commissioners for the relevant county had
petitioned the Governor for exclusion of the Pyramid Lake Indian Reservation.
The court rejected the argument that the power of the Governor to accept the
petition was an unconstitutional delegation of legislative power.'
Pursuant to the authority of Nevada Revised Statutes 41.430(2), several
counties have petitioned the Governor for exclusion so that the federal govern-
ment retains jurisdiction. The counties are Clark (entire county), Churchill
(entire county), Mineral (entire county), Lyon (entire county), Pershing
(entire county), Humboldt (i\lcDermitt and Summit Lake Reservations only),
Elko (Duck Valley Reservation at Owyhee only), and Washoe (Pyramid Lake
Reservation only ).=0
North Carolina
The state exercises no jurisdiction pursuant to Public Law 280.
Rather, as a result of the history of the Eastern Band of Cherokee Indians,
these Indians are deemed citizens of the state. The Eastern Band of Cherokee
Indians was formed from a remnant of the Cherokees who remained in the
state after the rest of the tribe was forced into the West. By treaty in 1835 it
was provided that those Indians who remained behind could become citizens
of the states wherein they resided2? The state courts indicate that this separa-
tion from the tribe did not destroy the duty imposed on the federal govern-
ment to act in a guardianship capacity ; but the courts treat this duty as apply-
ing to property rights and economic welfare, not to jurisdiction of courts.'?
Whenever the United States Supreme Court has considered the matter, it has
concluded that this tribe is subject to the laws of North Carolina" The rele-
vant state statutes are found in sections 71-1 and 71-722
The state officials agree that with respect to all matters concerning Indian
lands the federal courts have exclusive jurisdiction." This grows out of the
guardianship duty owed by the federal government.
At present the federal government takes the position that the exercise by the
state of criminal jurisdiction is only concurrent as between the state and fed-
eral governments.34 So far no dispute has arisen as to this issue, and the state
seems willing to accept it.' In the absence of a showing of discretionary treat-
ment afforded the Indians in state courts, it is unlikely the federal government
will press its claim.
South Carolina
The state exercises no jurisdiction pursuant to Public Law 280. The sole
reservation, the Catawba, was terminated from federal supervision in 1962.'?
The reservation is now under state control."
Texas
The state exercises no jurisdiction pursuant to Public Law 280. The state
does exercise jurisdiction over the Indians, though. The basis is unclear, but
seems to be involved with the special history of the Republic, and the State
of Texas"
The legislative history behind Public Law 280 indicates that Texas was one
of several states seeking to legislate with respect to Indians fl2 This casts doubt
on the state's ability to act without congressional consent ; at the very least,
Congress had doubts.
In 1967 a state law was enacted authorizing the acceptance of trust responsi-
bilities over the Tiqua Indian Tribe." The assumption was made contingent
on congressional and tribal consent. Clearly, this would be more than Is con-
templated by Public 280. The reaction of the Indians is unknown.
Virginia
The state exercises no jurisdiction pursuant to Public Law 280. The reserva-
tions were established by the state.4' The state :exempts from Game Department
license requirements any Indian who habitually resides on a reservation.42
Wyoming
The state exercises no jurisdiction pursuant to Public 280. The question has
arisen at least twice, and the fact that the state had not accepted jurisdiction
was acknowledged by the court.4'
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F oOTN01 FS
1 25 U,S.C. Sec. 232, 233 (criminal and civil jurisdiction conferred on New York
U.S.C. Sec. 3243 (jurisdiction conferred on Kansas over offenses) ? 25 U.S.C. See) . ;`218
31
(Secretary of the Interior given authority to allow state officials to enforce education?
health and sanitation laws) ; 25 , C.F.R, Sec. 1.4 (Secretary given authority to adopt
state and local land-use controls),
2 New York 25 U.S.C. See. 232 (offenses), July 2, 1948, Ch. 809, 62 Stat. 1224 ; 2:i
C.S.C. Sec. 233 (civil), September 13, 1950, Ch. 845, Sec. 1, 64 Stat. 845. Kansas: 18
U.S.C. Sec. 3243 (offenses),
a 1948 U.S.C.A. 2284,
4 1950 U.S.C.A. 3731.
618 U S C Sec. 3_243, June 25. 1945, Ch. 645, 62 Stat. 827.
6 45 Stat. 1185, 25 U.S.C. Sec. 2:11.
7 25 C.F.R. Sec. 33.3.
6 January 1, 1972 Revised, published In 30 Fed. Reg. 7520 (1965).
6 See Appendix TI (25 C.E.R. Sec. 1.4).
10 30 Fed. Reg. 7520 (1965), Fed. Reg. Doe. 65-6028,
11:30 Fed. Reg. 8722 (1!)65),
12 rbid. at 9699.
13 Ibid. at 11285 (notice to area directors),
1418 U.S.C. Sec. 1162; 28 U.S.C. Sec. 1360.
15 Public Law 00-203; 85 Stat. 688.
16 See Appendix E (Public Law 280).
11 See Appendix P (Resolution of Alaska).
16 Letter from the Ofi'ic"" of the Attorney General of Alaska, October 11, 1972.
10 Whether the reservations are Indeed abolished as a sovereign body makes a differ-
ence, and depends ultimately on congressional intent. The Settlement' Act raises more
questions of purpose and meaning than any legislation in this area, and it will be some
time before all the complications are resolved-
Y0 December 8, 1972, signed Jerry Littman, Chief. Information Services.
zl See Appendix If (IS U.S.C. Sec. 1162; 28 U.S.C. See. 1360).
2 Letter, October 31, 1:472, Edward Branchfleld, Legal Counsel for Oregon,
See Appendix E (letter from the Oregon police).
See Appendix E (Public Law 280).
See Appendix E (Secretary's acceptance of retrocession),
26 187 Nebraska 35 ; 187 N. W.2d 305.
X7187 Nebraska 48, 187 N.W.2d 298.
28460 F.2d 1827 (8th Cir, 1972).
2? 25 U.S.C. Sec. 1323(a).
3? Letter, November 27, 1972, David Mebane. Attorney General's Office.
31 The relevant states are Arizona, Montana, New Mexico, North Dakota, Oklahoma,
South Dakota. Utah and Washington.
32 Act Admitting Colifornia, September 9, 1850, 9 Stat. 452, Ch. 50.
15228 U.S. 243 (1913).
34 69 Cal. 235,
36 104 11. S. 621 (1881) .
3611,4 U.S. 375 (1886).
37 Act of Congress, May 3, 1875.
31, 33,5 U.S. 217' (1959).
36Tbid. at 219,
40 ibid, at 220.
41 S:alivan, John, "State civil rower Over Reservation Indians", 33 Montana Law
Review, 291,
42400 U.S. 423 (1971).
'- The court's reference to Sec. 7 is correct. Agreed, Montana Is a Sec. 6 state but
that section only gives consent to the states to assume jurisdiction as provided by the
rest of the statute.
44 400 U.S. at 425.
Most disclaimer clause, are in the following form : Indian In rids shall remain under
the absolute jurisdiction and control of the Congress of the United States.
46 A.G.O. No. 60-63.
47 Arizona Revised Statutes 36-1801, effective February 9, 1967 (air) ; Arizona Re-
vised Statutes 36-1865, effective March 16, 1967 (water).
4,9 A.G.O. No. 60-30,
10 Statement by George Dysart, Solicitor's Office, Portland, Oregon,
50496 P,2d 78 (Montana 1972),
61 This information from Cranston Hawley, Tribal Judge, Fort Belknap Reservation,
Montana.
52 Revised Code of Montana, 1963, 83-801 et seq.
63 Ibid. ,43--802.
64 Tltid. 83-803,
55 Parker, Alan, "State and Tribal Courts in Montana: The Jurisdictional Relation-
ship", 33 lfontan.a Law Review 277.
60 New Mexico Constitution, Article 19, Sec. 14.
61 Letter, October 4, 1972, Office of Attorney General, Thomas Dunigan, Assistant
Attorney General.
es New Mexico Statutes Annotated 41-21-7.
60670 W20 668. 425 P.26 22 (1067), cert. denied, 389 U.S. 1010 (.1967).
07 The court defined an encumbrance as any burden upon land depreciative of its
vairo, s.-eh is a lien, easement, or servitude, which, though adverse to the interest of
the landowner, does not conflict with his conveyance of the land in fee.
0? Davis v. Warden, Nevada State Prison, 8S Nevada Advisory Opinion 118 (1972).
'Letter. October 4. 1972, Office of the Attorney General
6i 3;;?0 U.S. 6.45 (1965).
6218 U.S.C. Sec. 1101. August 15, 1933, Ch. 302, Sec. 2, 67 Stat. 586.
61 Oklahoma Tax Comm. v. Texas Co., 336 U.S. :342.
03428 U.S.C. See. 1.360(a).
6525 C.F.R. Sec, 1.4. As previously indicated, this authorization has been delegated
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.
Squire v. Capoeman, 351 U.S, 1 (1956).
e5 Not all courts accept the view that land use regulations are an encumbrance, feel-
ing rather that it is a legitimate exercise of the policy power of the state. See S
1llcQuillin Municipal Corporations, , Sec. 25.10 (1965).
75 See notes 11 and 12.
71 Letter, October 4, 1972, Attorney General's Office.
12 The result should be the same, i.e., the state has no jurisdiction. Unfortunately,
gambling and its incident operations could be regulated under some theory of the state s be d lof icasesr trea
baI we are, d per Ice, th5nca correctl application of~ theoprinciplesi of
interest in its s I ting gambling ascitizen
law involved in the dispute.
73 North Dakota Century Code Annotated 27.19.
?4 Letter, October 11, 1972, Attorney General's Office, Paul Sand. First Assistant.
75 Ibid.
7u It is not clear how these statements are kept. It is unlikely each Indian carries a
card, or has a tattoo on his forehead.
17 Cohen, Felix S., Handbook of Federal Indian Late, p. 119. Sec, also Ch. 23, Sec. 3-10.
78 South' Dakota Revised'-Statutes 1-1-18, Ch. 467, Laws of 1963.
70 South Dakota Revised Statutes 1-1-21.
80 201,389 against, 58,289 for ; letter, September 20, 1972, Office of Attorney General,
Walter Andre, Assistant.
81 Utah Code 63-36--9 et seq. (1971).
82 Public Law 90-284, Title IV, Sec. 404, 82 Stat. 79, codified in 25 U.S.C. Sec. 1324
(see Appendix).
80 Utah Code Annotated 63-30-10.
84 Ibid. 63-36-15.
65 Ibid..
80 Ibid. 63-36-11.
87 Ch. 505, Sec. 4, 67 Stat. 589, historical note (see Appendix).
88 Public Law 90-284, Title IV, Sec. 403, 82 c tat. 79.ied, 363 U.S. 829.
80140 Colorado 334, 346 1.2d 1012 (1959),
90400 U.S. 423 (1971).
it Letter, October 10, 1972, Office of Legislative Research, Richard E. Neier, Senior
Research Specialist.
02 Connecticut General Statutes Annotated 47-60 et seq.; 47-60 (conveyances of land adv by Tridialis v(19 (19 47) 64 7(u e oflrese vl tions)o (1961) ; 477-6 os(duties)of lwelfare com
mis-
si (definitions 47-66 (tribal funds) (1961).
n1d5b10neT) (1961) 961) ,
93 Ibid. 47-64.
84 Ibid. 47-63.
55 Ibid. 47-O5.
9a Florida Statutes Annotated 258.16, derivation laws of 1961, Ch. 61-252, Sec. 1 & 2.
97 Ibid. Ch. 61--252, Sec. 2.
08 Idaho Code 67-5101.
99 Ibid. 67-5102.
'Failed to receive an answer to correspondence directed to the Governor and the
Attorney General.
2 In 1959 the state legislature provided for law enforcement on the Sac and Fox
Reservations by authorizing salary and expenses of a deputy sheriff for the relevant islat Annotttedr which 137.12, Code forlthe enforcement) of theurcivile of thelstate onCthe
count reservation.
3 Letter October 26, 1972, Department of Justice, Elizabeth Nolan.
Iowa 'ode Annotated. Sec. 753.1. whether the Indians pur-
chased s It is not so clear if the state set this reservation up, or
the land themselves. Cohen, Federal and State Indian Reservations.
0 Ch. 110, Acts of the 26th General Assembly.
7 Sec. 3, Ch. 1.10. Nothing contained in this Act shall be so construed as to prevent
Act
on an of the las
e of returnable to anyncourt Loft this ostatetor Judge, servicor to prevent csuchi by or aainst laws saiid Indi ns Jurisdictin
other of orcofsuch crimest omm ttedfbyoA idcIndianse in any part of this main
and the
of hi
exerc of state,-
eminent donainhnnderflthde lawstofathis stategov rylands now held for
he or rights prent the
hereafter owned by or held in trust for rsaid Indians, or rprad e9ent thestaxaatioon of said
of later
lands for state, counts, bridge, county 8 See Vestate,,on v. Spotted 17dk., 35 oad, a 432 (N.D. 1.937 - An analysis
cases shows this case to be discounted whenever the question comes up. See especially
164 N.W.2d Is borne a This 891- out in the area of Indian law by the cases beginning with Williams v.
Lee and ending with Kennel-W.
10 There. It room for dispute as to the existence of criminal he i dictio . Spree.Pe7ed'ir e langage quires affirmative legislative commitment (Kcnurerll), though
this ? allows the state to use "such manner" as is appropriate. In Iowa, the only legis-
lative action has been the provision for paying an additional deputy sheriff. Whether
this is enough Seof a commitmt makes c 3248, Ji ne 23. 1948.LC1tn645. 62gStats 827.
z 18 U.S.C. 1 Ibid.. "To ,C. the same extent as its courts have jurisdiction over offenses committed
elsewhere within the state."
13 25 C F.R Sec. 33.3.
. oo fee 4701 et seq. -
14 2 5 C.F.R Sec. 1.4
ie Maine Revised Statutes Annotated
18 Cohen, Federal and State Indian Resrevations.
11 Letter, October 10, 1972, Attorney Generals Office. Curtis Beck, Assistant.
is Michigan Statutes Annotated 27A.2011. In general see Callaghan's Michigan Civil
J1rl ssdicti.on, Indians S-e. 2. ivileges)
WiMl. 13.1355-(2) 13.1340 (preserve hunting pr 13.1623 (exempt from
ro bat plans, if any. MissdssiPPd has in this regard are Unknown as the state has
$shing lflwsl. - _
not responded to inquiries.
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7.24
zi The state law is found in Art. 25, See. 2 of McKinney's Consolidated Laws of New
York.
12Nevada Revised Statutes 41.430.
2aDaris V. Warden, Nevada State Prison, 88 Nevada Advisory Opinion 118 (July 21,
1972).
24 Nevada Revised Statutes 194.030, Davis, page S. note 4.
sslbid. 41.430(2).
I bid. 41,430(3).
27 Davis, page 4.
28 Letter, September 27, 1972, Office of Attorney General, Julian Smith, Jr., Deputy
Attorney General.
Treaty of New l.`chota, Art. XII.
ao State v. McA]haney, 220 N.C. 387, 17 S.E.2d 352.
"Utah Power and Light Co. v. United States, 243 U.S. :359 (1916) ; Eastern Band of
Cherokee Indians v. United States and Cherokee Nation., 117 U.S. 288 (1886).
a? Statutes of North Carolina, See. 71-1 (subject to the rights and duties of all citi-
zens).
&1 Letter October 5, 1972, Department of Justice Ralph Moody, Special Counsel to
Attorney Ueneral.
34 Ibid.
85 Letter, October 5, 1972, Attorney General's Oftlee, Kenneth Fish, Legal Assistant.
38 25 U.S.C. See. 931 at seq., Public Law .56-732, Saac. 1, 73 Stat. 592.
37 Cohen, Federal and State Indian Reservations. See also 25 U.S.C. See. 935.
38 The State Attorney General was not exactly helpful, claiming a state statute re-
stricted his lving of legal assistance.
32 195 3 U.S.C.A. 2409.
40 Texas Statutes Annotated, Art. 5421.7-1..
41 Cohen, Federal and State Indian Reserrations.
*- Code of Virginia (1952) Sec. 29-52.
'' Letter, October 12, 107 , Attorney General's Office, Fred Reed, Assistant Attorney
General.
ArP3Nirx E
PUBLIC LAW 280 AND RELATED DOCU MENTs
[13.R. 83.17, 93d Cong., 1st Sess.)
BILL To amend section 1326 of the Civil Rights Act of April 11, 1965 (82 Stat. SO ;
Public Law 90-2S4), rels.ting to State civil jurisdiction in actions to which In-
dians are parties, and State jurisdiction over offenses committed by or against
Indians in Indian country
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembtcd, That section 1326 of the Civil Rights
Act of April 11, 1965 (82 Stat. 80; Public Law 90-284), is hereby amended
to add the following thereto :
"State jurisdiction heretofore acquired over Indian tribes, bands, or groups
which were and still are duly recognized as Federal Indian tribes by the
United States Government who were unilaterally brought under Public Law 280
(Act of August 15, 1053; 67 Stat. 589, as amended August 24, 1954, 68 Stat. 795)
without having previously consented thereto are hereby granted the right
to remove themselves from all or such measure of the State jurisdiction
conferred by said Public Law 280 as they are agreeable to : Provided, That
such tribe, band, or group initiates positive action to evidence their unwilling-
ness to consent to the continuation of such jurisdiction, in whole or in part,
in the form of a special election by a majority vote of all eligible adult Indians
voting at such election held for that purpose. The Secretary of the Interoir
shall call such special election under such rules and regulations as he may
prescribe, when requested to do so by the tribal council or other governing
body, or by 20 per centum of such enrolled adults. Following said special
election the tribe, band, or group of Indians involved shall notify the appropri-
ate secretary of state and the Secretary of the Interior of the results of any
such election within ninety days thereafter.
"The right of removal from State jurisdiction hereby conferred upon any
tribe, band, or group shall not require the consent of the appropriate State
if they desire total removal therefrom, but if they desire to be selective by
giving their consent to a limited State jurisdiction over certain areas of crim-
inal and civil matters in Indian country, then the consent of the appropriate
State must first be obtained for anything less than total transfer from the
State to the United States Government.
"In the event that, any such tribe, band. or group of said federally recognized
Indians sees fit to exercise the rights conferred by this amendment, the United
States Government is hereby authorized to resume jurisdiction following their
removal from the jurisdiction of the State.
"Any removal action by a tribe under this amendment will not become effec-
tive for a period of one year following notification thereof to the appropriate
secretary of state, and the Secretary of Interior."
25 C.F.R. 1.4 (Rev. Jan. 1, 1972) 30 F.R. 7520 1965 June 9.
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(a) Except as provided in paragraph. (b) of this section * * * none of the
laws, ordinances, codes, resolutions, rules or other regulations of any state
or political subdivision thereof limiting zoning or otherwise governing, regulat-
ing or controlling the use or development of any real or personal property * * *
shall be applicable to any such property leased from or held or used under
agreement and belonging to any Indian or Indian Tribe * * * that is held
in trust by the U.S. or is subject to a restriction against alienation imposed
by United States.
(b) The Secretary of Interior * * * may in specific cases or in specific geo-
graphic areas adopt or make applicable to Indian lands all or any part of
such laws, ordinances * * * referred to in paragraph (a) * * * as he shall
determine to be in the best interest of the Indian owner or owners in achieving
the highest and best use of such property. When deciding whether to adopt
these laws etc. secretary can consult with Indians and may consider use of
property in locale 7 (30 F.R. 7520, June 9, 1965).
Executive Order 11435 Nov. 21, 1968.
Designating the Secretary of the Interior to accept retrocession can be done
by the Secretary without approval, ratification, or other action of the President
or any other officer of the United States. (Publication in the Federal Register
necessary. Retrocession of criminal jurisdiction only after consultation with the
Attorney General).
Nebraska Omaha Reservation Retrocession
Pursuant to authority vested in the Secretary of the Interior by Executive
Order No. 11435, I hereby accept, as of 12:01 A.M., E.S.T., October 25, 1970,
retrocession to the United States of all jurisdiction exercised by the State
of Nebraska over offenses committed by or against Indians in the areas of
Indian country located within the boundaries of the Omaha Indian Reserva-
tion of Thurston County, Nebraska, as follows : ----------------------------
(description of boundaries)
except offenses involving the operation of motor vehicles on public roads or
highways which retrocession was tendered and offered by legislative resolution
No. 37.
HOUSE JOINT RESOLUTION No. 72, IN THE LEGISLATURE OF THE STATE OF ALASKA
Relating to a requested amendment of Public Law 85-615 which would give the Met-
lekatia Indian Community criminal jurisdiction over minor offenses concurrent with
the state's jurisdiction.
Be it resolved by the Legislature of the State of Alaska:
Whereas since 1944 the community of Metlakatla has had its own magistrate
and police force with certain limited criminal jurisdiction pursuant to its
constitution adopted under federal law ; and
Whereas in 1958, the United States Congress passed Public Law 85-615 ex-
tending state criminal jurisdiction over all the Indian territory of Alaska which
had previously been under territorial law; and
Whereas the community of Metlakatla was unaware of the change in the
law until years later and continued acting under its local police powers ; and
Whereas Public Law 85-615, by delegating total criminal jurisdiction to the
state, works a great hardship on this community because the state police
have limited manpower making it impossible for them to deal effectively with
minor criminal offenses in the somewhat isolated community of Metlakatla ;
and
Whereas Public Law 85-615 destroyed the effectiveness of the local police
and judiciary and created a gap in law enforcement in the area ; and
Whereas an amendment giving this community concurrent criminal jurisdic-
tion is not without precedent in laws dealing with the Indians in that a
similar arrangement exists between the state and Indian communities in Idaho
and there are specific exceptions to 18 U.S.C. 1162;
Be it resolved that the Congress of the United States is respectfully urged
to amend Public Law 85-615 to give the community of Metlakatla concurrent
criminal jurisdiction over minor offenses.
Copies of this Resolution shall be sent to the Honorable Lyndon B. Johnson,
President of the United States ; the Honorable Stewart L. Udall, Secretary
of the Interior; the Honorable John W. McCormack, Speaker of the House ;
the Honorable Carl Hayden, President Pro Tempore of the Senate ; the Hon-
orable Wayne N. Aspinall; Chairman of the House Interior and Insular Affairs
Committee ; the Honorable Henry M. Jackson, Chairman of the Senate Interior
54-398-75-9
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126
and Insular Affairs Committee ; and to the Honorable E. L. Bartlett, and the
Honorable Ernest Gruening, U.S. Senators; and the Honorable Howard W.
Pollock, U.S. Representative, members of the Alaska delegation in Congress.
Mr. OWEN PANNER,
Attorney at Law,
1026 Bond St.,
Bond, Oreg.
DEAR MR. PANNER: This letter shall constitute an agreement of understanding
with the Tribal Council of the Confederated Tribes of the Warm Springs
Reservation of Oregon concerning the deployment of State Police at or near the
Kah-Nee-Ta recreational facilities for the purpose of law enforcement and
maintenance of peace. The State Police will assist the Tribal Council along
the lines mentioned in your letter to the Attorney General dated March 16,
1972. The State Police will be called upon to assist only in emergency situations
which are beyond the capacity of the Tribal Police and where specifically
requested by the Tribal Police. State Police officers will in their discretion
arrest any persons who are not members of the Confederated Tribe and who
have violated the state law. It is understood that the State Police have
authority under state law to arrest Indians and non-Indians alike who are
not members of the Confederated Tribes of the Warm Spring Reservation.
It is further understood that the Tribal Council will arrange to have the
following officers who are stationed near the Reservation area deputized with
Deputy Special Officer commissions from the U.S. Department of Interior,
Bureau of Indian Affairs, which would authorize them to enforce tribal regu-
lations. However, as a matter of policy the State Police will not exercise this
authority, but would rather leave this responsibility to the Tribal Police. The
purpose of deputizing State Police is that in cases where doubt exists as to
an offender's identity, the State Police will be empowered to take the offender
into custody and deliver him to the Tribal Police headquarters for identifica-
tion and turn him over to the appropriate jurisdiction. The State Police officers
are : 2nd Lt. Laidum W. Brockway, Sgt. Jackie L. Crisp, Cpl. LeRoy Carstensen,
Troopers Elmer L. Wulf, Russell D. Wymors and Wayne A. Lee.
In addition, the Tribal Council will make arrangements for prompt deputiza-
tion of other State Police officers called on a scene where heavy commitment
is requested of the State Police by the Tribal Council.
If these conditions are agreeable to the Tribal Council, I would appreciate
your advising me with a copy to the Attorney General.
Yours very truly,
HOLLY V. HOLCOMB, Superintendent,
Department of State Police,
Salem, Oreg.
CHAPTER 1.-A SHORT IIISTORY OF FEDERAL POLICY VACILLATION TOWARDS INDIANS
1U.S. (5 Pet.) 1 (1831).
U.S. (6 Pet.) 515 (1832).
3 25 U.S.C. See. 71 (1964).
Commager, Henry, Documents of American History, 7th ed., (New York : Appleton-
Century-Crofts, 1963), at 260-61.
1Ibid. at 556.
6 Hearings Before the Committee on Indian Affairs, U.S. Senate Committee on Indian
Affairs, Feb. 27, 1934, Senate 2755, at 16.
9F. Stipp. 899 (1938).
848 Stat. 984, 25 U.S.C. Sec. 461 (1934).
9 Comments of Rep. Howard of Nebraska, as reported In Congressional Record, 73rd
Cong.. June 14-18, Vol. 78, Rart II, 1934, at 11732.
10 "Preliminary Statement of American Indian Chicago Conference, held at the Uni-
versity of Chicago, June 13-20, 1961, at 15.
"Now codified as : 18 U.S.C. Sec. 1162, 28 U.S.C. Sec. 1360.
12 See letter from Orme Lewis, Assistant Secretary of the Interior, U.S. Code Cong. cc
Ad. News, Vol. IT, 83rd Cong., 1st Bess. (1953), at 2413-14.
13 See Orme Lewis letter cited in footnote 12.
14 U.S. Code Cong. h Ad. News, Vol. III, 91st Cong., 2nd Bess. (1970). at 4785.
16 See Report of Senate Committee on Interior d Insular Affairs, U.S. Code Cong.
d Ad. News, Vol. II (1953) at 2412.
16 53 W.2d 789, 337 P.2d 33 (1959). A law review article written earlier In 1959 by
two third-year law students. Carr and Johanson, incorrectly predicted an opposite result
In State v. Paul. See 33 Wash. L. Rev. 289 n(19539? U.S. 907.
368 F.2d 648 (9th Mr. 1966),
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78 25 U.S.C. Section 1321(b). The entire section reads thus : (b) Alienation, encum-
brance, taxation, and use of property ; hunting, trapping, or fishing. Nothing in this
section shall authorize the alienation, encumbrance, or taxation of any real or personal
property, including water rights, belonging to any Indian or any Indian tribe, band, or
community that is held in trust by the United States or Is subject to a restriction
against alienation imposed by the United States ; or shall authorize regulation of the
use of such property in a manner inconsistent with any Federal treaty, agreement, or
statute with respect to hunting trapping, or fishing or the control, licensing, or regula-
tion thereof. (Public Law 90-2914, title IV, Section 401, April 11, 1968, 82 Stat. 78.)
1218 U.S.C. Sec. 1162(c). '
2O For an analysis of the proposed Colville Termination bills, see Holland, "The Last
Days-An Inquiry into the Proposed Colville Termination", in Volume II of Studies in
American Indian Law, R. Johnson, ed., (1971).
21 "President Johnson Presents Indian Message to Congress", Indian Records (March
1968) at 28.
22 25 U.S.C. Sec. 1.326.
21 25 U.S.C. Sec. 1323.
24 Senate Report 92-5561, National American Indian Policy, December 7, 1971 (To
accompany S. Con. Res. 26).
CHAPTER 2.-STATE JURISDICTION OVER INDIAN RESERVATIONS IN THE
STATE OF WASIIINGTON
21 See R.C.W. 37.12.020--070.
20 See R.C.W. 37.12.010-070.
27 The full Section 2 (now repealed) provided : Whenever the governor of this state
shall receive from the tribal council or other governing body of any Indian tribe, com-
munity, band, or group in this state a resolution expressing its desire that its people
and lands be subject to the criminal and civil jurisdiction of the State of Washington
to the extent authorized by federal law, he shall issue within sixty days a proclamation
to the effect that such , andrlands jurisdiction of thel Indian tbodyl InIndians volved ind acall Indian cordance weitht the
of this chapter : Provided: That with respect to the Colville, Spokane, or
chapter : Pr
Yakima tribes or reservations, he shall not issue such proclamation unless the resolu-
tion of the tribal, council has been ratified by a two-thirds majority of the adult en-
rolled members of the tribe voting in a referendum called for. that purpose.
28 Ch. 240, Laws of 1957, Sec. 6. Now codified as R.C.W. 37.12.060.
2O Ch. 240, Laws of 1937, See. 7. Now codified as R.C.W. 37.12.070. Any tribal ordi-
nance or custom heretofore or hereafter adopted by an Indian tribe band, or comma-
nity in the exercise of any authority which it may possess shall, if not, inconsistent
with any applicable civil law of the state, be given full force and effect in the deter-
mination of civil causes of action pursuant to this section.
3u See Appendix C for a complete list of governors' proclamations asserting- jurisdic-
tion over Indian reservations in Washington.
31 R.C.W. 37.12.060.
32 R.C.W. 37.12.070.
81 R.C.W. 97.12.021. Whenever the overnor of this state shall receive from the major-
ity of any tribe or the tribal council or other governing body, duly recognized by the
Bureau Indian rInian at its tribe,
people and Bands ba or be subject to the
a resolution expressing its dsir any th criminal
or civil jurisdiction of the State of Washington to the full extent authorized by federal
law, he shall issue within sixty days a proclamation to the effect that such jurisdic-
tion shall apply to all Indians and all Indian territory, reservations, country, and lands
of the Indian body involved to the same extent that this state exercises civil and crimi-
nal jurisdiction or both elsewhere within the state; Provided, That jurisdiction assumed
pursuant to this section shall nevertheless be subject to the limitations set forth in
R.C.W. 37.12.060.
34 R.C.W. 37.12.010.
35 Art. 26, Sec. 2, Wash. State Const.
30 See "Extent of Washington Criminal Jurisdiction Over Indians", by Carr and Johan-
son, 33 Wash. L. Rev. 289 (1958).
M1753 W.2d 789, 337 P.2d 33 (1959).
38 868 F.2d 648 (9th Cir. 196(1), cert. denied 387 U.S. 907.
39 76 W.2d 645, 457 P.2d 590 (1969).
4025 W.2d 652, 171 P.26 838 (1946).
41 25 W.2d 652 at 653.
42 53 W.2d 789 at 794.
4? The confusion as to the relevant section was not helped by the later cases. Arquette
v. Schneckloth,P.2d 921 (1960) 560 W.2d 178, 351 cites Section 6 as the relevant pro-
vision, while Adams v. Superior Court, 57 W.2d 181 356 P.2d 985 (1960) cites Section
7. Both sections were cited in Somday v. Rhay, 67 'V.2d 180, 406 (1965) but only Sec-
tion 6 in state v. Bertrand, 61 W.2d 333, 378 P.2d 427 (1962). The most recent case,
Makah Tribe v. State. 76 to 645, 457 P.2d 590 (1969) cites both sections.
44 U.S. Code Cong. ci Ad. News, Vol. II (1953) at 2409, 2412.
45 It should be lwinted out that the Quinault situation poses special problems. Juris-
diction was extended to the Quinaults under a resolution to the Governor purporting to
come from the Tribal Council. Governor Rosellini later determined that the tribal reso-
lution was defective and proclaimed a return of jurisdiction over the. Quinaults to the
United States. Each side regarded the other as having- jurisdiction over the Quinaults
and neither enforced any law on the -reservation. The Gallagher suit was brought in an
attempt to resolve this situation. For an analysis of this problem, see Newman "Juris-
diction Over Indians and Indian Lands InWashington", in Vol. I of Studies in American
Indian Law; It. Johnson ed. (1970).
46 368 F.2d 648 (9th dir. 1966) at 656.
47 This figure is the sum of acreage of the ten reservations that have -elected state
Washingtonareas is of the shown In Appendix D reservations. Acreage on the
diferenti reservations innon-trust
48 12 a9 765W.2dr 8(39 964).
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11 The word-magic that is required to arrive at the conclusion that this partial as-
Sumption of jurisdiction is not a partial assumption of jurisdiction is made obvious
when one reads the April 1972 opinion of the Washington Attorney General (A.G.O,
1972 No. 9), when he says that "partial jurisdiction . was assumed by the 1963 Act."
5t Lause No. 2732, U.S. District Court, Eastern District of Washington, Southern
Division Opinion filed Dec. 1, 1972. gg
L2 A -Pity concerned study nature of law and justice systems stems In F'erryy 2 dinOk? n gon Counties
as it relates to the Colville Indian Reservation. The investigators sought to answer two
questions: (1) whether the arrest rate for Indians increa:+-es considerably during "per
capita" time, and that fines for offenses increases at this time (thus providing a source
of revenue for the county treasury), and (2) whether law and order is not enforced
on the reservation by county and state officials. The Report of the study concludes : The
data gathered from the court records do not support the hypotheses that fines increase
during or just after dividend/per capita payments, but that there is weak evidence that
the number (or proportion) of Indian arrests do increase. It is evident, however, that
the 'quality' of law enforcement has declined over the years (at least with regard to
Ferry County) and it seems apparent that very few arrests take place on the reserva-
tion. It is also quite clear from the opinion survey that the Indians do not think they
are getting adequate protection and that law enforcement officers do not pay attention
to complaints. Generally speaking, it appears as though the Indian population is dis-
satisfied with law enforcement on the reservation. This is in marked contrast with the
non-Idian population, who on the whole feel satisfied with law enforcement in their
respective areas. There is also strong support for the establishment of an Indian police
force and Indian Courts. One critic of this study concludes that the data in the stud,
plus other published data not there considered demonstrat,> an even stronger case of
.discrimination against Indians than is shown in the conclusion to the study. Arrests of
Indians, it is said, are "wholly out of proportion to their percentage of the population.
This runs as high as a factor of 4% in Okanagon County to a factor of 3.8 in Ferry
County." Letter from William T. Scanlon to Gerald P. Boland, Feb. 10,1973.
The Arizona legislature recently moved to solve this problem by enactment of the
following statute : See. 1., Title 13, Ch. 4, Art. 7, Arizona Revised Statutes is amended
by adding section 13-1364 to read : 13-1364. Indian police; powers; qualifications. A.
While engaged in the conduct of his employment any Indian police officer appointed by
the Bureau of Indian Affairs or the governing body of an Indian Tribe as a law enforce-
ment officer and holding a certificate of qualification and training from the director of
the Department of Public Safety shall possess and exercise all law enforcement powers
of peace officers in this state. B. Each agency appointing any Indian Police officers pur-
suant to this section shall be liable for any and all acts of such officer acting within
the scope of his employment or authority. Neither the state nor any political subdivi-
sion shall be liable for any acts or failure to act by any such Indian pollee officer.
fi* Wash. A.G.O. 1972, No. 9.
55 The Attorney General argued that if the Governor could do this, within his discre-
tion, an incongruity would be presented. Under the 1963 Act the governor must declare
state jurisdiction over an Indian reservation upon receipt of a proper petition from the
governing body of the tribe, however, if the governor has discretionary power to return
jurisdirction then he could "immediately or at any time thereafter" change his mind
and issue a "proclamation of retrocession". Wash. A.G.O. 1972, No. 9.
6845 Stat. 1185 (1929 Amended 60 Stat. 962 (1946) codified as 25 U.S.C. Sec. 231.
67 In fiscal year 1970, 4,411 new civil type cases were reported as filed in Indian
courts. Some 5,304 were filed in 1969. Nearly $/4 of the 3,059 pending civil cases at the
end of fiscal year 1970 were in the courts of the Navajo area. "The Combined Tribal
and Bureau of Criminal Justice Services Statistical Report F.Y. 1970", (Division of
Judicial. Prevention, and Enforcement Services, Bureau of Indian Affairs) at 56.
68163 U.S. 376 (1896).
CHAPTER 3.---THE REMEDY
59- F. Supp. --, Civil No. 72-56-67 (D.C.S.D. Cal- 1972). The federal court
permanently enjoined the County Sheriff from interfering with tribal game wardens who
had confiscated a non-Indian's firearms for violating tribal .and federal ordinances
about hunting on the Fort Yuma Reservation in California.
60 Sec. 1165. Hunting, trapping, or fishing on Indian land. Whoever, without lawful
authority or permission, willfully and knowingly goes upon any land that belongs to
any Indian or Indian tribe, band, or group and either are held by the United States in
trust or are subject to a restriction against alienation imposed by the United States.
or upon any lands of the United States that are reserved for Indian use, for the pur-
pose of hunting, trapping, or fishing thereon, or for the removal of game, pelties, or
fish therefrom, shall be lined not more than $200 or imprisoned not more than ninety
days, or both, and all game, fish, and peltries in his possession shall be forfeited. (Added
Public Law 86-634. Sec. 2 (July 12, 1960) 74 Stat. 469.)
1 Sec. 1853. Trees out or injured. Whoever unlawfully cuts, or wantonly injures or
destroys any tree growing, standing, or being upon any land of the United States which.
In pursuance of law, has been reserved or purchased by the United States for any public
use, or upon any Indian reservation, or lands belonging to or upon any Indian reserva-
tion, or lands belonging to or occupied by any tribe of Indians under the authority of
the United States, or any Indian allotment while the title to the same shall be held in
trust by the Government, or while the same shall remain inalienable by the allottee
without the consent of the United States, shall be fined not more than $1,000 or im-
prisoned not more than one year, or both. (Act of June 25, 1948, Ch. 645, 62 Stat. 787.)
69 See discussion of this case in text with footnote 51, infra.
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LIST OF ABBREVIATIONS
Following is a list of abbreviations used throughout this document :
Ad. Administrative
A.G.O. Attorney General's Opinion
ante. Above
Art. Article
C.F.R. Code of Federal Regulations
Cal. California
cert. denied Certiorari denied
Ch. Chapter
Cir. Circuit
Cong. Congress/Congressional
D.C.S.D. District Court, Southern District (Federal)
Doc. Document
ed. Editor/Edition
et al. And others
F.2d Federal Reporter, Second Series
F. Supp. Federal Supplement
Fed Reg. Federal Register
Ibid. In the same place
i.e. That is
infra Within
In re In the matter of
N.W.2d North Western Reporter, Second Series
P.2d Pacific Reporter, Second Series
Pet. Peters
R.C.W. Revised Code of Washington
S.Con.Res. Senate Concurrent Resolution
Sec. Section
Sess. Session
Stat. Statute
U.S. United States Supreme Court Reports
U.S.C./U.S.C.A. United States Code/United States Code Annotated
v. Versus
Vol. Volume
W.2d Western Reporter, Second Series
Wash. Washington
Wash. L. Rev. Washington Law Review
STATEMENT OF JAMES B. HOVIS, ATTORNEY, YAKIMA TRIBAL
COUNCIL, YAKIMA, WASH.
Mr. IIovis. I know we have some very short time in regard to this
record, and I will try to be very brief in an overview of my
statement.
First I would like to thank the committee for the time here today.
And, secondly, I want to report to you that your staff, both minority
and majority counsel, have been most generous with their time in
trying to understand some of the problems that I have with S. 1,
and. I think that this has been very helpful to me and I hope I have
been helpful to the staff.
This Indian situation is somewhat complicated because it is a little
different situation than this committee deals with every day. I do not
join in the remarks of Mr. Pirtle, of wanting this committee to delay
action in regard to this matter.
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130
The reason why is because the enactment of Public Law 280 of the
B'3d Congress has provided in the State of Washington a system of
justice upon the Indian reservation that creates on a reservation a
total lack of law and order.
Since the State has moved in in its assumption in 1961, we have
gradually gone downhill. To now the arrests on our reservation are
now sonic 20,000 percent less than they were in 1963.
We leave plenty of law, but no order. So we cannot wait. We have
already lost a decade of our young people with the State having
juvenile authority and not doing anything about it. These juvenile
offenders during this 10-year period are adult offenders today. It is
my experience in working over 20 years in criminal work, that where
you have a family that starts to go the wrong road, and you have
mothers and fathers that are engaged in criminal activities, you are
also going to have kids that will tend to follow criminal activities.
So. Ave have lost a decade of children and we are creating for
ourselves a serious situation that, is emerging on the Indiair reserva-
tions in regard to law and order. Therefore, we would say to this
committee that we do not care how had a job on. S. 1 you do, there
is no possible way that this Congress can destroy law and order as
the 83d Congress did by the enactment of Public Law 280.
There is 110 possible way that you can make a worse system of
justice and law and order than we have today. The talents of man
could not devise a worse system.
We have, on our reservation, a checkerboard system. We have some
Indian lands and non-Indian lands. While 90 percent of the land
on the Yakima Reservation remain in the Indian ownership, in the
more populated areas, some 30 to 40 percent are in non-Indian
ownership.
In the State of Washington we have full State jurisdiction on
non-Indian land. Exclusive full State jurisdiction on these non-
Indian lands. Then we have tribal jurisdiction and Federal jurisdic-
tion on Indian lands, except for eight enumerated categories that
are undefined-these categories are compulsory school attendance,
public assistance, domestic relations, mental illness, juvenile de-
linquency, juvenile dependency, adoption, and, operation of motor
vehicles on the public streets and highways.
They are not defined, so they are left to the discretion of
State officials, and it is a complete breakdown--a complete break-
down of law and order on our reservation.
We need the attention of this committee for some action to restore
order, and to devise relief to protect the person and property of the
people on the Yakima Reservation.
I would suggest that to settle this c uestion between the Indian
people who are taking the position that IN-Tr. Pirtle is, and the
people who are taking the position that my tribal council does, that
we provide that where the tribes consent to the provisions of S. 1,
that this title shall apply on that reservation,
And, that when they vote to accept this title in its entirety, that
this title shall then apply on the reservation, and supersede all
other Federal laws like the Thirteen Major Crimes Act, the Assimu-
lative Crimes Act and Public Law 82-280.
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Then we can get back to primary Federal jurisdiction on the
Yakima Reservation, still retaining the tribe's right to maintain
concurrent jurisdiction for the tribes to maintain their own law and
order system over their own members, and the State's jurisdiction to
maintain its own law and order on the non-Indian lands and reserva-
tion over non-Indians.
Now with these three current jurisdcitions it may create a triple
jeopardy situation. We therefore need an amendment that when a
non-Indian is punished under State law, he shall not come under-
neath this title, and if an Indian is punished underneath a tribal
law, lie shall not come underneath this section, so they can all
work together, but without double or triple jeopardy.
Also this bill should provide for these tribes within the State of
Washington that, want to retrocede part of the State jurisdiction,
that they be allowed to do this, piecemeal. Those who wish to
get completely out front under Public Law 83-280, may do so and
those who wish to maintain a portion, may do so. This will allow
different choices on different reservations.
The amendments I have in our statement will allow tribes, who
are sovereign governments on the reservation, to have some control
over what would be best. If this is done S. 1 will give protection to
person and property on the Yakima Indian Reservation.
Senator, I cannot tell you how terrible the situation is. We are
spending $300,000 of our own money to remedy the situation., but
we lack authority. We are trying to, do something. We are spending
over $60 of the tribes money for each tribal member. But, where we
do not have the jurisdiction, there is nothing we can do to be effec-
tive. Where we do not have jurisdiction over juveniles they will not
heed our law enforcement officer's direction. The time to take care of
juveniles is when they are committing minor offenses, not when they
have committed a felony.
Aind, when we have tried to tell them, you know, tried to get them
off the streets and to cease drinking and so forth, they know what
jurisdiction is. All these young people apparently have had good
law training. They say to our police officers, you do not have any
jurisdiction. And we get a pretty negative answer from them. It is
creating for us a situation in regard to our children that is most
serious.
Law and order is the most important thing that the Yakima
Indian Nation and its tribal council are concerned about. If you do
not have security, if you do not have law and order in an area, then
you do not have very much of anything else, Senator.
My tribal council has authorized me to tell you that we are avail-
able any time, any place, and in any way, to be of assistance to this
committee.
Now, Senator Abourezk is talking about going forward with this
matter in the Interior 'Committee. That may be all well and good.
At least it has not been handled so far. And, that proposed 2-year
delay gives rue a lot of fear and a lot of concern.
And, I might secondly say, and I am sure that he is sincere in
saying that the subcommittee will be moving forward, but how about
the House subcommittee? Are they going to handle the situation as
soon as this subcommittee?
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Please, I beg of you with all the sincerity I can on behalf of the
people I represent, do not ignore this most serious question on the.
Yakima Reservation and on other reservations. WWTe have to get away
from the State "law without order". They have the law, but they
will not make any arrests. They will not provide adequate personnel
in our reservation.
They will not take care of the situation. whatsoever. So we need
some help to protect the persons and property of people on our
reservation.
I thank you. I am sorry I have exceeded my time.
Senator Hirusins. Your words are not falling: on deaf ears. There
are Indian reservations in my State. I would not want to get into
similarities and differences between your State -and mine, but we
know that we do have problems also. And some of them, when you
described them, fall into well known pitfalls from my own knowl-
edge and observation and it is difficult-a difficult problem.
Senator Ervin labored long to complete what he was able to
produce. And, through the help of some of the rest of u;s in the
Congress, but that does not even solve all the problems.
11Ir. I3ovis. It has not, but the Judiciary Committee, particularly
considering the dedicated interest we had from Senator Ervin, has
been very helpful in this Public Lase 83-280 question.
This is the only Committee where we have gotten any relief,
Senator. The other Senate committees have been unable to get their
counterparts in the House to coordinate any Public Law 83-280
activity.
Senator HrtrsrcA. Thank you, for two things. Thank you for Your
statement, and your explanation of it. Secondly, for your offer of
help. We will bear that in mind.
The committee will be recessed until this afternoon at 2:30.
[W-WWhereupon, at 12:15 p.m., the subcommittee recessed, to reconvene
at 2:30 p.m., the same day.]
AFTER\TOON SESSION
Senator HRtrslcA. The subcommittee will come to order. We will
continue our Bearings on S. 1 which we commenced this morning.
Our witness this afternoon is the Honorable Alfonso J.Zirpoli,
chairman of the Cornrnittee on Administration of the Criminal Law
for the Judicial Conference of the United States.
Judge Zirpoli, we welcome you and will include and incorporate
into the record your statement in full.
You may now proceed to highlight it in your own way and own
style.
STATEMENT OF HON. ALFONSO 1. ZIRPOLI, U.S. DISTRICT JUDGE,
NORTHERN DISTRICT, CALIFORNIA
Judge ZIRPOLI. Thank you, 11Ir. Chairman.
As the representative of the Judicial Conference of the United
States, I wish to thank the chairman for the privilege of expressing
the views and recommendations of the conference on Senate Bill
No. 1.
Senate Bill 1, 94th Congress, first session. is the culmination of
an effort that had its inception more than 20 years aoo when the
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133
American Law Institute embarked on the drafting of a "Model
Penal Code." It is a monumental bill representing intensive effort
and the best thinking of legal scholars and practicing attorneys. The
Committee on the Administration of the Criminal Law of the Judi-
cial Conference of the United States is proud to have been it part of
the process of consideration, analysis, and comment. This is not to
say that we do not still have strong reservations as to certain points
of S. 1 which will appear later in this testimony, but we do approve
of the objectives sought and the methods utilized by the bill.
Before adverting to these reservations and our specific recom-
mendations relating thereto, with your kind indulgence, we would
like this committee to know that the Judicial Conference of the
United States and its Committee on the Administration of the
Criminal haw undertook the formidable task of reviewing the
several proposed new Federal criminal codes some 4 years ago and
has been carefully reviewing them ever since. We began our study
in January of 1971 with a section by section-in fact, line by line,
analysis of the Brown Commission Code.
Later, with the introduction of Senate Bill No. 1 and the Depart-
ment of Justice bill, Senate No. 1400, in January and February of
1973, we changed our modus operandi to a comparative study of all
three proposals.
That study resulted in three reports to the conference, which were
approved and forwarded to this committee. The first and most
important report was that of April, 1973, covering the "General
provisions," which now form parts I and II of the bill presently
before this committee. We respectfully resubmit this report and
particularly urge this committee to again review at least the first
eight pages thereof.
We, of course, do not expect this report to be incorporated in the
record of these proceedings. The second report covering the sen-
tencing provisions was approved and forwarded to this committee in
September of 1973. A copy thereof is again respectfully submitted
to this committee.
I might add in that connection that I had occasion this morning
to read the testimony of Judge Neaher, and he made certain com-
ments of the need to incorporate in Senate Bill No. 1 the provisions
of the Youth Corrections Act and also provisions to cover young
adult offenders and particularly to provide provisions for the ex-
pungement of the record-for instance, provided in section 5021 of
title 18, United States Code.
I might add that while he expressed these as his personal. views,
they are also the views of the Committee of the Conference on
Probation and also the views of the Judicial Conference of the
United States.
The third report, which covered the substantive offense provisions
of the. proposed codes and made a comparative study thereof, was
forwarded to this committee in March 1974. It is respectfully re-
submitted with the offer to make available to your staff the working
papers of our committee and the individual members thereof.
With the introduction of the present bill in January of this year,
and indeed prior thereto, the Committee on the Administration of
the Criminal Law again commenced its study of the general pro-
visions thereof, namely parts I and II. The report of the committee,
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which was approved by the Judicial conference and forwarded to
this committee in March of this year, forms the basis of the views
and recommendations of the conference upon which I shall now
comment. It represents the unanimous recommendations of the 11
experienced district and appellate judges chosen from each of the 11
circuits comprising the Federal system and is the product of their
joint efforts covering a period of many days over the past 3 years in
a line-by-line analysis of parts I and II.
While we express general approval of the format of S. 1 and its
five parts, my present testimony will be directed to part I, and
offenses of general applicability of part II, with some comment on
the other parts of the proposed code where appropriate. Our specific
comment on these portions of the bill are based on our views as to
the effect thereof on litigation, its impact on the courts, and the
fairness of the procedures.
On matters relating to construction, section 112(a) of the bill
would abrogate the rule of strict construction. It thus follows the
recommendation of the Brown commission. However, we believe
that abrogation of the rule will introduce a litigable issue at the
trial and appellate levels without, corresponding benefits to the
litigants. The few cases where it might be said that an unduly re-
strictive view of a statute resulted in acquittal of persons who were
clearly within the letter and spirit of the law are not sufficient to
override the experience we have had with the present rule.
"fair c Furthermore, we are of the opinion that introducing the words
import of their terms to effectuate the general purpose of this
title" as a rule of construction might result in substantial interpre-
tive litigation, in an undesirable imprecision in draftng criminal
legislation, and in unnecessary constitutional confrontations.
We endorse the present bill os to jurisdiction. Although Federal
jurisdiction would -be expanded, S. 1 has the least expansion. It
would also amend 28 United States Code, section 522, by requiring
that the Attorney General submit annual reports to the Congress
setting forth the number of prosecutions commenced in the preceding
fiscal year under each section of title 18, identifying the number of
such prosecutions commenced under each jurisdictional base ap-
plicable to each such section.
Under the bill, efficient administration of court calendars would be,
to a large extent, dependent upon a wise and sensitive exercise of
prosecutorial discretion. The procedure of S. 1 is designed to act as
a restraint on the exercise of concurrent Federal jurisdiction and
as a means for Congress to review such exercise.
We also prefer the drafting technique of the present bill. Its
approach lists in the jurisdictional subsection of each offense all of
the jurisdictional bases permitting federal prosecution for that
offense. It is also provided in section 201(e) that the "existence of
Federal jurisdiction is not an element of the offense." Thus the
gravemen of the crime becomes more intelligible and will ease the
burden of trial judges in charging juries.
On the matter of culpable states of mind, chapter 3 of the bill
is designed to make coherent the bewildering ve.riants used to de-
scribe the mental element of an offense. It wisely abolishes the
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troublesome degree of culpability known as willfully and would
limit the states. of mind to intentional, knowing, reckless, and
negligent.
We endorse this approach. However, S. 1 goes on to classify the
offense elements into: (1) conduct, (2) circumstances. surrounding
the conduct, and (3) the result of the conduct, and then defines the
state of mind with relation to each. This procedure becomes complex
and thus causes us much concern.
We believe that it will be productive of unnecessary litigation,
that it will confuse judges and juries, and that it may cause injustice.
Acceptance of a guilty plea under rule 11, F.R.Cr.P. will be more
complex and may well be confusing to even bright defendants in
understanding the differences among the degrees of culpability when
related to the offense elements.
This observation is difficult to fully understand unless one has
gone through the day-to-day experience of insuring that the ac-
cused fully appreciates the consequences of his guilty or no lo con-
tendere plea before such plea is accepted, and particularly when we
have full compliance with the provisions of rule 11 (f) of the present
bill which provides `.`That notwithstanding the ;acceptance of a plea
of guilty, the court shall not enter a judgment upon a plea without
making such inquiry as will satisfy it that there is factual basis for
the plea."
Our committee has devoted a substantial amount of time. to
definitions which, we believe, would achieve the same objectives as
S. 1 and would not alter the substantive sections of the code if
adopted. The definitions we prefer are-: A person engages in conduct :
(1) `knowingly' if, when he engages in the conduct, be does so voluntarily
and not by mistake, accident, or other innocent reason; (2) `intentionally' if,
when he engages in the conduct, he does so knowingly and with the purpose
of doing that which the law prohibits or failing to do that which the law
requires ; (3) `recklessly' if, when lie engages in conduct with respect to a
material element of an offense, he disregards a risk of which he is aware that
the material element exists or will result from his conduct. His disregard
of that risk must involve a gross deviation from the standard of care that
a reasonable person would observe in the situation ; except that awareness
of the risk is not required where its absence is due to voluntary intoxication ;
(4) `negligently' if, when he engages in conduct with respect to a material
element of an offense, he fails to be aware of a risk that the material element
exists or will result from his conduct. His failure to perceive that risk must
involve a gross deviation from the standard of care that a reasonable person
would observe in the situation.
Senator IlnusiiA. Would the witness suspend for just 2 or three
minutes 2
Judge Ziuror,r. Certainly.
[A brief recess was taken.]
Senator HPusKA. Thank you for your patience. You may proceed.
Judge ZirroLr. Turning to bars to prosecution-chapter 5 is S. I
concerned with bars and defenses. The bars to prosecution are:
(1) time limitations and (2) immaturity.
Section 511 on time ]imitations, generally retains existing law as
to statutes. of limitations. It simplifies the many statutes prescribing
different periods for commencement of prosecution for specific cases
to three: (1l capital offenses, no time ].imitation; (2) felonies and
misdemeanors, 5 years; and (3) infractions, within 1 year.
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Several changes in existing law are contained in section 511:
(1) the Iimitation period would be stayed in all cases by the filing of
a complaint as well as by the filing of an indictment or information;
(2) the circumstances under which a prosecution for a lesser included
offense would not be time barred even if the applicable time has
expired for the lesser offense, if the period has not expired for the
parent offense; and (3) existing law is revised regarding the suspen
sion of the running of the statute of limitations because. of the
concealment or absence from the jurisdiction of the alleged perpe-
trator of the offense.
Our comments are directed to the problem posed by the second
change; that is, the lesser included offense which is time barred, but
time has not run out on the parent charge. S.1 would not treat the
lesser included offense as time barred if there is, at the close of the
evidence at trail, sufficient evidence to sustain a conviction of the
offense charged.
As the working papers of the National Commission on Reform
.of Federal Criminal Laws points out on page 297:
It is clearly established in most states and in the District of Columbia that
one cannot be convicted of an offense necessarily included in the one charged
if the included offense is barred by the statute of limitations even though
the charged offense is not.
We agree with existing law. The rationale for a lesser point of
limitation for a lesser offense applies whether it is the offense
charged or a lesser included offense. Furthermore, to hold otherwise
would give overzealous prosecutors the opportunity to revise time-
barred offenses by overcharging.
Section 512 which treats with immaturity prevents prosecution
other than for murder of any person under 16 years of age. How-
ever, it does not bar a juvenile delinquency proceedinunder chapter
26, subchapter A, which incorporates the provisions-of Public Law
13-415 (1974).
Now. I have made a hasty reading of both of those provisions, and
it appears to me that there may be some differences that will require
reconciliation. I would suggest that they be reviewed with that in
mind. We express our concern that the formulation of section 512
does not treat the problem of persons less than. 16 years old com-
mitting minor offenses in areas under the exclusive contral of the
United States. We believe that specific authority should be granted
the United States magistrates to deal with such cases. A clear
illustration would be a juvenile exceeding the speed limit on a
military reservation.
On the subject of defenses, the following defenses appear in
chapter 5, section 521, Mistakes of Fact or Law; section 522, In-
sanity; section 523, Intoxication; section 531, Duress; section 541,
Exercise of Public Authority; section 542, Protection of Persons;
section 543, Protection of Property; section 551, Unlawful En-
trapment ; and section 552, Official Misstatement of Law.
We believe with regard to all these defenses that codification of
them is not desirable or necessary. As to several of the defenses,
this is an ambitious attempt to codify extensive and sophisticated
decisional law which has emanated essentially from State courts-
See sections 551, 541, 542, 543. We deem it particularly important
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to note that freezing of defenses in statutory form would prevent
the continued examination and analysis on a case-by-case basis so,
important in finding the best solution. It would do no harm to the
structure of the code to omit them and the benefit to be derived by
continued testing of ideas in court greatly outweigh enacting them..
In addition to these general comments on defenses, we offer
particular comment on several of the sections.
As to section 522, Insanity-as I have just stated, we, do not believe
that defenses should be codified. However, if a section on mental
disease or defect should be included, we favor the adoption of
the National Commission's version which substantially restates the
American Law Institute formulation. Section 522 provides that it
is a defense that the defendant as a result of mental disease or defect,.
lacked the state of mind required as an element of the offense
charged."
This has been characterized as doing away with the separate in-
sanity defense. We are persuaded to recommend against this section
by the reasoning of the National Commission which rejected it. The
Commission stated that :
Any effort to refer the mental illness issue to the general formulations on
culpability could lead only to a confusing and contradictory judicial interpre-
tation of the culpability requirements, as judges were forced, without legis-
lative guidance, to. develop a jurisprudence relating to mental illness under
the rubies of 'intent,' 'knowledge,' and 'recklessness.'
The problem would be exacerbated by the proposed complicated
culpability definitions. We are further persuaded by the fact that
the Federal Courts of Appeal's opinions in this area have become
more uniform by adopting the ALI formulation, with some varia-
tions. See United States v. Brawner, 471 F. 2d 969 in which : the
opinions of the various circuits are surveyed at pages 979-981. Ac-
cordingly, we recommend that the problem of the mentally ill
charged with crime be left in repose.
In sum, section 522 would freeze the insanity defense and would
not permit changing concepts and knowledge to work their way
into the law ; it would increase litigation and confuse juries. We
agree with the need of an alternative verdict of not guilty by reason.
of insanity, but we believe that such a verdict should be incorporated
in the Federal Rules of Criminal. Procedure.
We also wish to point out that we have in the past offered proposed
legislation which would revise chapter 313 of title 18, United States
Code. These revisions would, among other things, require hearings;
fully comporting with due process standards as to mental compe-
tency. Of particular interest in the context of this discussion, the
proposal provides for civil commitment of a person acquitted after
raising the defense of insanity if that person is dangerous to him-
self or to the person or property of others. We firmly believe that
legislation to revise chapter 313 of title 18 is the better route for
the Federal' effort.
I might add here and submit a copy of our proposed draft of tho
amendment to chapter 313. I do so because it providesfor.a form o
civil' commitment and avoids in the giving of the third' plea, the plea
of not guilty by reason of insanity.
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Senator IIrUSKA. May the Chair suggest that when it is procured
that that will be inserted in the hearing record at this point? Would
that be agreeable?
,Judge ZIRPOLr. Yes, it would.
[The material referred to follows:]
A BILL To amend Chapter 313 of Title 18 of the United States Code.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That this Act may be cited as the
Federal Act for the Commitment of Incompetent Persons.
Chapter 313 of Title 18 of the United States Code is amended by deleting
Sections 4241 through 4243, and substituting the following:
"CI-IAPTER 313-COMMITMENT, TREATMENT AND DISCHARGE OF MENTALLY IN-
COMPETENT PERSONS
"Sec.
"4230. Definitions.
"4231. Designation of panel of qualified psychiatrists.
"4232. Psychiatric examinations and representation by counsel.
"4233. Determination of mental competency to stand trial.
614234. Pretrial commitment, custody, care, report, and discharge.
"4235. Hearings on mental competency of persons committed without pretrial
consideration thereof.
"4236. Disposition of criminal charges on legal issues.
"4237. Persons eligible for civil commitment.
"4238. Commitment of'persons dangerous to person or property of others.
"4239. Periodic review.
"4240. Motion for referral for examination.
"4241. Transfer of custody of previously committed persons.
"4242. Effective date of Act.
4230. Definitions
"As referred to in this Chapter :
" (a) 'Court' me a United States V, Title 28 of theaUnited States Codeutr shall onot in 1 dee the Court of the
District of Columbia or the Territorial Courts.
"(b) `Secretary' means Secretary of the Department of Health, Education
and welfare.
"(c) 'Panel' shall refer to the panel of qualified psychiatrists created pursu-
ant to Section 4231.
"(d) As used in this Chapter `incompetent' means mentally incompetent to
stand trial. An accused is mentally incompetent to stand trial if he is unable
to understand the nature and consequences of the proceedings against him or
to properly assist in his own defense.
"(e) As used in this Chapter `competent' means mentally competent to
stand trial. An accused is mentally competent to stand trial if, regardless of
whether he is suffering from mental illness, he is able to. understand the
nature and consequences of the proceedings against him and properly to
assist in his defense.
"(f) 'Lack of criminal responsibility' means lack of mental capacity to com-
mit the offense or offenses charged as determined by the applicable law in
the federal trial jurisdiction and includes any defense of insanity recognized
in such federal jurisdiction.
4231. Designation of a panel of qualified psychiatrists
"The district court for each judicial district shall desi
n
t
g
a
e a panel or panels
of qualified psychiatrists, who may but need not be residents of the district, to
conduct examinations under this chapter. In accordance with local rules adopted
for this purpose, the court shall examine and qualify members of any panel.
Members of a panel shall be paid for their services in the manner provided
under the Criminal Justice Act of 1964, unless the examination is ordered
at the instance of the Department of Justice, in which case they shall be paid
for their services by the Department of Justice.
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'14232. Psychiatric examinations
"(a) All examinations under this chapter shall be conducted as expeditiously
as possible and with as minimal a restraint upon the liberty of the person
to be examined as is consistent with the need for proper examination, except
as otherwise provided in this Act.
"(b) In all cases in which examination by a qualified psychiatrist is re-
quired by this chapter, the court shall refer the person to be examined to a
member of a panel.
"(c) If the member of a panel to whom an examination was assigned demon-
strates to the court that in order properly to complete examination of a per-
son it is necessary to have that person confined in a hospital or other medical
facility, or if the court should determine such action necessary, the court
may order him confined in such hospital or facility. For these purposes hospital
facilities, including but not limited to those of the public Health Service, the
Veterans Administration, and the Department of Defense, may be used.
"(d) The accused shall be represented by counsel at all stages of court
proceedings pursuant to this chapter.
"(e) If the court appoints counsel or a psychiatrist for a person under the
provisions of this chapter, such counsel or psychiatrist shall be compensated
from appropriated funds for the reasonable value of his services as determined
by the court.
4233. Determination of mental competency to stand trial
"(a) Whenever after charge by either complaint, information or indictment,
and prior to either the imposition of sentence or the revocation of probation,
the court has reasonable cause to believe an accused may be incompetent, the
court shall refer the accused to a member of a panel of qualified psychiatrists
for examination as to his competency. The scope of an examination under
this section shall be limited to the mental competency of the accused to stand
trial or proceed with a hearing on revocation of probation. The report of this
examination shall state the medical and other data upon which the opinion
of the member of a panel is based, which shall be filed with the court, and
copies given to the United States Attorney and to the accused or his counsel
as soon as possible, but in no event more than ten days after entry of the
order for examination unless otherwise ordered by the court.
"(b) After the receipt of the report of a member of the panel the court
shall hold a hearing, upon due notice, at which the report and all other
evidence as to the competency of the accused may be submitted by the parties,
provided, however, that the hearing need not be held if the report indicates that
the accused is competent and if the accused, in open court, signs a written
waiver. The accused shall have the right to testify, confront and cross-examine
adverse witnesses, present evidence and subpoena witnesses in his own behalf.
On the basis of the evidence presented, the court shall make a finding with
respect to the competency of the accused.
"(c) No statement made by the accused in the course of any examination
or hearing into his competency under this section shall be admitted in evi-
dence on the issues of guilt or criminal responsibility in any criminal pro-
ceedings. A finding by the court that the accused is competent shall in no way
prejudice the accused in a plea of lack of criminal responsibility as a defense
on that issue nor otherwise be brought to the notice of the jury.
"? 4234. Pretrial commitment, custody, ease, report and discharge
"(a) Whenever the trial court shall determine that an accused is incompe-
tent, it may commit the accused to the custoday of the Secretary for such
care and treatment as is deemed appropriate by the Secretary. The period of
commitment tinder this section shall run until the accused is determined
by the court to be competent, or until the charges are disposed of according
to law, or until the accused has been committed to the custody of the Secre-
tary pursuant to Section 4238(f) and 4239(d), whichever occurs first. Pro-
vided, however, the Secretary may temporarily release the accused from the
institution to which he is committed. Notice of such anticipated release
shall be sent to the court and the United States Attorney of the district in
'w'hich proceedings under Section 4233 were held, not less than 10 days be-
fore the date of the anticipated release. If the United States Attorney objects
to such release, the committing court shall authorize the release only if reason-
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ably satisfied that the accused will not flee or pose a danger to himself, or
to any other person or to the property of others.
"(b) Whenever the accused shall recover his competency or not later than
one year after a determination that the accused was incompetent, the Sec-
retary shall petition the court for a hearing to determine the present com-
petency of the accused. A report on the competency of the accused shall be
attached to the petition of the Secretary. If the report indicates that the
accused remains incompetent, a prognosis regarding the likelihood of the
accused regaining his compentency shall be included in the report.
"(c) Upon receipt of the petition the court, upon due notice, shall hold
a hearing at which the accused may testify, confront adverse witnesses
and present evidence as to his competency and prognosis. The court shall
make findings with respect to the competency of the accused, and, if the
accused is found incompetent, with respect to whether the accused is likely
to regain `competency within a reasonable time. If the court finds that the
accused is incompetent, it may order a continuation of custody, but if it finds
that the accused is compentent it shall enter an order to that effect and
cause the accused to be released from the custody of the Secretary.
"(d) If the court finds that the accused is incompetent and is not likely
to regain competency within a reasonable time, it may order the pending
charges dismissed, and the accused shall be released from custody at the
end of 60 days, unless within said period the Secretary shall file a peti-
tion pursuant to Section 4237(a). Upon commitment of a person under Sec-
tions 4237(a) or 4238(f), the court shall dismiss the pending charges.
"(e) The court may grant any necessary or reasonable continuance of the
hearing described in Subsection (c) for good cause shown in open court, the
Government and the accused or his counsel being present.
"?4235. Hearing on mental competency of persons committed without pretrial
consideration thereof.
"Whenever a psychiatrist and at least one other physician conclude that
there is probable cause to believe that a person convicted of a crime against
the United States was mentally incompetent at the time of his trial, and the
Attorney General concurs (provided the issue of mental competency was not
raised during such trial and either a hearing held and a determination made
or a written waiver signed by the accused as provided in Section 4233(b)
above), the medical report and the concurrence of the Attorney General shall
be forwarded to the court in which the person was convicted. The court shall
thereupon hold a hearing to determine the mental competency of the ac-
cused in accordance with the provisions of Section 4233(b) above. At such
hearing such documents shall be prima facie evidence of the facts and con-
clusions certified therein. If the court shall find that the accused was mentally
incompetent at the time of his trial the court shall vacate the judgment of
conviction and grant a new trial.
4236. Disposition of criminal charges on legal issues
"Nothing contained in this chapter shall preclude the court at any time from
disposing, upon motion of the accused or otherwise, of the criminal charges
pending against the accused whenever the issue of fact or law involved can
be resolved, regardless of the mental condition of the accused. Nothing in any
such motion, proceeding or ruling thereon shall be used against the accused
in any subsequent criminal trial.
4237. Persons eligible for civil commitment
"(a) When any person who is in the custody of the Secretary pursuant to
Section 4234 has been determined by the Secretary to be unlikely to regain
competency within a reasonable time and is In the opinion of the Secretary
dangerous to himself or to the person or property of others, the Secretary
shall petition the court for an order of civil commitment.
"(b) When any person charged with an offense against the United States is
accused after raising the defense of lack of criminal responsibility at the time
of the commission of the act or acts charged, upon motion of the United
States Attorney the court shall order such person delivered to the Secretary
who shall examine such person to determine whether, by reason of mental
disease or defect, he is dangerous to himself or to the person or proeprty
of others. The delivery of such person to the Secretary shall be made by the
United States Marshal on court order.
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"(c) The Secretary, upon the request of the Attorney General, shall ex-
amine any person in the custody of the Attorney General whose sentence
is to expire, and who, in the opinion of the. Attorney General, may be danger-
ous to himself or to the person or property of others by reason of mental
disease or defect. Such examination shall be held at least 90 days prior
to the date of mandatory release of the person and at such other times
within said 90-day period as the court may order.
"(d) A person examined under this section may be retained in custody
pending the disposition of the proceedings under Section 4238.
4238. Commitment of persons who by reason of mental disease or defect are
dangerous to themselves or to the person or property of others
"(a) If the Secretary petitions the court as provided in Section 4237(a),
the court shall give notice of the petition to the person and his counsel and
shall appoint a guardian ad litem for said person.
"Proceedings pursuant to Section 4237 (a) and 4237 (b) shall be conducted
in the court for the district in which the criminal charges were brought. If
examination is conducted pursuant to Section 4237(c) such proceedings shall
be conducted in the court for the district in which the examination is held.
"(b) As soon as is practicable after notice is given, the court shall order
a further examination of the person. If the person is unable to provide his
own psychiatrist, the court shall appoint a psychiatrist from the panel to
conduct a separate examination. The report of examination shall be sub-
mitted to the court, the Secretary, the United States Attorney, and counsel
for the person not later than fifteen days after the person was referred for
examination.
"(c) If the report of the psychiatrist appointed or employed under (b)
above states that the person is not, by reason of mental disease or defect,
dangerous to himself or to the. person or property of others, the court may
terminate the proceedings and dismiss the application.
"(d) If the proceedings are not terminated the court shall fix a date for
hearing which, unless otherwise ordered by the court, shall be held not
more than 30 days from the filing of the examination report.
"(e) The. court. shall give notice of the hearing to the person, his counsel,
his guardian ad litem, the United States Attorney, and the Secretary, and
afford the person an opportunity to testify, present evidence, confront and
cross-examine witness and subpoena witnesses in his own behalf.
"(f) If, after hearing, the court finds that the person, by reason of mental
disease or defect, is dangerous to himself or to the person or property of
others, it shall order the person committed to the custody of the Secretary
for care and treatment for the period set forth in Subsection (h) below.
"(g) The Secretary or his representative is authorized to enter into con-
tracts with the several states (including political subdivisions thereof) and
private agencies under which appropriate institutions and other facilities of
such States or agencies will be made available, on a reimbursable basis, for
the confinement, hospitalization, care, and treatment of persons committed to
the custody of the Secretary pursuant to this chapter.
"No such contract shall be deemed to relieve the Secretary of his obligation
to supervise the treatment of any person committed under this Act or promptly
to ascertain and report any recovery which would warrant a petition to the
court to determine present competence.
"(h) The commitment made pursuant to subsection (f) and the custody
provided under subsection (g) shall continue only during such time as the
Secretary is not able to have the person civilly committed pursuant to State
law of a State. For purposes herein provided the Secretary is authorized
and empowered to apply for the civil commitment pursuant to State law of
persons committed to his custody under subdivisions (f) of this section.
4239. Periodic review
"(a) Whenever the Secretary determines that a person committed to his
custody under Section 4238(f) is no longer, by reason of mental disease or
defect, dangerous to himself or to the person or property of others, the Sec-
retary shall discharge said person unconditionally.
"1(b) The Secretary shall, at least once during each year of a commitment
made pursuant to Section 4238(f) and (g), file a report with the court for
the district in which the person is confined, setting forth the reasons sup-
54-89$-75-10
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porting a determination that the person continues to be, by reason of mental
disease or defect, dangerous to himself or to the person or property of
others. The court shall give notice of this report to the person and his
counsel and to the United States Attorney. Such notice shall set forth the
right of the person to petition the court within 30 days for a hearing on
the need for continued commitment.
"(c) Upon petition of the person, the court for the district in which the
person is confied shall, upon due notice, hold a hearing within 30 days to
determine if the person, by reason of mental disease or defect, is dangerous
to himself or to the person or property of others. The person shall have the
opportunity to testify, present evidence, and cross-examine witnesses.
"(d) If, after hearing, the court finds that the person, by reason of mental
disease or defect, is dangerous to himself or to the person or property of
others, it shall order the continuation of the commitment of the person to
the custody of the Secretary for care and treatment for the period set forth
in Section 4238(h)
4240. Motion for referral for examination
"(a) Whenever after charge either by complaint, indictment or information,
and prior to verdict, the United States Attorney demonstrates to the court
that the mental condition of the accused at the time of the alleged criminal
conduct can reasonably be expected to be at issue, the court shall cause the
accused to be referred to a member of the panel for examination as to his
mental condition at the time of the alleged offense.
"(b) In no case shall an examination of the accused under this Section
and an examination under Section 4233 (a) be conducted by the same psychia-
trist.
" 4241. Transfer of custody of previously committed persons
"All persons committed to the custody of the Attorney General under the
provisions of Sections 4246, 4247 and 4248 of Title 1.8, United States Code,
prior to the effective date of this Act shall be subject to the provisions of
this Act and the amendments made in this Act, and the President of the
United States is authorized and empowered by executive order to transfer the
custody of and the responsibility for the care and treatment of such persons
so committed from the Attorney General to the Secretary.
" 4242. Effective date of Act
"This Act and the amendments made by this Act shall take effect on the
one hundred and eightieth day after the date of enactment of this Act."
Judge ZmroLI. I might say that earlier drafts we have prepared
were referred to in the course of the Brown Commission report in
the working papers thereof. In this connection, we respectfully invite
the committee's attention to what may have bum n an oversight in
section 3611, since it does not cover the situation where the defendant
comes up for revocation of probation. We submit that this could be
cured by inserting; the words, "or revocation of probation" after the
words, "sentence on" in line 3 of the section, so that the section
would read :
Subsequent to the commencement of a prosecution and prior to the Imposi-
tion of sentence on or revocation of probation of the'defendant, the defend-
ant or the attorney for the government may file a motion for, or the court
upon its own motion may order, a hearing to determine the mental com-
j petency of the defendant.
Section 551 would codify the defense of entrapment. The defense
of entrapment is of judicial origin and from the times of its be-
ginning in SorreZZs v. United States' (1932) through Siterman v.
United States 2 (1958) to United States v. Russell, s (1973), has
1 United States V. Russell, 411 U.S. 423 (1973).
Sherman v. United States, 358 U.S. 369 (1958).
8 Sorrels v. United States, 287 U.S. 435 (1932).
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been the subject of sharply divided thought as to its nature. This
division is reflected in the approaches of the National Commission
and S. 1. The minority view in Sorre,lls, Sherman, and Russell that
the defense must be predicated on the nature of the police conduct
is reflected in the National Commission's draft while -S. 1 reflects
the majority view that the predisposition of the defendant is the
key factor. We adhere to our generally expressed view that this
defense should not be codified because of the intricacies arising in
evolving legal concepts.
Illustrative of such intricacies and difficulties that this evolving
concept presents in the case of United States v. Hampton, out of
the eighth circuit in which the Supreme Court granted certiorari on
March 31 of this year. We also note that important procedural issues,
such as the type of proof needed to raise the issue of entrapment,
whether the defense may be pleaded inconsistently and the kinds of
evidence admissible to show predisposition, are not codified. Accord-
ingly, we believe that this defense should not be codified at this time.
On the subject of offenses of general applicability, we endorse
section 1001 on criminal attempt, as to concept, but suggest substitu-
tion of `intent to commit" instead of "the state of mind required for
the commission of a crime," and "substantial step" for "amounts
to more than mere. preparation for, and indicates his intent to
,complete."
Our recommended formulation would read:
A person is guilty of an offense, if acting with intent to commit a crime,
he intentionally engages in conduct, which, in fact, constitutes a substantial
step toward commission of the crime.
We believe that this formulation is clearer and more readily
understood by a jury and a defendant pleading guilty, and we also
believe that it narrows the breadth of the provision.
Section 1002 on criminal conspiracy occasions two comments.
Under present law, it is generally held that acquittal of all but one
of the conspirators requires acquittal of the remaining conspirator-
Lubin v. United States, 313 F.2d 419. Section 1002 would not
mandate such a result. We believe the concept of agreement in a
conspiracy militates against this innovation.
Also, S. 1 requires that the overt act requirement be met by
engages in any conduct with intent to effect any objective of the
agreement. Present law states: "do any act to effect the object of the
conspiracy." Whether any change in result was intended is not
clear. In any event, the committee believes the language which.is
well understood and has been used for many years is preferable.
Section 1003 on criminal solicitation, occasions three criticisms :
(1) No need for a general provision on solicitation has been demon-
strated; (2) the provision i.s'fraught with the potential for abuse
as a prosecutorial tool; and (3) the substance of the proposal
.is, already substantially covered by the provisions on complicity,
nmely, the provision covering accomplices.
In all three sections, an affirmative defense of renunciation is
permitted. In criminal conspiracy and criminal solicitation the dc-
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fense must include the prevention of the crime by the defendant.
In criminal attempt the standard is:
The defendant avoided the commission of the offense attempted by abandon-
ing his criminal effort, and if mere abandonment was insufficient to accomp-
lish such avoidance, by taking affirmative steps which prevented the commis-
sion of the offense.
We conclude that the defense of renunciation-i8 thus too closely
circumscribed. For the defendant to prove that he prevented the
commission of the offense would render this defense nugatory.
Finally, I would like to comment ~Yencraliy on appellate review
of sentences. Section 3725 provides for appellate review of felonies
ction3726 is concerned with capital offenses.
and se
Both the defendant and the prosecution may petition the court
of appeals for review of a sentence imposed for a felony tinder
section 3725. A defendant may petition for review of a sentence if
it contains either a fine in an amount exceeding one-fifth of that
authorized by section 2201(b) or imprisonment for a term exceeding
one-fifth of that authorized under section 2301(b). The government
standard for petitioning for review is a sentence of less than three-
fifths of a fine authorized tinder section 2201(b), or imprisonment
of a term less than three-fifths of the term authorized by section
2301(b). If the court of appeals grants the petition, it will review
the entire record of the case to determine whether the sentence is
clearly unreasonable.
Here again, I should like to specifically point to section 3725 (b).
It provides: "If the Court of Appeals grants the petition, it shall
review the entire record in the case, including''=-I underscore the
words "entire record in the case"-"including: (1) The evidence
submitted during the trial; (2) the entire presentence report; (3) the
information submitted during the senteneen, proceedings; and (4)
the findings of the Court under section 2302 (b) if the defendant was
sentenced as a dangerous offender."
Does the committee actually intend that on review of sentence the
entire record including a transcript of all the evidence received
during the trial shall go up in every petition for review of a
sentence? This would be an expensive, unnecessary, and intolerable
burden upon the trial court. the court reporters, and the reviewing
court, and would result in interminable delays. particularly if the
trial were one of long duration and involved many defendants.
As you know, we too, have long been considering the problem of
disparity of sentences. In 1970, the judicial conference referred to
its advisory committee on criminal rules the problem of the form
that review of criminal sentences should take. In response to that
referral, an amendment to Rule 35, Federal Rules of Criminal Pro
cedure, was drafted.
This amendment basically would provide for sentence review by
a panel of district judges. You will recall that U.S. Circuit Judge
J. Edward Lumbard, Chairman of the Advisory Committee on the
Criminal Rules, and Judge Walter Roffman, appeared before the
Subcommittee on Criminal. Laws. and Procedures on April 16, 1973,
and pointed out the reasons for favoring the rule 35 amendment
approach.
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Briefly stated, appellate review of sentence is opposed because it
would create congestion in the courts of appeal.. Furthermore, circuit
judges have little experience in sentencing defendants. On the other
hand, the proposed rule 35 procedure involves the least expense and
a more expeditious method of review. We adhere to these views.
I should also point out the method of determining what sentences
may be reviewed is unduly complex and arbitrary. For example, a
defendant may petition for review if lie is sentenced to imprisonment
for a term in excess of one-fifth of the maximum term authorized by
section 2301'(b). Thus, for a class E felony, would be a sentence in
in excess of one-fifth of 3 years or three-fifths of a year. In the case
of class A felonies, the authorized trem of imprisonment is the
duration of the defendant's life or any period of time. The criterion
of in excess of one-fifth appears to have little applicability in this
case.
Another problem should be explored. One of those I am going to
advert to is the question of a grand jury and size of the grand jury
and the additional requirements for sessions of grand jury that arise
under the speedy trial bill. We feel that that situation could well be
taken care of in rule 6(a) and by changing the size of the grand
jury, saying preferably not less than 9 or more than 15 or the
concurrence of two-thirds required for return of indictment. That
is an additional suggestion of an area that might be explored.
Other problems that should be explored and analyzed before the
Code is finally enacted and for which we would hope that another
hearing could be held and in which the Judiciary would like very
much to participate, relate to the jury instructions which may be
mandatorily required under the act. Well in advance of the effective
date of the act, such instructions should be carefully drafted in
precise language that is understandable to a lay jury.
Furthermore, we would hope that the effective date of the Code
could be 3 years, instead of one, after enactment, in order to re-
educate the judges and enable the conference to prepare such
patterned jury instructions as will be needed to meet the new or
changed provisions of the Code.
In conclusion, may I respectfully add that while acknowledging
the need for revision of the federal criminal law and applauding;
the results generally contained in S. 1, I would be doing a disservice
to my fellow judges if I did not disaffirm any implicit or explicit
suggestion that criminal justice in the Federal courts has suffered
markedly under existing statutes and procedures. We deem it
important to observe that the Federal courts, on all levels, have
acquitted themselves with distinction in meeting the problems of
increased workload and responsibility.
We recognize that our burdens will become heavier as the Speedy
Trial Act of 1974 is implemented and will increase when S. 1 is
enacted. I believe that Federal judges will continue to meet these
new challenges with the dedication and learning that characterizes
their past endeavors.
Again, I wish to thank the chairman for the privilege afforded me.
I might also add, DIr. Chairman, that I should like to thank your
chief coi nsel, who very courteously called me in San Francisco and
advised as to what my time problems would be.
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Senator IlrusKA. Thank you for your statement. It can be
promptly and accurately reported to those who sent you here that
you did an excellent job.
Judge ZIJPOLI. If I may mention one more thing if I may, Mr.
Chairman, the members of the staff of the Administrative Office who
have worked with the judges over the years have substantial knowl-
edge of the views that we have expressed and the views of the
conference and I ani sure they would be delighted to offer any
assistance that you may request of them at any time.
Senator HRUS3.n. We will be calling on them.
Mr. Summitt, do you have any questions?
Mr. ,SIJMMIrr. No questions.
Senator HituSi ?. l\lr. Rothstein.
Mr. ROTuuss r . Judge, if I may I would like to address myself
to your comments oaa. the definition of culpable states of mind and
preliminarily I might say I personally, and I am sure the rest of
us here feel that there is a lot for us to think about and work on in
what you say.
As I see it the principal difference between your definition of
culpable state of mind and S.1's definition is that S.1 breaks down
the components of a crime into conduct, results, and circumstances,
and recognizes that you can have a state of mind with respect to
each of those three thingsthat is different.
For example, let us take the crime of taking Government. property
which could be broken down into three elements: the taking; the
fact that the, property is not yours; and the fact that it is indeed
Government property.
With respect to each of those elements it might be possible to
have a different state of mind. For example, it might be required
that you have a knowing state of mind about the taking, i.e., that you
know that you are taking and a knowing state of mind that the
property is not yours. But with respect to the element that it is
Government property, it may only be. required that you be negligent,
that you have disregarded certain indicators that would have alerted
a reasonable man that it was Government property. Or, indeed, the
state of mind with respect to the nature of the property might be
zero. It might be no state. of mind. It. --
Judge ZIPPoLI. Or assaulting a Government officer, for example,
the question of your knowledge that lie was, in fact, a Government
officer.
Mr. ROTA ;TETN. It seems to me that S. 1, in line with the Model
Penal Code, sets out that it may be required that you have a different
state of mind as to each of the eleirients. It. seems to me that your
set of definitions does not cope with that problem. While there are
certain problems in some of the culpability provisions of S.1, I
feel your definitions, with all respect, make them worse rather than
better.
I recognize that your fear is that S.1', definitions will not be
able to be communicated to lay people. But the code, since it is
drafted to cover thousands of cases, it cannot always be in terms
that lay people would understand. It speaks in terms that judges and
lawyers understand. And in a particular case it seems to me that
the judge will translate into simple terms of Si, terms that have
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to cover only the one case that is before him so that he will be able
to do it in simple terms where S.1 has to cover the entire spectrum.
Judge ZIRF0 S. The barrier where that may present serious prob-
lems comes in the course of the instructing the jury, particularly
where the nature of the culpability may differ with relation to the
elements. Therefore, you have to cover both phases in your instruc-
tions to the jury.
We are not too greatly concerned in the sense that we are satisfied
that we can meet that situation. It is not that we cannot meet it. We
also feel that the four definitions that we have given you would
better serve that purpose ultimately and that they are definitions that
have past accepted meaning. If you get "Devitt and Blackmar," the
form book on the instructions to the jury, you will find they are all
there. Invariably, judges resort to them; invariably, counsel present
them to you.
So these are standards that we have applied in the past with which
we are familiar. Sure, we can reeducated ourselves. You can apply
new standards.
Mr. ROTIISTEIN. How would your definition apply, if I may, to
this case of taking Government property. Suppose you wanted to
express that intention was required as to the taking; and that as to
the fact that the property is not yours only recklessness is required;
and as to the fact that it is Government property, negligence is all
that is required. Let us say that is what you wanted to define. Could
you do it?
Judge - Zinroni. I would find it a little difficult finding in the
statute there-how negligence would enter in as far as Government
property is concerned.
Mr. ROTHSTEIN. Knowing with respect to taking, recklessness with
respect to the fact that the property is not yours, negligence with
respect to the fact that it Government property.
I do not think your terminology gives us the tools to define it.
Judge-ZniroLI. You are saying that you do not feel that the defini-
tions which we have offered you would meet that situation.
Mr. ROTHSTEIN. If you said that crime was knowing taking of
Government property, we do not know what it is that the knowing
refers to-is it the taking or that the property is not yours or that
it is Government property? You see? If you say it is the intentional
taking of Government property--
Judge ZirzeoLi. I would not have any difficulty with the knowing
taking of Government property. All that would be involved is the
knowing taking. - -
Mr. ROTIISTEIN. Suppose he thought it was his own.
Judge ZIuroLI. Then it is not a kno`~~.ing taking. -
Mr. RoTiisTEIN. But he took, knowing that he was grasping
property. So you could argue that it is a knowing taking. With re-
spect to the fact that property was not his own, he has a different
state of mind.
Judge Ziiz.eoLT. I want to get to our definition of knowing here.
Mr. ROTIISITIN. It says knowing. -
Judge ZlrroLi. If when he engages in - the conduct, he does so
voluntarily and not by mistake, accident, or other innocent reason.
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llr. RoTIISTrIN. This man then who took the Government property
knowingly doing the grasping but believing that it was his own
property, he meets that definition of "knowing."
Judue Zuironi IIe, meets that definition because he is either taking
it by mistake, accident, or other innocent reason. Ile would clearly
meet it.
Mr. POTIISTTI\. He knows his conduct. He knows he is grasping,
taking. But he does not know that it is someone else's property. IIe
does not know it is Government property.
It seems to me that we have to break it down into the act of taking
and the fact that it is someone else's property.
Ir. Zlnrola. May I inquire into what respect do you feel that the
definition as now proposed would meet that situation?
Mr. ROTIISTEI_x. Better than under your alternative suggestion.
Because the crime would be defined if we wanted to use the defini-
tions of S. 1. To define a crime like I just put to you we would say
with respect to the taking it must be knowing. With respect to the
fact that it is someone else's property it must be knowing or reckless.
And with respect to the fact that it is Government property negligence
would be enough. We would either say it in the section on theft of
Government property or a general principle of construction set
forth in the beginning would supply it.
Judge ZrnroLr. That is 201, is it not?
Mr. ROTrISTEI\. 301.
Judge Zlr,roLI. 301.
Mr. ROTIISTEIX. I think this is the problem. It has always been
the problem in criminal statutes that the drafters of S. 1 tried to
clear up. It has always been unclear what the knowing or intention
requirement applies to in criminal law to this date, both on the
State and Federal level., and this attempts to correct that. While they
have not been completely successful, I believe your definition would
worsen the situation, with all due respect.
Judge ZIRPOLr. A person's state of mind is knowing with respect
to his conduct if he is aware of the nature of his conduct. It is knowing
with respect to an existing circumstance if he is aware or believes
that the circumstance exists. And it is knowing with respect to
a result of his conduct if Ito is aware or believes that his conduct is
substantially certain to cause the results.
So that the word "knowing" under the definition, as you have
now fixed it, would cover all three situations presumably.
Mr. ROTIISTEI\. If I said knowing with respect to the result and
knowing you see, the statute itself specif es--
Juclge ZIRPOLI. I can only offer one present suggestion and I would
say this, that our committee will meet again on May 22, and I have
in mind your observations and we will give you the benefit of the
consensus of the views of the committee having those observations
clearly in mind.
Mr.ROTHSTEIN. Thank vou.
Senator Iluusli.i. Thank you again, your Honor. We are glad to
have had you here.
The committee will stand in recess until tomorrow morning at
10 o'clock in this same room.
[Whereupon, at 3:30 p.m., the committee adjourned, to reconvene
on Friday,April 18, 1971:), at 10 a.m.
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S. 1, THE CRIMINAL JUSTICE REFORM ACT OF 1975
FRIDAY, APRIL 18, 1975
U.S. SENATE,
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES
Or TIIE COMMITTEE OF TIIE JUDICIARY,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:05 a.m., in room
2228, Dirksen Senate Office Building, Senator John McClellan
presiding.
Present : Senators McClellan and Ilruska.
Aso present, Paul C. Summitt, chief counsel; Dennis C. Thelen,
deputy chief counsel; Paul Rothstein, minority counsel; and Mabel
A. Downey, clerk.
Senator McCIArLLAN. The committee will proceed with its hearing
scheduled for this morning.
I have been waiting for one of my colleages, another member of
the committee to come. I think he is on his Av"Iy.
The first witness scheduled for today is Mr. David Fogel.
Mr. Fogel, please identify yourself for the record.
Mr. FOGEL. David Fogel. I am the exective director of the Illinois
Law Enforcement Commission.
Senator MCCLELLAN. You have a prepared statement?
Mr. FOGEL. I do.
What is your pleasure, Senator? Would you like to just enter it
in the record and have me talk about the highlights of it, or shall
I read it?
Senator MCCLELLAN. You do have- a prepared statement?
Mr. FOGEL. I submitted it earlier.
Senator MCCLELLAN. You are willing to have it placed in the
record and highlight it?
Mr. FOGEL. Yes.
Senator MCCLELLAN. Very well, so ordered.
You may proceed.
[The prepared statement of Mr. David Fogel follows:]
TESTIMONY OF DAVID. FOGEL, EXECUTIVE DIRECTOR, ILLINOIS LAw
ENFORCEMENT COMMISSION
INTRODUCTION
Sentencing tells the defendant what his penalty will be and it tells the
state what its responsibilities are in relation to the defendant. The ' effects of
the sentence carry over heavily into the correctional system. If the sentence
is seen as unjust by the innate, his entire behavior while in prison will be
(149)
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150
colored by it. If the sentence is seen as unworkable by the correctional per-
sonnel, its provisions will not be carried out. Any serious attempt to modernize
corrections must begin with the sentencing structure.
This plan is designed to eliminate the worst features of the present sen-
tencing system. It is built around three general principles. First, persons
should be sent to prison only when it is not possible to provide appropriate
community sanctions. They should be incarcerated only when they represent
a clear and present danger to society or their incarceration is necessary to
serve some legitimate societal interest. Second, the sentence should be fixed
at the beginning of the term by the Judiciary. A convicted person should not
be made to guess what his actual period of incarceration will be. Third, the
disparities which now exist in sentencing should be narrowed. Persons who
commit the same offense in similar circumstances should receive the same
sentence, permitting only slight variations in mitigation or aggravation for
the individual characteristics of the offender. Unfortunately, that is not the
case.
CURRENT JUSTICE PROBLEMS
Two offenders commit similar crimes--one in Chicago, one downstate. The
public and particularly the victims expect reasonably similar treatment, but
do not get it. In one case we see a 400 day wait for a trial and the offender
sentenced to a short prison term. In another, the case may be disposed of in
less than 90 days and result in a long sentence. In neither instance can we
expect the judge to have received detailed information regarding the nature
of the offense and the character of the offender before imposing sentence.
Already we see a major disparity in the treatment received by both victim
and offender. In the Chicago case, both the criminal and the victim have
been injured by the long pre-trial delay. As witnesses' memories fade with
the passage of time, guilty defendants may go free entirely or else take
advantage of court congestion to bargain for an unjustifiably lenient sentence.
Equally reprehensible, those unjustly accused may langui:?.h in custody for many
months before they are vindicated.
In our example, however, both offenders were convicted of felonies and
will serve time in the State Department of Corrections. What happens when
they share a cell at Joliet and compare notes? We think. it obvious that their
disparate treatment in the courts, especially the lack of sentencing uniformity,
will breed resentment and contribute to tension and violence in our prisons.
Both offenders, however, know that the story is not yet over. The wooing
of the Parole Board by conning custody and treatment staff alike is the final
net in this drama-and in some ways its shabbiest moment. In a hurried and
private meeting. a non-judicial board renders a de facto sentencing decision
based on fragmentary and unreliable data. One man goes free--perhaps the
offender with the longer sentenc-and the other remains a prisoner. Fre-
quently the prisoner with the shorter sentence does a larger proportion of the
Judicially determined sentence than the prisoner with a longer sentence. The
Parole Board has become more influential in "sentencing" by setting release
dates than is the judiciary in imposing a particular sentence of imprisonment.
Neither the offenders nor the staff of the prison know why one person is
paroled and the other kept. Their senses of justice-not to mention logic-
are affronted by this state of affairs.
A SOLUTION
The solution we propose revolves around making the adjudication process
fairer and speedier and the post-adjudication process of sentencing and prison
release compatible with the rest of the criminal law. To be compatible, each
of these elements (i.e., sentencing, prison confinement, release processes) must
ise procedu-rnlip! sound, predietnbh, uniform, and reviewable. Because the rest
of criminal law considers offenders to be volitional, corrections must likewise
east off the so called "medical model" and insist upon responsible behavior
from convicts in the context of a just prison stay. Borrowing from the work
of many in the criminal justice system who share our concern about injustice,
we have developed the model based upon fairness.
We believe our proposed solution is bolstered by the empirical finding that
bleb levels of administrative discretion for correctional officials have not
produced either law-abiding offenders inside of prison or law-abiding ex-
offenders outside prison, and seem unlikely to do so in the future. Instead
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the chief effects have been to produce longer terms of imprisonment, more
volatile relations between keeper and kept, and higher costs with very little
in the way of positive returns. To improve this situation, we must reduce
discretion at two key points-sentencing and paroling.
We propose to reduce sentencing discretion by instituting a "flat time" sen-
tence system. Although a term of imprisonment would not be mandated for
any offense, once the court decided such a disposition was appropriate, for
each of five types of felonies as currently classified or as may be modified),
a flat sentence would be imposed with variations of a year or more in aggrava-
tion or mitigation as indicated. For illustrative purposes, the schedule below
could be utilized.
Class 2, 3, or 4 felonies and
misdemeanors.
Felony crimes of murder and
class 1 through 4.
Felony crimes of murder and
class 1 through 4 felonies
(special enhanced senten-
ces).
lst offender; and/or little or no victim in-
jury; and/or little evidence indicating
a continuing threat to the community.
Repeat felon; and/or significant physical
injury to a victim; or a crime which
broaches the public trust; and/or strong
evidence that the offender is a contmu-
ing threat to community safety.
Habitual repeat offender or offender pre-
senting continuing danger of physical
harm to community.
Mandatory supervision under the bureau of
community safety.
Flat sentences:
Murder=25 years t5 or life or death
Class 1=8 years t2.
Class 2=5 years t2.
Class 3=3 years fl.
Class 4=2 years ?1.
Murder=life, death or 25 years +5.
Class 1= up to 15 years +3.
Class 2= up to 9 years +2.
Class 3 or 4=6 years +2.
For all sentences except life, statutory good time is earned at the rate of
one day for each day the offender serves without a serious prison infraction.
Most disciplinary infractions would be punishable through loss of good time
for set periods of up to 30 days ; but for violations of law-those actions
which would be considered felonies or serious misdemeanors outside of prisons
-a new indictment will be sought and, if the offender is found guilty, a
consecutive sentence will be set. This good time policy will make prisons
easier to manage by providing a tangible and immediate reward for lawful
behavior and clearly defined, stringent sanctions for unlawful behavior. Good
time will become "vested" at the end of each month ; and as a result, a new
projected release date can be calculated each month. After some experience
with this system, it should be possible to develop a computerized population
level and flow model which will markedly improve budget forecasting by
reliably predicting population levels in the Illinois Department of Corrections.
We further propose to eliminate both the paroling function and the post-
release supervision now provided by parole officers. With a flat time sentence
structure all inmates will leave the system by completing their sentence (minus
good time)-except in cases involving executive clemency. As a result of
rationalizing the process of imposing sentence the need for paroling discretion
is largely eliminated.
The primary reason for abolishing post-release parole supervision is that
it is a demonstrable failure both as a crime prevention strategy and as
a service delivery concept. One parole agent with a caseload of 50 to 100
offenders scattered across a sizeable geographic area cannot prevent (and
has not prevented) crime. Which man should he "supervise" at any moment
in time? How can he, a 0-to-5 worker, be expected to supervise parollees ex-
pected to be in school or at work during the same hours? Perhaps most im-
portantly, how can he supervise (under threat of reincarceration) one mo-
ment and counsel an offender the next? The degree of role conflict generated
by these two tasks makes it remarkable that parole has survived as a struc-
ture for so long. In Chicago our parole officers are armed with Freud in
one hand and a .38 in the other. We believe that limited correctional resources
are best employed by restricting them to "service delivery" functions on
behalf of willing ex-offenders and leaving supervisory or disciplinary activ-
ities to duly constituted law enforcement authorities.
Our proposed system offers the offender a set data for release from ."day
one" of his incarceration. He knows that he can halve his sentence by good
behavior . . . giving him a high stake in law-abiding conduct. He can partict-
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pate in education, training and other service if he chooses to-but his release
date will notvary in either case. Similarly, after release he is considered a
free man-he may choose to go it alone, or else avail himself of a wide range
of services. In short, the proposed system is impartial, non-discretionary, defi-
nite, and volitional.
PROPOSED CHANGES
Several new structures are required to make this system work. First, the
system must have the capacity to process each defendant's case fairly and
expeditiously from the time of Initial contact through adjudication of guilt
or innocence. Consistent with the presumption of innocence, release-on-recog-
nizance and low-money-bail programs will be instituted and made available
in all appropriate cases. Pre-trial diversion or pro-trial release programs also
will be developed for those eligible defendants desirous of participating in
them, thus maximizing their rehabilitative opportunities.
Those who flaunt the system and commit additional crimes while on re-
lease will be subject to bail revocation and more severe sentences upon con-
viction. To expedite the processing of criminal cases, we propose eliminating
the necessity for proceeding by indictment in felony cases and shortening
the statutory case-processing time from 120 to 60 days. Adoption of those
proposals will assure that defendants accused of more serious crimes will be
brought to trial far more quickly than currently is the practice. Swift
adjudications, followed by fair punishments, will become the rule rather than
the exception.
Second, quality community correctional services must be made available.
In the short run, reassignment of current parole workers to this task will
create the backbone of that system. We anticipate, however, that as the fre-
quency and quality of pre-sentence investigations inemase, a steady growth
in the number of persons seen as possibly benefitting from such non-custodial
dispositions will occur. Conversely, once community correctional programs are
established and operational, an increasing number of marginal cases will
be referred to them. Judges, however, will be justifiably reluctant to impose
a sentence of "probation" (termed "mandatory supervision" under our pro-
posal) in such cases unless assured that adequate programming is avail-
able. We see a need for additional personnel and a considerable amount
of program development and training before this part of the system really
works. We are prepared to make that investment in Illinois.
Third, the entire sentencing process must be made more rational, more
visible and more reviewable. In addition to the determinate sentencing struc-
ture already discussed, we propose to set forth definite criteria to guide the
court in deciding whether or not to impose a term of imprisonment of an
offender. To, insure that the courts are able to secure the requisite informa-
tion about each offender and the various feasible sentencing alternatives
necessary to such decisions, we recommend the creation of circuit-wide court
services departments, comprised of current probation officers, to provide the
court with such information. To guarantee that such recommendations are
given due consideration, pre-sentence -investigations will be mandatory in all
felony cases and in all instances where the court imposed a sentence of im-
prisonment in excess of 90 days.
While we believe that these measures will greatly rationalize and strengthen
the sentencing process, we also propose that the sentencing determinations of
the trial courts be subject to a close scrutiny on appeal. Aside from questions
of legality, all sentences imposed will be reviewable to see if they are :
(1) Commensurate with the offense committed as aggravated or mitigated
in the particular case;
(2) Consistent with the public interest and safety of the community and
most likely to work a full measure of justice between the offender and his
victim, if any ;
(3) Commensurate with the sentence imposed on other offenders for similar
offenses committed in similar circumstances.
Either the defense or the prosecution may question the propriety of the
sentence imposed in a particular case. t'pon a proper showing by the de-
fendant, the appellate court may sentence him to a lesser term of Imprison-
ment or to a more lenient-type of punishment ; and upon a similar showing by
the State, a more severe sentence can be imposed.
In summary, our sentencing proposals will provide the courts with the data
necessary to make informed, intelligent sentencing decisions. To insure that
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proper procedures have been followed, the Appellate Court will be empowered
to equalize sentences across circuits by ithr affirming them or by modifying
those which seem clearly out of line with normal sentencing practice. Review
will occur within 90 days of the original sentence. Increased rationality and
fairness of the sentencing process will reduce the sense of injustice in prison,
thereby making it a safer work environment for guards and living environ-
ment for prisoners.
The third structural change required is the abolition of parole, both as a
means of securing release prior to serving a full term in custody and as a
status after release from custody. Accumulation of good time at the "day
for a day" rate discussed above will become the only method of early release
from custody. Although rehabilitative services will continue to be made avail-
able on a voluntary basis both inside and outside of prison, they will be
divorced from the release process.
The shift in The philosophy and organization of state services proposed in
this progrim is designed to make the Illinois correctional system more just
and safe. That it may improve the quality of services, reduce prison tensions,
make possible certain long range economies and avoid litigation are highly
attractive fringe benefits, but not the raison d'etre.
All current participants gain by the proposed system :
Victims and witnesses see cases a'djudicated more quickly and equitably.
Offenders receive a uniform reviewable sentence.
Law enforcement officials need for fear "soft hearted" judges nor do civil
libertarians need fear "hanging judges" (flat sentences narrow judicial discre-
tion and openness and reviewability insure that that which remains is exer-
cised soundly).
Guards are given a more "do-able" job in atmosphere in which offenders
have a stake in maintaining order.
Professionals have an opportunity to service only those -offenders who really
want to learn and change.
APPENDIX A
Prison sentences------------ Highly variable-minimum and maximum Reduced judicial discretion-plus 20 perceut
represent a wide range. in most cases.
Sentencing review----------- Seldom used-Used only in cases where Routine, automatic, under express statutory
sentences are so unusual as to pose con- standards for all serious cases.
stitutional concerns.
Plea bargaining------------- Great abuse-No standards, no visibility, Use limited, because of mandatory pre-
no reviewability. sentence investigation and record of
reasons for sentence.
Parole release-------------- Arbitrary, a cause of inmate unrest-------- Abolished-All offenders released at maxi-
mum minus good time.
Good time------------------ Too little to control behavior of offenders Behavior controllable without as much
without guard intervention and/or threat physical force--One day "good time"
of force. awarded for each lawfully served day in
prison, vested monthly.
Services to inmates (voca- Inmate service use is distorted by their Services will he available but use will not
tional academic, etc.). need to "con the heard". affect release.
Post-release supervision of Parole officers ineffectively supervise a Parole is abolished-Services (like em.
offenders. large number of parolees while ex- ployment assistance) are provided by a
periencing a police/helper role conflict. State-funded agency without sanctions
for nonuse.
Sentencing alternatives----_- Few, except for drug/alcohol abuses------- Many, including restitution, periodic im-
prisonment, etc.
Decision to incarcerate as Discretionary and seldom reviewed-------- Procedural safeguards instituted; review
opposed to probation or t facilitated.
other community-centered
options.
costs---------------------- High for little apparent return; costs will go Higher at least for the next 3 to 5 years;
up even further as populations rise. long-range economy possible, however.
Guards--------------------- Abused, bottom of ladder ----------------- By decreasing influence of counsellors
social workers, over decision to release
guard status and safety improved,
I am pleased to support the passage of SB 1. It brings together some of
the most significant research findings of the last decade. in the form of legis-
lation. I wish to point out my concurrence with SB 1's provisions :
(a) The requirement for mandatory pre-sentence reports (?2002, p. 182).
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(b) The reviewability (?2005, p. 184) of sentences by motion by either the
defendant or the State (??3725, 3726, pp. 276-279).
(c) The availability of probation for all offenses except "Class A" (most
serious) felonies and the criteria for the imposition of such a sentence in the
law (?2101, p. 185).
(d) Evtended terms for "dangerous special offenders" and the criteria for
such classifications are clearly spelled out in the Bill. (?2302(b), pp. 191-
192). I am asking our experts to review this section in particular to bring
even greater clarity to our working drafts.
(e) While SB 1 retains parole and hence indeterminancy during the prison
stay, I do support the imposition of definite prison sentences which SB 1 re-
quires. Our program calls for the prisoner to work his way out a definite
term by good behavior while SB 1 tries to engage him in rehabilitative pro-
grams and leaves discretion to a parole board to determine "progress". We
differ a bit here but SB 1 does establish the larger principle of deterininate
sentencing.
(f) Finally, SB 1 is responsive to one of the most perplexing problems,
namely the criteria a judge must use in deciding whether to sentence an
offender to imprisonment. The development of such standards is a long-
neglected area of the law. We are considering the question in more detail that
SB 1 appears to spell out. For example, we are drafting specific standards
governing imprisonment for offenders in the area of official corruption, official
misconduct and major white collar crimes.
I do not intend invidious comparisons between SB 1 and the Illinois pro-
gram. I believe SB 1 to be of historical dimension. It not only represents the
first codification of the Federal criminal law since the birth of the Republic
but also provides progressive leadership by example to the States as they
rethink their penal and corrections codes.
Thank you for this invitation to comment on SB 1. You have my best wishes
for speedy enactment.
Mr. FOGEL. The prepared statement is itself a summary of a much
larger statement submitted to the stefi. which is a report clone for
the Law Enforcement Assistance Administration on the subject of
reducing tensions and violence in prison, a study done last summer
at the Harvard Law School where I was in residence for :1 months.
The short statement just entered in the record, which I will high-
light now, is really a reduction of the lamer study into legislation
which we refer to as the Illinois plan. It is working its way slowly
through the legislature.
What I would like to do. if I may, is simply tell the committee
how this came about and highlight it.
In 1971, following Attica, the directors of corrections around the
country were brought together by the Department of Justice- in San
Francisco, just a few month following the September tragedy. The
fear at the time was of riot-contagion. It was felt if we got together
we could help each other. It was not a very helpful session. I was at
that time director of corrections for the State of llinnestota. There
was too much tension in the air, and it was more of a discussion on
suppression then it was on prevantion.
In 1973 each of the States in my region of the Law Enforcement
Assistance Administration, which is the largest one in the country,
the regional office located in Illinois but it includes Indiana, Michi-
gan, Ohio, Illinois, Wisconsin, and Minnesota. teach one of those
State institutions in their maximum custody institutions experienced
some sort of riot, disturbance, hostage taking, et cetera from May
through September of 1973. The directors of corrections for those
States were then brought together in 1973. This time the State plan-
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ring agency directors of LEAA, my counterparts, were brought in
with them. We went into a similar kind of session, minus the tension
associated with the one in 1971. It was much more of a deliberative
session. We continued for 6 months.
Suppression was very important, but it was handled very quickly
because we discovered that we had been doing suppression very well
for a few hundred years, and had not done very well on prevention.
We now devoted a lot of time to prevention. I had earlier written
a paper called, "The Justice Model of Corrections." My colleagues
asked me if I would take time out to elaborate it, catch up on the
evaluating literature and the most current studies about to be pub-
lished. That occasioned my stay at the Harvard Law School.
What I found out reviewing some of the literature that is not yet
published were studies like Senator Goodell's Committee for the
Study of Incarceration, Robert Martinson of New York City Uni-
versity, the studies in England and many others that have to do
with rehabilitation and other correctional methods used over the
last quarter of a century or more.
We were able to look at all of that, the case law, the literature on
sentencing and other new findings, and try to pull it together in this
report, to find out how these impinged on prison life. What I found
out was that there are two real key issues-but I would just like to put
on the record a few of the peripheral issues and then settle down to
the two central ones.
First I found that correctional administrators are notoriously
ahistorical. They do not know what happened before they took the
job, let alone the sweep of history-not everybody, of course, but
the largest group, as I reviewed about a hundred years of their
literature.
The field now is pretty much demoralized. It has been insulated; it
has been isolated; it has suffered a terrible mix of low visibility and
high discretion. Role confusion from guards to parole officers is
rampant. In Chicago our parole officers make their rounds with
Freud in one hand and a .38 in the other.
The field has bounced back and forth from panacea to panacea.
We are still housed in the most destructive architectural arrange-
ment, called the fortress prison.
Those are the peripheral issues.
The two key things I find that cause tensions inside of Prisons
leading to riots are no greater mysteries than how you get in and
how you get out-sentencing and parole. At the bottom each has to
be tied to a theory or philosophy of the criminal law, which I am
now, .it least in my own mind, sure should simply be punishment-
not onerous punishment, but simply the deprivation of liberty-the
granting of all rights to prisoners are consistent with operating
maximum custody institutions. The key issues then are sentencing
and parole. The studies show that discrepancies abound, that there
is practically no review, practically no case law on sentencing.
Judge Frankel of the Second District Federal Court in New York
called sentencing the most lawless part of our system. It is still
draconian in length in Western society.
We also find from studies that there has been erosion. of judicial
power in a sentencing. The district attorney at the front end of the
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system does more sentencing than it judge through plea bargaining.
The parole board does a lot more sentencing than both at the other
end of the system by early release. Judges try to second guess either
liberal parole boards by doubling minimums or second guessing
conservative ones by halving minimums, But inside the prison you
have this scene. If you come from Chicago, it is very hard to get
into a State prison in Illinois. You really have to go out of your
way. You have to overcome a lot of problems-getting caught,
getting through the system, spending 392 days h' jail awaiting trial
and getting sentenced to the time already served. When you go, you
really need to go.
In other parts of the State you stick out like a sore thumb. But
you both end up in the same cell comparing notes. That is where
the sense of injustice and the tension begins-when they talk of
their comparative sentences. If that is the first question that arises
when you are inside, the second one has to be, as it would be for
all of us, how do you get out. You learn that there is a parole board.
Parole boards, as you know, are either all political types or all be-
havioral science types, or a mix of the two. But the research shows
that it does not make, much difference. Psychiatrists can not predict
better than police chiefs. Police chiefs do not do much worse than
psychiatrists. When you take a man in Statesville, San Quentin and
try to predict how he is going to be on the streets of Chicago or
San Francisco, the research findings are unfortunately fairly nega-
tive; we do not predict very well.
We have a criminologist in Chicago who has characterized the
whole system something like this : parole, that is the process of
being paroled from prison has transformed our prisons into great
drama centers where convicts are acting and parole board sit as
drama critics awarding Emmys or parole. But they pretend to be
assessing "clinical progress."
I can give you all sorts of examples, including that of my own
experience, of how parole boards in one case will want you to go
to Alcoholics Anonymous meetings to demonstrate progress, another
one to religious meetings, another one to group therapy meetings. In
the last analysis they still take a mix of years and public safety risk
probability when they are going to give parole.
What we have come to in this proposal is something like this.
We are saying that a tremendous amount of thediscretion has to be
taken out of the system at each of the levels. We have, to reduce our
rhetoric, our claims, and narrow our purposes. We have to create
high degrees of certainty for everybody in the system and give up
the fruitless search for a unified theory of crime or criminals as if
they were diseases. Criminal law should simply state the punishment
for illegal behavior and prison should simply' be the deprivation of
liberty, again not to executed retributively. The sentence itself has to
have procedural regularity and has to be reviewable.
Now we come to some of the proposals. We have come up with
the notion of returning to flat time. Illinois has four classes of
felony working their way tip in severity from class four to one in
Illinois. We are proposing 2-, 3-, 5-, and 8-year flat time terms with
about 20 percent on either side of those terms, plus or minus, in
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agravation or mitigation of the offense. The defendant is also able
to have that sentence reviewed quite aside from the other questions
of merit, 90-day turnaround time by the Appellate Court, so that
case law begins to develop around the notion of fairness.
If this is enacted and everybody makes out-everybody does a
maximum term and they are out-we see no need for the continuation
of a parole board in its present form, except for clemency and
pardon-type hearings.
Inside the prison, what we see happening is if a man receives a
4-year sentence, it is determinate; it is flat. When he goes: to prison
the warden might say to him, "you can do 4 years or you could do 2.
We will give you day-for-day good time. For every day that you
are not found guilty of violating some prison rule, we will give you
a day off your sentence." That we think increases the prisoner's
stake in lawful behavior inside the prison.
We do not go with the old ways of giving good time credit, where
an official can reach back and take away time already earned. We call
this new system vested. The day you get it it is in a bank and cannot
be taken away from you. There are some infractions that do not
rise to the importance of taking away good time. They are handled
differently. There ,are other offenses like splitting a guard's head
open. That should occasion another indictment and consecutive a
sentence. But following explicated rules of the prison 'that state
what the penalties are, we would have due process and have de-
cisions of an internal court reviewable by the warden and the director
of corrections. It does not need to go to court because it is fully
within the range, the number of years, the sentencing judge already
ordered.
We also call for a number of other programs to complete what we
call a justice model of corrections. That includes an ombudsman
self-governance, conflict resolution mechanisms, access to the courts,
law libraries, extended private visitation, family visitation, and a
number of other things.
The guts of the program I would say is flat-time sentencing,
reviewability, a new vested good-time law, and specifically in Illinois
this all has to be supported by a revamping and the establishment of
State-wide probation systems* so that judges do indeed have alterna-
tives to imprisonment.
That is it in a nutshell, Senator.
Senator MCCLEra,Ar. Is it possible to have a uniform sentencing
program throughout the Nation, both Federal and State?
Mr. FOGEL. It probably is. I do not see it happening in this century.
It is an intereseting thought; I would say it is possible, and would be
desirable. The politics of it overwhelm me.
Senator McCLELLAN. While we are waiting for Senator IIruska,
does staff have any questions?
Mr. SUMMiTT. What kind of limits do you see on the discretion
of the various persons who make sentencing decisions? For instance,
I notice in your chart you break it down into first offender, repeat
offender, and then, I guess, by repeat, repeat offender. The discretion
is very limited. Is that a limitation on the judge?
Mr. FOGEL. Yes.
54-39 8-75 -11
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This is based on what I think to be a pretty negative experience
with permitting very large areas of discretion. I applaud what you
have in S. 1 in taking out a determinate number of years, but I do
believe that the range is quite high; that will get us back into the
old problem of disparities and tension inside the prison itself.
Mr. SuMMZTT. What crimes do you see as being in class 1 or
class 2?
Mr. FOGEL. In class 1, we would have arson, rape, armed robbery,
attempted murder.
,Mr. SuNMMrrT.Maj or felonies ?
Mr. Fogel. Top felonies; we. are suggesting the, top limit of 8 years,
either aggravated, mitigated or reduced by good time inside. We
have given up the notion of showing clinical progress and working
your way out that way.
Mr. SII unTT. Eight years is not the norm. The chart gives the
impression that 8 years is the norm, and that it would be plus or
minus 2 years, based upon the discretion of the judge.
Mr. FOGEL. That is right, and that is further reduced by good time;
that can halve whatever time the judge gives you.
We think that then increases the stake in lawful behavior on the
part of convicts.
Mr. THELEN. The period of time that you. allow in aggravation
or mitigation seems to only pertain to 1 or 2 years as the maximum
for your chart.
I wonder, when you are dealing with a Nation composed of
heterogeneous communities-the Nation is largely heterogeneous,
rather than homogeneous-on a national level-that a limited aggra-
vation and mitigation span would be appropriate.
For instance, certain crimes in some parts of the country are
regarded much more heinous than in other parts of the country.
And we had a brief discussion with one of the witnesses yesterday
on this point that will pose a problem when defendants convicted
of the same crimes arrive in the same institution and compare notes,
as you pointed out.. But, counterbalancing that is the situation where
the communities from which these convicted defendants come must
also be satisfied with regard to their judgment of the seriousness of
the crime.
Perhaps on a national level, would you allow a greater degree of
flexibility in sentencing than you would on a State level, say, in
Illinois?
Mr. FoGEL. I personally would not. And I will tell you why it was
narrowed. Some of the sentencing studies show that when you plead
guilty to an offense you get x number of years. If you go to trial for
the same offense, you are punished severely for going to trial by
catching a prison term of more years. That is why we have limited
this. It does not appear appropriate to me that when a person
exercises his right to go to trial that he should be dealt with more
punitively.
I am not sure that what ,you are reflecting is accurate; I am not
sure that the community is asking for these things, or whether it is that
the judge feels he has to go this way. The evidence that is in is not
good. It does not meet-at least my standards--of a sense of justice.
Mr. THELEN. Would you have any studies that you could suggest
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159
for inclusion in the record showing the disparity in sentencing be-
tween guilty plea cases and cases when the defendant elects to go
to trial?
Mr. FOGEL. Probably in the larger report-the 400 pager. I think
references will be found in that.
Mr. TIIELEN. Fine.
Senator MCCLELLAN. Senator Ilruska?
Senator IIE.USIcA. Thank you for your statement, Mr. Fogel. It is
going to be of great value to the committee as we round out the
foundations for our executive sessions of markup on this bill.
What is your thinking on mandatory sentences-not generally but
selectively-imposed either by congressional .act or by a State legisla-
ture in the event, for example, of committing a felony or attempting
to commit a felony while in possession of a firearm?
Mr. FOGEL. Simply possession of a firearm?
Senator Hu.USKA. Yes.
We have had such a measure in the Congress, and it was approved
in the Senate. I do not believe it was acted on by the House. My State
of Nebraska has such a mandatory sentence in such an instance, and,
as it is very short and to the point, I ask that it be inserted in the
record at this point.
Senator MCCLELLAN. Very well.
[The information follows:]
REVISED STATUTES OF NERBASKA : 1974 CUMULATIVE SUPPLEMENT
OFFENSES AGAINST PUBLIO HEALTH AND SAFETY
28-1011.21. Firearms, knife, brass or iron knuckles ; used or carried ; com-
mit felony ; penalty. Any person who uses a firearm, knife, brass or iron
knuckles, or any other dangerous weapon to commit any felony which may
be prosecuted in a court of this state, or any person who unlawfully carries
a firearm, knife, brass or iron knuckles, or any other dangerous weapon dur-
ing the commission of any felony which may be prosecuted in a court of this
state, shall be guilty of a separate and distinct felony and shall, upon con-
viction thereof, be punished by confinement in the Nebraska Penal and Cor-
rectional Complex not less than three years nor more than ten years, and
such sentence shall be consecutive to any other sentence imposed upon him.
Source : Laws 1969, c. 204, ? 1, p. 808. Effective date April 2, 1969,
Senator IliUSIcA. I wonder what your thinking is on this type of
mandatory sentencing?
Mr. FoGEL.Several States have that, but I think they run into all
sorts of difficulties because, in whose hands it is, how it got there
and for what use.
I would be generally opposed to a mandatory sentence for simply
possession. However, if you look at the person's police record and
he has been in the habit, two or three times carrying a gun, or reck-
lessly even the first time, I would go for a prison sentence there.
There are other areas of the criminal law where I would go for a
mandatory prison sentence as well.
Senator IIRUSZcA. That could be spelled out in the statute, could it
not? The first time? It could be spelled out in the statute that some-
one convicted of a felony, or that someone who is now, for the
second time, being charged with possession of a gun while in an
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attempt to commit a felony, or having committed it, that could be
spelled out in the statute. It is not a matter of inflexibility.
But the statute, once the conditions are niet, would require the
judge to impose a mandatory penalty. What would you think of that
sort of thing?
Mr. FoGEL. As you say, if that is spelled out in the statute. and not
left to a wide degree. of discretion, then I would be in favor of it.
Senator IIrusKA. That is all the questions I have, Mr. Chairman.
Senator IcCLELLAx. Thank you very much.
The next witness is Mr. James Q. Wilson.
Mr. Wilson, would you please identify yourself for the record,
please.
Mr. WILSON. My name is James Q. Wilson. I am a professor of
government at Harvard University. I am also a member of the board
of directors of the police foundation here in Washington, and I
have served as Chairman of the White House Task Force on Crime
under President Johnson, a similar task force for Vice President
Humphrey, and I was Chairman under President Nixon of the
National Advisory Council for Drug Abuse Prevention.
Needless to say, I am speaking entirely as an individual.
Senator McCLrLLA.\. Do you have a prepared statement?
Mr. WILsoN. No sir, I do not.
Senator McCLELLAN. Very well, you may proceed.
STATEMENT OF PROF. JAMES Q. WILSON, SCHOOL OF GOVERN-
MENT, HARVARD UNIVERSITY
Mr. WILSON. I would like to speak to two questions this morning:
First, to the philosophy of sentencing-, and second, to What implica-
tions might be drawn from that philosophy that might be applicable
to'the Federal code that you are now considering.
I believe that there are four purposes that sentencing perform
or serve : Justice, rehabilitation, deterrence, and incapacitation.
By justice I mean that a sentence must be imposed that is in some
measure proportional to the gravity of the offense, whether or not
the sentence has any potential for deterrence or rehabilitation. For
example, if we can show to our satisfaction that a physician had it
in his power on the basis of 1 week's treatment to turn a convicted
professional murderer into a law-abiding citizen, I do not think we
Would be satisfied with sentencing convicted professional murderers
to the 1-week attention by a physician. To do so it would undermine
the moral seriousness of the crime and cast doubt on the values of
the society and its respect for human life.
No more, can we impose sentences if it can be shown that a fine
of $1,000 would prevent a professional murderer from carrying, out
his contract. Even if such a sentence would deter murder, it would
weaken or perhaps destroy the moral sensibilities of men and women
in this country and around the world in terms of how they regard
human life.
Therefore, one purpose of sentencing must be, independently of
others, to make manifest common standards of justice.. To be sure
these standards are always changing. But the, sentence must be in
some degree, proportional to the moral seriousness of the crime.
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Second, rehabilitation. Since the invention of the penitentiary in
the early part of the 19th century and certainly continuing in an
accelerated way since the passage of juvenile court laws at the
beginning of this century, it has been the professed purpose of the
criminal justice system to rehabilitate the criminal.
I think we can now say, on the basis of well over 200 scientific
studies and efforts here and abroad to achieve rehabilitation, that
with almost no exceptions, none has worked. It makes little difference
whether we sentence criminals to maximum security or minimum
security facilities, to individual psychotherapy or to group psycho-
therapy, to work release programs, or to maximum confinement
programs. These things may be desirable in and of themselves, but
as far as we have been able to discover, they have no effect on the
likelihood of the person's committing a crime.
Of course, if only the inefficacy o' these programs were at issue,
we might decide to continue the effort to rehabilitate and hope for
better luck next time.
Senator MCCLTLLA.N. Do you have any statistics or~ concrete. in-
formation as to the percentage of prisoners that can be said to be
rehabilitated by reason of the punishment of serving time in prison?
Mr. WILSON. No, sir. I believe that it can be shown that a certain
proportion of convicted offenders will spontaneously despite what we
do cease committing that crime. In fact, age seems to be the most
important factor.
Senator McCLrLLAN. Age?
Mr. WILSON. As young men and women grow older, their tendency
to commit a crime is reduced, but there is no evidence, -after many,
many efforts by people who leave wanted to find evidence that what
we do to a person affects in any material way their prospects for.
rehabilitation. I think we have to concede as a empirical proposition,
that it simply does not work.
Senator MCCLI:LLAN. If our objective of rehabilitation is un-
achievable, as is your view from past experience, then what. can
be the purpose, the objective of society and government inflicting
punishment on one who commits a crime?
Mr. WILSON. That is a subject to which I would now like to turn,.
Senator MCCLELLAN. All right.
Mr. WILSON. Before I do, let me simply make two more brief
comments on rehabilitation. As I said, if it were only the fact that
rehabilitation did not. work, there might not be such a great issue
because we could continue to try harder. But rehabilitative programs
in many ways have, two other very undesirable side effects. They have
been alluded to by Mr. Fogel.
One is a profound sense of injustice created by the prisoners when
they realize that the amount of time they serve in prison is based
not on the gravity of their offense or on their prior record or in some
cases even on their conduct in prison, but is based upon the judgment
of somebody-individuals, politicians, psychiatrists-as to whether
or not they are ready to return to society. This means that two
persons who have committed exactly the same offense under the exact
same circumstances may serve very different lengths of time. I believe
with Mr. Fogel that this sense of injustice contributes, along with
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other things, to many of the tensions and some of the disturbances
that we have had in our penitentiaries.
Furthermore, rehabilitation can also contribute to corruption in
prisons. Rehabilitation means to the guards, in Many cases, access to
desirable facilities. They use that access as a way of rewarding and
penalizing prisoners, so that if you get along with the guards by
whatever means, you may get to go to the prison library. If you do
not go along with the guards, you do not.
This affects the prisoners as well. Some of the older convicts,
trying to assert their authority over younger convicts, control these
same privileges in the same way. As has been pointed out, in the
best maximum security prisons, this leads to the corruption of the
rehabilitative ideal.
Let me turn to the two other purposes of sentencing: One is
deterrence and the other is incapacitation.
By deterrence I mean that the certainty of punishment deters at
the margin a would-be criminal from committing that offense. This is
a very difficult question to settle by scientific inquiry. There have been
perhaps 1 or 2 dozen studies that have tried to measure the relation-
ship between the certainty of the sentence by State and the likelihood
that that crime rate for that offense would go up or down.
These studies are, in individual ways, somewhat unsatisfactory,
but interestingly enough, they all come to the same conclusion. Who-
ever has done them, using whatever data, has found that there is a
relationship between the certainty of a penalty and the crime rate,
such that if the probability of imprisonment goes up for, let us say,
robbery, the rate of robbery the following year goes down.
We cannot assert that as a matter of established scientific fact, but
we can say that all the evidence with which social scientists are
familiar is consistent with that proposition. Clearly, of course, those
who are convicted and sentenced to prison have not been deterred by
the sentence. Therefore, for them, what is the purpose of prison?
I believe it is to isolate them from society, to incapacitate them
from other criminal acts. They may commit crimes on fellow
prisoners and that is a serious problem of prison management, but
while on the inside they cannot commit crimes on other citizens on
the outside.
At the present time, we do not use our prisons very successfully
to incapacitate offenders. That is evidenced by the fact that in most
States, even for the most serious crimes committed by repeat
offenders, only a minority, in many cases a small minority, go to
prison at all.
For example, Los Angeles County--if you have been convicted of
robbery and if you have a prior record of having been convicted of
a, felony, the odds are 2 to 1 that you will not go to prison. If the
offense is burglary, and you have been convicted of that and have
a prior conviction for a felony, the odds are better than 5 to 1 that
you will not go to pri;;on.
In New York City, I believe the proportion of convicted robbers
that go to prison is substantially below 20 percent. This means a
large number of persons are free to commit additional acts while on
the outside against innocent victims.
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What would be the effect of having more certain sentences, even
of relatively short duration, for those who have been convicted of
serious crimes? This is difficult to say. I, along with others, are
working on some mathematical models, trying to estimate what the
effect would be. The preliminary results are clear. The effects would
be very large indeed. Depending upon certain assumptions that you
make about how many robberies the average robber commits and
what the probability of catching the average robber might be, a
mandatory minimum sentence of 3 years for robbery could reduce the
rate of robbery between 50 and 75 percent in some jurisdictions.
It seems to me by your failure to look at the deterrent and in-
capacitative consequences of prison, we have allowed the quality of
our prisons to deteriorate, some to become overcrowded, all to be
overage, many to be run poorly. By having emphasized the supposed
rehabilitative effects of prison, we have allowed ourselves to worry
about programs, the practical effect of which is questionable at best,
nonexistent at worst.
The bill that you have .before you I am not familiar with in great
detail, but let me draw some inferences which I think are important.
The first is this : I do not see how we can call ourselves a government
of laws and of men if we have on the books statutes that say
for a class C felony, a judge may sentence a person to prison at any
time from 0 to 15 years, class A felony, any time from 0 years to life.
Enormous discrepancies will result in the application of that Taw.
I think this can already be shown by the result of similar sentencing
practices being followed in the States and in the Federal Government
today.
It seems to me that for the more serious sentences, we should have
mandatory minimum penalties. These mandatory minimums may not
be high. In fact, I do not think they should be high for the following
reason : A high mandatory minimum will not be imposed. If you
deprive, for example, a citizen of his driver's license for 2 years as
a result of committing a traffic infraction, the police will not arrest.
Prosecutors will not prosecute. Judges will not convict. Unless, of
course, the policeman feels ill-disposed to the defendant, the pros-
ecutor got up on the wrong side of the bed, or the judge is in a bad
mood. As a result, some people will get some very heavy sentences;
most none at all.
The same with most high mandatory minimums. They will be
avoided by reduced charging, by failure to arrest, and the like. I
am much more concerned at having a high level of certainty that
people are incapacitated by confinement for even a brief period of
time. Of course, for repeat offenders one would want to increase the
mandatory minimum.
I am not arguing that every offense need have a mandatory
minimum, but only for the more serious ones, class A, B, and C
felonies. I believe there are strong arguments in favor of it, both in
order to increase the deterrent power of the criminal law, to increase
the incapacitative effect of prisons, and to remove the great injustices
that exist through the vast and almost unfettered discretion that
judges and parole boards are now exercising.
The second implication I draw from the views that I have ex-
pressed is that we should sharply reduce the discretion of the parole
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authorities. Parole operates under conditions of low visibility. It is
often not subject to meaningful review. Under the present draft
criminal code, an offender is eligible, with a few exceptions, to
parole any time after he has served 6 months, and he is eligible each
and every year after that time.
This means that a judge can choose to sentence a person from
0 to 30 years for a class 11 felony. Once he is sentenced, a parole
board can choose to change that sentence to any time from 6 months
to 30 years. It seems to me that this is analogous to authorizing the
Commissioner of the Internal Revenue Service to sit down and say
that if you have earned $25,000 last year, your tax will be somewhere
between 0 and 50 percent, depending upon his assessment of your
moral character, his belief that you will continue to pay taxes, and
the mood that he is in. If the taxpayer appeals that, the tax court
is authorized to change the tax rates to soinethino, between 0 and
50 percent.
I do not believe we would vote for that, and I would think that,
although the situation here is not precisely analogous, that we should
pause and consider carefully before we vote for a similar plan for
something that is far more important than mo-,iey, mainly the life,
prospects, and sense of justice of our citizens.
Finally, I would deeniphasize the rehabilitativ purpose of prisons.
I would not cease the effort, to improve the life of convicts. If persons
have reading disabilities. I would seek to eliminate them; if they
have medical problems, I would supply medical help; if they lack
job skills, I would supply job skills. I would do all these things
because it is right to provide all of our citizens with these services,
but I would do none of them under the mistaken belief that by so
doing that we will in any way alter the inniate'f; prospects for com-
mitting or not committing new crimes when he is released.
There is one qualification that I want to make to this-that is
how we manage the release procedure. It seems to we that it is
extremely important that we devote a lot of attention and resources
to easing the transition between prison and the community to make
sure that we do everything possible to help a person find a job,
relocate in his community, get a reasonable start on a new life.
We cannot be optimistic that that will guarantee that he will go
straight, but it seems to me that he faces so many barriers that we
must do everything we can to overcome it. That, it seems to me,
rather than the discussion now given to the parole system, is the
proper focus for many of the efforts that we hope the Bureau of
Prisons will carry out.
Senator McCLELLnN. Thank you very much.
I wish you would express briefly your views with respect to the
deterrent aspect of sentencing. Whether sentencing as a punishment
for a felony really operates as a deterrent to crime.
Mr. WILSON. Sir, I believe that on the basis of the studies that have
been done so far by a great variety of individuals around the country
that the more certain the penalty, the less the likelihood that that
crime will be committed.
This is not to say that you can eliminate crime by having highly
certain penalties. Some people commit crimes no matter what the
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penalty may be-a deranged person, a person in an alcoholic haze, a
passionate lover with a gun in his or her hand. Some people even
commit crimes in order to prove that they are tough men or tough
women. But at the margin I believe there is a substantial deterrent
effect. I think we see it in our everyday lives.
We take our hands off hot stoves because they burn us; we consume
less gasoline as the price goes up; and laws against j aywalki.ng and
running red lights are scrupulously observed in Los Angeles because
the policemen enforce those laws-they are not observed at all in
Boston because the policemen do not enforce those laws.
I think that although it is not a scientific certainty, the evidence
is consistent with the fact that the certainty of sentencing does have
some deterrent effect.
Senator McCrILLAN. With respect to the death penalty, what is
your view with regard to that-whether or not that serves as a de-
terrent to the commission of murder or capital offenses?
Mr. WILSON. Here the experts are in disagreement. Most of the
studies tend to show that for the crime of common murder, the
everyday garden variety murder-of which we have 20,000 a year
in this country-the death penalty as administered in this country
does not have a discernable deterrent effect. There are some that
believe it does.
The argument is now being fought out in scientific publications.
Frankly I am skeptical that the death penalty would have a deterrent
effect for most murderers, because most murders are acts of passion
that begin as a fight and end up as murder only because a weapon
happens to be present on the premises.
On the other hand, there is good reason to suppose-although no
evidence=that the death penalty might be a deterrent for certain
forms of heinous, calculated crimes by the professional killer, the
aircraft hijcaker., the spy or saboteur. I do not think we will ever
be able to answer the question scientifically. The problem of the
death penalty is going to have to be resolved by this Congress on
essentially moral grounds.
Does the Congress believe that there are certain offenses so heinous,
so destructive of life, property and even the existence of the country,
that death is really the only suitable penalty? Or is the opposite the
case?
I do not believe, that you will be able to resolve this question on
the basis of scientific evidence. I do not believe that you will be
able to resolve this question by any studies-that I know of-as to
the deterrent effect of the death penalty.
Senator McCLrLLAN. Do you believe that one can commit such a
heinous crime that he forfeits his right to live in a law-and-order
society ?
Mr. WILSON. Yes sir.
I believe there are certain crimes so heinous that death might be
an appropriate penalty. If someone, in full possession of his senses-
not mentally deranged-blows up an airline- in flight containing 100
small children in order to collect the insurance on one of them, it
seems to me that that cuts at the very core of what every civilized
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man and woman must believe and that the death penalty might be
appropriate.
For acts of espionage and sabotage during wartime
Senator MCCLELLAN. What about kidnaping and murder for the
purpose of extortion or blackmail?
Mr. WILSON. Senator, it is not a hedge on my part when I say
that I have not through my own position on many of these other
cases-specifically on the case of murder. The best I can say is that
at one extreme, I believe that there are crimes so heinous that death
may be an appropriate penalty; at the other extreme, I am prepared
to say that the average murder in the United States probably is not,
by its nature and the quality of the act, a crime sufficiently heinous-
so intended-such that murder is an appropriate penalty. In between,
I must say that I am perplexed and still thinking.
Senator MCCLELLAN. Speaking about deterrents, does the law
itself deter crime, or is it the enforcement of the law that serves as a
deterrent?
Mr. WILSON. I think even the law itself has some deterrent effect.
I believe that we act on that principle every time that we pass a
civil rights act, every time we pass a statute regarding drug abuse.
We are saying that there are certain things that we believe are
wrong, even though we know that we cannot enforce the law against
those things very frequently, because many of these actions occur
invisibly.
Yet, I believe that the existence of the law does have some effect
in educating the citizens as to what is expected; it enforces familiar
moral judgments, and therefore, has a deterrent effect. The enforce-
ment of the law also has a deterrent effect.
I am now doing some research in which I believe I can show-
although I am not prepared to say conclusively I can show-that
the rate at which the police arrest persons--
Senator MCCLE LLAN. Some people would obey the law simply out
of consciousness that it is right to do so.
Mr. WILSON. That is right.
Senator MCCLELLAN.. To that extent that would serve as a
deterrent.
Mr. WILSON. Yes, sir.
Senator MCCLELLAN. Then for those who would not so conform
to the law out of a sense of duty and social responsibility, the element
of punishment and certainty of punishment would be necessary to
deter.
Mr. V47 rsoN. Yes, sir. It would be necessary; it would not deter all
those who would be so inclined. For some we. may have to assume that
incapacitating them in prison is the only thing to be done.
I believe, yes, that the,act of arrest, the act of conviction, the act
of punishment, if swiftly and fairly done, does act as a deterrent
for a substantial number of persons.
Senator MCCLELLAN. It is pretty clear to me that the lack of en-
forcement certainly mitigates against the effectiveness of the law's
deterrence.
Mr. WILSON. I agree.
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Senator McCL].LLAN. We have a lot of proposals today for a gun
control law. There are some who offer variations of the extent that
it should be applied, the licensing of weapons and confiscation and
so forth. I have often thought that most States-and perhaps all-
prohibit the carrying of concealed weapons-deadly weapons-if
that law were enforced, it seems to me that that would go a long
ways toward accomplishing what those who want to prohibit the
ownership of arms would accomplish.
The trouble with so many guns today is because the law is not
enforced with respect to the carrying of concealed weapons.
Mr.: WILSON. That is quite correct.
Senator MoCLELr,.kx. I wonder if we cannot enforce the present
gun laws, how can we enforce a new law to prohibit the possession
of weapons?
Mr. WIr.SoN. I agree with you- about the problems that have arisen
in enforcing state laws against carrying concealed weapons. It is
because of those problems that my State of Massachusetts has re-
cently enacted a bill providing mandatory 1-year sentences for
anyone carrying a concealed weapon, or anyone having in their
possession-even in their home-an unlicensed weapon. They, can
certainly possess Weapons, providing they are licensed, but they
cannot carry them concealed.
There have already been arrests, and there have been convictions.
I believe that one of~the reasons why the laws have proved so weak
in the past is that most judges are unwilling to pass sentence for
that offense alone, and they are unwilling to do so for various
reasons. One is that they do not take the crime seriously in some
cases; in other cases they believe the prisons are an inappropriate
place to put persons who carry weapons. But in a. large number of
cases, the way the police learn about a weapon is when they have
arrected a person on a charge of assault. This assault is usually
against a friend or a family member with a knife or gun. The police
get there. before it results in murder, then they bring the parties
before the judge. By this time, they have sobered'up, they have, made
up, and the wife or the husband-whichever is the victim, real or
imagined-says, I do not want to bring charges.
So that assault results in no punishment. The existence or the
use of that weapon results in no punishment. In my view, and I
believe that there is ample evidence on-this, is that the casual availa-
bility of a weapon, when tempers. are riding high, leads to many
serious assaults and murders. And I believe that the States-or if
not the States, the Federal Government-should move in the direc-
tion: of having mandatory minimum sentences for people arrested
while in the possession of a concealed, dangerous weapon.
And I believe that if this were done, that this would have some
desirable effect on reducing the amount of maiming and killing that
is going on.
Mr. TIIELEN. Professor, you have discussed the problem of discre-
tion in sentencing and what you believe to be an excess of judicial
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discretion in this area. You would solve that problem to a certain
degree by mandatory minimums.
To what extent do you allow for .any discretion in sentencing?
Have you given some thought to that?
Dr. Fogel testified that he would allow the court to vary a sentence
by up to 1 or 2 years depending upon the agrravating or mitigating
circumstances in a case. Do you concur in that approach ?
Mr. WILSON. Yes, I do.
Clearly a judge--or a judge and prosecutor working together as
in practice-must have some discretion, because a person stealing
out of personal want may be different from a person stealing out of
malicious intent. And both are different from a person having a prior
record of stealing. The circumstances of the act must be taken into
account.
I do not think this requires a great deal of discretion. Not nearly
as much as is embodied in this legislation or as most laws in the
States. What may be aggravatinx or mitigating circumstances, I am
not prepared to say. What Mr. Fogel spoke to is, on the face of it,
a reasonable proposal.
Mr. Tim m,,-,\-. You would allow, for example, sentence variation
from 3 to five years-a very limited amount?
Mr. WILSON. Yes sir.
In fact, as I indicated, on a more common offense .such as burglary
or theft from interstate, transportation, or the other major common
elements that involve Federal law enforcement, the mandatory mini-
mums might even be smaller than that in order to ensure that they
are imposed, -and we are not sentencing people faster than we have
adequate facilities to house them.
Around that minimum, I would allow a rather constrictive range.
But some range, yes.
Mr. TIIFILrx, What about the elimination of parole? Dr. Fogel
discussed that.
Mr. AVILSON, T do not think parole serves any constructive purpose.
Tt does not facilitate the reentry of the convict into society, because
parole is simply a judgment. You are in or out; there are no follow-
up services. That judgment is capriciously given.
Scientific studies show that persons given parole are no more and
no less likely to commit new offenses than persons who serve their
full time. Given the opportunities for the improper use of discretion
in many state parole systems-let us be candid -given the oppor-
tunity for political influence, or even bribery-it seems these costs
simply outweigh the nonexistent benefits.
Mr. TIIELrx. You would favor the system of doing away with
parole?
ATr. WILSON. Yes sir.
You have to have some way of giving persons time off for good
behavior, and you have to have a procedure whereby people who have
been wrongly convicted or wrongly sentenced can appeal and receive
clemency.
Mr. Tlnerr;x. You would favor, then, something like the flat good-
time approach of Dr. Fogel?
Mr. %'VILSox. Yes, sir.
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Mr. THELEN. Thank you.
Mr. ROTIISTEIN. Professor, I have one question.
You mentioned the reluctance of judges to sentence defendants in
certain cases-particularly an offender whose only offense is carrying
a concealed weapon. I think that we all understand that there are
understandable reasons when the heat of, the moment is off, and we
have a citizen who is fairly law-abiding in some other respects, that
a judge may not want to send him to a place where there are
hardened criminals, therefore furthering the criminalization of this
individual.
Do you think that this situation would be improved if there were
separate prison facilities for certain offenders of this variety? That
that would make judges more willing to sentence?
Mr. WILSON. We have done far too little in designing a variety of
confinement facilities with an appropriate degree of amenities suit-
able for the different classes of offenders. We have tried to classify
offenders in most States, but it is a most primitive process. Persons
under 17 are separated, usually, from persons over 17. Pathological
offenders are sometimes separated from the nonpathological of-
fenders, but it is quite primitive.
I think that classification and separation principles have to be
carried much further. For example, if an ordinary law-abiding
citizen is caught carrying a concealed weapon, I think something
should be done that is relatively serious to that citizen. I do not
imagine that requires sending him to a conventional fortress prison
for 6 months; it might be necessary only to tell the person that he
must serve time on weekends for a protracted number of weekends
so he can continue to hold his job while lie reflects on the gravity of
carrying a, gun.
Mr. ROTIISTEIN. One further question.
Cutting against the whole notion that prison deters-which is
the central point of your presentation-what do you have to say to
those, people, those experts, who have said that criminals often seek
the structure and environment of the prison, and when they are
released they cannot commit another crime fast enough to get back
into prison because they really cannot cope with the unstructured,
outside world?
Mr. WILSON. There are such offenders, ranging from the Bowery
derelict who wants to be locked up for drunkenness because it is his
only home-the jail-to a few offenders who have only know prison
life. But they are a very small minority.
I do not know which convicts the experts to which you refer have
interviewed. But I have interviewed very few who would rather not
be on the outside, for whom the deprivation of liberty is not a very
grave penalty.
Mr. IioTiisruiN. There may be a difference between what they
say and what their subconscious creates.
Mr. WILSON. One could say that. I am not persuaded by it. I
believe that most persons-especially in a democratic society-
cherish their liberty almost more than anything else. Indeed, the
whole concept of a prison was. meaningless before the early part
of the 19th century because of, there then being no liberty in western
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civilization, the deprivation of liberty was meaningless. When the
Quakers invented the first penitentiary, they knew that they were
taking a serious step.
If there are some persons who prefer the structured environment
of an institution-and I think it is possible to find out who those
persons are, and perhaps for their own benefit to find a different kind
of structured environment, a different institution-perhaps they
would enjoy a life in a work camp. Perhaps they are eminently
suitable candidates for continued service in public employment jobs.
I am talking about the average offender who would rather be on the
outside than the inside.
Mr. RoTIISTEIN. Cane final point.
In your presentation you referrer, to studies showing that the
crime rate drops as the punishment becomes more serious. Could you
mention for us those studies so we can be sure that we have also
included them?
DIr. WILSON. You will find several summaries of them in the
following sources : a book, "Thinking About Crime", by James Q.
Wilson, which is being published by Basic Books next month; an
article by Gordon Tullock, which appeared in the Public Interest
last year-I do not have a, date; an article by Charles Tittle, which
appeared in the Law and Society Review in the last year.
These are three summaries; there are others. I am sorry I do not
have copies of them here. Since those publications, I can assure you
there are many unpublished studies that all came to the same
conclusion.
.Mr. ROTIISTi:IN. Thank you.
Senator HRUSIiA. The questions that I have had in mind have been
clearly covered.
Thank you for coming.
Senator McCLELLAN. The staff calls my attention to the fact that
there was published in the New York Times Magazine on March 19,
an article written by you. Do you object to that being inserted in the
reoord ?
Mir. WVILSON. I would have no objection, sir, if it suits you.
Senator MCCLELLAN. Very well.
Without objection. it will be inserted in the record.
[The information referred to follows:1
[From The New York Times Magazine/March 9, 1975]
LOOS 'EM UP AND OTHER TnouaHTS ON CRIME
by James Q. Wilson
James Q. Wilson is Henry Lee Shattuck Professor of Government at Harv-
ard. This article is adapted from his forthcoming book, "Thinking About
Crime."
As much as anything, our futile efforts to curb or even understand the
dramatic and continuing rise in crime have been frustrated by our optimistic
and unrealistic assumptions about human nature. Considering that our so-
ciety is in the grip of a decade-old crime wave despite a decade-long period
of prosperity, it is strange that we should persist in the view that we can
find and alleviate the "causes" of crime, that serious criminals can be re-
habilitated, that the police can sowehow be made to catch more criminals
faster, and that. prosecutors and judges have the wisdom to tailor sentences to
fit the "needs" of the individual offender.
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I argue for a sober view of man and his institutions that would permit
reasonable things to be accomplished, foolish things abandoned, and utopian
things forgotten. A sober view of man requires a modest definition of progre.s.
A 20-per cent reduction in robbery would still leave us with the highest rob-
bery rate of almost any Western nation but would prevent about 60,000
robberies a year. A small gain for society, a large one for the would-be victims.
Yet a 20 per cent reduction is unlikely if we concentrate our efforts on deal-
ing with the causes of crime or even if we concentrate on improving police
efficiency. But were we to devote those resources to a strategy that is well
within our abilities-to incapacitating a larger fraction of the convicted
serious robbers-then not only is a 20 per cent reduction possible, even larger
ones are conceivable.
Most serious crime is committed by repeaters. What we do with first of-
fenders is probably far less important than what we do with habitual of-
fenders. A genuine first offender (and not merely a habitual offender caught
for the first time) is in all iikelihood a young person who, in the majority
of cases, will stop stealing when he gets older. This is not to say we should
forgive first offenders, for that would be to license the offense and erode the
moral judgments that must underlie any society's attitude toward crime.
The, gravity of the offense must be appropriately impressed on the first of-
fender, but the effort to devise ways of re-educating or uplifting him in order
to insure that lie does not steal again is likely to be wasted-both because
we do not know how to re-educate or uplift and because most young delin-
quents seem to re-educate themselves not matter what society does.
After tracing the history of nearly 10,000 Philadelphia boys born in 1945,
Marvin Wolfgang and his colleagues at the University of Pennsylvania found
that more than one-third were picked up by the police for something more
serious than a traffic offense but that 46 per cent of these delinquents had no
further police contact after their first offense. Though one-third started on
crime, nearly half seemed to stop spontaneously-a good thing, because other-
wise the criminal justice system in that city, already sorely taxed, would in
all likelihood have collapsed. Out of the 10,000 boys, however, there were
627-only 6 per cent-who committed five or more offenses before they were
18. Yet these few chronic offenders accounted for more than half of all the
recorded delinquencies and about two-thirds of all the violent crimes com-
mitted by the entire cohort.
Only a tiny fraction of all serious crimes leads immediately to an arrest,
and only a slightly larger fraction is ultimately "cleared" by an arrest, but
this does not mean that the police function is meaningless. Because most
serious crime is committed by repeaters, most criminals eventually get ar-
rested. The Wolfgang findings and other studies suggest that the chances
of a persistent burglar or robber living out his life, or even going a year,
with no arrest are quite small. Yet a large proportion of repeat offenders
suffers little or no loss of freedom. Whether or not one believes that such
a penalty, if inflicted, would act as a deterrent, it is obvious that it could
serve to incapacitate these offenders and thus, for the peroid of the incapaci-
tation, prevent them from committing additional crimes.
We have a limited (and declining) supply of detention facilities, and many
of those that exist are decrepit, unsafe, and overcrowded. But as important as
expanding the supply and improving the decency of the facilities is the need
to think seriously about how we wish to allocate those spaces that exist. At
present, that allocation is hit or miss. A 1966 survey of more than 15 juvenile
correctional institutions disclosed that about 30 per cent of the inmates were
young persons who had been committed for conduct that would not have been
judged criminal were it committed by adults. They were runaways, "stub-
born children," or chronic truants-problem children, to be sure, but scarcely
major threats to society. Using scarce detention space for them when in Los
Angeles more than 90 per cent of burglars with a major prior record receive
no state prison sentence seems, to put it mildly, anomalous.
In a joint study, Prof. Reuel Shinnar of City College of New York and his
son Shlomo have estimated the effect on crime rates in New York State of a
judicial policy other than that followed during the last decade or so. Given
the present level of police efficiency and making some assumptions about how
many crimes each offender commits per year, they conclude that the rate of
serious crime would be only one-third what it is today if every person, con-
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victed of a serious offense were imprisoned for three years. This reduction
would be less if it turned out (as seems unlikely) that most serious crime
is committed by first-time offenders, and it would be much greater if the
proportion of crimes resulting in an arrest and conviction were increased
(as also seems unlikely). The reduction, it should be noted, would be solely
the result of incapacitation, making no allowance for such additional reduc-
tions as might result from enhanced deterrence or rehabilitation.
The Shinnar estimates are based on uncertain data and involve assumptions
that can be challenged. But even assuming they are overly optimistic by a
factor of two, a sizable reduction in crime would still ensue. In other coun-
tries such a policy of greater incapacitation is in fact followed, A robber ar-
rested in England for example, is more than three times as likely as one
arrested in New York to go to prison. That difference in sentencing does not
account for all the difference between English and American crime rates,
but it may well account for a substantial fraction of it.
That these gains are possible does not mean that society should adopt such
a policy. One would first want to know the costs, in additional prison space
and judicial resources, of greater use of incapacitation. One would want to
debate the propriety and humanity of a mandatory three-year term ; perhaps,
in order to accommodate differences in the character of criminals and their
crimes, one would want to have a range of sentences from, say, one to five
years. One would want to know what is likely to happen to the process
of charging and pleading if every person arrested for a serious crime faced a
mandatory minimum sentence, however mild. These and other difficult and
important questions must first be confronted. But the central fact is that
these are reasonable questions around which facts can be gathered and in-
telligent arguments mustered. To discuss them requires us to make few opti-
mistic assumptions about the malleability of human nature, the skills of of-
ficials who operate complex institutions, or the capacity of society to improVe
the fundamental aspects of familial and communal life.
Persons who criticize an emphasis on changing the police and courts to
cope with crime are fond of saying that such measures cannot work so long
as unemployment and poverty exist. We must acknowledge that we have
not done very well at inducting young persons, especially but not only blacks,
into the work - force. Teen-age unemployment rates continue to exceed 20 per
cent and show little sign of abating. Nor should we assume that declining
birth rates will soon reduce either the youthful demand for jobs or the supply
of young criminals. The birth rates are now very low; it will not be until
the mid- or late-nineten-eighties that these low rates will affect the proportion
of the population that is entering the job-seeking and crimeprone ages of 16
through 26.
In the meantime, while anti-crime policies may be hampered by the failure
of employment policies, it would be equally correct to say that so long as the
criminal-justice system does not impede crime, efforts to reduce unemploy-
ment will not work. If legitimate opportunities for work are unavailable, many
young persons will turn to crime ; but if criminal opportunities are profitable,
many young persons will not take those legitimate jobs that exist. The bene-
fits of work and the costs of crime must be increased simultaneously ; to in-
crease one but not the other makes sense only if one assumes that young
people are irrational.
One rejoinder to this view is the argument that if legitimate jobs are made
absolutely more attractive than stealing, stealing will decline even without
any increase in penalties for it. That may be true provided there is no practical
limit on the amount that can be paid in wages. Since the average "take"
from a burglary or mugging is quite small, it would seem easy to make
the income from a job exceed the income from crime.
But this neglects the advantages of a criminal income: One works at crime
at one's convenience, enjoys the esteem of colleagues who think a "straight"
job is stupid and skill at stealing is commendable, looks forward to the
occasional "big score" that may make further work unnecessary for weeks,
and relishes the risk and adventure associated with theft. The money value
of all these benefits-that is, what one who is not shocked by crime would
want to cash to forego crime-is hard to estimate but is almost certainly far
larger than what either public or private employers could offer to unskilled
or semiskilled young workers. The only alternative for society is so to in-
crease the risks of theft that its value is depreciated below what society can
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afford to pay in legal wages, and then take whatever steps are necessary to
insure that those legal wages are available.
Another rejoinder to the "attack poverty" approach to crime is this : The
desire to reduce crime is the worst possible reason for reducing poverty.
Most poor persons are not criminals ; many are either retired or have regular
jobs and lead conventional family lives. The elderly, the working poor, and the
willing-to-work poor could benefit greatly from economic conditions and gov-
ernment programs that enhance their incomes without there being the slight-
est reduction in crime-indeed, if the experience of the nineteen-sixties is
any guide, these might well be through no fault of most such beneficiaries, an
increase in crime. Reducing poverty and breaking up the ghettos are desir-
able policies in their own right, whatever their effects on crime. It is the
duty of government to devise other measures to cope with crime : not only to
permit anti-poverty programs to succeed without unfair competition from
criminal opportunities, but also to insure that such programs do not inad-
vertently shift the costs of progress, in terms of higher crime rates, onto
innocent parties, not the least of whom are the poor themselves.
One cannot press this economic reasoning too far. Some persons will commit
crimes whatever the risks ; indeed, for some, the greater the risk, the greater the
thrill, while others-the alcoholic wife beater, for example-are only dimly
aware that there are any risks. But more important than the insensitivity of
certain criminal offenders to changes in risks and benefits is the impropriety of
casting the crime problem wholly in terms of a utilitarian calculus. The most
serious offenses are crimes not simply because society finds them inconvenient,
but because it regards them with moral horror. To steal, to rape, to rob, to
assault-these acts are destructive of the very possibility of society and affronts
to the humanity of their victims. It is my experience that parents do not
instruct their children to be law-abiding merely by pointing to the risks of
being caught, but by explaining that these acts are wrong whether or not one
is caught. I conjecture that those parents who simply warn their offspring
about the risks of crime produce a disproportionate number of young persons
willing to take those risks.
Even the deterrent capacity of the criminal-justice system depends in no small
part on its ability to evoke sentiments of shame in the accused. If all it
evoked were a sense of being unlucky, crime rates would be even higher.
James Fitzjames Stephens, the 10th-century British jurist, makes the point
by analogy. To what extent, he asks, would a man be deterred from theft by
the knowledge that by commiting it he was exposing himself to 1 chance in
50 of catching a serious but not fatal illness-say, a bad fever? Rather little,
we would imagine-indeed, all of us regularly take risks as great as or
greater than that : when we drive after drinking, when we smoke cigarettes,
when we go hunting in the woods. The criminal sanction, Stephens concludes,
"operates not only on the fears of criminals, but upon the habitual sentiments
of those who are not criminals. [A] great part of the general detestation of
crime . arises from the fact that the commission of offenses is associated
. with the solemn and deliberate infliction of punishment wherever crime
is proved."
Much is made today of the fact that the criminal-justice system "stigmatizes"
those caught up in it, and thus unfairly marks such persons and perhaps even
furthers their criminal careers by having "labeled" them as criminals. Whether
the labeling process operates in this way is as yet unproved, but it would
indeed be unfortunate if society treated a convicted offender in such a way
that he had no reasonable alternative but to make crime a career. To
prevent this, society ought to insure that one can "pay one's debt" without
suffering permanent loss of civil rights, the continuing and pointless indignity
of parole supervision, and frustration in being unable to find a job. But doing
these things is very different from eliminating the "stigma" from crime. To
destigmatize crime would be to lift from it the weight of moral judgment and
to make crime simply a particular occupation or avocation which society has
chosen to reward less (or perhaps more!) than other pursuits. If there is no
stigma attached to an activity, then society has no business making it a crime.
Indeed, before the invention of the prison in the late 18th and early 19th cen-
turies, the stigma attached to criminals was the major deterrent to and
principal form of protection from criminal activity. The purpose of the crim-
inal-justice system is not to expose would-be criminals to a lottery in which
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they either win or lose, but to expose them in addition and more importantly
to the solemn condemnation of the community should they yield to temptation.
Anyone familiar with the police stations, jails and courts of some of our
larger cities is keenly aware that accused persons caught up in the system
are exposed to very little that involves either judgment or solemnity. They
are instead processed through a bureaucratic maze in which a bargain is offered
and a haggle ensues at every turn-over the amount of bail, the degree of the
charged offense and the nature of the plea. Much of what observers find objec-
tionable about this process could be alleviated by devoting many more re-
sources to it, so that an ample supply of prosecutors, defense attorneys and
judges was available. That we do not devote those additional resources in a
country obsessed with the crime problem is one of the more interesting illustra-
tions of the maxim, familiar to all political scientists, that one cannot predict
public policy simply from knowing popular attitudes. Whatever the cause, it
remains the case that in New York County (Manhattan) there were, in 1973,
31,093 felony arrests to be handled by only 125 prosecutors, 119 public de-
fenders and 59 . Criminal-Court judges. The result was predictable : Of those
arrested, only 4,130 pleaded guilty to or were convicted on a felony charge ;
81 per cent of the felony arrests were disposed of by pleading guilty to a mis-
demeanor or-by discharging the case.
One wonder whether the stigma properly associated with crime retains
much deterrent or educative value. My strong inclination is to resist explana-
tions for rising crime that are based on the alleged moral breakdown of
society, the community or the family. I resist in part because most of the
families and communities I know have not broken down, and in part because,
had they broken down, I cannot imagine any collective action we could take
consistent with our civil liberties that would restore it moral consensus, and
yet the facts are hard to ignore. Take the family : More than one-third of all
black children and 1 in 14 of all white children live in single-parent families.
More than two million live in single-parent households (usually the father
absent), almost double the number of 10 years ago. In 1950, 18 per cent of black
families were headed by females ; in 1969 the proportion had risen to 27
per cent; by 1973 it exceeded 35 per cent. The average income for a single-
parent family with children under 6 years of age was, In 1970, only $3,100, well
below the official "poverty line."
Studies done in the late nineteen-fifties and the early nineteen-sixties
showed that children from broken homes were more likely than others to
become delinquent. In New York State, 58 per cent of the variation in pupil
achievement in 300 schools could be predicted by but three variables-broken
homes, overcrowded housing and parental educational level. Family disorgani-
zation, writes Prof. Urie Bronfenbrenner of Cornell University, has been
shown in thousands of studies to be an "omnipotent overriding factor" in
behavior disorders and social pathology. And that disorganization is increasing.
These facts may explain some elements of the rising crime rate that cannot
be attributed to the increased number of young person 7, high teen-age unem-
ployment or changed judicial policies. The age of persons arrested has been
declining for more than 15 years and the median age of convicted defendants
(in jurisdictions for which data are available) lies been declining for the
last six years. Apparently, the age at which persons begin to commit serious
crime has been falling. For some young people, thus, whatever forces weaken
their resistance to criminal activity have been increasing in magnitude, and
these forces may well include the continued disorganization of the family and
the continued deterioration of the social structure of inner-city communities.
One wants to be objective, if not optimistic. Perhaps single-parent families
today are less disorganized-or have a different significance-than such families
in the past. Perhaps the relationship between family structure and social
pathology will change. After all, for at least a brief while, the heroin epidemic
on the East Coast showed signs of abating as law enforcement reduced
the supply of narcotics, treatment programs took many addicts off the streets
and popular revulsion against addiction mounted. Perhaps other aspects of the
relationship among family, personality and crime will change. Perhaps. But
even as this is being written, and after the book from which it is taken
went to press, there have appeared omnious signs that the East Coast heroin
shortage may be ending and the use of heroin once again increasing.
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No one can say how much of crime results from its increased profitability
and how much from its decreased shamefulness. But one or .both factors must
be at work, for population changes alone simply cannot account for the
increases. Crime in our cities has increased far faster than the number of
young people, or poor people, or black people, or just plain people who live
in those cities. In short, objective conditions alone, whether demographic or
economic, cannot account for the crime increases ; ideas, attitudes, values have
played a great part, though in ways hard to define and impossible to measure.
An assessment of the effect of these changes on crime would provide a partial
understanding of changes in the moral structure of our society.
But to understand is not to change. If few of the demographic factors
contributing to crime are subject to planned change, virtually none of the
subjective ones are. Though intellectually rewarding, from a practical point
of view it is a mistake to think about crime in terms of its "causes" and then
to search for ways to alleviate those causes. We must think instead of what
it is feasible for a government or a community to do, and then try to discover
by experimentation and observation, which of those things will produce, at
acceptable costs, desirable changes in the level of criminal victimization.
There are, we now know, certain things we can change in accordance with
our intentions, and certain ones we cannot. We cannot alter the number of
juveniles who first experiment with minor crimes. We cannot lower the recidiv-
ism rate ; though within reason we should keep trying. We are not yet
certain whether we can increase significantly the police apprehension rate.
We may be able to change the teen-age unmployment rate, though we have
learned by painful trial and error that doing this is much more difficult than
once supposed. We can probably reduce the time it takes to bring an arrested
person to trial, even though we have as yet made few serious efforts to do
the
so. We can certainly reduce of prosecutorial discretion over whom btor charge and whom to release, and we
can most definitely stop pretending that judges know, any better than the
rest of us, how to provide "individualized justice." We can confine a larger
proportion of the serious offenders and repeaters and fewer of the common
drunks and truant children. We know that confining criminals prevents them
from harming society, and we have grounds for suspecting that some would-be
criminals can be deterred by the confinement of others.
Above all, we can try to learn more about what works, and in the process
abandon our ideological preconceptions about what ought to work. Nearly 10
years ago I wrote that the billions of dollars the Federal Government was
then preparing to spend on crime control would be wasted and indeed might
even make matters worse if they were merely pumped into the existing criminal-
justice system. They were, and they have. In the next 10 years I hope we can
learn to experiment rather simply spend, to test our theories rather than fund
our fears. This is advice, not simply or even primarily to government-for
governments are run by men and women who are under irresistible pressures to
pretend they know more than they do-but to my colleages ! academics, the-
oreticians, writers, advisers. We may feel ourselves under pressure to pretend
we know things, but we are also under a positive obligation to admit what
we do not know and to avoid cant and sloganizing. The Government agency,
the Law Enforcement Assistance Administration, that has futilely spent those
billions was created in consequences of an act pasesd by Congress on the
advice of a Presidential commission staffed by academics, myself incbided.
It is easy and popular to criticize yesterday's empty hopes and mistaken be-
liefs, especially if they seemed supportive of law enforcement. It is harder,
and certainly most unpopular, to criticize today's pieties and pretentious,
especially if they are uttered in the name of progress and humanity. But if
we were wrong in thinking that more money spent on the police would bring
down crime rates, we are equally wrong in supposing that closing our prisons,
emptying our jails and supporting "community-based" programs will do any
better. Indeed, there is some evidence that these steps will make matters
worse, and we ignore it at our peril.
Since the days of the crime commission, we have learned a great deal,
more than we are prepared to admit. Perhaps we fear to admit it because of a
new-found modesty about the foundations of our knowledge, but perhaps also
because the implications of that knowledge suggest an unflattering view of
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man. Intellectuals, although they often dislike the common person as an
individual, do not wish to be caught saying uncomplimentary things about
humankind. Nevertheless, some persons will shun crime, even if we do nothing
to deter them, while others will seek it out even if we do everything to re-
form them. Wicked people exist. Nothing avails except to set them apart from
innocent people. And many people, neither wicked nor innocent, but watchful,
dissembling, and calculating of their opportunities, ponder our reaction to
wickedness as a cue to what they might profitably do. We have trifled with
the wicked, made sport of the innocent and encouraged the calculators. Justice
suffers, and so do we all.
Senator MCCLELLAN. Our next witness is Mr. Ralph Rudd. All
right, identify yourself for the record.
STATEMENT OF P.ALPH RUDD ON BEHALF OF FRIENDS COMMITTEE
ON NATIONAL LEGISLATION
Mr. RUDD. My name is Ralph Rudd. I live at 4777 Wood Street,
Willoughby, Ohio 44094. I am a lawyer practicing in Cleveland,
Ohio. I appear before you today on behalf of the Friends Committee
on National Legislation. I chair its general corrnnitte, which meets
annually, and serve also as a member of its executive committee and
policy committee. The Friends Committee on National Legislation
exists to serve the interests of members of the religious society of
Friends, commonly called Quakers, in national legislative and ad-
ministrative activities having to (to with both international and
domestic policy. This committee is widely representative of Friends'
groups around the Nation, but does not purport to speak for all
Friends, who cherish their rights to individual. opinions. Our pri-
mary concerns are for peace, social equality, and justice. I under-
stand the committee was the first and is now, the oldest registered
religious lobby in our national capital.
In the areas of sentencing, which I understand to be the subject
of this hearing, one of the deepest concerns of Quakers is for the
abolition of capital punishment. Capital punishment violates the
most fundamental Quaker teaching, that there is something of God
in every person, and that no one is ever totally beyond the reach of
the spirit of God for spiritual redemption and for the recognition
and acceptance of truth. Thus the law should seek to preserve human
life, not take it, and we urge deletion of the provisions for capital
punishment now contained in Senate bill No. 1, chapter 24. If more
practical, though less profound, reasons for abolishing capital
punishment are sought, I would point out that it has proved im-
possible to demonstrate statistically that the prospect of capital
punishment is an effective deterrent to homicide. The belief it is a
deterrent rests on nothing more solid than the widespread affirmation
that it stands to reason. The lesson is that what stands to reason when
we are able to reason is of little effect when human beings become
unreasoningly homicidal.
I suggest it stands to reason at least equally that for the law to
say that it is sometimes right to kill in cold blood lowers for all of
us the threshold of inhibition against killing in hot blood. I believe
the violence that our country committed in Vietnam taught by ex-
ample that violence is a legitimate instrument of politics, and so
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contributed to the wave of violence and assassination we experienced
in the last decade. Just so, I believe the existence in the law of capital
punishment augments crime at least as much as it deters it.
The other main idea I want to express has to do with the iniquity
of our prison system. It is widely said that it takes young delinquents
and turns them into hardened criminals. The National Advisory
Commission on Criminal Justice Standards and Goals reported in its
1973 report, A National Strategy to Reduce Crime, pages 173 and
183, two studies that seemed to show that recidivism increases with
longer terms in prison. This seems attributable to the basic character
of prison life, which, at best, reduces drastically the opportunities for
practice of freedom and exercise of responsibility. At worst it re-
duces one from a person to a number, from a citizen to a subject,
from self-reliance to dependency, from hope to frustration. It tends
even to degrade the jailers. I have read of an experiment in which a
sociology class voluntarily simulated a prison situation and the
volunteer jailers, chosen by lot, found themselves becoming brutal
and tyrannical. Imprisonment as presently practiced, and perhaps
inevitably, is totally undemocratic and fundamentally debasing. It
is a monument to the strength and resiliency of the human spirit
that so many do come out of prison still able to make their way in
normal human society. It is small wonder that so many come out
unable to do so.
The gist of our message is that every effort should be made to
minimize imprisonment, both the dumber of prison sentences, and
the length of time served.
Thus, we welcome the extensive provisions in S. 1, chapter 21, for
probation as an alternative to imprisonment, and the improvement
of section 2102 by comparison with section 2101 of S. 1400 in the
93d Congress, which seemed to create a strong presumption against
probation. We suggest a probationer's right of counsel be written
into section 2105, dealing with revocation of probation.
We commend also the general avoidance of a statutory minimum
sentence that must be served before one becomes eligible for parole,
sections 2301(d) and 2302(c), urge abandonment of the mandatory
prison sentence altogether instead of retaining it for two crimes,
sections 3725 .and 3726, and commend the requirements for early and
periodic consideration of parole for each prisoner and for statements
of reasons for the parole commission's decisions. We suggest a
prisoner's right of counsel at the parole interview be written more
firmly into section 3833 (b), similar to that of section 3835 (d) (1)
on revocation of parole. We welcome the allowance of credit for all
official detention for the same offense or on any subsequent arrest on
any other charge, section 2"05 (b). We welcome the provisions for
temporary release for family emergencies, job interviews, work,
education, and other appropriate activities, section 3822, and suggest
these be expanded to allow conjugal visitation.
But when we see the, scale of authorized prison terms expressed in
section 2301 (b) we recoil in horror: Life, 30, 15, 7. and 3 years
respectively for felonies, classes A to E. We realize that each is a
maximum and that the court has discretion to sentence to less, but
the maximum is used all to often, and we cannot believe that those
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178
figures would yield any more deterrence or rehabilitation than num-
bers half as high. Prison terms in Western Europe are said to be
considerably lower than in the United States even now, and although
I have not made a section-by-section comparison, the proposed maxi-
mums seem higher, generally, than those presently in effect..
Mr. ROTHSTEIN. If I may interject at this point, the sentences are
for the more common crimes that are more commonly committed, and
turn out to be lower than under existing law in most instances.
Mr. RUDD. I am glad to be so advised.
Mr. ROTHSTEIN. Because it is a difficult computation to do and is
not immediately apparent here.
Mr. RUDD. I did not have time to make the analysis.
Mr. ROTHSTEIN. On the face of it it does look like it is an increase.
Mr. RUDD. Thank you.
We urge they be reduced to one-half the resent proposals, or
less, much closer to the 5 years that the American Bar Association
advises should be a sufficient maximum in most cases.
For extreme cases the authorized extended term proposed in
sections 2301(c), and 2302, and proposed rule 32.1 of the Federal
Rules of Criminal Procedure [p. 353 of S. 1], would seem to give
adequate and well-controlled scope for the discretion of the court.
I have mentioned the gain we see in section 2102 in that it would
not create a presumption against probation. We suggest, finally,
that this progress be carried forward by writing into the bill, as
the American Bar Association wrote into its standards, section
2.3(c), page 353, the direction that,
A sentence not involving confinement is to be preferred to a sentence in-
volving partial or total confinement in the absence of affirmative reasons to
the contrary.
In summary, we urge that capital punishment be abolished and
imprisonment be minimized.
Thank you very much.
Senator MCCLELLAN. Do I understand that you would like to see
all punishment of crime abolished?
Mr. RUDD. No; I would not say all punishment. I' think that
probation is a punishment.
Senator MCCLELLAN. You think probation is a punishment?
Mr. RUDD. Yes.
Senator MCCLELLAN. Do I understand that you would like to see
all imprisonment for crime abolished?
Mr. RUDD. I am not even sure that I would insist on that. I would
say that it should be minimized.
Senator MCCLELLAN. What do you mean by minimized?
Mr. RRUDD. I would think that we ought to reduce it as far as we
can conscientiously do so.
Senator MCCLFLLAN. You can reduce it by eliminating it.
Mr. RUDD. Yes.
Senator MCCLFLLAN. Would you eliminate it?
Mr. RUDD. I am not sure I would. eliminate it.
Senator MCCLELLAN. Are you sure either way?
Mr. RUDD. Am I what?
Senator MCCLEr,LAN. Did I understand you to say you are not
sure whether you would want it eliminated or not?
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Mr. RTJDD. I am not sure that I would ask to eliminate it com-
pletely. I have not reached a resolution.
Senator MCCLELLAN. Under what degree would you eliminate it?
Mr. RUDD. I would say except in those instances where it seems
absolutely essential to do as Mr. Wilson suggested, that is to in-
capacitate.
Senator MCCLELLAN. Do what?
Mr. RUDD. As Mr. Wilson suggested, to incapacitate a defendant
temporarily from early repetition of the crime while other efforts
are made to deal with his central problems.
I think that it may be necessary in some instances of that kind
to have imprisonment.
Senator. MCCLELLAN. We are having heinous crimes committed
everyday throughout the country. The two little sisters, the one
11, the one 12, are missing under circumstances that indicate that
they have been kidnaped, possibly their lives taken. They may have
been molested before they met their death. All of this we do not
know yet but circumstances indicate that and we know that such
crimes have occurred in the past.
What would be your sentence and judgment of appropriate pun-
ishment or treatment of a person, assuming that he is not insane;
who would commit such a trine?
Mr. RTTDD. It is difficult for me to assume that such a person is
not insane, Senator.
Senator MCCLELLAN. You say whoever commits a crime like that
is insane?
Mr. RuDD. Very likely there is some kind of insanity involved, most
probably, and certainly there are persons who need help to over-
come problems that lead them to such crimes as those. And it may
be necessary; as I suggested a moment ago, sometimes to confine them.
T think the pattern
Senator MCCLELLAN. Assuming, under your judgment and view-
point, that he should not be punished because one would commit a
crime like that only if he were insane. What would you do with
him? What would be your sentence? What should society do? How
should it treat a case like that, an individual who has committed
such a crime?
Mr. RUDD. I think that our best approach in this kind of situation
is to do what we can.
Senator MCCLELLAN. What is that? What can we do? That is what
I am trying to find out.
Mr. RUDD. There is some benefit in psychiatric treatment. I realize
that psychiatry is an uncertain and imperfect instrument. At present,
I think it is gaining, but I think the efforts at finding the source
of a person's aberration should be made. I am not one who says
there should be no punishment. I find some response to the idea
that has been expressed here this morning, that simple punishment
has the virtue from the point of view of asserting society's dis-
approval of conduct. And .I do not disagree that certainty of
punishment probably increases deterrence.
Senator MCCLELLAN. You do not think it is a deterrent?
Mr. RUDD. I say I do not disagree that certainty of punishment
increases deterrence. I think punishment probably does deter to
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some extent. I think the extent of deterrence resulting from pun-
ishment may often be exaggerated and that the extent of imprison-
ment necessary to accomplish the maximum deterrence is usually
greatly exaggerated.
I think that present terms can be far shorter than they usually
are, or are authorized to be, and still accomplish maximum deter-
rence.
Senator MCCLrLLAN. A few days ago, there occurred another
incident here in the Nation's capital where a man, apparently for
no reason at all went out on the street and started shooting people
down and killed two, I believe, and wounded some more before the
police were able to apprehend him with a bullet and kill him in
order to stop him.
Can such action be justified on the part of the police-taking
such action as that in a circumstance like that? Do you feel that
such legal authority should be reposed in the police?
Mr. RUDD. Yes, I do.
Senator MCCLFLLAN. That is taking a life to save a life, is it not?
Mr. RUDD. Yes.
Senator MCCLELLAN. Then if a man is inclined to be a murderer
and you cannot establish his insanity and he murders in cold blood
in a robbery-he walks in, in a burglary, kills somebody in a home,
or rapes a woman and then kills her-do you think that society
has no right to take his life in order to protect others so that they
may live?
Mr. RUDD. I do think that society has no right to take his life
under those circumstances, Senator.
Senator MCCLELLAN. Even if he will kill others, that it appears to
be so?
Mr. RUDD. Let me explain, Senator. In the shooting that you
described first, I assume for the sake of getting to the issue that
there was no other way by which the police could have protected
other people on the street from being shot immediately.
Senator MCCLELLAN. It appears to be that way.
Mr. RUDD. Under those circumstances I think that it is right for
police have the power to shoot to kill when it is absolutely neces-
sary immediately. There is an immediate, obvious necessity, no
other possibility. For the man who has killed in cold blood, as you
have described, and has been captured, and has been subjected
already to the power of society in imprisoning him, holding him
,
subjecting him to trial and sentence, for society to kill him then
is to kill him in cold blood, and to kill him without necessity.
Senator MCCLF,LLAN. You do not think that one can forfeit. the
right to live in a law and order society by becoming such an outlaw?
Mr. RUDD. I do not, cannot forfeit the right to be protected against
being killed in cold blood.
Senator MCCLELLAN. Do you believe that they should be pun-
ished by imprisonment?
Mr. RUDD. I think in some cases, yes.
Senator MCCLELLAN. In some cases?
Mr. RUDD. Let me say this.
Senator MCCLELLAN. I am talking about these cases that I have
given as an illustration.
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Mr. RUDD. I would think imprisonment would be appropriate
in those instances, first of all, for the purpose of prevention, that is,
or incapacitation. Second, I think that this is an appropriate in-
stance in which to demonstrate society's disapproval of this conduct
by imprisonment.
Senator MCCLELLAN. Would you go as far in sentencing as sen-
tencing for life or do you think they should have a less sentence?
Mr. RUDD. Sentence to life is preferable, in my mind, to sentence
to death.
Senator MCCLELLAN. I was not comparing that. In talking about
the sentencing now you have ruled out the death penalty already
in any case. What I am talking about in these cases as the extreme in-
stances I have illustrated here-would you give those people a life
sentence?
Mr. RUDD. I do not think so. I think, Senator, that the psy-
chiatric problems enters in here. I cannot yet believe that persons
such as you have described are sane.
Senator MCCLELLAN. Would you confine them to an insane asylum,
some institution, mental institution for life?
Mr. PUDD. Not necessarily for life. I would confine them until it
is fairly clear that they are no loner dangerous.
Senator MCCLELLAN. Do you think that psychiatry has reached
that perfection scientifically that it can determine definitely whether
one is no longer dangerous?
Mr.. RUDD. Not definitely. There are weaknesses and gaps.
Senator MCCLELLAN. Your position is that we have to take a risk
with these people.
Mr. RUDD. I think that there are risks, of course, in all social
intercourse, and I think some risks must be taken probably.
Senator MCCLELLAN. Any further questions?
Thank you very much.
Our next witness is Mr. Justus Freimund. Please come up, sir.
All right, would you identify yourself for the record, please?
Mr. FREIMUND.. My name is Justus Freimund, Director, Action
Service Division, National Council on Crime and Delinquency. I
am here today on behalf of the National Council on Crime and
Delinquency, which is a private, nonprofit organization in existence
since 1907.
Senator MCCLELLAN. You have a prepared statement?
Mr. FREIMUND. Yes, I do.
Senator MCCLELLAN. Would you like to insert it in the record and
comment on it?
Mr. FREIMUND. Yes, I would..
Senator MCCLELLAN. Very well.
[The prepared statement of Mr. Justice Freimund follows:]
STATEMENT OF THE NATIONAL COUNCIL ON CRIME AND DELINQUENCY
The National Council on Crime and Delinquency, organized in 1907, incorpo-
rated in 1921, has long had an interest in improving sentencing and the quality
of our penal systems. Through surveys and consultation, it has worked in many
states, studying existing systems, recommending improved methods, and draft-
ing proposals for legislative reform. It has published a number of model
legislative acts, those most relevant to the present Proposed Code being the
Model Sentencing Act, authored by the Council of Judges of NCCD, and the
Standard Act for State Correctional Association published by NCCD.
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182
The NCCD strongly supports revision and reform of the federal criminal
laws. This overall goal of making the federal criminal law more rational and
more predictable is a salutory one. Clear, coherent and uniform laws serve the
public by making it plain what conduct is lawful and what is forbidden. They
give fair notice to citizens, judicial personnel, and law enforcement officials
alike, thereby restricting the possibility of arbitrary punishment.
The Senate 1 statutes embody a number of distinct improvements as com-
pared with the current law. We applaud the establishment of the Restitution
Fund. Section 2202 clearly establishes criteria for imposition of a fine for
individuals and organizations as well. We would submit, however, that the
sentence of a fine should be imposed far more extensively in lieu of emphasizing
imprisonment. The Council of Judges of the NCCD has issued a policy state-
ment advocating that only the dangerous should be incarcerated, Imposing the
sentence of fines would meet the needs of "just punishment," "deterrence," and,
possibly, "rehabilitation" in the community, instead of increasing the popu-
lation in our over-crowded prisons and jails.
In this statement, we are gravely concerned about, and express opposition to,
those sentences which deal principally with provisions that affect imprisonment
and the prison systems. The proposed legislation is skewed with long maximum
sentences and automatic parole components in prison terms. A sentencing
system which mandates fifteen, twenty, thirty year and life sentences for a
large variety of crimes becomes its own worst enemy. Even given the wide
disparity between authorized maximum and. time usually served, the system's
inevitable effect is to destroy any possibility of rehabilitation for nearly every-
one caughtin its grasp. High recidivism rates among felons testify to the fact
that our prisons are training schools for criminals. By increasing the number
of victims and offenders, they present a tragedy of broken and wasted lives.
Maximum Terms, Section 2301, provides for maximum terms for felonies,
authorizing a life sentence for Class A, thirty years for Class B, fifteen years
for Class C, seven years for Class D, and three years for Class E. Unless one
takes pride in a swollen, expensive, wasteful prison system, Chapter 23 re-
quires serious reconsideration.
Although the Committee contends that "this subsection is designed simply
to provide a maximum limit on the broad range within which a judge is per-
mitted to exercise his Informed discretion * * * [and] is no more intended to
indicate the actual sentence a judge is expected to impose In each case than
are the analogous provisions of current federal statutes * * * " it appears
very likely that it would encourage the nation that the maximum sentence is
a term which accords with a correctional program of rehabilitation, Moreover,
subsection 2302 further authorizes higher terms than these if the court finds
the defendant to be a "dangerous special offender," defined as follows :
(1) One who has been convicted of two or more felonies on different
occasions: one or more of the felonies resulted in his being imprisoned prior
to commission of the current offense ; one of more of 'such felonies resulted
in his being in imprisonment or parole or probation within ten years of
commission of current offense ; and no such felony was charged to be a basis
for increasing the grading of the offense. (Trafficking in an opiate, trafficking
in drugs, possessing drugs, violating a drug regulation, or using a weapon in
the course of a crime are not included.)
The Model Sentencing Act rejects the notion that a repeated offender should
be subjected to substantially longer terms than a defendant convicted for the
first time, if the crime he commits is not a dangerous one. The repetition of
offense may have little bearing on dangerousness. The increased penalty for
a non-dangerous offender is really an increased term for a nuisance offender.
Such studies as have been made of the habitual offender statutes, such as
this subsection, reveal that they are enforced without any guiding principle,
that most defendants who might be subject to the statutes are not made
subject to them, that their principal. use is as a bargaining element for a
negotiated plea, and that they do not serve the goals of either rehabilitation
or public protection.
(2) One who commits a felony as part of a pattern of criminal conduct
which constituter) a substantial source of his income, and in which he mani-
fested special skill or expertise.
This extended sentence can be imposed on a sole offender, even one whose
crimps are limited to property, and are never assau]tive. It can be imposed on
a first offender, presumably, and the other operative ingredients of the crimi-
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nal career would be established presumably in the sentencing operation. To
call such a defendant a "dangerous special offender" is to exaggerate the
term. The Model Sentencing Act would limit any term of over five years to
dangerous offenders defined as those who commit serious assaultive crimes, not
a property offender under any circumstances (other than racketeering of-
fenses).
(3) Subdivision (3) is a definition applicable in general to organized crime,
calling as it does for a felony committed with others as a pattern of criminal
conduct.
We support the idea that organized crime is a very serious menace, but
if the ordinary terms range Lip to thirty years for felonies, certainly the thirty
year term is adequately long, without calling for lengthening every grade of
offense.
In brief, the quite long terms provided for in the "general plan" is exceeded
in a second set of maximum terms, most of which are needlessly long, not
particularly protective of the public since those they affect are not markedly
dangerous in the usual sense of the term.
To return to the general structure of terms: In cases in which the judge
has not decided that the defendant fits into one of the "dangerous" categories,
the maximum terms are-felony A, life sentence ; felony B, thirty years ;
felony C, fifteen years, Class D, seven years ; and Class E, three years.
Under the Model Sentencing Act, provision is made for lengthy terms of
imprisonment-up to thirty years-imposed on dangerous offenders. But it
then provides that the outside limit of a commitment of a non-dangerous
offender may be five years, Including parole. It permits, indeed requires, that
the judge determine the maximum term within that. To provide, as section
2302 does, that even for the lowest grade of felony, Class E, the maximum term
must be at least three years, must have the effect, If enacted, of substantially
increasing prison terms " where the need for it is surely not established for
these offenders.
We similarly oppose any provision that authorizes a Class A or. B felony
sentence except for seriously assaultive crimes. We oppose such long terms
for mere property offenses. Scanning the various crimes, we find such a crime
in subsection 1741 (2), counterfeiting or forgery, has been made a Grade C or
D felony. There may be few such offenses. We recommend that it be stated
in the code as a general principle governing sentences that any offense not
involving a seriously assaultive act or threatening serious bodily harm shall
not be classified as more severe than Grade E.
Parole Component, Section 2303, provides that the term of imprisonment
in the case of a felony or a Class A misdemeanor, automatically includes, in
addition to the specified term of imprisonment, collateral consequences :
A. Each such sentence includes a special term of parole to provide for
parole upon release from imprisonment for all defendants, whether or not
the parole term extends beyond the maximum period for which the offender
could have been confined under the sentence given or under the sentence
authorized.
B. Each such sentence also Includes a contingent term of imprisonment of
one year for a felony or ninety days for a Class A misdemeanor that may be
ordered to be served instead of the original sentence in the event of recom-
mitment for violation of a condition of parole if the contingent term of
imprisonment is longer.
The idea of a mandatory parole component is an innovation in America
penology. As built into the proposed sentencing system here, it would (a)
impede the free operation of a parole system, and (b) it would once more
lengthen actual time served by prisoners.
When a prisoner Is released on parole after having served nearly all of the
terns of imprisonment, except for a period of less than one year, and subse-
quently recommitted, he may be ordered to serve a year in addition to the
remainder of his prison term. Thus, if a defendant is sentenced to a. six-year
term of imprisonment, is released on parole after five years and ten months,
and lie subsequently violates parole, he could be confined to serve the remain-
ing two months in addition to the one year contingent term. Thus, the "parole
component" will often add to prison time, and the phrase "prison component"
is seen to be deceptive. What first appears to be six years of "contingent term"
(in our illustration) may turn out to be a few years more, in actual time
required to be served.
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Or, using the same illustration, the parole board may refuse parole until
just short of the end of six years. Again, if parole is violated, the six-year-
prison component may turn out to be for eight years or more.
The idea of a contingent parole component is also an innovation in Ameri-
can penology. There is nothing in the history of parole that suggests that such
an ingredient is needed. The entire history of parole has been characterized
by an undesirable lengthening of terms of imprisonment. In view of the fact
that prison terms in the United States are now substantially longer than in
any other western country, without any justification in public protection or
treatment needs, ingredients that serve to further lengthen terms are destruc-
tive. This is especially true for the federal system, which in earlier years was
known for its relatively short terms, which were then quite adequate for
public protection, and so far as one can see would still be adequate. If there
is anything the federal system does not need, it is devices that will lengthen
prison terms for the general offender.
Probation Sentence, Section 2102. Another issue of major concern is the
legal restraints on probation. We urge the Subcommittee not to support such
a statute. It goes against the grain of progressive penology. Probation is
recognized as the most effective form of sentence in a great many cases, and
yet, Section 2101 requires a prison sentence unless the judge is of the opinion
that probation "will not fail to afford deterrence to criminal conduct and such
disposition will not unduly depreciate the seriousness of the defendant's crime,
undermine respect for the law, or fail to constitute just punishment for the
offense committed," Although the judge is required to consider the offender's
individual circumstances, such provisions implicitly tell. the judge that pro-
bation is not preferred, but a last resort, to be accorded only the criminal
offender who is an extraordinarily good risk. They ignore the fact that prison
sentences completely dislocate offenders from the community, cutting off the
ties of family and job which alone may provide the incentive to obey the law.
Yet since most offenders ultimately do return to the outside world, it is in
society's best interest-as well as their own-that these offenders have more
to go back to than a life of crime.
Furthermore, it appears that the probation sentences in Section 2101 are
disproportionately longer. The maximum probation sentence authorized for
many offenses exceeds the maximum penalty authorized for the offense. The
maximum authorized terms of probation are (1) felony, five years ; (2) mis-
demeanor, two years; (3) infraction, one year. We concede that distinctions
should be made between felonies and misdemeanors ; but we cannot support
a provision which authorizes longer probationary sentences than outlined in
the grading classification. For example, if an offender commits an infraction
(disorderly conduct), lie can be detained for a maximum of five days in a
federal facility ; however, he can be placed on probation for-one year. In
the case of Class A misdemeanors, one year is the maximum authorized
penalty, but an offender serving a probation sentence may be subjected to. a
two year sentence.
Presentence Reports, Section 2002. Similar to the issues raised in the section
above, Subsection 2002(B) declares that the defendant. may be held in custody
for ninety days while the bureau conducts a complete presentence diagnostic
report. In many cases, the ultimate sentence will be _a commitment, but in
others a defendant will be placed on. probation. To commit a defendant for
ninety days is entirely too long; and yet Subsection B authorizes the court
to extend the period for an additional ninety days to complete the study.
Surely, 180 days in confinement is destructive.
We would recommend that the provision be included giving the judge the
choice of an out-patient diagnostic referral. Certainly, such a strategy would
enable the defendant to maintain employment and community ties, if not
sentenced to confinement.
Capital Punishment. And last of all, we would like to comment on the capital
punishment issue. The National Council on Crime and Delinquency has long
opposed the death penalty as cruel and unusual punishment. In fact, the Board
of Trustees of NCCD issued a policy statement condemning the use of the
death penalty and urging its discontinuance and abolition in states in which
it still exists.
We urge the Senate in general and this Subcommittee in particular not
to endorse a penalty which will turn our moral clock backwards ten years in
the area of equal justice.
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185
Despite views to the contrary, the death penalty is not a unique deterrent.
All available evidence shows that in states which have had both the death
penalty at one time and abolition at another, a comparison of the two periods
reveals no reduction in murders during the death penalty period. Comparison
of murder rates in two culturally similar states, one having the death penalty
and the other not, again shows that the death penalty has no deterrent effect.
We further believe that :
(1) Many who are executed are persons who have limited intellect and. are
mentally ill, their crimes being impulsive, not planned, and hence committed
without thought of the penalty ;
(2) The fallibility of human beings and the legal process has resulted and
may again result in the conviction of innocent persons, and their execution
so long as the death penalty is used ;
(3) Sentences should not be based on vengeance.
Hence, we strongly encourage the members of this Subcommittee to oppose
this penalty which has been used to perpetuate racial and economic discrimina-
tion in a fashion which degrades our natures.
In summation, we urge the members of this Subcommittee-and the Senate
as well-to oppose the sentencing provisions that would very likely worsen
the system of prisons and release in the federal jurisdiction. Terms would
be needlessly lengthened, release procedures would be more complicated and
less . flexible. The net effect -would be to substantially increase the prison
population, already grossly swollen. as compared with what might be expected
of a prison system limited to federal violations.
We are afraid that the sentencing structure will increase prison' time,
will increase the number of prisoners in the federal prisons: The federal
prison population has increased from 12,964 in 1930, to 19,260 in 1940, 19,134
in 1950, 24,925 in 1961, the highest reached. It dropped in 1962. to 196.7, but
commenced increasing again in 1968 and at, the end of 1968 was 20,183. And
yet, in 1975, its population has risen 'to 22,923. The average length of federal
sentences of those committed has risen steadily each year since 1959. In
1968 the average was 77.2 months.
Will the sentencing system proposed in Senate 1 continue to swell the length
of terms and the number of prisoners? If our analysis is correct, it will.
Mr. FrEISZUND? The National Council on Crime and Delinquency
is quite interested in S. 1, for a variety of reasons. But I think today
because of the nature of this particular hearing that we will confine
our comments primarily to the area of sentencing.
However, before going to that, we would like to note that the real
concern we have is the apparent expansion of the Federal authority
into a variety of crimes, and a variety of jurisdictions that seems
to be inherent in this bill.
To move on, we have mixed emotions to the bill. There are a
number of elements in the bill, for example, the restitution, the
increased use of fines, or an organized approach to the use of fines;
it seems to be very good. We also recognize the move toward recog-
nizing the dangerous offender as separate and different problems
for the criminal justice system. A situation that requires, because of
the nature of that offender, a different type of response.
When we come to the other issues-particularly these types of
sentences-we are impressed by the long length of the sentences.
Our comparison, which is not complete at this time find an increase
in the maximum amount of time in prison provided in the sentencing
categories.
We are aware, as I. am sure the committee is aware, of the many
studies on this issue. In all other Western countries the period of
incarceration is much shorter, with no increase in the public danger.
Mr. ItOTHSTEIN. I wonder if I may add a footnote .here,. because
it is a matter than is not immediately apparent, that while the
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maximums seem to be higher, it would seem that under the bill
the most commonly committed crimes will result in lower sentences
than under current law. That is m understanding of it.
Mr. FREiMUND. Yes, as I indicated, we have not completed our
own analysis of it, there seems to be some trend in this direction;
at the same time, there is an apparent expansion of the Federal
involvement of the system.
I note, for example, in the possession of drugs, there is a marked
reduction in the amount of sentence called for under this bill than in
the existing statute, but more so than currently applied in most
States. Another example, prostitution is defined very broadly in the
bill. This seems to be an expansion.
As a matter of fact, our Council in reviewing it, has the reaction
that as defined in this bill, the activity which is normally a mis-
demeanor in most State jurisdictions, if not just an infraction, may
be defined as a class D felony.
Again, I do not want to pursue this extensively, because we are
aware that there are changes. We are trying to compare the changes
in terms of the existing Federal Jaw and the State jurisdictions.
Mr. ROTHSTEIN. Well, the major crimes-the most frequent crimes,
the ones I would be talking about-would be prosecuted under
Federal statutes. I just wanted to point out that because it isnot im-
mediately apparent.
Mr. FREIMUND. Perhaps this is not directly related to the subject
for today, but I think that it does impact because of the great ex-
pansion of Federal jurisdiction. For example, the using of a facility
of interstate commerce, in our Council's opinion, this would be
using a telephone, even driving on an interstate highway would
bring the act into the Federal jurisdiction.
This goes back to the original question about the expansion of
this toward, perhaps, moving toward a national police and national
law enforcement statute, which we feel is something that should be
addressed more fully.
There are some other, more specific points, for example, con-
cerning parole. In general, the parole provision is satisfactory. I
can see, because imprisonment is the primary mechanism of this
legislation, as in much of the legislation of this country, we are
putting an awful lot of the pressure and a lot of responsibility on the
rather fragile vessel of incarceration.
This bill includes provisions for parole as a way of mitigating
that overload. And these may be satisfactory.
However, the provision for automatic extension of parole under
the completion of max time-when a person serves his time and then
automatically is placed on parole after he has served out his time,
appears to be undesirable. We found also the mandatory time for a
violation is undesirable. The question of probation, although there is
other language, we still perceive that presumption in this bill is
against the use of probation.
We are also concerned about another aspect of the probation
language. Where a person, for example, in the case of an infraction
where he may be incarcerated for a period of 5 days, may be put
on probation for a year. In the case of a misdemeanor, with a
maximum sentence of a year, he may be put on probation for 2
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years. Again, you are talking about both incarceration and proba-
tion; you are talking about restraint and denial of liberties.
We raise the question as to whether or not it is justified to extend.
for twice the time, or, in the case of the infraction, much more so,
this retention of jurisdiction.
We then come to the question, is it possible or feasible to have
probation for 5 days for an infraction? We argue it is ridiculous.
Perhaps a fine should be considered as covered elsewhere in the
statute concerning fines.
Finally, one other point I must also note. The provision in terms
of the presentence investigation, which allows for a 90-day period of
incarceration, in custody, doubled perhaps by an additional 90-day
period of incarceration at the discretion of the judge fora total of
180 days of incarceration in a Federal facility. Again we raise some
questions about this one in terms of the time-90 days is more than
adequate, if not an excessive, period of time necessary to make such
a presentence investigation. And, again, in the Federal courts in the
past, 45 percent of the people who are convicted in the Federal
courts are placed on probation.
Why, then, do you have the provision for 90 days of incarceration
in this case? In other jurisdictions, other than the Federal juris-
diction, as many as 85 percent of the people are placed on proba-
tion and never incarcerated at all.
In passing, it should be noted that there is little difference in terms
of recidivism between the Federal system using probation 45 percent
of the time, and States-such as Wisconsin that use probation as
high as 85 percent of the time, raising again the whole question as to
the suitability of the incarceration response, as the prime first order
response.
On this point of incarceration we argue that one should consider
all other alternatives to incarceration first. Then move into incar-
ceration in terms of the goal that you are attempting to accomplish
in sentencing which is the reduction in crime.
Finally, f cannot help but note the inclusion of capital punish-
ment provisions in this legislation. We have opposed capital pun-
ishment; you have heard other people today talk about the moral
grounds. Our opposition is not from a moral base, but from a simple,
more practical, base that capital punishment just plain simply does
not work in terms of its intent-for example, as a deterrent. There
is no evidence that it does deter. It does contribute to the injustice
of the system, because if you are white or wealthy, you are rarely
executed.
Studies have been indicating that people who have above average
incomes in the United States are not executed. People who do not,
are executed. Basically, we cannot support the inclusion of capital
punishment. We do recognize, however, that there are people who
have committed acts that put them in a situation that they are plain,
simply dangerous. There is no denying this. There is overwhelming
evidence of their existence and these people simply have to be
removed. You remove these people from society-we have recom-
mended in our Model Sentencing Act that you remove these people
for a period of 30 years. The simplistic purpose of this sentencing is
to stop their criminal activity.
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This seems to be a sentence which is interminable; it does not at-
tempt to accomplish any treatment goal. The only thing that seems
to work with these people is age; they seem to grow out of 'their
violent and assaultive behavior. We have recommended that these
people be locked up securely, without parole, for 30 year periods
of time.
That is the end of the summary of my statement. I will be glad
to respond to any questions.
Senator MCCLELLAN. Are there any questions?
Mr. ROTHSTEIN. Mr. Freimund, let me ask you this-and this is
exploratory for our information.
With a person who is locked up in prison for an extended period
that you mentioned for the most heinous crimes like murder, what
is the sanction if lie murders in prison a prison guard, if the maxi-
mum that he can receive is your 30-year term which he already has?
Mr. Fau:IMUND. Thirty years.
Mr. RoTI3sTEIN. Which I thought I said. Perhaps I misspoke. If
the maximum is 30 years, and he already has that, there is not much
disincentive to taking the gamble and trying to get out by murdering
a prison guard.
In other words, might that not be at least one limited appropriate
area for the greatest sanction?
Mr. FRETMIIND. We argue on the broader sense in a case like that.
We would add an additional 30 years, for a total of 60 years.
Again, much has been made of the fact that there is a need to go
ahead and have all kinds of sanctions for peoples who are in prison
-life terms or what have you. What do they have to lose?
Again, in my own experience, I have run institutions--
Mr. ROTTISTEIN. If a fellow is 40 years old and into the slammer
when he gets 30 years, lie may not care.
Mr. FarTMuND. You come back to the situation where people are
killed, with the exceptions of some of your plotted, coldblooded,
calculated murder for hire operations, overwhelmngly in the typical
situation the murder takes place when the person is not acting'
cting in a
rational way. The fear of executing him later simply will not
affect him. If it were rational he might as well say, I will soon be
out of prison so I might as well get along now.
Mr. ROTHSTEIN. Let us talk about those ones that you mentioned
-the calculated ones, gangland killings, where there is clearly a
computation, and coldblooded computation, that may well take into
account the calculus of what I may stand to win and lose from this.
May that not be. an appropriate area for capital punishment?
Again, let me say this is exploratory for our purposes. Even crimes
of passion will not be deterred because they are not thinking about
the crime, about the law, they are not thinking about punishment.
But these calculated ones may well be thinking about it.
Mr. Fr.EI MUND. Perhaps. But again, I think if you think about it
-let us take the case of murder for hire. You are talking about that
if a person commits murder for hire, and assume that he is appre-
dended, that he is going to be going out of business, as it were, for
30 years. If he is 30, he will be 60 years old before he can enjoy the
return on his business endeavor.
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I think, again, with these kinds of people you are not going to
have very many people who are going to go ahead and offer to
trade off for whatever sum for 30 years of their life.
Mr. ROTu5TEIN. Are there some who will be dangerous after 30
years?
Mr. FREIMUND. Some, perhaps. Maybe here is where we come to
the fact where it is difficult to guarantee the behavior of anybody.
Nobody has ever been able to do it.
Christ had problems with his apostles. We cannot guarantee
people's behavior. What you can do is, within some limits, attempt
to affect their behavior, and you do have to take some kind of chance.
The alternative, of course, is to go ahead and try to control every-:.
thing. I think we then run into some examples and some lessons from
history.
I am sure you are acquainted with the Elizabethan period. With
the Elizabethan period there were over 85 capital crimes, and a
crime was not deterred at. that time in terms of what records that
can be recreated from that period.
Mr. Ro?r1TsTEIN. I wonder if I could focus in on something. I
think you are in agreement that the question is how much risk-the'
question for decision by this Congress is, how much risk does society
want to take on this.
Mr. Fr.N:IMUND. Yes. An(l this is the question that is inherrent and
is frequently ignored. in any approach to the criminal justice system,
in that we have to balance the need for response and the need for
protection of the majority with civil and individual rights of the
majority and of the minority.
It has been suggested, for example--not entirely facetiously-
that if we wanted to control traffic accidents and automobile vehicle
deaths, we should have all vehicular deaths be a death penalty. If
you are driving an automobile and somebody is killed, you would
also be executed.
Mr. ROTIISTEIN. One of the problems is that no judge would ever
convict-or a jury.
Mr. FREIMUND. You have to adjust that with a deterrent argu-
ment. If you are using that, you have to go ahead and create a
structure that there is no option other than conviction. If you are
going to pursue the deterrent argument, and the corollary control.
argument, that what we intend to do is deter and control, then you
say that there will be no option. Then you have to say, all right, is
that in accord with the principles of a democracy? Then you are
having to deal with the other side of the issue.
I think our, organization, and myself personally, feel that, you
have to take some risks. There is no other way. So you attempt to
take some risks in a rational way. There is no foolproof, riskproof
-way, and to attempt to create such a thing by long sentences through
a variety of things is, I think foolhardy. People can very easily be
deceived, thinking they are accomplishing something when really
they are building castles in the sky.
Mr. ROTISTEIN. Thank you.
Senator MCCLELLAN, what about a hired killer? What kind of
punishment should he have? Someone who agrees to kill for man cy?
Mr. FREZMUND. Again
54-398-75-13
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Senator MCCLELLAN. Thirty nears?
Mr. FREIMUND. Thirty years.
Senator MCCLELLAN. If he kills again after he gets out?
Mr. FREIMUN D. Another 30 years.
Senator MCCLELLAN. Another 30 years.
In other words, you can kill as many as you want to-as long
as you live-on a 30-year sentence. Do you think that is justice?
Mr. FREIMUND. The question is, what is justice?
Senator MCCLELLAN. What is it?
Mr. FREIMUND. Justice, in some definitions
Senator McCI.Er,LAN. Do you think that someone who is willing
to go out and deliberately commit a murder, makes his living that
way, do you think justice is 30 years-that that is justice for that
kind of crime?
Mr. FREIMUND. Yes.
Senator MCCLELLAN. You do. I am sorry we disagree. It is a
cheap price on a human life. Are there any questions?
Thank you very much. The Chair will direct that the staff may
receive for the record, for the next 15 days, any comments that any-
one wishes to make on S. 1, and I would expect submissions to be
reviewed and examined. If there is any question about them, submit
them to the chairman.
Very well, this series of hearings is concluded. The committee
stands adjourned.
[Whereupon, at 11:50 a.m., the subcommittee adjourned, subject
to the call of the Chair.]
AMERICAN CIVIL LIBERTIES T?NION,
TVash:ington, D.C., April 3, 1975.
MEMORANDUM TO MEMBERS OF THE SENATE JUDICIARY COuMITTEE
RE: S. 1. AS AMENDED
Enclosed is the statement of Melvin L. Wulf for the American Civil Liberties
Union on S. 1, as amended.
Mr. Wulf's work complements that of Mary Ellen Gale who provided the
ACLU's views on predecessor legislation.
A summary of the document appears prior to the table of contents.
Sincerely,
CHARLES MORGAN, JR.
STATEMENT OF MELVIN L. NVULF, LEGAL DIRECTOR,
AMERICAN CIVIL LIBERTIES UNION
Introduction
The ACLU is a nationwide, non-partisan organization of 275,000 members
dedicated to the preservation and promotion of individual rights and liberties
guaranteed by the Constitution of the United States. One of the ACLU's pri-
mary missions is to encourage legislative advancement of civil liberties and to
oppose legislative encroachment on there.
The ACLU supports revision and reform of the federal criminal laws. The
over-all goal of making the federal criminal law more rational and more
predictable is a salutary one. Clear. coherent, and uniform laws serve the
public by making it plain what conduct is ]awful and what is forbidden. They
give fair notice to citizens and law enforcement officials alike, thereby restrict-
ing the possibilities of arbitrary. punishment. However, obtaining clear and
coherent laws at the expense of the rights and liberties of our people would
be a step backward.
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191
In the pages that follow, we express our strong opposition to some specific
provisions of S. 1, as amended.' In particular, we focus on the bill's national
security provisions which we believe are especially dangerous to First Amend-
ment freedoms. In some eases, such as parts of the national security section
and all of the obscenity sections, we urge that provisions be eliminated al-
together. In others, we suggest revisions or express concerns which should
guide those who may draft revised sections.
Reform of the federal criminal laws is an important undertaking. It must be
done with deep concern for the civil rights and liberties of the individual
citizens.
A. The "Ofci.al Secrets" Act
Five sections of S. 1, would reverse 200 years of democratic decision-making
under the Constitution by preferring government secrecy to the freedoms
guaranteed by the First Amendment. Sections 1121-25 of S. 1 would deliver
into the hands of the Executive complete and final control of information
"relating to the national defense." The free flow of facts and opinions on
which self-government ultimately depends would be dammed at its source.
Our true national security, which springs from "uninhibited, robust, and wide-
open" debate on public issues and public officials, New York Times Co. v.
Sullivan, 376 U.S. 254, 270 (1964), would be destroyed.
When Congress first debated the Espionage Act of 1917, two Senators marked
off for future generations the parameters of debate over the protection of
national security :
"Senator NELSON. [While] there are some expressions perhaps in the bill
that may seem a little too drastic, yet I hold that when the safety of the
country is at stake the rights of the individual must be subrogated to the
great right of maintaining the integrity and welfare of the Nation.
Senator Cuxrxcixs. The Senator from Minnesota seems to think this is
necessary for the safety of the United States. I do not; nor do I think we
have a Nation worth saving if this is necessary. If the power that is here
sought to be given to the Executive, coupled with these offenses that are
for the first time described in American life are necessary, I doubt whether
the Nation could be preserved." 54 Cong. Record 3488 (1971).
We submit that Senator Cummins had the best of that exchange and that-
so long as we remain a free, outspoken, and democratic society-he will always
have the best of it.
Our opposition to the information control provisions of S. 1 begins witls
the spirit which permeates them-Executive distrust of the American people
and the American press. Needless to say, it is ironic that legislation of this
kind should be proposed so soon after the fall of the Nixon regime. That
administration's obsession with secrecy, its distrust of the American people,
and its animus towards the press should surely have taught us the lesson of
the need for more not less openness in government, and more not less trust
of the people and the press. But Sections 1121-1125 of S. 1, as amended, are,
written as if Watergate and its fallout never happened. A moment's thought
must lead to the obvious conclusion that these provisions must be thought
objectionable in principle and practice, and we urge the Congress to reject
them and thus refuse" to elevate official secrecy to the status of law.
Secondly, we believe that the over-all thrust of these statutes is profoundly
miconstitutional. They strike at the heart of free speech and due process of
law. They sweep within their prohibitions the collection, communication, or
publication of information relating to the national defense regardless of its
origin. They set no standard whereby the conscientious citizen, public official,.
or news reporter may determine whether the information he possesses,
gathers, or shares with others is constitutionally protected-or the subject of
criminal sanctions. They use terms so broad and vague as to force men and
women of good will to guess at the meaning of the law-and act at their
peril. They encourage official abuse by inviting selective prosecution and ad-
judication on political or personal grounds. Coupled with the capital punish-
ment provisions of S. 1, passed earlier this year. they might even provide a
mandatory death penalty for individuals who sought only to inform their
fellow citizens on the great public issues of our time.
1 All reference to S. 1 In the succeeding pages are to S. 1 as amended, the version. of
the bill now before the Senate Judiciary Committee.
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Throughout this chapter, the commission of a criminal act is made dependent
'upon its being committed in "time of war," or the punishment is enhanced if
the crime is committed in "time of war." Sabotage as a Class A felony can be
committed only in time of war" (? 1101) ; one can impair military effective-
ness nby false statements only "in time of war" (? 1112) w:iether or not
espionage is committeed "in time of war," determines whether the crime
is a Class A or B felony (? 1121),
Whenever an offense turns on whether the United States is at war, S. 1
should require that the war is one declared by Congress under Art. I, Sec.
8 of the Constitution.
All of the offenses which require our being at war are not only tradition-
ally thought to be serious indeed, but some of them inevitably implicate
questions of freedom of speech. And if the First Amendment is to be so
seriously impaired under any of these provisions, those drastic restrictions
upon fundamental freedoms should ? be permitted, if at all, only after a de-
liberate and explicit declaration of war by Congress, as required by Article I,
Sec. S of the Constitution. The nation should be insured that imposition of
the severe penalties provided in these sections, together with their intrusions
into the First Amendment, not be left to the sole determination of the
Executive Branch of government.
It would be a substantial retrogressive step to provide that any "war,"
whether or not it is declared by Congress, may trigger prosecutions and affect
sentences under various sections of Chapter 11. Judicial and scholarly opinion is
deeply divided on the question of the legality of the Vietnam War and similar
questions were appropriately raised by the engagement of our troops in the
Dominican Republic in 1965. The formulation of "declared war" makes ex-
plicit what is required prior-to the application of these penal sanctions particu-
larly since many of them curtail fundamental freedoms normally protected by
the First Amendment.
1. Section 1121. Espionage.
The American Civil Liberties Union recognizes that genuine espionage is a
serious offense against the nation, requiring criminal sanctions and punish-
ment. Because it is subject to serious abuse in times of national crisis, it
must be closely and carefully defined. See Gorin v. United States, 312 U.S.
19 (1941). Instead, Section 1121 broadly criminalizes the knowing collection
or communication of "national defense Information," with the "knowledge
that it may be used, to the prejudice of the safety or interest of the United
States, or to the advantage of a foreign power * * *
By eliminating specific intent as an element of the crime of espionage, S. 1
invites wholesale abuse of the First Amendment by allowing prosecution and
conviction of individuals whose purpose in speaking of so-called "national
defense information" is to inform the American people of governmental
activities which the public has a right to know, and which they should know,
in order to pass judgment on those activities. Without intent to injure, the
conduct intended to be prohibited by a valid espionage statute cannot use-
fully be regulated for the result is to seriously invade rights protected by the
First Amendment.
In addition, the terms used in Sec. 1121 to define the crime are fraught
with confusion. What is "national defense information"? Or, more to the
point, under ? 1128(g), what is not "national defense information"? The
Supreme Court held in Goren, supra, 312 U.S. at 31-32, that under a statute
listing specific places and things, this was a question for the jury to determine.
Sound public policy and constitutional law alike demand a carefully confined
legal definition to give advance warning of what conduct is prohibited and
to guide jury deliberations. Under the present terminology a newspaper report
that bad weather had delayed an Air Force airplane test, that a prominent
general was hospitalized for minor surgery, that the North Vietnamese had -
deployed troops in South Vietnam, or that U.S. troops were using defective
rifles, would all be proper subjects for invocation of the espionage provisions.
Yet the first two are probably trivial, the last two are not only proper but
necessary to informed public debate, and all four are protected by even the
narrowest reading of the First Amendment.
Granted that Congress cannot envision every prospective violation, criminal
statutes which touch on First Amendment freedoms must nonetheless be
Written to forbid only the narrow class of conduct which genuinely endangers-
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the public welfare. NAACP v. Button, 371 U.S. 415, 433, 438 (1963). The.late
Mr. Justice Harlan, a strict constructionist of the Bill of Rights, put it like
this :
"But when a State seeks to subject to criminal sanctions conduct which,
except for a demonstrated paramount state interest, would be within the range
of freedom of expression as assured by the Fourteenth Amendment, it cannot
do so by means of a general and all-inclusive * * * prohibition. It must bring
the activity sought to be proscribed within the ambit of a statute or clause
`narrowly drawn to define and punish specific conduct as constituting a clear
and present danger to a substantial interest of the State.' " Garner v,
Louisiana, 368 U.S. 157, 202 (1961) (concurring opinion) (citation omitted).
There are similar problems with the other statutory phrases. One reason
why information about the general's gallstones or the Army's misfiring. M-16's
(no secret, of course, to the enemy) might be brought within the statute's
sanctions lies in the provision that the only required proof is "knowledge" that
the information "may be used * * * to the advantage of a foreign power."
But any information with some relationship, no matter how tangential, to the,
national defense, may be to the . advantage of some foreign "government,
faction, party or military force, or persons purporting to act as such," or "any
international organization" (the definition of "foreign power" as given in
Section 111 of S. 1). The International Red Cross may be interested to learn of
our medical technology-and may use it to help the wounded enemy. A German
political party may use statistics about disaffected or drug-abusing soldiers to
back up a demand for removal of U.S. troops from German soil, These are
among the "dangers" of free speech. The Constitution never guaranteed that
free speech would protect us from the ridicule or hostility of foreign nations,
or from the use of our ideas beyond our shores. Its authors claimed only that if
we were willing to run these risks, we would not be free-and the opinion of
others would no longer matter.
Morever, there seems little reason for starting the proposed standard of
harm in the disjunctive : injury to the United States or advantage to a foreign.
power. "[I If a communication does not work an injury to the United States;..
it would seem to. follow logically that no government interest can be asserted
to overcome the first amendment's guarantee of freedom of speech." Nimmer,.
"National Security Secrets v. Free Speech : The Issues Left Undecided in the
Ellsberg Case," 26 Stan. L. Rev. 311, 330 and n. 92 (1974). See United States
v. Heine, 151 F.2d 813 (2d Cir. 1945)., cert. denied, 328 U.S. 833 (1946), where
Judge Learned Hand refused to apply a similar clause of a precursor statute
to information which had never been classified.
There is no greater certainty in the requirement of knowledge that the
information gathered or disseminated may be used "to the prejudice of the
safety or interest of the United States. Are we more or less "safe" if the
public knows or does not know of our defense needs? Is it in the "interest" of
the United States to suppress the facts about our conduct of the war in
Southeast Asia or to spread them on the public record for debate? The mean-
ing of the First Amendment is that the government shall not have the power
to limit public knowledge, save in narrow circumstances where national
survival is in clear and present danger.. See, e.g., Whitney v. California, 274
U.S. 357, 376-77 (1927) (Brandeis, J., concurring) ; of. Brandenburg v. Ohio,
395 U.S . 44 (1969.). As a former Secretary of State observed in 1822:
"No nation ever yet found any inconvenience from too close an inspection
into the conduct of its officers ; but many have been brought to ruin and
reduced to slavery, by suffering gradual imposition and abuses, which were
imperceptible, only because the means of pubilicity. had' not been secured."
1 E. Livingston, Criminal Jurisprudence 15 (1873 ed.), quoted in Nimmer,
supra, 26 Stan. L. Rev. at 333.
2. Section 1122. Disclosing national defense information
Section 1122 makes criminal the knowing communication of "national de-
fense information" to a person "lie knows is not authorized to receive it."
Section 1126 defines "authorized" as meaning authority to have access to,
receive, possess, or control "as a result of the provisions of a statute or
executive order, or a regulation or rule thereunder * * * " The statute thus,
delivers to Congress and the Administration the exclusive power to determine:
who shall, and who shall not, learn, speak, or write about a vast array of
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politically as well as militarily sensitive information. To state this proposition
is to refute it. The Constitution permits no such law.
Moreover, by failing to require a specific intent to do an unlawful act, the
statute "may be a trap for innocent acts," Papachristou v. City of Jacksonville,
405 U.S. 156, 164 (1972). It is so "lacking in ascertainable standards of guilt,
that * * * it fails] to give a person of ordinary intelligence fair notice that
his contemplated conduct is forbidden." Palmer v. City of Euclid, 402 U.S.
544.?545 (1971). No standard of conduct whatsoever is specified. Government
officials are given a free hand to enforce their own ideas of what the law
should be, and enforcement will depend on who is, or is not, annoyed by the
disclosure. But criminal statutes this vague are plainly unconstitutional.
Coates v. City of Cincinnati, 402 U.S. (i11 11971). In addition, ? 1122 is over-
broad in a constitutionally fatal sense, for it sweeps within its prohibition
conduct which is not only innocent, but sanctioned by the First Amendment.
See, e.g., Keyishian v. Board of Regents. 385 U.S. 589 (1967) ; Baggett v. Bul-
litt, 377 U.S. 360 (1964). An overbroad statute may be invalid .even though
it generally protects vital national interests which can on appropriate
occasions outweigh First Amendment rights. United States v. Robel, 3S9 U.S.
258 (1967). Cf. Gorin v. United States, supra, 312 U.S. at 28, narrowing an
espionage statute to apply only when scienter is established.
3. Section 1123. Mishandling national defense information.
Section 1123 has similar deficiences of vagueness and overbreadth. Had this
provision been law at the time of the revelation of the Pentagon Papers, every
person through whose hands they passed could have been charged with this
offense. Even members of Congress and their staffs might have been prosecuted.
See Gravel v. United States, 408 U.S. 606 (1972). Reporters, editors, publishers,
secretaries, and probably even printers could have been swept within the
statute's reach. Indeed, the government attempted to use the similar, although
perhaps not quite so voluminous, provisions of 18 U.S.C. ? 793(e) in-prosecuting
Daniel Ellsberg and Anthony Russo.
This provision also poses a unique constitutional difficulty, by making it a
felony for one in unauthorized possession or control of "national defense in-
formation" knowingly to fail "to deliver it promptly to a federal public servant
who is entitled to receive it." The Fifth Amendment forbids the enforcement
of statutes which infringe the privilege against self-incrimination. The Supreme
Court has repeatedly struck down efforts to short-circuit the investigative
process (and the Constitution) by criminalizing the failure to register oneself
as a probable criminal. E.g., Haynes v. United States, 390 U.S. 85 (1968) (failure
to register a firearm) ; Albertson v. S.A.C.B., 382 U.S. 70 (1965) (failure to
register as a Communist Party member) ; Leary v. United States, 395 U.S. 6
(1969) (failure to comply with the Marijuana Tax Act). Cf. Leary, supra,
395 U.S. at 28, holding that the Fifth Amendment establishes a "right not to
be criminally liable for one's previous failure to obey a statute which required
an incriminatory act."
4. Section 11:24. Disclosing classified information.
Section 1124 would make it a crime for a "person" to communicate classified
information to "unauthorized" persons, regardless of his intent and regardless
of the probable or even possible effect of his actions. Mere disclosure, with no
shadow of purpose or capacity to damage the genuine national defense interests
of the nation, would be a felony punishable by a $100,000 fine and seven years
in prison.
Yet it has been estimated by a security consultant with more than 45 years
of military and civilian experience in the field of national deefnse information,
that over 991/2 per cent of classified documents contain information in the
public domain or do not warrant protection for other reasons. Subcomm. on
Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 92nd
Cong., 2nd Sess., Hearings on Reform of the Federal Criminal Lazes, Pt. III,
Subpart D, at 3045 (Comm. Print 1972) (Testimony of William G. Florence).
It may be suggested that the problems Mr. Florence spoke of have been over-
come by the new Executive Order No. 11.652 of March 8, 1972, ostensibly re-
forming the classification process. But Mr. Florence testified before a Sub-
committee last year that he had tried-and failed-to obtain from the Depart-
ment of Defense earlier in 1974 some of the classified documents which were
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designated as public records by the presiding judge during the Russo-Ellsberg
trial. The reason for denial of his request? The Pentagon Papers-which have
been widely quoted in newspapers, discussed at the trial, recorded in the trial
transcripts, and spoken, read, and argued about by millions of Americans (and
foreigners)-are still classified.
But this is not all. Finaetrnent of this statute would irreparably damage-
if not virtually destroy-the freedom of the press upon which an informed
public and democratic self-government itself rely. If the press is not to become
merely a withered arm of government instead of the adversary force the Consti-
tution intended, it must have sources other than official-press releases for the
information it publishes.
In a study prepared by the Foreign Affairs Division of the Congressional
Research Service for the Senate Foreign Relations Committee, the point is
brought home. See Hearings on Reform of the Federal Criminal Laws, supra,
at 3063-94. The study found "wide agreement that the great bulk of defense
material is usually over protected-too highly classified for too long a time."
Id. at 3077. And, it continued, high government officials-such as former Secre-
taries of Defense Melvin R. Laird and Clark M. Clifford-frequently "declass-
ify" national defense information when it serves their purposes, revealing it
to Congressional committees to justify budget requests or to news reporters to
test out public opinion on a wide variety of subjects. Id. at 3030-81. There is
a "high incidence of leaks of classified information which appear to be ap-
proved by some one in authority * * *" Id. at 3081.
. No wonder, then, that conscientious reporters turn to officials with different
opinions and different facts at their command to test out in their turn the
Administration's version of the truth. Veteran reporters and editors of the
New York Times and Washington Post filed affidavits in the Pentagon Papers
case, see New York Times Co. v. United States, 403 U.S. 713 (1971), to the
effect that official and unofficial leaks were both a necessary source of informa-
tion for a responsible press. Without the use of classified material, according
to Times Washington Bureau Chief i47ax Frankel, "[t]here could be no adequate
diplomatic, military, and political reporting of the kind our people take for
granted . . ." Excerpts from Affidavit reprinted in Hearings on Reform of the
Federal Criminal Laws, supra, at 3079.
As the Supreme Court declared in another context, the people of the United
States : "may not be regarded as closed-circuit recipients of only that which
the State chooses to communicate. They may not be confined to the expression
of those sentiments that are officially approved." Tinker v. Des Moines Inde-
pendent Community School District, 393 U.S. 503, 511 (1969).
And see Justice Douglas' concurring opinion in New York Times Co. v. United
States, 403 U.S. 713, 723-24 (1971) ;
"The dominant purpose of the First Amendment was to prohibit the wide-
spread practice of governmental suppression of embarrassing information. It is
common knowledge that the First Amendment was adopted against the wide-
spread use of the common law of seditious libel to punish the dissemination of
material that is embarrassing to the powers-that-be. Secrecy in government is
fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate
and discussion of public issues are vital to our national health."
The statute as written invites abuse. Every "person" who handles classified
information would speak in peril of violating its technical commands, and be
subject to prosecution for politically embarrassing the government. Officials
,could be punished for expressing political views distasteful to the government,
if a single classified fact could be found within their statements. Granting that
the government has the right to protect limited categories of information from
unauthorized disclosure by its employees, it need not make such transgressions
criminal. Dismissal of those who release information with culpable intent or
for personal gain should be a sufficient sanction.
The allowance of a defense that the information communicated "was not
lawfully subject to classification" is, of course, desirable if the offense is to
exist at all. But invocation of that defense requires the defendant first to have
exhausted his remedies before the classification review agency to be estab-
lished under See. 1124. The difficulty with that condition is, however, that no
provision is made requiring the agency to act promptly. Consequently, the
agency could sit on material for weeks or even months, during which time the
materials relevancy would have passed by.
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5. Section 1125. Unlawfully obtaining classified inforwa-tion.
This section makes it a crime for an agent of aforeign power to obtain or
collect "classified information." Insofar as the section also precludes the de-
fense that the information was improperly classified, and since it does not
require proof of culpable intent, it would be subject to due process and free
speech objections similar to those outlined above.
6. Section 1.I28. Defln.itions for section 1121 through 1125.
Objections to the definitions of "authorized," "classified information" and
"national defense information" have been noted above. We strongly urge that
if the latter phrase is retained, it be closely restricted to military or defense
material which the government has a legitimate ihterest in- keeping secret
from the outside world as well as from the American people--e.g., technical
details, of military weaponry, tactical details of military operations, the con-
duct or product of specific foreign covert intelligence gathering operations, and
military contingency plans in respect of foreign powers.
The First Amendment requires that Sections 1122-1125 be removed entirely.
There are no equivalents in present law, and adoption of the provisions pro-
posed in 5.1 will seriously impair First Amendment rights without providing
any compensating benefits to the nation's security or welfare. The only Purpose
that would be served by these provisions would be to have sent Daniel Ellsberg
and Victor Marchetti to prison. Those who think that those men should have
been imprisoned should vote up ?? 1122-].12.5. Those who believe that Ellsberg
and Marchetti have served the highest interests of the First Amendment by
supplying Information of the greatest importance to all citizens, will vote down
those sections.
7. ACLU Proposed Espionage Statute
Section 1121. Espionage. -
(a) Offense-A person is guilty of an offense if, with intent: that classified
national, defense information be used by a foreign power to injure the national
defense, he or she knowingly :
(1) Communicates such classified national defense information directly to a
foreign power or agent ; or
(2) Obtains - such classified national defense information In order to com-
municate directly to a foreign power or agent ; or -
(3) Enters a restricted area with intent to obtain such classified national
defense information in order to communicate it directly to a foreign power or
agent.
(b) Grading-An offense described in this section is::
(1) A class A felony in time of declared war;
(2) A class A misdemeanor at all other times.
Section 1122. Definitions for sections 1121
(a) "National defense information" means :
(1) Technical details of tactical military operations in time of declared war;
(2) Technical details of weaponry;
(3) Defensive military contingency plans in respect of foreign powers;
provided that such information would, if obtained by a foreign power, be used
by that power to injure significantly the national defense of the United States,
and that at the time of the offense the information had not previously been
published.
(b) "Agent" means one In the employ or service of a foreign power who is
acting on instructions of that power.
(c) "Classified" means properly classified pursuant to a valid statute, execu-
tive order, or regulation, and not declassified prior to the time of the alleged
offense. It is a defense to a prosecution under this section that the information
was not classified in conformity with the requirements of the statute, executive
order, or regulation, or that the information was not reasonably subject to
classification under the statute, executive order, or regulation.
(d) "Previously been published" means made public in any form. It is not
a requirement of this section that publication was officially made or authorized
by an officer of the government with authority to do so.
8. Other sections of S. 1 which could be used to censor the press and withhold
information from the public
Aside from the provisions included in the so-called "national security" chap-
ter of S. 1 two other sections of the proposed Criminal Code could be used to
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stifle the flow of vital information to the press and choke off public ,debate
through lack of knowledge and fear of censure.
. Section 1301, Obstructing a Government 'Function by Fraud, creates a new
offense for one who "intentionally obstructs, impairs, 'or perverts 'a government
function by defrauding the government in any manner." Since "government
function" and "defrauding" are nowhere defined, the section grants wide prose-
cutorial discretion to harass the press for "impairing" efficient operations by
exposing official decision-making processes or even outright chicanery on the
basis of information which was the government's "property." See Haas v.
Henkel, 216 U.S. 462 (1910) ("defraud of the United States" defined to include
impairing any government function).
Section 1744, Unauthorized Use of a Writing, could similarly result in broad-
and unconstitutional-suppression of information. The offense, which originally
was limited to forgery of securities and the like, has been rewritten to crim-
inalize a _ much wider class of behavior. Under ?1744, one may be guilty of a
felony "if with intent to deceive or harm -a government or person he know-
ingly * * * (1) issues a writing without authority to do so; or (2) utters or
possesses a writing which has been issued without authority." There is federal
jurisdiction if the writing is or purports to be "made or issued by or under
the authority of . . the United States ." It may be argued that the in-
clusion of this section with the commercial offenses precludes its use in a
wider context. But the language of the statute-and the government's far-
ranging briefs in the Itusso-Ellsberg case-support no such complacence. The
statute should be narrowed to reach commercial offenses only.
B. Other offenses against the Nation
1. Treason.
The National Commission on Reform of Federal Criminal Laws (hereinafter
the Brown Commission), in trying to narrow the definition of treason, see
Working Papers of the National Commission on Reform of Federal Criminal
Laws, Vol. 1, at 419-27 (1970) (hereinafter Working Papers), reworded it
so as to reach more broadly than ever before into areas of speech and conduct
protected by the First -Amendment. See Testimony of the American Civil Lib-
erties Union Before the Senate Subcommittee on Criminal Laws and Pro-
cedures on the Final Report of the National Commission on Reform of Federal
Criminal Laws 70-73 (1972) (hereinafter 1972 ACLU Testimony).
S. 1 has substantially returned to statutory formulas which would pre-
sumably preserve the limits of existing law, including the necessity of an
"intent to betray," Cramer v. United States, 325 U.S. 1 (1944). But the contours
of present law are unclear. Id. at 46-47. See, e.g., the comment in United States
v. Stephan, -50 F. Supp 738 741-42 (E.D.Mich. 1943) to the effect that "In
times of peace it is treason for one of our citizens to incite war against us."
Incitement without proof of intent could well be no more than advocacy pro-
tected by the First Amendment even under a restrictive reading of present law
as requiring an unequivocal "call to violence now or in the future" before ad-
vocacy may be punished. Noto v. United States, 367 U.S. 290, 298 (1961). See,
Yates v. United States, 354 U.S. 298 (1957). Under Brandenburg v. Ohio, 395
U.S. 444 (?1969), the only speech which may be punished is that "directed"
toward causing imminent lawless action and likely to produce it.
Similarly, the treatment of propaganda broadcasters as traitors, Chandler v.
United States, 171 F. 2d 921 (1st Cir. 1948), cert. denied, 336 U.S. 918 (1949) ;
Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950), raises grave constitu-
tional doubts. One man's propaganda is another's free speech, as the bitter
controversy over the war in Southeast Asia taught the nation. In order to
avoid the prosecution and persecution of those who espouse unpopular doctrines,
the crime of treason should at least be limited, as the Brown Commission
suggested at one point, to "actual participation in a foreign war against the
United States." Working Papers, Vol. I, at 419-23.
A salient provision of S. 1, is its application to persons "in fact owing
allegiance to the United States," a formulation which is clearly ambiguous and
overbroad. Citizens of other nations should not be chargeable with treason
against the United States. The need for clarification is illustrated by Carlisle
v. United States, 83 U.S. 147, 154. (1873), which declared that aliens domiciled
in the United States are covered because they owe temporary allegiance.
S. 1 provides a mandatory death penalty for treason under certain circum-
stances. The ACLU is unalterably opposed to capital punishement on moral,.
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constitutional, and practical grounds. Inflicting the death penalty, as has so
often been demonstrated, does not deter serious crime more effectively than
severe prison sentences. It is a barbaric anachronism which diminishes the
moral and political legitimacy of the society which practices it. See, Furman v.
Georgia, 408 U.S. 238, 371 (1972) (Marshall, J., concurring).
2. Inciting overthrow or destruction of the Government.
Section 1103 of S. 1 re-enacts the Smith Act, punishing mere advocacy of
revolutionary change. The ACLU opposes such legislation in any form. Accord-
ing to Brandenburg v. Ohio, 395 U.S. 444, 447 (1969),
"the Constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use of force or of law violation
except when such advocacy is directed to inciting or producing imminent law-
less action and is likely to incite or produce such action."
The incitement section of S. 1 is a prescription for governmental tyranny.
Under its loose language, entirely innocent conduct informed by not even a
breadth of suspicion of possible illegality, could be the basis for a major
felony. "[T]he most theoretical proposals in the most unlikely circumstances
carry penalties up to 15 years * * *" Schwartz, "The Proposed Federal Criminal
Code." 13 Crim. L. Rep. 3265, 3273 (1973).
Section 1103 punishes one who "with intent to bring about the forcible over-
throw or destruction of the government of the United States or of any state as
speedily as circumstances permit," "incites other persons to engage in conduct
which then or at some future time would facilitate the forcible overthrow or
destruction of such government." One is similarly liable who, with the pre-
scribed intent, "organizes, leads, recruits members for, joins, or participates
as an active member in, an organization or group that has as a purpose the
incitement" forbidden in the first subsection.
S. 1 permits-indeed, encourages-the finding of criminal intent without the
commission of a single act beyond speech itself. The connection between ad-
vocacy and "overthrow * * * of the government" is made yet more tenuous
by the failure to require either imminent danger or substantial likelihood of
success. No "armed insurrection" is necessary. And the word "facilitate"
could embrace incitement of others to make speeches or posters, or write
letters, critical of government policy. Section 1103 is a blueprint for, in Justice
Jackson's phrase, "coercive elimination of dissent" and "extermination of
dissenters." "The First Amendment to our Constitution was designed to avoid
these ends by avoiding these beginnings." Barnette, supra, 319 U.S. at 611.
This statute, which sanctions the punishment of mere "belief in an idea,"
Scales, supra, 367 U.S. at 274 (Douglas, J., dissenting), paves the way for
destruction of our society more surely than the incitement it condemns.
S. Sabotage.
Sections 1111 and 1112 of S. 1 prohibit impairing military effectiveness by
damaging property; it reaches out to embrace virtually everything and every
activity that might be taken in relation to it. Section 1111 prohibits damage to
or delay or obstruction of any United States property or that of "an associate
nation," almost any other property, facility, or service that is or might be
used in the national defense, or production or repair of such property. The
required intent is "to impair, interfere with, or obstruct the ability of the
United States or an associate nation to prepare for or engage in war or de-
fense activities." "Associate nation" is defined in Section 1111 as "a nation at
war with a foreign power with which the United States is at war." "War" is
not defined.
Under the vague terms of ?1111, anti-Vietnam war demonstrators who "in-
terfered with" public transportation by their very numbers could have been
prosecuted for sabotage, a major felony. Nothing in the statute's language
prohibits a jury from deducing "intent * * * to obstruct the ability of the
United States * * * to * * * engage in war or defense activities" under such
circumstances. Nothing would prevent prosecution under the general criminal
attempt, conspiracy, and solicitation sections for speech encouraging such a
demonstration. The section could be used to destroy the rights of association
and assembly guaranteed by the First Amendment. It would make every public
demonstration, no matter how peaceful and orderly, subject to criminal sanc-
tions at the iron whim of official power. See, Cox v. Louisiana, 379 U.S. 536;
557-58 (1965), where the Supreme Court, in striking down a similarly vague
and overbroad statute, observed:
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"It is clearly unconstitutional to enable a public official to determine which
expressions. of view will be permitted and which will not or to engage in
invidious discrimination among persons or groups either by use of a statute
providing a system of broad discretionary licensing power or, as in this case,
the equivalent of such a system by selective enforcement of an extremely
broad prohibitory statute."
Section 1112 essentially repeats the offense outlined in ?1111, but lowers the
level of required intent to "reckless disregard." It thus extends still further
the opportunities for official suppression of that vigorous and effective dissent
on which democracy relies.
To be even arguably fair, Section 1112 should be dropped and Section 1111
should be narrowed to apply only to culpable physical damage to military
hardware.
4. Impairing military effectiveness by false statement.
Settion 1114 makes it criminal for a person, in time of war and with intent
to aid the enemy or interfere with the United States' ability to engage in war
or defense activities, knowingly to communicate a statement "which in fact is
false" about "losses, plans, operations, or conduct of the military forces of the
United States," of an associate nation, or of an enemy. It similarly punishes
factually false statements about civilian or military catastrophe or "any other
matter of fact which, if believed, would be likely to affect the strategy of
tactics of the military forces of the United States or likely to create general
panic or serious disruption."
Enactment of ? 1114 would effectively destroy perhaps the most important
function of a free press-the obligation to report fully and fairly in times of
national crisis the discoverable facts about that crisis. It would make punish-
able as a major felony good-faith errors in news reports about a wide range
of activity.
Moreover, there is nothing to prevent high-level official concealment of such
facts as the bombing of Cambodia while a prosecutor pursues, tries, and ob-
tains a conviction in the erroneous belief that such "facts" were false. The
history of our involvement in Vietnam suggests that when the choice is between
the official and the press version of the facts, the citizen is better off trusting
the press. Without it, we might never have learned of the massacre at My Lai,
the widespread corruption and oppression of the South Vietnamese govern-
ment, or the strange discrepancy between many battlefield reports and the
observable facts.
A free press is going to make mistakes. Occasionally it is going to make
major mistakes. Criminal liability for such errors cannot be made dependent
on so vague an intent as "interference with" the "defense activities" of the
United States. Such a standard would permit official harassment of poltically
disfavored publications. It would, in effect, impress the press into government
service until such time as the state of "war" came to an end.
Section 1114 should be dropped.
II. OFFENSES AGAINST PUBLIC ORDER
.4. Rioting
Although the Brown Commission Consultant's Report persuasively recom-
mended sharp limitations on federal riot law because of constitutional diffi-
culties and overlapping state jurisdiction, see Working Papers, Vol. II at
991-1029, the Commission's Final Report, Sees. 1831-1834 of S. 1 contain anti-
riot provisions which could substantially interfere with First Amendment
rights. Like many of the offenses against national security, the anti-riot laws
are broad and vague, sweeping within their terms conduct clearly protected
by the First Amendment, failing to notify the law-abiding of what conduct is
properly forbidden, and providing a convenient tool for discriminatory prose-
cution and governmental oppression of political adversaries.
Yet the Supreme Court has affirmed time and again that public peace cannot
be preserved at the price of sacrificing public discourse and dissent, e.g.,
Coatcs v. City of Cincinnati, 402 U.S. 611 (1971) ; Terminiello v. City of Chicago,
337 U.S. 1 (1949). In Terininielio the Court declared that:
A function of free speech under our system of government is to invite dis-
pute. It may indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even stirs people
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to anger. Speechis often provocative and challenging. It may strike at preju-
dices and preconceptions and have profound unsettiing effects-as it presses for
acceptance of an idea. That is why freedom of speech, though not absolute,
* * * is nevertheless protected against censorship or punishment, unless shown
likely to produce a clear and present danger of a serious substantive evil that
rises far above public inconvenience, annoyance, or unrest. * * * There is no
room under our Constitution for a more restrictive view. For the alternative
would lead to standardization of ideas either by legislatures, courts, or domi-
:nant political or community groups." 337 U.S. at 4-5.
Rioting, of course, is not protected by the First Amendment. But only
violent activity itself or conduct clearly and immediately productive of such
activity should be punishable by the criminal law. Speech alone is consti-
tutionally insufficient. See Brandenburg v. Ohio, 395 U.S. 444 (1969), holding
that the government may forbid speech only when It is "directed to inciting
or producing imminent lawless action and is likely to incite or produce such
action." Id. at 447. Speech which is the occasion for violence is not neces-
sarily the cause of it. See Working Papers, Vol. II at 1000: "What is ob-
viously lacking is any requirement that the prescribed speech, pose a clear
and present danger of violence. The statute * * * refers [only] to the danger
that the violence * * * on the part of the rioters will cause injury to person
or property." [Emphasis in original.] A statute which allows government
officials to determine when the connection suffices can only lead to the dangers
the Court warned against in Cox v. Louisiana, 379 U.S. 536, 557-58 (1965)
"It is clearly unconstitutional to em ')1e a public official to determine which
expressions of view will be permitted and which will. not * * * ." And see
He.es v. Indiana, 94 S.Ct. 326 (1973), in which the Court majority and dis-
senters read exactly opposite meanings Into the same words uttered by a
demonstrator in a moment of confusion and potential violence. Recovery
of the actual meaning of speech in such moments from the memories of
participants after the fact is at best an extraordinarily difficult task. A
society which assigns criminal liability on the basis of such fragile distinc-
tions run too high a risk of penalizing the innocent.
1. Inciting or leading a riot.
Section 1831 prohibits inciting five or more persons to riot. The statute
does not distinguish between major and minor disorders in setting the penalty,
as recommended by the Brown Commission. See ? 1801(3) of its Final Report.
Section 1924 defines a riot as a disturbance involving violent and tumultuous
conduct which creates a .grave danger of injury or damage to persons or
.property.
The formulation is an improvement over the even more vague wording
of the Civil Rights Act of 1968, the first federal riot law. But it does not
approach the constitutional standard enunciated by the Supreme Court in
Brandenburg v. Ohio, supra, 395 U.S. at 447 (1969) .(even advocacy of force
or violation of law is protected speech except when it aims at and is likely
to produce "imminent lawless action").
The statute can be used to punish mere advocacy, even where no riot
in fact occurs or where the connection between speech and violence is merely
temporal. They thus substantially invade territory governed by the First
Amendment. Tumultuous conduct may be no more than a noisy but peaceful
demonstration which is well within Me constitutionally guaranteed right
of assembly and petition.
Additionally, the statute punishes _ the giving of "commands, instructions
or directions in furtherance of" a riot, and makes it -criminal to "urge par-
ticipation in" or "lead" a riot. Again, Hess v. Indiana, 94 S.Ct. 326 (1973),
amply demonstrates the difficulties encountered in determining who is trying
to further a riot and who is trying to limit it. Such speech is protected not
only by the First Amendment, but also by the Fifth amendment guarantee
of due process of law. The standards for punishment, are so vague as to
require potential violators, law enforcement personnel, and judge or jury to
guess at their meaning. See Lanzetta v. New Jersey, 306 U.S. 451 (1938).
S. 1. would substantially broaden federal riot jurisdiction. Interstate travel,
use of the mail, or use of interstate commerce facilities, regardless of intent,
"in the course of the planning, promotion, management, execution, consum-
mation, or concealment of the offense," would be sufficient. There would be
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jurisdiction where "the riot obstructs a federal government function.", Any
realistic attempt to: enforce such provisions would involve the creation and
maintenance of a national riot police, since nearly. every "tumultuous dis-
turbance" of whatever description would fall into one or another of the
jurisdictional categories. What such provisions really do is give the federal
government unfettered discretion to second-guess state law enforcement offi-
cials and to decide, perhaps for purposes far removed from legitimate law
enforcement concerns, to, prosecute those whom the state fails to charge or
convict, or sentence in a. manner acceptable to federal officials. Civil liber-
tarians. have long opposed the establishment of a roving federal police force
as+ a- substantial: step toward! governmental tyranny.
In order' to bring this section into tolerable constitutional boundaries, and,
to decrease the possibility of arbitrary enforcement, subsections (c) (3) (4)
and (5.) should be dropped from Section 1831.
2. Disorderly conduct.
Section 1861 of S. 1 would make it a violation of federal law to behave
tumultuously, violently or threateningly, cause "unreasonable noise," use
abusive or obscene language or behave obscenely in a public place, solicit a
sexual act in a public place, or engage in "any other conduct which- creates
a hazardous or, physically offensive. condition for no legitimate purpose."
The. required intent is merely to. alarm, harass or annoy another person or
reckless disregard of the fact that another person is alarmed, harassed or
annoyed by the prohibited conduct.
The. offenses encompassed by Section 1861 are limited only. by imagination.
Is ito a violation to yell or run in the halls of a federal building.? To swear
loudly enough to be overheard? To impede passersby by standing on a busy
street corner in "Indian country"? To be noisy on an airplane? Such a law
violates the rule of Cox v. Louisiana, 379 U.S. 536. (1965), by giving law
enforcement officials virtually unfettered. discretion to apply a broad pro-
hibitory statute against those whose speech or conduct is "annoying" to them
or others. But the exercise of constitutional rights cannot be limited to
those occasions on which it does not annoy others. Cooper v. Aaron, 358
U.S. 1 (1958). The Supreme Court has repeatedly overturned statutes which
chill First Amendment rights. Such statutes cause the public to steer for
wider of the prohibited zone of conduct than necessary, because they fail to
give clear warning of what the law forbids. They give police the power to
enforce them selectively "against those whose association together is.
`annoying' because -their ideas, their life-style, or their physical appearance
is resented by the majority of their fellow citizens." Coates v. City of Cin-
cinnati, 402 U.S. 611, 616 (1971). See NAACP v. Button, 371 U.S. 415 (1963).
Even public obscenity, at least where it is essentially expressive conduct, is
protected by the First Amendment. Hess v. Indiana; 94 S.Ct. 326 (1973) ;
Cohen v. California, 403 U.S. 15 (1971) (reversing a state conviction for
"offensive conduct" for use of a word, generally thought of as obscene, to
express strong emotion about a political issue). And the general rule on
solicitation of sexual contact, at least in tort law, has long been that "there is
no harm in asking." See, e.g.,. Sarms v. Eccles, 11 Utah 2d'289, 358 P.2d 344
(1961).
At most only subsections (1) and (4) should be retained, but even those
are debatable. The other subsections should unquestionably be dropped..
B. Drugs
The Brown Commission recommended that possession of marijuana, be
treated as a mere regulatory infraction, subject to a fine only, see Comment
in its Final Report at 255. The final report of the National Commission on
Marijuana and Drug Abuse recommended that marijuana possession be
decriminalized altogether-. See Marijuana: A Signal of Misunderstanding
(1972). But Sec. 1813 of S.1 makes possession of marijuana a misdemeanor,
with the penalty for a first offense 30 days in jail' and a $10,000 fine. An
offender previously convicted of violating state or federal drug laws may be
punished by 6 months in jail and a $10,000 fine.
As the Brown Commission observed :
"Available evidence does not demonstrate significant deleterious effects of
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marijuana in quantities ordinarily consumed ; * * * any risks appear to be
significantly lower than those attributable to alcoholic beverages ; * * * the
social cost of criminalizing a substantial segment of otherwise law-abiding
citizenry is not justified by the, as yet, undemonstrated harm of marijuana
use; and * " * jail penalties for use of marijuana jeopardize the credibility
and therefore the deterrent value of our drug laws with respect to other,
demonstrably harmful drugs." Comment to Final Report at 255.
We strongly endorse the decriminalization of marijuana possession and
use. Important constitutional rights are at stake, including the right to
privacy. Cf., e.g., Stanley v. Georgia, 394 U.S. 557 (1969). The fact that
marijuana use may be morally "annoying" to many persons is not sufficient
basis for making it criminal. See Coates v. City of Cincinnati, 402 U.S. 611
(1971). The existence of such arbitrary penalties for conduct not clearly
shown to be harmful encourages selective enforcement, police corruption, and
the use of such police techniques as entrapment and illegal searches. It
diverts millions of law enforcement dollars and thousands of manhours away
from investigation and prosecution of serious crime.
Although we approve of the special sentencing provisions in ? 3808 of S.1,
adding 18 U.S.C. ? 5101 to permit court discretion in placing first offenders
on probation without entering a conviction on their record, as a step in the
right direction, we believe that decriminalization is long overdue.
In addition, the ACLU believes that criminal punishment of hard-drug
addicts, where use and possession of the drugs is fundamentally a result of
illness rather than criminal intent, is a violation of the Constitution. See
Robinson v. California, 370 U.S. 660 (1962), holding it unconstitutional to make
addiction per se a crime; Powell v. Texas, 392 U.S. 514 (1968) (dissenting
opinion). If the Eighth Amendment ban on cruel and unusual punishment for-
bids punishment for "an irresistible compulsion," according to Justice White,
concurring in Powell. supra, 392 U.S. at 348, "I do not see how it can con-
stitutionally be a crime to yield to such a compulsion." We agree.
0. Obscenity
Section 1842 makes it a federal felony to disseminate obscene material,
thereby punishing the freedom of speech and press guaranteed by the First
Amendment. The ACLU opposes any restriction on expression on the grounds
that it is somehow obscene, immoral, shameful, or distasteful. The Constitu-
tion requires that such judgments be left to the individual rather than to the
government. Justice Douglas, dissenting from the Supreme Court majority in
Miller v. California, 93 S.Ct. 2607 (1973), outlined the dangers of determining
that some forms of expression are beyond the protections of the Constitution :
"The idea that the First Amendment permits government to ban publica-
tions that are `offensive' to some people puts an ominous gloss on freedom of
the press. That test would make it possible to ban any paper or any journal
or magazine in some benighted place. * * * To give the power to the censor,
as we do today, is to make a sharp and radical break with the traditions of a
free society. * * * the materials before us may be garbage. But so is much
of what is said in political campaigns, in the daily press, on TV or over the
radio. By reason of the First Amendment-and solely because of it-speakers
and publishers have not been threatened or subdued because their thoughts
and ideas may be `offensive' to some." Id. at 2626.
A definition of obscenity that would both give fair warning of what is pro-
hibited and limit itself to the truly pornographic has defied the best legal
minds of the century. In Miller, supra; the Court majority confidently pre-
dicted that its newest test would single out protected "commerce in ideas"
from punishable "commercial exploitation of obscene material." Id. at 2621.
The Georgia Supreme Court responded two weeks later by holding that the
widely acclaimed movie "Carnal Knowledge" was obscene. Jenkins v. State, 13
Crim. L. Rep. 2386 (July 2, 1973). In reversing that decision, Jenkins v. Georgia,
42 U.S.L.W. 5055 (U.S. June 24, 1974), the Supreme Court of the United States
failed to relieve itself of "the awesome task of making case by case at once
the criminal and the constitutional law." Id. at 5058 (Brennan, J., dissenting).
The constitutional definition of obscenity remains uncertain.
'Moreover, as the Supreme Court held in Stanley v. Georgia, 394 U.S. 557,
564. (1969), "a man's home is his castle" when it comes to determining what
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books he shall read there or what films he shall see there. Even obscenity
laws which do not directly invade the home interfere with constitutionally
protected privacy, for they limit the availability of materials for private use.
Section 1842 embodies the classic defects of obscenity law. It prohibits dis-
tribution of and advertisements for material containing explicit representation
or detailed description of sexual intercourse or explicit close-up representation
of human genitals. The only exception is for such material as "a minor portion
* * * reasonably necessary and appropriate * * * to fulfill an artistic, scientific,
or literary purpose," Even that exception fails if the material was "included
primarily to stimulate prurient interest." Only a limited class of students and
teachers in "institutions of higher learning" and persons with a medical pre-
scription for pornography are exempt from the prohibition. It is no defense
that the distributor did not believe the material to be obscene if he had
general knowledge of its contents.
Such standards are plainly impossible for policemen, prosecutors, judges,
juries, counsel, publishers, or private citizens to apply. Everything from the
Bible to "The Joy of Sex"-both national best-sellers-could be swept within
their prohibition.
Neither statute distinguishes between adults and children as targets- for
distribution of obscene material, between willing and unwilling adults, or
between the full-time dealer in pornography and the man who lends a boon
to a friend. But even if 'they did, the ACLU believes that they would violate
the First Amendment. Censorship of children's reading or viewing must be
left in the hands of individual parents, not turned over wholesale to the state.
The effort to distinguish the adult panderer from the adult interested reader
for purposes of punishment is one the Constitution clearly forbids. The state
that begins by restricting access to sexually-oriented expression may end by
restricting access to all expression that offends those in power.
No less than government attempts to control information about its own
behavior or to stifle political dissent directly as "incitement," obscenity statutes
strike at the heart of due process and free speech. They attack the foundations
of our constitutional democracy. Sec. 1842 should be dropped.
Under the guise of protecting the integrity and neutrality of government
operations, S. 1 would permit governmental interference with First, Fifth, and
Sixth Amendment rights. There is a genuine need to protect judicial and ad-
ministrative proceedings from corruption and intimidation. But this need must
not be used to invade constitutional rights where the behavior curbed has, at
most, slight chance of deleterious effect. Public demonstrations directed pri-
marily at public opinion must not be suppressed on the theory that they inter-
fere with the sanctity of the judicial process. Vigorous advocacy must not be
stifled under the label of criminal contempt.
A. Obstructing a Government Function
Section 1302 of S. 1 makes physical interference with federal government
functions a felony. This is another potential weapon in the government's
arsenal of criminal provisions which could be misused against lawful and
peaceful demonstrations. Virtually every mass demonstration would, at one
moment or another, fall within their prohibition. Yet such demonstrations can
be an important contribution to the public debate on a wide variety of topics.
Under the unfettered terms of the statute, it would be up to the prosecutor
to determine whether a large demonstration on federal grounds or near federal
buildings was or was not "physically interfering" with some government func-
tion. Even an influx of cars carrying demonstrators to the chosen site might
constitute the proscribed felony. Since mass arrests on the basis of group
behavior are constitutionally forbidden by the particularity requirements of
the Fourth Amendment, the statutes would lend themselves to selective abuse
by law enforcement officials who object to life-styles different from their own.
Sec e.g., Coates v. City of Cincinnati, 402 U.S. 611, 616 (1971).
S. 1 also contains a companion provision, Section 1301, prohibiting obstruc-
tion of a government function by "defrauding the government in any manner."
This provisio could seriously curtail freedom of the press. See Part LA.S of
this Testimony, supra.
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B. Demonstrating To Inftuenee a Judicial Proceeding
Section 1328 of S. 1 follows present statutory law in forbidding pickets and
other similar demonstrations with intent to influence a judicial proceeding if
done within 200 feet of a courthouse. S. 1 includes the residences of judges,
jurors, and witnesses within the prohibition. Although the ACLU generally
endorses suchstatutes as necessary to protect due process right, we believe the
statute should be written so as- not to apply to demonstrators who have no
possibility.of influencing or intimidating the court, and whose primary intent is
to- express opinions of the judicial process which are protected by the First
Amendment.
C. Criminal Contempt
Section 1331 of S. 1 basically continues present law regarding criminal con-
tempt. It permits a sentence of up to six months, and specifies that. a criminal,
contempt proceeding does not bar subsequent prosecution for another federal
offense based on. the same conduct, in face of the fact that the double jeopardy
clause of the Fifth Amendment forbids more than one prosecution based on
the same conduct. The statute does not provide for trial by jury. See Comment
in the Brown Commission. Working Papers, Vol. I at 602.
Because the criminal contempt power is unusually subject to judicial abuse,
may evade impartial judicial review, and has been too often invoked against
politically controversial defendants and their counsel, we endorse the recom-
mendation in the original Brown Commission study draft that penalties be
sharply curtailed to no more than five days imprisonment and a $500 fine. We
also believe that a criminal contempt trial must be held before, a neutral
judge---not the one in whose court the alleged contempt gccurred. See Working
Papers, Vol. I at 603. If longer penalties are to be imposed, there can be no
substitute for the intervention of a jury between the court and the accused.
Indeed, Supreme Court decisions require a jury trial in criminal contempt cases
where a sentence longer than six months is imposed. Cheff v. Sehnackenberg,
384 V.S. 373 (1966) ; Bloom v. Illinois, 391 U.S. 194, 208 (1968) (jury trial
must be granted in contempt cases where "serious punishment * * * is con-
templated").
The criminal contempt section of S. 1 punishes one wbp "misbehaves in the
presence of the court or so near thereto as to obstruct the administration of
justice." The statute does not offer any further guide to judicial discretion.
But the Supreme Court has held that before the "drastic procedures of the
summary contempt power may be invoked," it must be clearly shown that the
court has actually been obstructed in "the performance of a judicial duty."
In re McConnell, 370 U.S. 230, 234 (1902).
Under the proposed statute, as under the present statute, there is a signifi-
cant danger that vigorous representation or self-representation may be held
subject to summary punishment, thereby chilling the Sixth Amendment right
to effective assistance of counsel. See Powell v. Alabama, 287 U.S. 45 (1932) ;
McConnell, supra. The vagueness of the term "misbehavior" or "misconduct"
violates due process rights by leaving the trier of fact "free to decide, without
any legally fixed standards, what is prohibited and what is not in each par-
ticular case." Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966). See Smith,
v. Goguen, 42 U.S.L.W. 4393, 4397 (U.S. Mar-ch.25, 1974).
D. Refusing To Testify
Section 1333 of S. 1 would increase the maximum penalty for unprivileged
refusal to testify before Congress or in court from one to three- years- im-
prisonment. It would also permit a fine of up to $100,000. Raising of the maxi-
mum penalty can only increase the pressure to testify on witnesses whose
claim to the privilege is marginal or uncertain, orwho do not have the benefit
of counsel to advise them. See, e.g., Yellin v. United States, 374 U.S. 109, 123
(1963) ; Sinclair v. United States, 279 U.S. 263,299 (1929), holding that in a
congressional hearing the witness who refuses to answer takes the risk of.
violating a statute penalizing unprivileged refusals to testify even if his belief.
in his right to the privilege, although wrong as a matter of law, was in good,
faith. The three-year sentence permitted by S. 1 chills the exercise of pro-
tected rights, and promotesdisrespect for the law. as a. mere -guessing game.
between witnesses, counsel, and. courts.
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The immunity scheme of S. L. contained in, ?3111, is substantially the same
as that of immunity statutes the ACLU has long. opposed, Immunity is no
substitute for the constitutional privilege not to incriminate oneself. A witness
forced to testify by a grant of immunity may, under S. 1 and current Supreme
Court rulings, be prosecuted for the conduct he testifies about if the evidence
used against him is neither his testimony nor information obtained by use of
that testimony. See Iiastigar v. United States, 406 U.S. 441 (1972) ; Zicarelli v.
New Jersey State Investigation Commission,.406 U.S. 472 (1972). Despite fed-
eral guarantees, it is difficult if not impossible to be certain that tainted evi-
dence has not been put to some prohibited use somewhere within the prosecu-
torial machinery, Ifastigar, supra, 406 U.S. at 469 (Marshall; J., dissenting).
Moreover, it is not legally clear whether Congress can protect a witness against
state prosecution. Such a decision may be within the state's authority to make.
Nor can a grant of. immunity compensate for the damage done to a witness'
privacy, especially where he is required to testify about his associations with
others or to reveal his political or other opinions. Nothing in the immunity
statute protects a. witness from losing his job because his employer dislikes
his notoriety. Compelling. testimony invites trial by publicity without any of
the safeguards. required' by the Constintion for criminal trial and conviction.
IV. DFIFENSES
A.. Entrapment
The present state of entrapment lave is 4. disgrace to our system of justice.
The most egregious police misconduct will not bar prosecution of an offender
who might never have engaged in criminal conduct if the police had not led him
into it. The Supreme. Court has recently reiterated its. past approval of a "pre-
disposition" test under which the prosecution may refute entrapment by de-
tailing the accused's past misconduct or criminal activity-thereby violating
the principle that an, accused should, be' tried. solely. on, the offense charged and
not required to. justify his entire life. See United States, V. Russell, 411 U.S.
4;23 (1973) ; Working Papcrs, Vol, 1, at 319-20.
To its credit, the Brown Commission attempted to remove the predisposition
question from the law and to establish an objective test of entrapment. See
?702 of its Final, Report. The provision of S. 1 weakens the prohibition against
entrapment and thus encourages police misconduct and corruption,.
Under Section 551, entrapment is a defense only where "the defendant was
not predisposed to commit the offense charged. and, did: so solely as a result of
active inducement by a federal. public servant. * * * [M]ere solicitation that
would. not induce an ordinary law-abiding person, to commit an offense, does
not in itself constitute. unlawful entrapment."
The proposal does. not require probable cause to believe that the suspect is
a likely potential offender. Yet as, the Brown Commission, Working, Papers
note, Vol. I at 319, inducement of criminal conduct violates privacy in much
the same way as unfounded. searches prohibited by the Fourth Amendment.
Such inducement makes "inroads upon the freedom of the will." A government
policy sanctioning unlimited police intrusion into the decision making processes
of individuals or groups for. the purposes of ferreting out: unsuspected crime
can easily metamorphose into a justification. for relentless pursut of those
considered "predisposed" by political opinions or associations to commit crimes.
The "Government cannot be permitted to instigate the commission of a criminal
offense in order to prosecute someone for committing, it: Sherman v. United
States, 356 U.S. 369, 372 (1958)." Russell, supra, 411. U.S. at -, 36 L.Ed. 2d
at 378 (dissenting opinion).
It is no doubt necessary on occasion for law enforcement officials to use
disguise and deception to procure, evidence of serious criminal misbehavior.
But, such conduct should be strictly limited. Instead, S. 1 contemplates its
expansion, by restricting the entrapment defense to offenses. committed "solely
as a. result of active inducement * * *," making proof of entrapment virtually
impossible. In United States v. Russell, supra, the Supreme Court, while ap-
proving present entrapment law, plainly left the way open: to Congressional
reform. 36 L.Ed. 2d at 374 & n. 9. Congress should take. the opportunity to
curb official lawlessness.
54-398-75-14
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B. Public Duty
Sections 541-544 would insulate public officials and those acting at their
direction from the prohibitions of the criminal law. The statutes would effec-
tively divorce personal responsibility from official action, thereby setting a
lower standard of conduct for every federal employee from the President on
down the scale. Such statutes are an invitation to official. lawlessness.
For more than two years we have heard high federal officials attempt to
justify perjury, wiretapping, and burglary-offenses that would be felonies if
committed by ordinary citizens-on the grounds that they were doing their
duty as public servants. Under present law, which contains no provisions coiu-
parable to the proposed ones in S. 1, United States District Judge Gerhard A.
Gesell refused to countenance any exception to the Constitution or criminal
laws for public officials on national security grounds :
"The Government must comply with the strict constitutional and statutory
limitations on trespassory searches and arrests even when known foreign
agents are involved * * *. To hold otherwise, except under the most exigent
circumstances, would he to abandon the Fourth Amendment to the whim of
the Executive in total disregard of the Amendment's history and purpose."
United States v. Ehrlichman, et al. Crim. No. 74-116, Memorandum and Order
(D.D.C. May 24, 1974).
If Congress changes the law to permit justification for an illegal act by a
federal official on the ground that lie "believed * * * that the conduct charged
was required or authorized," unless his belief was reckless or negligent, no
innocent citizen will be really secure from government lawlessness
Such a standard offers virtually no guidance to law enforcement officials,
judges, or juries. It does not even suggest that conduct plainly lawless if
done without official jurisdiction should have to overcome any higher hurdle
of reasonableness than conduct which is ordinarily legal. and within the scope
of duty. It offers every defendant the opportunity --eagerly accepted by many
of the Watergate defendants-to claim that he was merely a good soldier.
But public officials are not soldiers. The Brown Commission Working Papers
are simply wrong when they equate the soldier's duty to obey commands with
the public official's duty to carry out his superior's orders. Id. at 263. The
public official's highest duty is to the public. He cannot escape the law's com-
mands by reference to administrative permission to ignore them. See West-
brook V. United States, 13 F.2d 280 (7th Cir..1926). Cf. Screws v. United States,
325 U.S. 91, 129 (1945) (Rutledge, J, concurring). One fundamental lesson
of Watergate is that we must encourage public officials to exercise independent
judgment when faced with a supervisor's order which raises doubts in their
minds. Especially in light of current events, Congress should take a firm stand
against limiting official responsibility for criminal acts. Public respect for
public officials is already frighteningly low. Undermining it further may well
destroy the bedrock of confidence on which democratic self-government rests.
V. WIRETAPPING AND ELECTRONIC SURVEILLANCE
The ACLTJ has long opposed wiretapping and electronic surveillance by
anyone-including the government-for any reason. The use of electronic de-
vices to invade the privacy of conversations in homes and offices, in telephone
booths, and nearly anywhere else is a flagrant violation of the Fourth Amend-
ment ban on dragnet searches and seizures, the Fifth Amendment privilege
against self-incrimination, and the constitutional right of privacy. The elec-
tronic ear does not discriminate between conversations about criminal activity
f th; First Amendment. It
i
on o
and conversations entirely within the protect
does not separate the intimate discussions of friends from the clandestine
plotting of criminals. It sweeps up everything in its Way.
Despite studies indicating that, from the government's point of view, the
costs of electronic surveillance far outweigh its purported benefits, Schwartz,
Report on. Costs and Benefits of Electronic Surveillance (ACLT7 1973), S. 1
essentially re-enacts the electronic surveillance provisions of Title III of the
Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ??2510--20. The ACLU
vigorously opposed Title III at the time it was under consideration by Congress.
We oppose its re-enactment now. Despite its requiremer..t that a neutral magis-
trate issue a warrant based on "probable cause" and on the failure of ordinary
investigative techniques, Title III has greatly expanded the use of electronic
surveillance. The number of "intercept applications" authorized has risen from
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174 in 1908 to 864 in 1973. State participation in the government's wiretapping
and electronic surveillance program has steadily increased. Report of the Di-
rector of the Administrative Office of the United States Courts, printed in
Cong. Rec. S 7104-05 (May 6, 1974). Further, the typical federal wiretap in
1972 involved the interception of 1,023 conversations among 66 persons over
an average period of more than three weeks. See Cong. Rec. S 7934 (April 30,
19731 (remarks of Sen. McClellan). As Senator McClellan noted in inserting
the 1973 report into the Congressional Record, only two applications for inter-
cept orders were denied in 1973. In the overwhelming majority of cases, then,
the neutral magistrate has accepted the government's word that such surveil-
lance was necessary and would be carefully limited within statutory guidelines.
Yet there have been extraordinary abuses-abuses involving wholesale de-
ception of the courts by the Administration. Despite the requirement that only
the Attorney General or an Assistant Attorney General specially designated
by him could authorize federal applications for intercept orders, 18 U.S.C.
?2516, a requirement designed by this Congress to insure that only a "publicly
responsible official" would set law enforcement policy in this sensitive area,
S. Rep. No. 1067, 90th Cong., 2d Sess., 96-97 (1968), a large number of such
orders were routinely approved by an executive assistant to the Attorney
General and submitted to the courts in the name of an Assistant Attorney
General who had, in fact, nothing to do with their authorization. As a result,
the Supreme Court has now held that evidence gathered under those orders
cannot be admitted in court. See generally, United States v. Giordano, 416 U.S.
505 (1974).
Moreover, the Administration interpreted the Congressional authorization
to permit electronic surveillance of political dissidents without court order,
under the rubric of national security. It persisted in this practice until the
Supreme Court unanimously ruled that the Fourth Amendment forbids such
warrantless searches in "domestic security" cases. United States v. United
States District Court, 407 U.S. 297 (1972) As the Court there noted,
"National security cases, moreover, often reflect a convergence of First and
Fourth Amendment values not present in cases of `ordinary' crime. Though the
investigative duty of the executive may be stronger in such cases, so also is
there greater jeopardy to constitutionally protected speech. * * * Fourth
Amendment protections become the more necessary when the targets of official
surveillance may be those suspected of unorthodoxy in their political beliefs.
The danger to political dissent is acute where the Government attempts to act
under so vague a concept as the power to protect 'domestic security.' " Id. at
313-14.
The Court emphasized that :
"The price.of lawful public dissent must not be a dread of subjection to an
unchecked surveillance power. Nor must the fear of unauthorized official
eavesdropping deter vigorous citizen dissent and discussion of Government
action in private conversation. For private dissent, no less than open public
discourse, is essential to our free society." Id. at 314.
In reaching its decision, the Court held that the existing legislation did not
attempt to confer surveillance powers on the President. Id. at 308. But Section
3108 would reverse this ruling by excepting the President from the statutory
restrictions. The ACLU believes that all language reserving inherent Presi-
dential power should be eliminated. However, if any such power at all is
reserved it must be consistent with the holding in United States v. United
States District Court, supra, that the Fourth Amendment controls where
"there is no evidence of any involvement, directly or indirectly, of a foreign
power:" 407 U.S. at 309. ,If it is to exist at all, this concept needs to be care-
fully and narrowly defined in the statute. Such a definition should, as a mini-
mum, Incorporate the guidelines offered by the Justice Department two years
ago and confirmed by Attorney General William Saxbe last summer : "sub-
stantial financing, control by or active collaboration with a foreign government
or agencies thereof in unlawful activities directed against the government of
the United States." Testimony of Deputy Assistant Attorney General Kevin
T. Moroney, Hearings on Warrantless Wiretapping before the Subcommittee
on Administrative Practice and Procedure of the Senate Committee on the
Judiciary, 92nd Cong., 2d Sess., 12 (June 29, 1972) ; Washington Post, May
24, 1974, at A 20.
If. such marrow authority is reserved to permit electronic surveillance in
the absence of probable cause, that reservation should not be total. Such elec-
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tronic surveillance should remain subject to statutory-established warrant and
judicial review requirements in order to obtain some accountability in this
very sensitive area.
S. 1 would continue present law authorizing electronic investigation of a
long list of federal offenses. The previous version of S. 1 [3-10C1-5] shortened
the list and confined surveillance to major crimes, and to that extent were
less intrusive into constitutional rights.
S. 1 continues the Title III provision for emergency surveillance without
court order for up to 48 hours, and adds a provision [? 3104(b) (2) (A) ]
which authorizes such government surveillance with respect to "national
security interests"-clearly in violation of the holding in United States v.
United States District Court, supra. Nothing in that opinion permits war-
rantless "domestic security" wiretaps even in alleged emergency situations.
S. 1400 limited such emergency searches to "conspiratorial activities character-
istic of organized crime," and that is continued in S. 1. The ACLU strongly
believes that this loophole too should be eliminated: Either formula is so
vague as to permit warrantless surveillance of political. dissidents or other
disfavored groups of people.
S. 1 authorizes the use of evidence of crimes other than those specified
in the court order authorizing the interception. This provision only exacerbates
the dragnet qualities of electronic search and seizure. It permits law enforce-
ment officials "to rummage for months on end through every conversation,
no matter how intimate or personal, carried over selected telephone lines,"
United States v. United States District Court, supra, 407 U.S. at 325 (Douglas,
J concurring) in an effort to uncover evidence of criminal activity. It makes
a mockery of the requirement for a warrant specifying in advance the offense
of which evidence is ostensibly sought.
Section 4102 continues the present specific authorization of recovery of
civil damages by those whose conversations are illegally intercepted, which
we of course support. But we oppose the provision in Sec. 4102 that good faith
reliance on "legislative authorization" is a "complete di,fense" to any civil
proceeding based on illegal electronic surveillance. Since bad faith is ex-
tremely difficult to prove, such a provision would prevent the recovery of
damages by those whose privacy was invaded for years by government sur-
veillance without court order.
Section 1521 provides some protection from electronic eavesdropping by
private persons or unauthorized government officials, by making it a felony
to intercept or disclose the contents of private communications. However, it
continues the present law's exception where one party to the conversation gives
prior consent to the interception. The ACLU opposes this restriction on the
citizen's right to be free from unreasonable search and seizure of his private
thoughts. Consent by one party should not be allowed to bypass the consti-
tutional rights and privileges of another.
VI. SENTENCING, PROBATION, AND PAROLE
S. 1 sets harsh retributive sentences for many crimes, and provides for the
death penalty, which the ACLU has long opposed as cruel and unusual pun-
ishment in violation of the Constitution. See Furman. v. Georgia, 408 U.S.
238 (1972). Although the Senate has already approved the reinstitution of
capital punishment by passing S. 1401 on March 13, 1974, we believe that if
this bill becomes law, it will not survive challenge in the courts. We urge
the Senate not to endorse yet again a penalty which has been used to per-
petuate racial and economic discrimination in a fashion which degrades our
nation in the eyes of civilized men and women. Our claims to moral progress
and to equal justice under law are mocked by the infliction of savage and
final retribution against those least able to defend their cases in court.
The sentencing schemes of S. 1 are skewed in favor of long-term prison
sentences, despite the overwhelming recommendation of penologists and
lawyers who have studied the correctional system that sentences instead
be sharply reduced. See, e.g., President's Commission on Law Enforcement
and Administration of Justice, The Challenge of Crime in a Free Society
348-351 (Avon. ed. 1967) ; Brown Commission Working Papers, vol. IT at
1255-57, 1269; Schwartz, "The Proposed Federal Criminal Code," 13 Crim. L.
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Rep. 3265, 3266 (1973). Although such sentences may be aimed at the most
egregious offenders, the Brown Commission reported :
"They have a psychological tendency to drive sentences up in cases where
such a tendency is unwarranted. Long, incapacitating terms can do great
damage if imposed in 'the wrong cases, both in terms of injustice to the
individual and in terms of positive, harmful effects to the public upon release
of the prisoner. Long sentences imposed on the wrong people can lead to
more offenses rather than less. Working Papers, vol. II at 1257.
A sentencing system which mandates fifteen, twenty, and thirty year
sentences for a large variety of crimes becomes its own worst enemy. 'Even
given the wide disparity between authorized maximums and time usually
served, see Working Papers, vol. II at 1255, the system's inevitable effect
is to destroy any possibility of rehabilitation for nearly everyone caught in its
.grasp. High recidivism rates among major felons testify to the fact that our
prisons are training schools for criminals. By increasing the number of
victims and offenders, they present a tragedy of broken and wasted lives
Section 2302(b), which provides for extended terms of imprisonment, is par-
ticularly harsh. Most experts are agreed that extended sentences for special
offenders is a penological experiment that does 'little good, operates unfairly,
and should not~be undertaken.
S. sets high mandatory minimum sentences for traffickers in heroin or
morphine, see Part II, B, supra, despite Widespread criticism of such sen-
tences as interfering with the judicial discretion vital to fairness in our
criminal justice system. Such sentences deny the sentencing court the power
to place the offender on probation. Federal judges, prosecutors, and correc-
tional personnel, as well as the American Law Institute, the National Council
on Crime and Delinquency, and the American Bar Association, have vehemently
opposed mandatory minimum sentences. Working Papers, vol. II at 1252.
Even if It were desirable to limit discretion, mandatory minimum sentences
do not do so. They merely displace discretion from the judge to the prosecutor,
who retains the power to determine the charge. As the Brown Commission
noted, prosecutors often charge drug offenders with a least one offense
carrying a mandatory sentence and one carrying a lesser penalty which
permits probation and parole. "The guilty -plea process, supposedly resting
upon the uncoerced consent of the offender, is clearly distorted when the
prosecutor can hold the threat" of a mandatory minimum sentence over the
offender's -head. Working Papers, vol. II at 1254. This practice unconsitutionally
chills the Sixth Amendment right to trial by jury, and the Fifth Amendment
right to plead not guilty, burdening the defendant's choice with heavy con-
sequences if he should be convicted. See United States v. Jackson, 390 U.S.
570 (1968).
The ACLU supports the long-overdue establishment of appellate review of
criminal sentences, now provided for in ?3725 of S. 1. Appellate review per-
mits correction of seriously excessive sentences and tends to equalize sen-
tences for like offenders and like offenses. At the same time, it allows more
than one court to consider individual circumstances in determining an
individual's fate. The exclusion of drug and gun offenses from the provision
is unfair and should be eliminated.
But even the limited reform S. 1 grants is seriously undermined by its
provisions for appeal by the government as well as by the defendant. Al-
though S. 1;properly forecloses higher sentences when the offender alone takes
an appeal, it permits imposition of more severe sentences when the government
takes an appeal. Such a provision plainly violates the constitutional guarantee
against double jeopardy. See, e.g., Em parte Lange, 85 U.S. (18 Wall.) 163,
173 '(1873) ; Biackledge v. Perry, 42 U.S.L.W. 4761 (U.S. May 20, 1974). Cf.
North Carolina v. Pearce, 895 U.S. 711 (1969). Whatever the exact scope of
the guarantee, Lange, supra, 85 U.S. at 168, there has never been any doubt
that the -Constitution prohibits a second punishment on the same facts for
the same statutory offense. The constitutional protection against more than
one trial would be of no avail if "there can be any number of sentences pro-
nounced on the same verdict[.]" Id. at 173.
Since S. 1 does not require the sentencing judge to state his findings and
reasons on the record, the defendant's decision about appeal will not only
be chilled by his fear that the government will take an appeal as well,
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but also by his lack of knowledge as to the reasons which the judge actually
relied upon in sentencing him. Where the original sentence is based on an
erroneous reading of the facts, lie will have no way of so discovering and
demanding correction.
Despite the Brown Commission's finding that "probation is likely to be the
most effective form of sentence in a great many cases," Working Papers, vol.
11 at 1268, S. 1 creates substantial legal hurdles to the imposition of proba-
tion instead of a prison sentence.
Section 2102 instructs a judge, in granting probation, to consider the need
to provide the defendant with educational or vocational training, medical care,
or other correctional treatmentin the most effective manner." Such factors only
reinforce the criminal justice system's discrimination against the poor, the sick,
and the uneducated. The constitutional guarantees of due process and equal
protection of the law requires courts to weigh evenly the claims of rich and
poor, skilled and unskilled. Freedom from imprisonment and the chance
to try again should not depend on an absence of past sufferings. "Effective"
provision of job training and medical care in most cases does not require
isolation of the offender from the community in which he will ultimately
have to learn to live. The Congress should legislate to provide these services
outside of prison, instead of incarcerating people just to obtain them. S. 1
similarly stacks the decision-making process against the granting of parole
and fails to provide for a preference to parole over continued imprisonment.
Yet parole, like probation, can be crucial in encouraging offenders to establish
law-abiding lives. See iliorrissey v. Brewer, 408 U.S. 471, 484 (1972).
AMERICAN LIBRARY ASSOCIATION,
Washington, D.C., May 2, 1975.
Chairman, Subcommittee on Crimninal Laws and Procedures, Committee on the
Judiciary, U.S. Senate. Washington, D.C.
DEAR SENATOR .licCLEI.LAx : On behalf of the American Library Association,
I should like to request that the attached statement be made a part of the
hearing record on S.1, the Criminal Justice Reform Act of 1975.
Sincerely,
EILEEN D. COOKE,
Director, ALA Washington Office.
STATEMENT OF THE AMERICAN LIBRARY ASSOCIATION
Founded in 1876, the American Library Association is the oldest and largest
library association in the world. It is a nonprofit, educational organization
representing over 35,000 librarians, library trustees, and other individuals and
groups interested in promoting library service. The Association is the chief
spokesman for the modern library movement in North America and, to a
considerable extent, throughout the world. It seeks to improve libraries
and librarianship and to create and publish literature in aid of this objective.
THE RIGHT TO KNOW : LIBRARY SERVICE IN TIIE UNITED STATES
Libraries are repositories of knowledge and information, and are estab-
lished to preserve the records of the world's cultures. In the United States,
under the First Amendment, libraries play a unique role by fulfilling the
right of every citizen to have unrestricted access to these records for whatever
purposes he might have in mind. According to the Library Bill of Rights
(attached), the Association's interpretation of the First Amendment as it
applies to library service, it is the responsibility of the library to provide
books and other materials presenting all points of view concerning the
problems and issues of our times. The Library Bill of Rights further states
that no library materials should be proscribed or removed because of partisan
or doctrinal disapproval, and that the right of an individual to the use of
the library should not be denied or abridged because of age, race, religion,
national origin or social or political views.
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In sum, libraries foster the well being of citizens by making information
and ideas available to them, It is not the duty or role of library employees
to inquire into the private lives of library patrons, nor is it their duty to
net as mentors by imposing the patterns of their own thoughts on their
collections. Citizens must have the freedom to read and to consider a broader
range of ideas than those that may be held or approved by any single
librarian or publisher or government or church.
Several sections of S.1, would, if enacted into law, adversely affect library
service in the United States. Among these provisions are a section on obscenity,
and various sections dealing with national defense and other government
information which, taken together, represent a veritable "official secrets act."
ALA'S POSITION ON OBSCENITY LAWS
The American Library Association rejects anti-obscenity laws as intolerable
intrusions upon those basic freedoms which Mr. Justice Cardozo once
described as the matrix of all our other freedoms. Anti-obscenity laws,
which are directed not at the control of anti-social action but rather at the
content of communicative materials, clearly represent a form of censorship
ultimately aimed at the control of the thoughts, opinions, and basic beliefs
of citizens in an ostensibly free democracy.
The view of the American Library Association was succinctly stated by
Mr. Justice Marshall in Stanley v. Georgia, 394 U.S. 557 (1969) :
"Our whole constitutional heritage rebels at the thought of giving govern-
ment the power to control men's minds. And yet, in the face of these tradi-
tional notions of individual liberty, Georgia asserts the right to protect
the individual's mind from the effects of obscenity. We are not certain that
this argument amounts to anything more than the assertion that the state
has the right to control the moral content of a person's thoughts. To some,
this may be a noble purpose, but it is wholly inconsistent with the philosophy
of the First Amendment."
While the Court's judgment in Stanley applied to reading in the privacy
of one's home, we submit that the arguments pertain to reading per se. We
accordingly conclude that reading ought not to be hampered in any respect
by laws on obscenity.
SECTION 1842' DISSEMINATING OBSCENE MATERIAL
Section 1842, unlike its predecessor in S.1 in the 93rd Congress is appar-
ently in accord with the latest constitutional test for obscenity as set
forth by the U.S. Supreme Court in Miller v. California,, 413 U.S. 15 (1973).
However, Section 1842 clearly fails to reflect the realities of the responses
to Miller as they occurred in the various states.
Whereas some states, e.g., Oregon, responded to Miller by enacting a law
that is more restrictive than its pre-Miller predecessor, others, such as Iowa,
decided to eliminate all anti-obscenity laws for adults.
In Miller, the United States Supreme Court clearly intended to allow the
various states to control so-called obscenity according to local standards.
Ironically, the result of a federal law like the one envisioned in Section
1842 would permit the federal government to annul the choice of the citizens
of Iowa as reflected in laws enacted by their legislature-at least to the
extent that books, films, etc., are mailed or shipped into Iowa.
Regrettably, Section 1842 also fails to include provisions which the Amer-
ican Library Association finds essential. If one accepts, as we do not, the
inevitability of anti-obscenity laws, such laws must include basic safeguards,
including fair notice to reasonable men of the kind of conduct prohibited.
However, anti-obscenity laws have been afflicted with notorious problems of
vagueness. It is a position of the ALA that in order to remedy this defect
anti-obscenity laws must mandate prior civil proceedings with adversaries
to determine obscenity, and that such determinations must be made the
prerequisite of criminal prosecutions for acts of dissemination that occur
after the determinations.
North Carolina's anti-obscenity law, enacted April 1974, includes the
following provision: "No person, firm or corporation shall be arrested or
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indicted for any violation of (these provisions) until the material involved
has first been the subject of an adversary determination under the provisions
of this section, wherein such person, firm or corporation is a respondent, and
wherein such material has been declared by the court to be obscene * * *
and until such person, firm or corporation continues, subsequent to such
determination, to engage It the conduct prohibited by a provision of the
sections hereinabove set forth."
Again, it would be ironic if the rights and safeguards of North Carolina
citizens as determined by them were to be abrogated by federal prosecutions
under a law with provisions like those in Section 1842.
Sadly, Section 1842 is fraught with other defects that require correction.
Indicative of the failures of the section is the lack of any specification of
the community whose standards are to be applied with regard to "patent
offensiveness." If, for example, a publisher in New York City mails a book
to a small community in California, and the book is intercepted in the mails
in, for example, St. Louis, and the publisher is charged with disseminating
obscenity, is he to be tried under the standards of New York City, the
community in California, or St. Louis, or are national standards to be applied?
Confusion, as great as it is predictable, could be avoided by a simple provision
specifying that national standards are to be employed.
Finally, the members of the American Library Association find no refuge
in the distinction drawn between commercial and noncommercial dissemina-
tion. Virtually every library open to the public serves minors. In order to
escape prosecution under Section 1842, it would be necessary for librarians
to establish a comprehensive system of sub rosa censorship which would
impede fulfillment of First Amendment rights, and which would. not permit
constitutionally required judicial review.
One major problem of the librarian was discussed by the U.S. Supreme
Court when it addressed itself to the issue of a bookseller's knowledge of
his stock :
"If the content of bookshops and periodical stands were restricted to
material of which their - proprietors had made an inspection, they might
be depleted indeed. The bookseller's limitation in the amount of reading
material with which he could familiarize himself, and his timidity in the face
of his absolute criminal liability, thus would tend to restrict the public's
access to forms of the printed word which the State could not constitutionally
suppress directly. The bookseller's self-censorship, compelled by the State,
would be a censorship affecting the whole public, hardly less uirulent for
being privately administered. Through it, the distributttn of all books, both
obscene and not obscene, would be impeded." Smith v. California, 361 U.S.
147 (1959). (Emphasis added.)
These remarks, applied to the bookseller, are even more applicable to the
librarian.
In Blount v. Rizzi, 400 U.S. 410 (1971), the U.S. Supreme Court established
procedures to govern official censorship :
"* * * to avoid constitutional infirmity a scheme of administrative censor-
ship must : place the burdens of initiating judicial review and proving that
the material is unprotected expression on the censor ; require "prompt judicial
review"-a final judicial determination on the merits within a specified,
brief period-to prevent the administrative decision of the censor from
achieving an effect of finality ; and limit to preservation of the status quo
for the shortest, fixed period compatible with sound judicial resolution, any
restraint imposed in advance of the final judicial determiantion.
In the opinion of the Association, such safeguards are absolutely vital
to the preservation of the freedom of expression guaranteed by the First
Amendment. I-Iowever, it. is to be noted that librarian-censors would have
no obligation to seek review of their decisions, nor would such an obligation
be reasonable. Librarians have no economic incentive to seek such review ;
indeed, there is a strong economic disincentive.
The foregoing duly considered, the Association urges Congress to reject all
federal legislation-if there is to be any-that does not mandate such basic
safeguards as prior civil proceedings, or that does not allow as an affirmative
defense the fact that the dissemination occurred in a bona fide nonprofit
library established for the educational, research, and recreational needs of
its users.
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SECTIONS 1121 ET SEQ.: ESPIONAGE, NATIONAL DEFENSE INFORMATION, ETC.
In deliberations of this kind it is surely axiomatic that the U.S. govern-
ment is exceedingly-not to say excessively-complex, and that. a citizen's
attempt to learn about its operations commonly results in little more than
bewilderment. This fact is all the more to be regretted in a nation where
the citizenry is considered the ultimate sovereign.
The American Library Association not only insists upon the right. of the
citizen to know everything about his government absent a strong demonstration
of a need for secrecy, but would also lend its cooperation and expertise: to
the public in devising systems to assure the effective delivery of information
about government to all citizens. The Association would, in addition, join
the associations of journalists and authors whose members are responsible
for the origination of articles, books, etc., about our government, in vigorously
protesting the abrupt and unwarranted change in our law as proposed in
Sections 1121-23.
It is not absurd to suggest that the United States might consider pre-
judicial to its "interest" the publication of information about "intelligence
operations" like those which were revealed in 1974, involving activities under-
taken against the regime of Salvado Allende in Chile.
We submit that the free flow of information to citizens as ostensibly
protected by the First Amendment requires, at minimum, that offenses be
restricted to acts of communication with the intent to harm the security of
the United States, and that the harm be both immediate and demonstrable.
The government should not be permitted to harass the press, and restrict
the dissemination of information adverse to it, through prosecutions based on
speculations about remote damages to the "interest" of the United States,
While librarians would not be immediately threatened in their profes-
sional activities by the adoption of these sections, it is clear that the quality
of information service regarding our government would be. As a pro Bono
puO e o organization dedicated to improving every citizen's access to informa-
tion, we therefore respectfully request the review of these sections with the
interest of government by and for the people held uppermost in mind.
LIBRARY BILL OF RIGHTS
The Council of the American Library Association reaffirms its belief in the
following basic policies which should govern the services of all libraries.
1. As a responsibility of library service, books and other library mate-
rials selected should be chosen for values of interest, information and en-
lightenment of all the people of the community. In no case should library
materials be excluded because of the race or nationality or the social, political,
or religious views of the authors.
2. Libraries should provide books and other materials presenting all
points of view concerning the problems and issues of our times ; no library
materials should be proscribed or removed from libraries because of partisan
or doctrinal disapproval.
3. Censorship should be challenged by libraries in the maintenance of
their responsibility to provide public information and enlightenment.
4. Libraries should cooperate with all persons and groups concerned with
resisting abridgement of free expression and free access to ideas.
. 5. The rights of an individual to the use of a library should not be denied
or abridged because of his age, race, religion, national origins or social or
Political views.
6. As an institution of education for democratic living, the library should
welcome the use of its meeting rooms for socially useful and cultural
activities and discussion of current public questions. Such meeting places
should be available on equal terms to all groups in the community regardless
of the beliefs and affiliations of their members, provided that the meetings
be open to the public.
Adopted June 18, 1948.
Amended February 2, 1961, and June 27, 1967, by the ALA Council.
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STATEMENT OF ASSOCIATED BUILDERS AND CONTRACTORS
This statement is made on behalf of Associated Builders and Contractors,
Inc., a non-profit corporation sometimes called ABC. Most of this Association's
approximately 9100 members are construction contractors, with a substantial
number of other members who do business with the construction industry.
ABC's headquarters office is in Maryland, and it has 49 chapters with
members in 47 states. It also maintains an office in Washington, D.C.
ABC members have on numerous occasions been victims of wanton de-
struction of property. On this account ABC is deeply interested in the efforts
through S. 1 to make the federal Criminal Code more effective with respect
to these problems. ABC also has a deep concern as to the sections regarding
extortion, theft, and robbery, as these crimes are always a potential threat
to construction contractors.
Construction contractors have been especially victimized by wanton and
malicious destruction of property. At times in the beat of a labor dispute at
a single construction site such damage done the construction project runs into
hundreds of thousands of dollars. It has been estimated that during 1973
such damage to ABC construction contractors on 123 projects came to
approximately $3,197,150.
The statement here made is consequently directed in the first place at
arson and other destruction of property during a labor dispute and what
protection Section 1701 and other provisions of S. 1 would afford. As ABC
understands the purpose in the bill, it is to make significant instances of such
conduct a federal criminal offense.
ABC has long taken the position that whoever obstructs or intereferes
with commerce by wilfully damaging property of an employer or owner to
the extent of $2,000 or more by arson or otherwise should be held criminally
liable under federal law. We are glad to see that S. 1 moves in that direction.
In this connection ABC suggests that with reference to the use of fire
or explosion the language in Section 1701(c) (5) should be made more definite
and inclusive. The language could readily be amended to state : "The property
that is the subject of the offense is any facility that is used in an activity
affecting interstate or foreign commerce or a property under construction for
such use."
The reason for this suggestion is that the language in the bill as presently
drafted might fall short of bringing a construction site project under juris-
diction of the statute. For instance, a hotel, a motel, or a warehouse for
storing goods to be shipped in foreign or interstate commerce would obviously
come within the language of the bill as presently drafted. However, if such
a building were under construction it would not be presently used in an
activity affecting interstate or foreign commerce. Because ABC believes this
possible loophole should be closed, the suggestion is made to broaden the
language.
We fear too that the words "by a destructive device" might cause worlds
of controversy as to their meaning. We doubt, moreover, that they add any-
thing important when included, and we suggest that they be deleted.
In Section 1702(a) (3) it is suggested that the word "any" be inserted
before "property" so that the language would read "(3)damages any property
in an amount that in fact exceeds $500." Similarly the word "any" might well
be inserted in Section 1703(a) before the word "property". The reason for
the suggestion is to make clear that at these points the concept is not limited
to "public facility."
ABC has a deep interest in Sections 1721 and 1722 regarding Robbery and
Extortion. More especially with respect ?o Extortion' it is submitted that
Congress long ago actually intended through the Hobbs Act to outlaw such
conduct in labor disputes. With respect to the Hobbs Act we agree with the
four-justice minority opinion in the Entnons case which stated :
"Seeking higher wages is certainly not unlawful. But using violence to obtain
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215
them seems plainly within the scope of 'extortion' as used in the Act, just as is
the use of violence to exact payment for no work or the use of violence to
get a sham substitution for no work. The regime of violence, whatever its
precise objective, is a common device of extortion and is condemned by the
Act."
This minority observation, ABC submits, is completely sound. By following
the court majority's reasoning, the absurd result of legalizing any crime when
,prosecuted under the Hobbs Act, even murder, could be the result as long as
the objective was to promote a legitimate collective bargaining objective. We
believe Congress intended through the Hobbs Act to outlaw such conduct,
not legalize it. Hence we completely approve of the stated purpose of the
Committee "to overturn the result" in the Enmons case.
As we study Section 1721 and 1722,, we assume that if jurisdiction at-
tached over robbery or extortion at a private construction site, it would
derive from Section 1721(c) (5). We fear that a persuasive argument could
be made that the language in the bill as presently drafted would not cover
such construction site property. For that reason we suggest revision of the
language in Section 1721(c) (5) to read:
"(5) the offense in any way or degree affects, delays, or obstructs inter-
state or foreign= commerce, the movement of an article or commodity in inter-
state or foreign commerce, or the construction of a facility for use in an
activity affecting interstate or foreign commerce."
With this language or similar language we believe the dastardly acts of
extortion at times committed in connection with construction site activity
would be covered.
ABC is gratified that the Committee has expressed an intention to overrule
the Supreme Court's Enmons decision. In order that there may be no doubt
on this point, they following language is suggested as an addition to Section
1722(a) after the final word "damaged":
"Notwithstanding that the same acts or conduct may also be a violation of
State or local law, and notwithstanding _ that such acts or conduct were used
in the course of a legitimate labor dispute or in the pursuit of legitimate
union or labor ends or objectives."
We commend the Committee for the outstanding piece of work it has done
and hope the legislation will be enacted in such form as to achieve the results
envisioned in the Committee Report.
WEIL, GOTSHAL & MANGES,
New York, N.Y., May 7, 1975.
Chief Counsel, Senate Subcommittee on Criminal Laws and Procedures, Senate
Judioiary Committee, U.S. Senate, TVashington, D.C.
DEAR PAUL : It has just come to my attention that the Subcommittee is
planning to close its records on S. 1 at the end of this week. While I have
noted that certain groups have taken advantage of the opportunity to testify
in the short series of hearings recently held, I had not realized you were
finishing up the work so efficiently.
As you know, we testified at some length on S. 1 and S. 1400 as originally
introduced and, I am afraid, simply have not carved out the time to prepare
a similar thorough analysis of S. 1 as it now stands. Nonetheless, we remain
concerned with various aspects of the bill. So that our official silence to date
not be deemed an acceptance of the legislation in its present form, we have
prepared a brief statement to file at this time.
That statement is enclosed and I would greatly appreciate your assistance
in having it entered into the record. Also, if the Subcommittee determines
to reopen the record or extend the deadline, I would appreciate knowledge
of same so that we will have an opportunity to amplify some of the positions
set forth in the statement.
As always, I would love to hear from you and I continue to be grateful
for your cooperation. With best personal regards, I am
Sincerely yours,
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ASSOCIATION OF AMERICAN PUBLISHERS, INC.,
Washington, D.C., May 01, 1975.
Hon. JOHN MCCLELLAN,
Chairman, Subcommittee on Criminal Laws and Procedures, Committee on the
Judiciary, U.S. Senate, Washington, D.C.
DEAR SENATOR MCCLELLAN : I take the liberty of calling to your attention
the attached statement recently submitted by this Association to the Sub-
Committee on Criminal Laws and Procedures of the Senate Committee on
the Judiciary. As the voice of an industry highly dependent on the freest
possible interchange of ideas and information, our Association is deeply
concerned by certain provisions of S. 1,. the so-called "Criminal Justice Re-
form Act of 197n."
As the statement indicates, our concern arises principally from what ap-
pears to us as the dangerous breadth. and vagueness in provisions dealing
with (a) secrecy of government information, and (b) the limitation on free-
dom of expression implicit in provisions governing dissemination of allegedly
obscene material. (The definition of such material continues to elude jurists
and therefore would require, in our view, case-by-case determination in a civil
proceeding before criminal penalties are invoked.)
We recognize both the need and the extreme difficulty of attempting a
wholesale revision and codification of federal criminal laws. We are glad to
offer the assistance of our counsel-the firm of Well, Gotshal and Manges of
New York-in. drafting reasonable and equitable revisions of the sections of
S. 1 that concern us.
Sincerely,
STATEMENT OF THE ASSOCIATION OF AMERICAN PUBLISHERS, INC.
The Association of American Publishers, Inc. (the "AAP") is a trade
association organized under the laws of the State of New York. It is com-
posed of publishers of general books, religious books, textbooks and educational
materials. Its more than 260 members, which Include many university presses.
publish in the aggregate the vast majority of all general, educational and
religious books published in 'the United States.
The AAP appreciates the opportunity to have delivered testimony and filed
statements with the Subcommittee in June 1973 when S. 1 and S. 1400 were
before the 93rd Congress. Since that time the Subcommittee clearly has
devoted substantial time and effort in consolidating and revising those bills
into S. 1 in the form in which it was introduced in the 94th Congress. The
AAP notes, with some satisfaction, that some of the views expressed in its
earlier testimony have been incorporated.
Notwithstanding some of the salutary changes, the AAP. remains concerned
with the severe impediments to freedom of expression and the free flow of
information which remain in the bill. Its statement at this time is submitted
to register that concern, to note the sections to which it relates and to
highlight the problems they raise.
Chapter 11, Subchapter C (?? 1121-1128) continues to concern the AAP.
The statutory scheme, although improved in some respects from the earlier bills,
still creates a network of government secrecy which is impossible to escape
without incurring substantial criminal penalties. It seems to ignore the
benefits the Founders recognized and we, today, know derive from access to
information and an informed citizenry.
While a provision such as ? 1121 appears designed to cover actual espionage
situations, its language is sufficiently broad to be used, for example, against
the publisher of information coming from the State Department which re-
sults in embarrassment to the Department and hence can be deemed to be
"used to the prejudice of the safety or in.frrest of the United States". Prac-
tically, a generally available or widely disseminated book can be read by a
foreign power as easily as by a U.S. citizen.
The same factual example is even more clearly a violation of ? 1122,
since there need be no showing that the Information was communicated to
a foreign power. The same is, of course, the situation with ? 1123 which
would require a publisher, who has been given such information by an author,
to return it to the proper federal official under the threat of criminal
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To a large extent the overbreadth of these provisions results from the
sweeping definition of "national defense information" contained in ? 1128.
Those categories of information would encompass much of what we read
about everyday ; the CIA's work in retrieving the sunken Soviet submarine
is one current example.
Section 1124 does not rely on the definition of "national defense informa-
tion".; instead it relies on the discretion of thousands of executive branch
officials in determining that information should be "classified". In its present
form, S. 1 does seem to acknowledge that greater, more centralized and
higher level control over what is classified is required before prosecutions
may be instituted. Yet, the defendant may not assert a defense of improper
classification, absent the exhaustion of all administrative remedies, and is
thereby relegated to a position inferior to that of a plaintiff seeking informa-
tion under the Freedom of Information Act (5 U.S.C. ?552(b)(1)), as
recently amended.
The impediments to a free flow of information noted with regard to Chapter
11 are enhanced by other sections giving the government proprietary control
over facts and information, the interference with which constitutes punish-
able criminal activity. Taken together with the provisions of Chapter 11,
Sections 1301, 1344, 1523, 1731 and 1733, dealing in part, with theft and
receipt of "stolen" government documents and interference with government
operations would tighten the noose of government secrecy beyond that
conceivably required for any purpose. Together, the entire scheme can, be
used to inhibit the very kind of reporting, writing and publishing the First
Amendment is designed to protect and enhance.
The other aspect of the bill which concerns the AAP is Section 1842
entitled "Disseminating Obscene Material". The conflict between effective
law enforcement and the constitutional protection of freedom of expression
has surfaced over and over again since 1957. While the existing prohibitions
in Title 18 are more defective in their vagueness and sweep than the proposal
in S. 1, Section 1842 tries to do the impossible and hence it fails. Indeed, it
adds to the existing confusion.
In the Supreme Court obscenity decisions of 1973 and 1974, the Court
has given states and localities far greater latitude in regulating in the area.
As a result, the statutory schemes in many of the 50 states have been
changed and there has been a great divergence from state to state. The
imposition of a federal standard, the jurisdiction of which is invoked by
virtually every transaction as far as nationally disseminated books and other
materials are concerned, simply adds another layer to a series of inscrutable
laws.
Largely because of the virtual impossibility of determining whether or not
material is "obscene", until after a conviction and appeals, the Association
believes that both the interests of the First Amendment and due process
require that such determination initially be made in the context of a civil
and not a criminal action. In many cases it is the librarian or the bookseller,
who often has no knowledge as to the contents, let alone the legality of the
materials, who is threatened with the criminal prosecution. This problem is
not cured but, instead, is exacerbated by the absence of a scienter provision
in Section 1842.
While the Association perceives the logic of considering dissemination to
minors (as contained in (a) (1)(A)) and "thrusting (as contained in
(a) (1) (B)) as deserving separate consideration from distribution to willing
adults, it is concerned with the lack of specificity in both regards. If nothing
else, the affirmative defenses should cover situations where the minor has
parental consent, is emancipated or has provided convincing evidence that
he or she is of age. Similarly, the "thrusting" provision gives no guidance
as to what would fall within its terms.
Because of the ambiguities, the uncertainties and the threat of a felony
conviction in the dissemination of almost any material, the Section as a whole
can only result in a "chilling effect" on the free flow of material throughout
the country. While the intention of the Section presumably is to deal with the
type of "hard core" pornography discussed by the Supreme Court, experience
has shown that everything, from classics of literature to textbooks to news
magazines, can be brought within the terms of a statute as vague as the one
at hand.
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Although the Association recognizes that a task as overwhelming as a
total revision and codification of the Criminal Code is bound to entail prob-
lems, it believes that the First Amendment problems created by S. 1 require
further consideration before the bill should be allowed to proceed along
the legislative path.
Respectfully submitted,
[UNITED STATES COURT OF APPEALS,
CHAMBERS OF DAVID L. BAZELON, CHIEF JUDGE,
Washington, D.C., May 8, 1975.
Hon. JOHN L. MCCLELI. AN,
Chairman, Subcommittee on Criminal Laws and Procedures, U.S. Senate
Committee an the Judiciary, Washington, D.C.
DEAR SENATOR NICCLELLAN : Enclosed is a statement I wish to submit for
the bearings record on S. 1's criminal responsibility provisions. Despite its
tardiness, for which I apologize. I hope you will be able to accept it. My
office is available to respond to any questions the Subcommittee may have in
regard to the statement or its subject.
Sincerely,
During the past twenty-six years, I have gained a significant body of
experience in the judicial administration of concepts of criminal responsi-
bility. This experience was gained in large part through the unusual com-
bination of local and federal criminal jurisdiction enjoyed by federal courts
in the District of Columbia prior to passage of the D.C. Court Reform Act.
This experience has led to the development of distinctive views on the legal
definition of criminal responsibility. The purpose of this prepared statement,
submitted for the hearings record on S. 1, is to consider Subchapter C,
Chapter 3 of that bill in light of my views. I particularly direct my attention
to ? 522 which purports to codify the so-called "insanity" defense. My com-
ments, in theory, however, encompass all of the defenses termed by S. 1 to be
"based on lack of culpability." I will refer to these defenses generally as
"criminal responsibility" defenses. My discussion will include criticisms of the
"insanity" defense proposed by a majority of the American Law Institute
commissioners,' which in a modified form was contained in an earlier version
of S. 1. The discussion will further concern itself with the criminal responsi-
bility defense proposed by the dissenting ALI commissioners, as well as by
the British Royal Commission on Capital Punishment, a formulation which
the Subcommittee has considered in the preliminary drafting stages?
The latest version of the "insanity" defense contained in ? 522 marks a
studied departure from the traditional course of the defense. Just what
direction that departure takes, however, is not at all clear from the language
of the section. The section is derived, I take it, from the proposal of the
Nixon Administration, contained in S. 1400 of the last Congress. That
proposal was trumpeted by some as a restriction of the "insanity" defense.
But as Professor Abraham Goldstein points out in bearings in the last
Model Penal Code 4.01 (1) (Tent. Draft No. 4 1955)
"A person is not responsible for criminal conduct If at the time of such conduct as a
result of mental disease or defect he lacks substantial capacity either to appreciate the
criminality [wrongfulness] of his conduct or to conform his conduct to the requirements
of the law."
2 See id. alternative (a)
"A person is not responsible for criminal conduct if at the time of such conduct as a
result of mental disease or defect his capacity either to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law Is so substantially
impaired that he cannot justly be held responsible."
Loyal Comm'n on Capital Punishment, 1949- 33. Report ? 333(111) (1953)
"iA person is not responsible for his unlawful act ifl at the time of the act the
accused was suffering from disease of the mind for mental deficiency) to such a degree
that he ought not to be held responsible.
These versions of the "insanity" defense comprised one of the alternatives circulated
to state mental health officials by the staff of the Subcommittee. See Ireorings on S. 1
& S. 1.100 Before the Subceman. in Criminal Laws & Procedure of the Senate Comm. on
the Judiciary, 93d Cong., 1st Sess. G392 (1973).
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Congress," one may doubt whether the proposal accomplishes its intended`
goal. And, as I will discuss, I do not think that goal, even if desirable,'
may appropriately be achieved through ? 522 as it is presently formulated.
Of course, my comments on the meaning of the Section are, limited to in-
ferences that may be drawn from its language and from the public statements
of those who have supported proposals similar to the Section. Further
explication of the Section, if it is approved by the Subcommittee and the
Senate Committee on the Judiciary in its present form, will no doubt be
forthcoming.
Section 522 establishes as a "defense" that "as a result of mental disease
or defect", the defendant "lacked the state of mind [or `intent' as I may
sometimes refer to it] required as an element of the crime charged." One is
immediately struck by the redundancy of this formulation in light of ?? 301-02.
Seemingly, if the defendant lacked the "state of mind" or intent required
as an element of the offense charged, as those states of mind are defined in
?? 301-02, for whatever reason-because of a mental defect, drug addiction,
intoxication, somnambulism, whatever-then there would be no liability wholly
apart from ? 522. Erection of a "defense" based on a mental disease or
defect which on its face goes only to the state of mind or intent required
for the offense, a requirement that exists apart from the "defense", is mere
surplusage. On its face, then, ? 522 is a decidedly opaque provision.
In order to avoid the conclusion that ? 522 is simply duplicative of
?? 301-02, one would assume that the phrase "as a result of mental disease
or defect" adds substantively to the concept of state of mind or intent. That
is, ? 522 defines or purports to define certain occasions when a defendant
may be exonerated even though he would otherwise have the requisite
intent, as defined in ??301--02, because of a mental disease or defect. The
terms "mental disease or defect" would thus read back into the concept of
state of mind or intent "required as an element of the offense charged." In
sum, ? 522 pries open the concept of intent or state of mind and allows a
more extended inquiry than that contemplated by ?? 301-02.
If I am wrong about this, we face serious problems indeed. Such a strict
view of ? 522 would effectively eliminate any inquiry into the subtleties of the
concept of "knowledge", a concept erected in ?? 301-02, ignores the problem
of the defendant's ability to control his actions and, more important than
these specific, appears to avoid the central moral issue raised by punishment
of those suffering from mental disabilities. These subjects of inquiry are also
relevant to a consideration of the more expansive view of ? 522 I have
presented previously. I have grown familiar with these subjects in the develop-
ment of my own thinking about criminal responsibility and the "insanity"
defense. Indeed, I began in 1954 in a posture similar to that assumed by
? 522, although the gleam in my eye was most remarkably different from that
in the eyes of those who drafted the Section. In Monte Durham's case,'
my court enunciated a new test of "insanity" : if a crime were the "product
of mental disease or defect," the defendant could not in the eye of the law
be held responsible for it. Despite the promise of this formulation, it did
not achieve its intended goal, although it taught us a great deal about the
criminal responsibility defenses and their administration. It did not succeed
because the response it engendered from behavioral scientists and the legal
profession did not allow it to succeed. In 1972, I wrote a 'trilogy of opinions,
none of them for a majority of the court, which reflected the changes in my
thinking since Durham' and which sought to respond to the difficulties dis-
covered in administration of the Durham rule. Most relevant to my discussion
of ? 522 was my dissent in Archie Brawner's case.
I believe the experience gained in my journey from Durham to Brawner
will be of some aid to the Subcommittee in its consideration of ? 522. This
is not because that experience led me to any particular conclusions but be-
cause it pointed up the issues, the unavoidable questions, that must be
$ Id. at.6380-81.
4 Durham v. United States, 214 F.2d 862 (D.C, Cir. 1954).
s United States v. Brawner, 471 F.2d 969, 1010 (D.C. Cir. 1972) (Bazelon C.J. con-
curring in part, dissenting in part) ; United States v. Dougherty, 473 F.2d 1113, 1139
(D.C. Cir. 1972) (Bazelon, C.J. concurring in part. dissenting in part) ; United States v.
Alexander & JtMuardock, 471 F.2d 923 (D.C. Cir. 1972) (Bazelon, C.J. opinion for the Court
in part, dissenting in Dart).
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seriously confronted if we are to make decisions about criminal responsibility.
The purpose of my statement is most of all to delineate those issues as I have
come to perceive them, to raise the questions that must be raised if the
Congress is to enter the criminal responsibility thicket. I claim no expertise
beyond this.
FROM DURHAM TO BRA\NER-THE ISSUES OF CRIMINAL RESPONSIBILITY DELINEATED
The essential context of both Durham and Bra' lscr is the moral basis
for the notion of criminal responsibility. The criminal law, it has eloquently
been asserted, "postulates a free agent confronted with a choice between
doing right and doing wrong and choosing freely to do wrong." ? The law
imposes punishment only on the free choice to do wrong. If a person chooses
wrongly either because he or she did not appreciate that, the choice was wrong
or lacked the capacity to choose to do right, then the act of choice is not
blameworthy and hence not suitable for punishment. This concept of moral
blameworthiness as the predicate for criminal responsibility is no transient
notion discovered by twentieth century federal judges. It draws on the entire
"legal and moral tradition of the western world.'" "Our collective conscience
does not allow punishment where it cannot impose blame."
But the law, like the rest of us, "promises according to [its] hopes" but
"performs according to [its] fears."' Although It has been asserted again and
again that only a free choice to do wrong is the occasion for punishment,
the law in practice presumes a free choice to do wrong from commission of
an act and from a law declaring that act to be contrary to public policy.
Justice Holmes stated it this way: 10
"If a man intentionally adopts certain conduct in certain circumstances
known to him, and that conduct is forbidden by law under those circum-
stances, he intentionally breaks the law in the only sense in which the law
ever considers intent."
The point is that the law's only Inquiry into the free choice to do wrong
consists of inquiry into what are generally known as "mistakes of fact." If
a person does not correctly perceive his circumstances and thus accidentally
commits an act forbidden by law, exculpation will be permitted." Other than
this very limited inquiry, the law presumes a free choice to do wrong from
the commission of a forbidden act. I take it that ?? 301-02 as presently written
adopt this view of intent or state of mind.
In order to relax the rigidity of this rule, the law With Its talent for am-
biguity permits the concept of intent or state of mind to be pried open and
its subtleties examined on extremely limited occasions. The "insanity" defense
at common law was the chief vehicle used to pour some real content into the
law's fictional presumption of intent from a knowledge of circumstances. The
"insanity" defense pursued two avenues, limited though they were : first, that
the defendant did not know the difference between right and wrong; or second,
that even if he did, he acted under an irresistible Impulse such that his
knowledge of right and wrong would not aid him in choosing rightly."' The
insanity defense so viewed extended the inquiry permitted by "mistake of
act" doctrine. While it is theoretically possible for a person to be so
demented that he would not understand the circumstances of his actions, i.e.
believe the gun in his hand is a toothbrush, one may doubt whether there
ever "was an idiot so low, * * * a diseased man so demented." Thus, tradi-
tional insanity defenses carried the law beyond "mistake of fact." Then came
e Sforissctte v. United States, 342 U.S. 246, 250 n.4 (1952), quoting R. Pound,
Introduction to F. Sayre, Cases' 88 Ctlminal Law (1927). See 4 W. Blackstone, Com.
mentaries 20-21, 27 (1854).
T Durham v. United States, 214 1r.2d 862, 876 (D.C. Cir. 1954). Id. 6 Icamisarn RasHolloway Court Left the Attorney Generral'Beh nd? .'Jlie Baze7on Katzenbach
Letters on Poverty, Equality and the Administration of Criminal Justice, 54 Ky. L.J. 4134
(1966) quoting La Rochefoucauld.
10Ellis v. United States, 206 U.S. 246, 257 (1907).
11 Indeed, this was not always the case. In the early common law, liability was absolute-
ly strict. See United States v. Barker, No. 73-2185 (D.C. Cir. Feb. 24, 1975) (Bazeion,
C.S. concurring) at 3.
1s See Durham v. United States. 214 F.2d 862, 869-74 (D.C. Cir. 1954) ; A. Goldstein,
The Insanity Defense 45--79 (1967).
1S E. Conrad. Mr. Seward for the Defense 263 (I95'6) quoting the summation of William
Seward, later Lincoln's Secretary of State, in an 1846 insanity trial.
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Durham.
Durham altered these two avenues of insanity mentioned above, stating
that they were based on a "misleading conception of the nature of insanity." 14
By holding that in the future, criminal responsibility was negated if an act
was "the product of, mental disease or defect", we sought to permit behavioral
experts to testify in a more meaningful fashion on the subtle issue of intent.
The old concepts of "right-wrong" and "irresistible impulse" were "obsolete"
in terms of contemporary behavioral understanding and did not convey the
true nature of 'a behavioral impairment or the relation of that impairment to
criminal actions. Psychiatrists thus found it difficult if not impossible to
convey their understanding and experience in a meaningful manner to
judge and jury. But more than this, the Durham change sought to open the
law to more sophisticated concepts of free will, of the free choice to do wrong.
Our postulate was : even if the defendant understood the difference between
right and wrong and even if his action was not an irresistible impulse, there
still was question whether his action was the result of a free choice to do
wrong. Prior to Durham, the law had told behavioral experts what it thought
were the limits to the law's inquiry into free will and the free choice to do
wrong. After Durham, the law asked behaviorists what they thought were
free choices to do wrong, what their understanding of free will entailed. We
sought in this manner to approximate the law's promise, given according
to its hopes.
Pausing at the Durham crossroads, we might take a look backwards at
?'522. The Section, strikingly similar to Durham in this respect, also references
the medical concepts of "mental disease and defect". The ambiguity I men-
tioned previously thus now appears as a confusion whether ? 522 pushes
the law back to pure "mistake of fact" doctrine and exculpates the mentally
disturbed only if the defendant did not know the gun in his hand was a gun
and not a toothbrush; or whether it pushes the law, into a Durham-like
experimentation to pour genuine behavioral content into the law's inquiry
into the free choice to do wrong.
If ? 522 is equivalent to an enactment of Durham, I fear it comes twenty
years too late. The Durham experiment gave birth to a problem which has
various names but which has generally been called "expert dominance." In-
sanity trials under the Durham rule came to be dominated by conclusory'
expert testimony on the two related issues posed by the rule-whether the
defendant suffered from a "mental disease or defect" and whether his
criminal action was a "product" of that mental disease or defect. Psychiatric
testimony in terms of a legal conclusion that act was or was not the product
of a mental disease of defect invites the jury to abdicate its function and
acquiesce in the conclusion of the experts. Durham had called upon behavioral
scientists to aid in the decision of whether a person was morally blameworthy,
not to usurp that decision through conclusory testimony. My court quickly
perceived the need to reassert the primacy of legal standards.
We first sought to rescue the terms "mental disease or defect" from the
grasp of the experts, Whether or not behavioral scientists considered a
particular' mental impairment a "disease" or something less than a disease
often turned on the ? treatment needs of the impaired individual or on scientific
or theoretical concepts of what is a "disease". These issues had little if any
relevance to issues+of moral blameworthiness and criminal responsibility. Thus
in Ernest McDonald's case," we held that a "mental disease or defect includes
any abnormal condition of the mind which substantially affects mental or
emotional processes and substantially impairs behavioral controls."
While this functional definition of mental disease or defect made a valiant
attempt to focus attention on the extent of impairment and its relation to
moral blameworthiness, it did not succeed. First, behavioral scientists
continued to speak in conclusory terms, using psychiatric labels developed
for other purposes as the equivalent of the functional McDonald test. But more
itaportant, McDonald pointed up another, unresolved problem and indeed'
accentuated the importance of this problem in the administration of the
"insanity" defense. This problem was conclusory testimony on the relation-
ship between the mental disease or defect and the criminal act, i.e. whether
14 214 F.2d 871, quoting Royal Comm'n Report, supra note 2, at 80.
15 McDonald v. United States, 312 U.S. 847, 851 (D.C. Cir. 1982).
54-398-75-15
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the act was a "product" of the disease. Shortly after Durham, we had:
clarified this "productivity" requirement to mean that the "act would not
have been committed if the person had not been suffering from the disease."" But this requirement did little to ease the problem of conclusory testimony. In
1967, we forbade any expert testimony on the issue of whether an act was
the product of a mental disease or defect in order to reduce expert domination
on the "productivity" issue .17
As I gained more experience with the "producivity" issue, I began to per-
ceive the source of the problem of expert dominance on the issue. The question
whether a certain mental impairment caused a particular criminal act is
itself a determination of moral blameworthiness. Let me attempt to explain.
Obviously, any mental impairment will have some effect on one's actions. The
issue is whether the effect is sufficient for us to determine that the act
was not the result of a free choice to do wrong, that is, not the act of free
will. In turn, whether a particular impairment negates free will or the free
choice to do wrong depends on one's concept of moral blameworthiness and
these conceptions varied. In sum, the "gravity of an, impairment and its rele-
vance to the acts charged are both questions of decree, which can only be
resolved with reference to the community's sense of when it is just to hold a
man responsible for his act." 19
This led me to an exploration of the concept of moral blameworthiness and'
its relation to the concept of free will or the free choice to do wrong. I was
aware, as I mentioned above, that the law did not permit a complete inquiry
into the free choice to do wrong, relying on a fictional presumption of intent.
But consideration of the conclusion of moral blameworthiness led to reflect on
why this was. Justice Holmes had written :1?
"If punishment stood on the moral grounds which are proposed for It, the
first thing to be considered would be those limitations in the capacity for
choosing rightly which arise from abnormal instincts, want of education, lack
of intelligence, and all the other defects which are most marked in the
criminal classes."
However, he was quick to affirm that the law did not stand on this moral
basis :'0
"Public policy sacrifices the individual to the general good. * * * It is no
doubt true that there are many cases in which the criminal could not have
[made a free choice to do wrong], but to admit the excuse at all would be to
encourage ignorance where the law-maker has determined to make men know
and obey. * * *"
Or the concept may be put in the language of a contemporary judge : 21
"The judgment of a court of law must further justice to the community, and
safeguard it against undercutting and evasion from overconcern for the indi-
vidual. * * * Justice to the community includes penalties needed to cope with
disobedience by those capable of control, undergirding a social environment
that broadly inhibits behavior destructive of the common good. An open society
requires mutual respect and regard, and mutually reinforcing relationships
among its citizens and its ideals of justice must safeguard the vast majority
who responsibly shoulder the burdens implicit in its ordered liberty."
The point of these arguments is that the criminal sanction must have a
harsh visage. It must reinforce the "complex of cultural forces that keep alive
the moral lessons, and the myths, which are essential to the continued order of
society." 22 This involves encouraging those without mental impairment to obey
the law, by withdrawing any possibility of a feigned excuse, and encouraging
those with a mental impairment to exercise that amount of free will which
they do possess.2' This reinforcement also involves public perception of the
16 Carter v. United States, 252 F.2d 608, 615-16 (D.C. Cir. 1957).
17 Washington v. United States, 390 P.2d 444 (D.C. CIr. 1967).
1s United States v. Dichberg, 439 F.2d 620, 628 n.40 (D.C. Cir. 1971) (Bazelon, C.J.
concurring).
19 0. Holmes, Jr., The Common Law 45 (1881).
20 Id. at 48.
21 United States V. Brawner, 471F.2d 969, 988 (D.C. Cir. 1972) (Leventhal, J.)
n A. Goldstein, supra note 12, at 224.
23 Wechsler, The Criteria of Criminal Responsibility, 22 U.Chi. L. Rev. 367, 374 (1955) .
"So long as there is any chance that the preventitive influence may operate, it is essential
to maintain the threat. If it is not maintained, the influence of the entire system is
diminished upon those who have the requisite capacity."
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system of criminal justice by victims and potential victims (and their kin)
and of the seriousness with which it performs its appointed task of protecting
lives and property. The tag word for this group of reinforcements is "deter-
rence."
The concept of deterrence serves both to define and balance against the con-
cept of moral blameworthiness. When we ask whether an impairment of will
was sufficient to negate free will and hence blameworthiness, we ask not only
whether the act would have occurred but for the impairment but also whether
the act could possibly or should have been avoided despite the impairment.
Even if we are absolutely sure of the answer to these questions, we still
"balance" moral blameworthiness against the perceived effect of acquittal on
other potential. wrongdoers and victims. The conclusion of this task of de-
fining and balancing moral blameworthiness and deterrence is the substantive
definition of criminal responsibility.
Having come to this end, I questioned the morality of the concept of deter-
rence. Use of an individual defendant as a means to achieve a social goal, as
Holmes recognized, does not comport with the moral premises of our Judeo-
Christian heritage, so boldly asserted-that human beings are ends in them-
selves, worthy of concern in and of themselves, and may not be used as means
to some social end, no matter how utilitarian the means may be. When the
criminal law deals only with a person's property, the moral force of this prem-
ise is lessened considerably.' But when the criminal law asks for a substantial
portion of a person's life, if not his life itself, the moral issue is directly joined.
Some persons, including myself, would question whether the concept of deter-
rence has any utilitarian value in the context of control of violent street crime.
That sort of crime, which engenders the most concern among the populace and
the loudest cries for social control, is bred of desperate social conditions and
not the lack of harsh sanctions. Recent correlations between rising unemploy-
ment and associated economic travail in depressed areas with a sharply rising
rate of crime strongly suggest that economic, social and cultural deprivation
are the true causes of violent street crime-as well as the causes of much
mental impairment, affecting issues of criminal responsibility. Of course, there
would be violent crime even if there were no deprivation and many of those
who suffer deprivation do not turn to crime. Indeed, the miracle is that so few
do. But I believe close attention to available data indicates that social, eco-
nomic and cultural deprivation are a necessary if not sufficient cause for our
crime problem, and that no "toughening" of the law through reliance on con-
cepts of deterrence will aid in resolution of this crime problem. I have recently
explored this subject in prepared address to the Northwestern University Law
Alumni group. I attach that speech as an appendix to this statement.
I have a further difficulty with the concept of deterrence and that lies in its
selective administration. Our perception of whether we need to use an individ-
ual defendant as an, object lesson to other potential wrongdoers and to calm
the fears of potential victims depends, if we are to be brutally honest with our-
selves, in large part on our ability to empathize with the individual defendant.
In short, our rawest biases come into play when we balance individual justice
to the accused based on moral standards of blameworthiness against the uses
of criminal law as an instrument of social control, whose banner is the rhetoric
of efficiency and order. When deterence is utilized in a selective manner, it
ceases to be genuine deterrence 2" and becomes a selective form of retribution on
those against whom our deepest fears are directed. Whether to permit such
retribution is. a sharp question indeed for a moral society in today's chaotic
and frightening world.
It is important to distinguish the amorphous concept of deterrence from an
individual determination that a person is dangerous to himself or others and
hence. suitable for commitment. The threat to social order posed by a particular
person acquitted of criminal responsibility may be handled through the "danger-
ousness" determination and need not be fed back into the definition of criminal
responsibility in the manner in which the concept of deterrence is. I shall dis-
cuss this point in more detail later in my statement.
Conclusory expert testimony on Durham's "productivity" requirement served
as a convenient means of papering over these unresolvable problems of morality
24 Of. Hoidrldge v. United States, 282 F.2d 302, 310 (8th Cir. 1960) ; People em rel.
Price v. Sheffield Farms Co., 225 N.Y. 25, 32-33, 121 N.E. 474 477 (1918) (Cardozo, J.).
86 See Furman Y. Georgia, 408 U.S. 238 311-13 (1972) (White, J. concurring) .
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and social control. The law bad no answers or even approaches to answers to
these problems in general or in specific cases. Behavioral scientists readily, too
readily I believe, assumed the task of making judgments the law could not
make. Judgment on whether the defendant suffered from a "mental disease or
defect" and whether an act was the "product" of a mental disease or defect
were influenced by the experts' own views on the threat to social order posed
by a particular defendant and by their views on whether the defendant should
be treated or punished.25a The biases of experts toward certain groups of de-
fendants were reflected in their conclusions : many experts would find that a
poor defendant's crime was not the product of his admitted mental disease or
defect because poor people would commit crime anyhow.25b
Indeed, I came to realize that the very parameters of the Durham formula-
tion-the terms "mental disease or defect"--were tied to what medical experts
defined as a "disease." The "medical model" of mental disease excluded many
known mental impairments because expert witnesses did not consider that im-
pairment or group of impairments a "disease." Moreover, there is increasing
criticism within the psychiatric professions as to the validity of the "medical
model" of mental impairment.25` Some argued that psychiatric labels of "dis-
ease" were merely a form of rationalized social control over political and social
dissidents. Finally, a finding of a "disease" was often based on inadequate ex-
amination of the patient's. impairments ; the label of "disease" 'thus disguised
the central issue of the nature and extent of the person's impairment. To tie
the definition of criminal responsibility to this frail reed appeared quetsionable.
Some prominent behavioral scientists took the forthright position that the
purposes behind a diagnosis of a mental "disease" --essentially the treatment
needs of the patient-did not and could not incorporate the moral and social
judgments associated with a finding of criminal responsibility. Not only would
it be inappropriate for a behavioral scientist to testify on such moral and
social questions in the guise of medical expertise, but also behavioral scientists
simply do not have the knowledge or understanding which is necessary to begin
to resolve such questions.
The chief victims of the "medical model" of the "insanity" defense are those
mental impairments associated with social, economic and cultural deprivation
and with racial discrimination.' Impairments of choice associated with such
factors are generally labelled "personality disorders" or "emotional disturb-
ances", a psychoneurosis. According to behavioral scientists who testified in two
recent cases, such impairments are not a "disease." While the American Psy-
chiatric Association diagnostic manual is vague in its definition of personality
disorders, it does not indicate whether the profession recognizes certain per-
sonality disorders or all such disorders as a "disease" or something less than a
disease. The matter is in flux apparently within the profession itself. But by
accepting expert opinion to the effect that mental impairments caused by social,
economic and cultural deprivation are not a "disease", the law shut its eyes,
refused to consider whether these sorts of mental impairment affected criminal
responsibility. My concern with this result was not that it produced one balance
between moral blameworthiness and social order or another balance, but that
the matter was not even inquired into, not even considered. The law, fearful
of the consequences of confronting the difficult questions associated with im-
pairments resulting from social deprivation, hid behind the "medical model"
of mental disorder.
In Archie Brawner's ease, three years ago, we once again sought to reassert
the primacy of legal standards for the "insanity" defense and to consider the
proper balance to be struck between concepts of moral blameworthiness and
concerns of social order. The other members of the court believed it necessary
2cn See Washington v. United States, 390 F.2d 444, 452-56 (D:C. Cir. 1967) ; Pugh,
The Insanity/ Defense in Operation: A Practicing Psychiatrist Views Durham and
Browner, 1973 Wash. U. L.Q. 87. See also United States v. Brawner, 471 F.2d 969, 1018
n.21 (D.C. Cir. 1972) (Bazelon C.J. concurring in part, dissenting in part).
21% Id. at 1019-21.
25~ United States v. Eiehberg, 439 F.2d 620, 626 & n.31 (D.C. Cir. 1971) (Bazelon, C.J.
concurring) and authorities cited.
29 See United States v. Robertson. 507 F.2d 1148 (D.C. Cir: 1974) ; United States v.
Alexander & Murdock, 471 F.2d 923 (D.C. Cir.), cert. denied, 409 U.S. 1044 (1973).
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to supply a rule of law that limited inquiry into the question of free will. They
sought to accomplish this goal by defining in. more detail the relation between
the mental disease or defect and the criminal act necessary for exculpation.
Only if the defendant "lacks substantial capacity either to appreciate the crim-
inality of his conduct or to conform his conduct to the requirements of the
law" would exculpation be permitted. This standard is, of course, that proposed
by the ALI and formerly contained in S. 1. The court's decision to adopt this
formula was explicitly premised on the court's belief that the law should
permit only a limited inquiry into free will: only after the law had identified
specific conditions of the mind characterized by a "broad consensus that free
will does not exist" in relation to action caused thereby would inquiry be
permitted.
I saw then and see now little difference in substance between Durham and
Brawner. Despite the .court's contentions to the contrary, the Brawner does
little to confront the central issue of expert dominance. Brawner only identi-
fied in phrases what had been implicit in Durham, as modified by McDonald-
that mental illness must reduce the actor's ability to choose between right and
wrong either by affecting his cognitive perception of "right" or his ability to
transform his perception into control of his actions. Other than the addition
of.these.phrases, the Brawner rule is virtually identical to Durham, changing
only the term "product" to the term "as a result." 27 It follows that the problem
of psychiatric dominance must remain intact.
Furthermore, Brawner explicitly retained the "medical model" of mental
impairment and strongly indicated impairments outside of this model could not
be the basis for a successful "insanity defense. Thus, the court did not even
purport to address the problem of expert dominance on what constitutes a
mental disease or defect. Its sole action in that regard was to retain the
McDonald functional formulation which had proved largely unsuccessful since
it simply shifted attention to the "productivity" requirement. Since the court
did not significantly remedy conclusory testimony on the productivity require-
ment, as I have discussed in the previous paragraph, it has left the problem
of expert dominance largely untouched.
In a dissenting opinion, I suggested another approach to the problem of
expert dominance which emphasized the institutional role of the jury in the
balance of concepts of moral blameworthiness and concerns of social order.
The conclusion of my experience, discussed in Part I above, was that Durham
"focused the jury's attention on the wrong question-on the relationship
between the act and the impairment rather than on the blameworthiness of
the defendant's action measured by prevailing community standards." 2N The
fact was that the "medical model" of mental impairment combined with con-
clusory testimony on the "productivity" or causation issue purported to substi-
tute, to be the ground rules, for the blameworthiness determination.. I would
have instructed the jury in "insanity" cases that "a defendant is not responsible
if at the time of his unlawful conduct his mental or emotional processes or
behavioral controls were impaired to such an extent that he cannot be justly
held responsible for his act." S0 This instruction is similar to that accepted by
it minority of the ALI and by the British Royal Commission on Capital Punish-
ment 01 This proposed instruction frees the test of "insanity" from the "medical
model" of mental impairment while retaining the concept of mental impair-
ment to direct the jury's attention to the general realm of impairment in
dispute. Expert testimony on the nature and extent of mental impairments,
gained from the experience of behavioral scientists, would be freely received.
The jury would be directed to ascertain the nature and extent of, the defend-
ant's impairment from this testimony. Whether the impairment was sufficient
to negate free will, an issue of moral blameworthiness, would be for the jury
alone, not obscured by any conclusory expert testimony.
27 See United States v. Brawner, 471 F.2d 969, 1023-30 (D.C. Cir. 1972) (Bazelon
C.J. concurring In part, dissenting in part) for a detailed treatment of this issue.
28 United Sates v. Brawner, 471 F.2d 969, 995 (D.C. Cir. 1972).
20 United States v. Brawner, 471 F.2d 969, 1031 (D.C. Cir. 1972) (Bazelon, C.J.
concurring in part, dissenting in part).
80 Id. at 1032.
81 Compare the quoted versions in note 2 saupra. The distinction between my suggested
instruction and these versions lies in their retention of the concept of "mental disease",
i.e. the "medical model" of mental illness.
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This instruction delegates to the jury-traditionally the embodiment of
,community input in the criminal justice system-the task of defining moral
blameworthiness. This task, as I discussed in Part I, will inevitably involve a
consideration of the extent to which morale blameworthiness should be defined
in light of or balanced against concerns of social order. The questiou posed
by the instruction-whether the defendant should "be justly held responsible
for his act"-incorporates the concept of justice to the community.
The court in Brawner iejected this proposed instruction largely because of
a distrust of the jury. This distrust is manifested first by the objection that
the instruction leaves the jury at large with the uncomfortable task of judging
the defendant on the basis of personal feelings. But I submit the proposed
instruction does nothing of the sort. The instruction requires the jury to, meas-
ure the defendant's impairment and to judge whether under community stand-
ards the impairment was sufficient to negate free will. The standard
does not depend on personal whim, unless we are to take an unnecessarily
pessimistic view of the jury's capacity to follow instructions.31 Of course, the
proposed instruction does not tell the jury what the community standards are
because it is for the jury to tell us what the community standards of blame-
worthiness are in an individual case. Such a task is not all that onerous and
to allay anxiety about the jury's capacity or will to ascertain community
standards, we might reference the method of assessing fault in negligence
cases. There the law adopts the "reasonable man" formulation which is, of
course,. simply another way of stating that the jury must ascertain community
standards of care in awarding or denying damages.
The second objection is that the proposed instruction interferes with the pri-
mary role of legislatures and courts in determining what the "law" is, This
objection in one sense is not persuasive since it is clear that a court or Con-
gress by adopting the proposed instruction would be holding that the law is
community standards of blameworthiness as ascertained by the jury. The true
import of this second objection, which goes a long way toward explaining the
basis of the first objection, is that juries should not be given the power to
define the extent of impairment necessary to determine that community stand-
ards of blameworthiness have been negated. Behind this objection is the belief
that juries may show an "overconcern for the individual"" and shortchange
concerns of social order. The distrust of the jury is that it will hew too closely
to moral concepts of blameworthiness.
But one may ask whether the Brawner rule is itself successful in manifesting
a balance different from any that might be struck by the jury. If our experience
under Durham tells us anything, it is that the medical model of mental im-
pairment and conclusory testimony on the causation or "productivity" require-
ment are the true source of the present balance struck between concepts of
moral blameworthiness and concerns of social order. Surely no one argues that
behavioral scientists are a better institution than the jury to ascertain com-
munity standards of moral blameworthiness. And I have not yet been advised
of any "test" of insanity passed down by appellate judges which does not
suffer from the problem of expert dominance, except a "test", if it may be so
named, which forthrightly recognizes the role of the jury in making the blame-
worthiness determination.33 I perceive three reasons for this.
The first is that striking a balance between moral concepts of blameworthi-
ness and concerns of social order is really a matter of individual cases. The
issue resists confident generalization either by appellate courts or legislatures.
The reason is that we cannot discern the nature of our commitment to punish-
ing only the free choice to do wrong until we are actually confronted with
doing so; until we look the defendant in the eye and pronounce judgment
in open court. When we balance moral concepts of blameworthiness in the
abstract its power and our commitment to it are lessened considerably.
Concerns of social order, on the other hand, seem to gain in prominence and
plausibility as they become more abstract.
Furthermore, any balance short of "abolition" of the "insanity" defense
cannot truly incorporate the range of mental impairments that will wend
33a See Note, Towards Principles of Jury Equity, 83 Yale L.J. 1023 (1974).
32 United States v. Brawner, 471 F.2d 969, 988 (D.C. Cir. 1972).
33 Of course, the minority ALI test and the Royal Commission test, see note 2 supra,
do retain the "medical model" of mental impairments and are subject to expert dominance
on that issue. See note 31 supra.
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227
their way into court or, indeed, the range of social reactions to those im-
,pairments. For example, how do we balance the concerns of social order
..against the blameworthiness of a manic depressive mixed psychotic ; or an
epileptic personality disorder ; or a psychopathic personality ; or schizo-
phrenia ; latent type ; or a personality disorder of some kind. Are these
impairments lesser or greater than that of a retarded person? And for each
of these labels, rough categories utilized for treatment purposes, there are
.infinite variations on the degree and nature of the impairment. It takes
more confidence than I repose in the inclusiveness of legal rules to assume
that a single "test" of "insanity", reflecting a judicial balance of blame-
worthiness and social order, can be devised to cover these multivarious situ-
ations. No matter how sincere is one's abstract commitment to a particular
balance of blameworthiness and social order, no "test" can be devised to
contain it. At best, the "test" will serve as an admonition to the jury to
pay particular attention to blameworthiness or social order, a hortatory
goal of sorts ; at worst the "test" will, as I fear the Brawner-ALI test does,
,deflect the jury attention from the core issue of when an individual may
be justly held responsible to subsidiary issues, the determination of which
is subject to expert dominance.
This truth explains the pervasive generality of the Brawner-ALI rule.
-Perhaps some judicial or social anxiety is quieted by trumpeting new in-
signias for the insanity banner in the name of social order. But one may
:seriously doubt whether these new insignias are lost in translation to indi-
vidual cases. Only the expert behavioral scientists will know for sure. The
jury suffers none of the disadvantages associated with the promulgation of
a general rule, since it must weigh the evidence in individual cases. Of
course, the trial judge could perform the same task, subject to limited
-appellate review, under the assumption that community standards of
responsibility are "questions of law" to be decided in each case. But unless the
right to a jury trial is waived, exclusive delegation of this task to the trial
judge would seemingly raise serious questions concerning abrogation of the
right to a jury trial.
The second reason supporting the institutional role of the jury I have
suggested is that the responsibility determination is dependent on our
developing knowledge as to behavioral impairments and our developing
moral tradition. Today one balance between blameworthiness and social order
.might seem acceptable. Years from now the matter may appear differently.
As Judge Tuttle has noted, "the only way the law has progressed from the
days of the rack, the screw and the wheel is the development of moral
concepts. . . ." '4 The steady pace of developments in the behavioral sciences is
.best illustrated by the present controversy over the somatic cause of many
mental impairments once thought to be the product of social or familial
conditions.3' Somatic researchers tell us, for example, that schizophrenia and
manic depressive illness may be caused by enzymes or genes. Such informa-
tion surely would affect the balance between blameworthiness and social
order. And not only would it be inappropriate to change a legislative or
judicial balance with the advent of new scientific knowledge, it may well be
impossible to confidently do so, since the knowledge would be tentative and
disputed within the scientific community. A jury, on the other hand, pre-
sented with new evidence on impairment of mental processes and behavioral
controls could in individual cases give appropriate consideration to develop-
ing behavioral learning.
Finally, there is the issue of bias. I have mentioned this point before in
connection with our perception of deterrence and of productivity I speak
of it with some diffidence, but cognizant of its importance, I must address
it seriously, It is in one sense an enlargement of my first point above con-
cerning the necessity of evaluating moral blameworthiness in the concrete
and not the abstract. Many people could understand the actions of the Cuban-
Americans who burglarized the Watergate office of the Democratic Party
under a mistaken belief that the CIA or other Executive Branch officials
?? Novalc v. Beto, 453 F.2d 661, 672 (1971), rehearing en banc denied, 456 F.2d 1303
(5th Cir.), cert, denied sub nom. Sellars v. Beto, 409 U.B. 908 (1972) (Tuttle J.
+dissenting).
See, e.g., Kety, From Rationalization to Reason, 131 Am. J. Psychiat. 957 (1974).
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had the authority to order such burglaries." l+iveu though the Cuban-
Americans understood their acts and their acts Were forbidden by law, many
believed they were not blameworthy because they (lid not understand they
were choosing to do wrong. In so believing, many were making an implicit
balance of blameworthiness and social order in regard to the rich man's
insanity defense-mistake of law. Of course, if one operates under a
mistake of law, one does not, in the Brawner-ALI terminology "appreciate
the wrongfulness" of one's conduct. Perhaps some members of this Committee
were among those who so believed that moral blame should not be imposed
on the Cuban-Americans.
But contrast one's reaction to the following circumstances:' a group
of white marines entered a cafe and there encountered two young blacks. One
of the blacks sought to provoke one of the marines through acts of bravado
and attempted intimidation. The marine responded by calling the black a
"nigger." Thereupon, one of the blacks pulled a gun and killed two of the
marines, seriously wounded another and a woman companion. Evidence
adduced at trial indicated one of the blacks suffered a mental impairment,
a neurotic, obsessive hatred for whites gained in the Watts ghetto.
Our different reactions to the two cases is determined in part by the
difference in the nature of the crimes and the threat to social order posed
by each. But I suspect part of our reaction lies in differing ability to under-
stand the defendant's situation and to gauge the morality of imposing blame-
worthiness and punitive incarceration. I question whether appellate judges
,or amajority of Congressmen should be permitted to strike a balance in the
abstract to cover these situations. Rather a jury of the defendant's peers in
the community in which the crime took place appears a more proper institu-
tion to measure the moral blameworthiness of the defendant and the threat
to social order he poses. The right to a jury trial, which includes the power
.of the jury to render a verdict of innocent despite the command of the law,9?
reflects "the community participation and shared responsibility that results
from that group's determination of guilt or innocence.?' "The very essence of
the jury's function is its role as spokesman for the community conscience in
determining whether or not blame should be imposed." 40
III. THE INADEQUACY OF SECTION 522 FROM THE DURHAM-BRAWNER PERSPECTIVE
Against the Durham-Brawner perspective, let us take another look back at
? 522. As I indicated previously, the Section would seem to give us little
guidance on what the proper balance between concerns of moral blameworthi-
ness and social order should be. While there is a very vague intent to restrict
the insanity defense, the use of the terms "mental disease or defect" am-
biguously indicates some form of Durham-like experimentation. But how far
that experimentation is to be carried is a question not seriously addressed'
and most certainly not answered by ? 522. Moreover, the Section does not
concern itself with the institutional issues or the expert dominance problem,
all of which have been delineated post-Durham. Indeed, as I will discuss, the
Section could be read as endorsing either the view of the court in Brawner
on the role of the jury or the view expressed in my dissenting opinion.
Before entering that thicket, I should make this point : the institutional
concerns I have mentioned should lead the Congress to forego any attempt to
codify the "insanity" defense or any of the defenses named in S. 1 as "cul-
pability" defenses. The courts at least suffer from these institutional dis-
abilities less than Congress (except on the community standards of responsi-
bility, of course) and have a body of experience, institutional or personal,
which provides some measure of guidance in making "insanity" determina-
tions. The Congress does not have a similar body of experience and could
not have no matter how many hearings are held. Justice Frankfurter told
me privately that he intended to make every effort to avoid a Supreme Court
80 United States v. Barker, No. 73-2185 (D.C. Feb. 24, 1975).
sr United States v. Alexander & Murdock, 471 F.2d 923 (D.C. Cir.), cert, denied, 4049
U.S. 1044 (1973).
ss See United States V. Dougherty, 473 F.2d 1113, 1130 (D.C. Cir. 1972).
sOWiliiams v. Florida, 399 U.S. 78, 100 (1970) ; see Duncan v. Louisiana, 391 U.S. 145,
156 (1968) ; A. Goldstein, supra note 12, at 91.
40 United States v. Doughertal, 475 F.2d 1113, 1142 (D.C. Cir. 1972) (Bazelon C.J.
concurring in part, dissenting in part).
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ruling on the definition of the "insanity" defense. The matter was too fluid;
too susceptible of change, too much oriented to the individual case for a
Supreme Court pronouncement to do anything other than misdirect the de-
vel.opment, of the law in this area. The Supreme Court in his absence has
continued to heed his advice, consciously or not. I would strongly recommend
that the Congress do so as well and strike ? 522, as well as all of Sub-
chapter C, Chapter 3 of S. 1, from the bill, There is a continuous debate
among the proponents of codification and their opponents over the proper,
extent and particularity of codification attempts. This debate . has raged
from the days of the first Field > codes in the early 10th Century."' This
,debate concerns itself with more than a power struggle between judiciary
and 'legislature ; but rather also focuses on the extent to which the legis,
lature should attempt to freeze or alter the direction of development in the
law. I think the Congress would be well advised to not attempt any inter-
vention at present ,in the development of the "insanity" defense. I say this as
one judge who "is on record as opposed to certain aspects of the present
development.
If the Congress is intent on codification of the defense, two courses of
action are consistent with the institutional framework I have mentioned.
While polar opposites; each claims the slogan "abolish the insanity defense."
The first of these courses of action would entail an elimination altogether
of the law's inquiry into the existence of a free choice to do wrong. If the
defendant did not operate under a mistake of fact, i.e. he realized the thing,
in his hand was a gun and not a toothbrush, lie should be convicted. This
course of action is, as I have noted, one possible view of ? 522. If this is,
the intent of Congress, I would suggest the following additional explanation
be added to clarify such an intent: "Evidence of a mental disease or defect
shall be admissible for the purpose of demonstrating that a person was
unaware of the factual circumstances of his conduct or of the existence of
a risk, and for no other purposes." This additional language should be
placed in ? 301 and ? 522, as well as ?? 521, 23 should be eliminated. Perhaps
further language could be added to the sentencing provisions of S. 1 to
support the view that evidence of mental disease or defect may be considered
for sentencing purposes.
This course of action certainly eliminates most of the institutional concerns-
I have voiced. However, elimination of the inquiry into free will prior to the'
imposition of moral blame and in the abstract raises significant constitu-
tional questions upon which it would be inappropriate for me to comment.
Regardless of constitutional objections, one might seriously question whether
such a harsh rule is consistent with any possible consensus in the nation on
the nature of criminal responsibility. Perhaps if we considered our reaction
to the criminal conviction of a member of our family who suffers from a
severe mental disability, we would take a different view of the morality
of elimination of inquiry into free will. As long as we think only of "those
other people", and we all know who they are, our moral perception will be
distorted,
The other course of action would involve a total reformulation of the
concept of criminal intent. Sections 301-02 as presently written follow the?
common law presumption of criminal intent from knowledge of factual cir=
-enmstances. However, ?? 521-23 by adding to the concept of intent "mistakes
of law", "mental disease or defect" and "intoxication", appear to suggest
that the common law presumption be pried open to permit an inquiry into
the free choice to do wrong regardless of the circumstances. The language
of ?? 301-02 strongly suggests that the ultimate arbiter of the existence of
a free choice to do wrong is the jury, since all the issues are stated in
".factual" terms. Of course, the terms "mental disease or defect", "Mi.stake
of law", "intoxication" are retained to guide the jury's attention to the
particular impairment of free will alleged in an individual case. ' But pre-
sumably the intent inquiry would not be exclusively controlled by those
terms, but would include any impairment, narcotics addiction for example,"
relevant to the existence of the free choice to do wrong. If this is the proper
41 P. Miller, The Life of the Mind in America 239-65 (1965).
{s See United States v. Moore, 486 F.2d 1139 (D.C. Cir.), cert. denied, 414 U.S, 980
(1973) ; Fingarette, Addiction and Criminal Responsibility, 84 Yale L.J. 413(1975).
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interpretation of ? 522, then it comes very close to the "abolition" of the,
insanity defense proposed by Joseph Goldstein." This interpretation, to
the extent it touches upon "mental disease or defect", is also close to the
proposal I advocated in my Braicner dissent.
In order to clarify its intention to adopt this interpretation, if there is
indeed such an intention, Congress should explicitly state that the jury is
to ascertain the extent of the impairment of will and measure it against
contemporary community standards of blameworthiness. It should further
state that Subchapter C is non-exclusive. Finally, it should, regardless of
its intention on this matter amend ? 521, concerning mistakes of law and
fact, to deal only with mistakes of law. Mistakes of fact are handled by
the existing language in ?? 301-02. Congress should also consider whether the
terms "mental disease or defect" invite too much expert dominance and
hence a substitute such as that devised in my Brawner dissent inserted in
its place.
Proper consideration of either of these two forms of "abolishing" the
insanity defense must proceed with an awareness of the practical conse-
quences of a verdict of not guilty by reason of insanity. Both proposals to,
"abolish" the insanity defenses are premised in major part on the effect
of these practical effect on the substantive standard of responsibility. S. I
provides that persons acquitted by reason of insanity are to be committed
to a treatment facility for diagnosis. After a period of time, the committing
judge must hold a hearing at which the government must prove by pre-
ponderance of the evidence that the acquitted person is suffering from a
mental disease or defect and is therefore dangerous to the person or property
of others at the time of the hearin "? Many persons assume with cause
that commitment pursuant to a statute of this sort is virtually automatic
following acquittal by reason of insanity. Some advocates of abolition of the
"insanity" defense conclude from this that the only purpose of the "insanity"
defense is to determine the proper disposition of the accused, i.e. whether
the person should be incarcerated in a prison or a hospital. That determination,,
it is suggested, is really a sentencing decision presently made by the jury" with extraordinary expense and trouble."
This "practical" argument for abolition of the "insanity" defense is not
convincing. First, as discussed previously, the central purpose of concepts
of criminal responsibility is to assess blame. The dispositional decision
operates entirely apart from concepts of responsibility ; if the disposition
decision did attempt to assess blame, questions would be raised whether
the right to a jury trial had been abrogated. Some assert that the blame-
imposition function of the "insanity" defense is not meaningful, not worth
caring about. I do not agree. A criminal conviction carries a stigma quite
apart from the fact of imprisonment" And its imposition or non-imposition
is part of the moral ritual of the criminal trial, a ritual that serves to
reinforce our basic standards of decency and to teach us about the causes
of the human wreckage we witness in court. We need this process for our
education and moral well-being, as well as for the rights of the defendant.
But more than this, I do not concur in the view that conviction of a
crime and sentencing to a hospital are equivalent to the dangerousness deter-
mination under a commitment statute. The commitment procedure looks to
as See Goldstein, The Brawner RuZe-Whyf or No More Nonsense on Non Sense in the
Criminal Law, Please 1, 11173 Wash. U. L.Q. 126.
'" S. 1, 94th Cong., 1st Sess. ~ 3613 (1975).
"Under the so-called Lyles instruction, juries in the District of Columbia are told
that an acquitted defendant is subject to a commitment by reason of hls dangerousness,
See Lyles v. United States, 254 F.2d 725, 728 (D.C. Cir. 1957). Bert. denied, 356 U.S. 961
(1958) reaffirmed United States v. Brawner, 471 F.2d 969, 9900 (D.C. Cir. 1972). S. 1,
94th Cong., 1st Sess. 4$ 3614-15 (1975) seems to permit an overt "insanity defense" to
sentencing to a prison !
"This allegation of undue expense or trouble in presentation and adjudication of the
insanity defense is really of little importance. The evidence indicates in the District of
Columbia with both local and federal jurisdiction prior to the Court Reform Act that
insanity acquittals ran about 2% of all cases terminated. And many of these acquittals
were largely uncontested trials equivalent to a plea of guilty. (These trials are necessary
since the trial court must raise a defense of "insanity" sue ,;nonte if it is substantial
and if the defendant does not raise it, see United States v. Robertson, 507 F.2d 1148
(D.C. Cir. 1974) ; Whalem v. United States. 346 F.2d 812 (D.C. Cir.), cert denied, 282
U.S. 802 (19070.) This data is collected in United States v. Brawner, 471 F.2d 969. 989
(D.C. Cir. 1972) ; Brief of amicus William 11. Dempsey, Jr. at .22-34, id.; Brief of aanicus,
David Chambers.
V See Menard v. Mitchell, 430 F.2d 486, 490-91 (D.C. Cir. 1970).
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the defendant's present and future dangerousness and releases him when he is,
no longer dangerous. The "insanity" defense looks to the defendant's mental
condition at the time of the offense. The dangerousness commitment is not
based simply on the prior commission of a criminal act whereas a criminal
conviction and sentence are (and also the sentencing process is based at
least to some extent on the principle that punishment should be proportionate
to the offense). It is clear that the dangerousness commitment is really not
equivalent to conviction and a hospital sentence.S"
It would appear that the dangerousness commitment procedures would
satisfy any considerations of social order associated the propensity of the
individual offender to commit further anti-social acts. There is, however, one
theoretical gap between the coverage of the insanity defense and the cover-
age of the commitment statutes. This lies in the differing burdens of proof.
Under present practice in the federal courts," the government must prove
beyond a reasonable doubt that the accused was not "insane" at the time of
the crime. Under the dangerousness commitment statute, the government must
prove by a preponderance of the evidence that the defendant meets the
standards for commitment. This raises the theoretical possibility that a
person will be acquitted because of a reasonable doubt about his sanity
but not committed because of his dangerousness because the government
failed to sustain its burden of proof.60 In practice there is no substance
to this contention. The figures indicate that virtually all acquitted defendants
are found dangerous and are released only because of changes in their medical
condition.51 Furthermore, the burden of proof requirement is mostly hortatory,
it warning of the seriousness of the action, and beyond that serves to enforce
the requirement that the government present sufficient evidence to establish
a prima facie case. Any slippage between an acquittal by reason of insanity
and the dangerousness commitment is almost certainly a result of the fact
that not all persons "insane" at the time of the crime meet the standards of
dangerousness for purposes of commitment. This point, of course, is not
premised on differing burdens of proof.
Consideration of the burden of proof in regard to the "insanity" defense
does point to some "practical" aspects of the defense which deserve con-
sideration if the Congress contemplates codification. In practice, the success
of an "insanity" defense largely depends on the quality of the defendant's
expert testimony and the quality of the defendant's attorney. Even if the
trial judge appoints an expert witness for an indigent defendant,5s the quality
of that expert's testimony and the quality of the pre-trial mental examination
will largely determine whether the defense will be taken seriously. Further-
more, testimony that the defendant did suffer from a mental disease or
defect may be easily trivialized by the prosecution through "know nothing"
comments on psychiatric tests and procedures and through challenges to the
extent of the expert's preparation (although no greater preparation is per-
mitted under present time and money limitations). Testimony of government
experts that the defendant did not suffer from a mental disease or defect
are not subject to such trivialization and only expert defense counsel can
probe the weaknesses of preparation and investigation that lie behind some
such conclusions. For the indigent defendant, then, the burden of proof is
in fact very much on him. "I fear that it can fairly be said of Brawner, just
as it should be said of Durham, that while the generals are designing an
inspiring new insignia for the standard, the battle is being lost in the
trenches."" If the Congress is desirous of codification, it should consider
amendments to S. 1 to ensure that all indigent defendants be provided with
the resources to make assertion of the "insanity" defense realistically possible.
48 Of course, there are some judges who would impose lower burdens of proof on com-478
m
F.2d 606 itment of (D.C. offender acquitted also Dixon v. Jacobs, 427 United 601to(D.C BCir. ry1970)
(Le, .C. Cir.
(Leventhal, J. concurring). This view truly undercuts the status of the "insanity" issue
as a true defense.
-1 Davis v. United States, 160 U.S. 460, 484 (1895).
FO See Orerhoiser v. O'Bierne. 302 F.2d 852. 854. R59-m. (D.C. Cir. 1961).
51 See United States v. (LaVance) Greene, 489 F.2d 1145, 1172-73 n.73 (D.C. Cir.
1973), cert. dented, 95 S.Ct. 239 (1975) (Bazelon C.J. dissenting from the denial of
re 15 Ten, ba.3r,).OOEA(e) (1970) ;
52 United States v. Mavis, 476 F.2d 1137, 1141 (D.C.
Ss ,a11 . S.C. ? ~
Cir. 19731.
Q, United States v. Braaaner, 471. F.2d 969, 1012 (D.C. Cir. 1972) (Bazelon C.J. con-
curring in part, dissenting in part).
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Else its bold new insignia will have no more real effect than that of Durham
and Brawner.
There is one further problem of the interface between the dangerousness
commitment procedure and the "insanity" defense. At present, S. 1 as well
as most dangerousness statutes is tied to the medical model of mental
impairment. The proposal I have advanced to reformulate the criminal re-
sponsibility defense to eliminate reliance on the "medical model" raises the
possibility that an individual may have a mental impairment not covered
by the "medical model" and be acquitted, but could not be committed because
his mental impairment is not a predicate for commitment. This possibility
raises two unattractive alternatives. Either we can close our eyes to mental
impairments not recognized by behavioral scientists and impose responsibility
without inquiry into free will or we can reformulate the standards of com-
mitment to include those who are dangerous but largely untreatable.54 I
have no answer to this dilemma but I direct your attention to it, if serious
consideration is given to my proposal.
Reliance on the dangerous commitment procedure to safeguard certain
concerns of social order, either under the "medical model" of mental im-
pairment or an expanded view of mental impairment, highlights certain
difficulties with those procedures. Most important, present predictions of
dangerousness are highly inaccurate and tend to reflect social and cultural
biases of the predictor." Furthermore, there is a tendency to err on the side
of over-prediction of dangerousness, particularly in regard to persons who
have committed prior criminal acts; this suggests the possibility that a
finding of dangerousness coupled with an indeterminate sentence will put
an offender in prison for a period longer than the maximum sentence of a
crime he may have committed on the basis of an inaccurate prediction of
dangerousness. The alternatives to this are no less palatable : complete freedom
for the offender or criminal conviction of an individual who did not really
choose to do wrong.
I have no solution to these difficulties. Understanding of the issues them-
selves is too limited, it proceeds on a level of generality that makes easy
solutions impossible. We are in that terrible period known as "meanwhile"
and it appears we will be there for some time. I caution the Subcommittee
against any actions which may retard or shortcircuit present attempts to
ventilate those issues of which I have been speaking, and to confront the
largely insoluble dilemmas they present. With a moral consciousness and an
awareness of public demands, we may over time reach accommodations, tem-
Iwrary though they may be, which will reflect our wisest and most persistent
traditions.
HOPKINS, SUTTER, MULROY, DAVIS & CROMARTIE,
PAUL C. SUM-MIT, Chicago, Ill., April 7, 1975.
Esq.,
Chief Counsel, Subcommittee on, Criminal Laws and Proce(7-nres, Committee of
the Judiciary, U.S. Senate, Dirkscn Senate Office Building, Washington, D.C.
DEAR PAUL: It gives me great pleasure to send you officially the comments
of the Antitrust Section of the American Bar Association on S.I.
Sincerely,
MARK CRANE.
Enclosure.
IIOPKINS, SUTTER, MULROY, DAVIS & CROMARTIE,
Chicago, Ill., April 7, 1975.
SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDU7:ES,
COMMFfTEN, OF THE JUDICIARY,
U.S. Senate, Dirksen Senate Office Building, Washington, D.C.
GENTLEbMEN : We hereby submit the comments of the Antitrust Section of
the American Bar Association on the Criminal Justice Reform Act of 1975,
'See United States V. Alexander & Murdock, 471 F.2d 923, 960-65 (D.C. Cir.),
cert. denied, 409 U.S. 1044 (1973) (Bazelon C.J. dissenting on this point).
See, e.g., Dershowitz, The Law of Dangerousness: Some Fictions About Predictions,
23 J. Legal Ld. 24 (1970) : Developments in the Law-Civil Cominitment. 87 Ilarv. L.
Rev. 1190, 1240-44 (1974) and authorities cited.
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233
introduced as S.1 on January 15, 1975. The views presented are those of the
Antitrust Section and do not represent the views of the American Bar
Association until approved by its House of Delegates or Board of Governors.
At the outset, we would like to thank the Committee and its Staff for the
opportunity on May 3, 1073 to present our views concerning S. 1 and S. 1400
introduced in the 93rd Congress (herein called "the prior bills"). We are
pleased that the present version of S. 1 incorporates most of the changes we
suggested, and we, of course, reaffirm our support of those changes.
This leaves only three provisions on which we wish to comment with respect
to the present bill.
I. SOLICITATION TO COMMIT ANTITRUST OFFENSES
Although Section 1004(b) makes a vast improvement in the attempt, con-
spiracy and solicitation provisions of the prior bills, it still permits a person
to be convicted of soliciting antitrust offenses (other than attempts to
monopolize and conspiracies to restrain trade or to monopolize). In our
testimony on the prior bills, we observed :
"Whatever the merits may be of punishing solicitation to commit treason,
murder, or drug pushing, it is both unnecessary and unwise to make it a
crime to solicit someone to violate the antitrust laws, when the solicitation
results in neither an attempt nor a conspiracy. In antitrust cases, courts
agonize at length over whether business conduct constitutes an antitrust
offense. The length of antitrust trials and volume of antitrust records is too
well known to need documentation, and it is not uncommon for important
antitrust opinions to review and analyze the facts for 100 pages.
"If problems of this complexity are presented by completed transactions,
they become even more difficult when a transaction is inchoate. In the case
of both attempts and conspiracies, some concrete action is required which
may give the court some idea whether the contemplated business conduct,
if completed, would restrain trade. Criminal solicitation leaves out the
requirement of action, thereby moving the restraint into the realm of
conjecture.
"Even in the area of per se offenses-such as price fixing and group boy-
cotts-it can be difficult to tell whether the conduct involved constitutes a
proscribed activity. For example, courts have struggled mightily-and in-
conclusively-over whether consciously parallel conduct evidences an agree-
ment to fix prices or boycott distributors. Compare Interstate Circuit Inc. v.
United States 306 U.S. 208 (1939) and Federal Trade Commission v. Cement
Institute, 333 U.S. 683 (1.048) with Theatre Enterprises, Inc. v. Paramount
Film Distributing Corp.,, 346 U.S. 537 (1954) and United States v. National
Maleable and Steel Castings Co., 1957 Trade Cas. ?68,890 (N.D. Ohio 1957),
aff'd per curiam, 358 U.S. 38 (1959). What point is there in expending this
type of judicial effort in situations where the proposed price fixing scheme
or group boycott never got further than one competitor asking another and
getting rebuffed? If the proposal gets into the action stage, it falls within
the definition of attempts or conspiracies and can be dealt with under those
sections." (Hearings 5603-4)
We still believe that our position has merit and urge that the solicitation
provisions be inapplicable to all antitrust offenses.
Section 2001(c) provides that a corporation may be placed on probation.
In our testimony on the prior bills, we opposed the remedy of corporate
probation because it was tantamount to entering an injunction and appointing
a receiver (the probation officer) as part of the sentencing process. (hearings
5606-8). In the course of our testimony, we said (at 5607) :
"* * * [A] sentence is generally imposed at the end of a criminal trial
without the full adversary, evidentiary hearing that is customarily held before
an injunction is entered in antitrust cases. The Supreme Court has repeatedly
emphasized the need for a full exploration of the facts in framing an anti-
trust decree. In 1945 it is said in Associated Press v. United States, 326
U.S. 1, 22 a Sherman Act case: `The fashioning of a decree in an antitrust
case in such way as to prevent future violations and eradicate existing evils,
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is a matter which rests largely in the discretion of the court. (Quotation
omitted.) A full exploration of facts is usually necessary in order to properly
draw such a decree.'
"In 1972, it repeated this concept in United States v. Ford Motor Co., 405
U.S. 562, after noting that the `District Court * * * held nine'days of hearings
on the remedy' (405 U.S. at 571) : `The thorough and thoughtful way the
District Court considered all aspects of this case, including the nature of the
relief, is commendable. The drafting of such a decree involves predications
and assumptions concerning future economic and business events. Both public
and private interests are involved; * * *' (405 U.S. at 578)
Because of the complexity of these questions, extensive evidentiary hearings
on relief are held as a matter of course in antitrust cases."
It is still our view that injunctions should be entered and receivers ap-
'pointed only after a full evidentiary hearing. We see nothing to be gained
by making this hearing a part of a criminal proceeding. The government can
as easily bring a subsequent civil case for injunctive relief in which it will
have the benefits of collateral estoppel on questions of violation. This civil
injunction suit will be no more burdensome than a full trial on the terms of
probation at the end of the criminal case, and will avoid such difficult pro-
cedural questions as whether the government must prove the need for the
injunction and receiver beyond a reasonable doubt instead of simply by a
preponderance of the evidence. We urge the Committee to eliminate cor-
porate probation as a remedy.
If, however, the Committee decides to retain corporate probation as a
remedy, we oppose the application of Section 2103(a) in its present form to
corporations. This section reads as follows :
"MANDATORY CONDITION. The court shall provide, as an explicit condition
of a sentence of probation, that the defendant not commit another federal,
state, or local crime during the term of probation."
While this condition is reasonable when applied to individuals, it presents
serious problems when applied to large corporations which act through
thousands of individuals located in many different States. A corporation placed
on probation for an antitrust offense could violate that probation, for
example, because if it violated the pollution control laws of a State, even
though the person responsible for complying with the anti-pollution laws
did not even know of the terms-or even the existence-of the antitrust
probation.
In short, when an individual commits a crime during a period of proba-
tion, it is fair to assume that he committed the crime knowing that it was a
violation of his probation. This assumption simply does not apply to the
activities of large corporations where no one person can keep abreast of all of
the things which are being done. We urge the Committee, if it decides to
retain the remedy of corporate probation, to modify Section 2103(a) to make
it discretionary rather than mandatory in the case of corporations. This
would permit its application in the case of the closely-held corporations, where
it might be appropriate, without requiring that it be applied in all cases.
Sections 2001(c) and 2201(c) provide that corporate and individual anti-
trust offenders can be required to pay a fine equal to double the gain they
received from the offense or double the loss they caused the victim. What-
ever the merits of such a fine in simpler factual context (e.g., burglary or
embezzlement), we believe that its application to antitrust offenses is unwise
for two reasons.
Our first reason was set forth in our testimony on the prior hills (Hearings
5604-5) but bears repetition here. Antitrust offenses are distinguished from
other crimes in that present law permits the victims to obtain treble damages
from the offenders. (15 U.S.C. ? 15) This remedy has been invoked frequently,
and the Supreme Court has described it as "one of the surest weapons for
effective enforcement of the antitrust laws." Minnesota Mining & Manufacturing
Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 318, (1965).
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As long as the treble damage remedy remains (and there is no reason
to expect it to be changed) the enactment of S. 1 in its present form would
.single out antitrust offenders and subject them-alone among all criminals-
to paying five-fold the amount of the gain they received or the loss they
caused. We do not approve of antitrust violations. We have no objection to
"double-damage" fines by themselves. But we do not believe that antitrust
.offenses should be singled out for a five-fold penalty, especially in view of
the increase last December in maximum fines for antitrust violations from
$50,000 to $100,000 for individuals and $1,000,000 for corporations. Act of
December 21, 1974, Public Law 93-528.
Our second reason for urging this action upon the Committee is one
which we did not advance in our testimony on the prior bills, although it is
similar to the reasoning we advanced for opposing corporate probation. We
see problems in determining the gain or loss resulting from an antitrust
,offense as part of the sentencing process at the end of a criminal trial.
Antitrust offenses are distinguished from many other crimes by their
complexity. It would be a simple matter for a judge to determine the gain
or loss resulting from a theft or embezzlement. It is quite another thing for
a judge to establish the gain the defendant derived from an antitrust offense
(that is, how much the defendant's profit was increased by the illegal con-
.duct), or how much loss the victim incurred as a result of the antitrust
violation (that is, how much more profit the victim would have made but
for the defendant's conduct).
These questions are exactly the same questions litigated in the damage
portion of civil antitrust cases, where they often take weeks to try. Can they
be adequately tried at the end of a criminal case as part of the sentencing
procedure? We think not, since sentencing is usually accomplished on the
basis of facts contained in reports not in the record, facts which have been
developed without the procedures associated with the determination of
,damages at a civil trial.
If it were decided to hold a full scale hearing to determine the "gain" or
"loss" at the end of the criminal antitrust trial, severe procedural problems
would be presented. What standard of proof would be used-are damages to
.be proved beyond it reasonable doubt or simply by a preponderance of the
,evidence under the rather liberal standard allowed in civil antitrust cases?
Are the victims entitled to representation at the sentencing hearing, since
it is their damages that are being litigated? If so, what is their role, and
will the fine imposed conclusively determine the basis of the recovery in the
later treble damage case? Even if they are not represented, does the deter-
mination of gain or loss at the sentencing hearing constitute collateral
estoppel against the defendant in the subsequent damage action even though
the victims are free to try to prove still higher damages? Such a result
would seem possible, perhaps likely, in view of the courts' movement away
from "mutuality" as a prerequisite for collateral estoppel.
These considerations argue strongly in favor of trying the damage ques-
tions at a subsequent civil trial and not as part of the sentencing procedure.
The victims would have the benefit of the finding of violation in the prior
criminal case, which is, by statute, prima facie evidence of violation in
subsequent damage cases. 15 U.S.C. ? 15(a). As a practical matter such cases
nearly always follow antitrust convictions, so there is small possibility that
the treble damage remedy would not be applied.
Thus, not only is it unfair to subject antitrust offenders (and only anti-
trust offenders) to a five-fold penalty but doing so creates many procedural
problems not present in simpler factual contexts. For these reasons, we urge
the Committee to make Section 2201(c) of S. 1, which provides for the
.double damage fine, inapplicable to antitrust offenses.
We respectfully request the opportunity to be heard on the matters set
forth in this letter at any public hearings which may be scheduled on S. 1.
Respectfully,
MARK CRANE,
Antitrust Section of the American Bar Association.
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FRIED, FRANK, HARRIS, SHRIVER & KAMPELMAN,
Hon. JOHN MCCLELLAN, D.C., April 25, 1975.
,
Chairman, Subcommittee on Criminal Laws and Procedure, Dirlcsen Senate
Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN : With this letter we are forwarding a statement
in opposition to the provisions of S. 1, dealing with criminal jurisdiction on
Indian reservations, submitted on behalf of the Association on American
Indian Affairs and a number of named tribes.
We would appreciate your having the enclosed statement made a part of
the formal hearing record on the pending legislation. We would also be
happy to discuss the subject matter of our statement informally with members
of your staff at any time.
Respectfully submitted,
ARTHUR LAZARUS, Jr.
STATEMENT OF ARTHUR LAZARUS, JR.
The following comments are submitted in opposition to certain provisions
affecting Indian tribes in S. 1, the "Criminal Justice Reform Act of 1975".
This statement is filed on behalf of the Association on American Indian
Affairs, Inc. and the following named tribes: The Seneca Nation of Indians
of New York, the Miccosukee Tribe of Indians of Florida, the Nez Perce Tribe
of Idaho, the Navajo Tribe of Arizona and New Mexico, and the Ilualapai
Tribe and the Salt River Pima-Maricopa Community of Arizona.
In order to appreciate fully the drastic implications of the Indian provi??
sions in S. 1, a brief review of the unique legal status of Indian tribes is
necessary. Over a century ago Chief Justice Marshall, speaking for the
Supreme Court. affirmed the proposition that "* * * the several Indian nations
* * * [are] distinct political communities, having territorial boundaries,
within which their authority is exclusive, and haying a right to all lands
within those boundaries, which is not only acknowledged, but guaranteed
by the United States." Worcester v. Georgia, 6 Pet. 515, 557, 8 L. Ed. 483,
499 (1932). Accord, Williams v. Lee, 385 U.S. 217, 218-19, 3 L. Ed. 2d 251,
253 (1959). The Supreme Court's conclusion in the Worcester case recently
has been restated forcefully in McClanahan v. State Tax Comm'n, 411 U.S.
164, 36 L. Ed. 2d 129 (1973) :
"It must always be remembered that the various Indian tribes were once
independent and sovereign nations, and that their claim to sovereignty pre-
dates that of our own Government * * * 'They were, and always have been,
regarded as having a semi-independent position when they preserved their
tribal relations ; not as States, not as nations, not as possessed of the full
attributes of sovereignty, but as a separate people, with the power of regu-
lating their internal and social relations, and thus far not brought under
the laws of the Union or of the State within whose limits they resided.' Id.
at 172-73, 36 L. Ed. 2d at 135.
The Indian provisions in the present Title 18 of the United States Code
have been drafted in light of the extensive powers of self-government which
historically have been exercised by Indian tribes. Section 1153 restricts the
scope of federal criminal jurisdiction on Indian reservations to thirteen
"major crimes"-"* * * namely, murder, manslaughter, rape, [statutory rape],
assault with intent to commit rape, incest, assault with intent to kill, assault
with a dangerous weapon, assault resulting in serious bodily injury, arson,
burglary, robbery, and larceny * * *" 18 U.S.C.A. ? 11,53 (1975 Supp.). Further-
more, courts have ii~sld without exception that the jurisdiction conferred on
federal courts by Section 1153 is exclusive, and state courts are prohibited
from exercising concurrent jurisdiction over the same offenses. The limited
nature of the jurisdictional grant in Section 1153 has allowed the courts
established by Indian tribes to exercise extensive criminal jurisdiction on
Indian reservations.
These sameconsiderations are manifest in Section 1152, which provides
that "[e]xcept as otherwise expressly provided by law, the general laws of
the United States as to the punishment of offenses committed in any place with-
in the sole and exclusive jurisdiction of the United States, except the District
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of Columbia, shall extend to Indian country."' 18 U.S.C.A. ? 1152 (1966).
The general laws referred to in Section 1152 include, in addition to federal
statutes applicable to federal enclaves, the Assimilative Crimes Act, which
authorizes federal courts to apply state law as the measure of a federal
crime if the act committed in Indian country does not represent a criminal
offense under federal law, but has been so classified under a state statute.
See generally 18 U.S.C.A. ? 13 (1909).
. Section 1152, however, contains several important exceptions which sharply
limit its impact on Indians and Indian tribes. The federal laws referred to
in Section 1152 are not applied in the case of "* * * offenses committed by one
Indian against the person or property of another Indian, nor to any Indian
committing any offense in the Indian country who has been punished by the
local law of the tribe, or to any case where, by treaty stipulations, the ex-
clusive jurisdiction over such offenses is or may be secured to the Indian
tribes respectively." 18 U.S.C.A. ? 1152 (1906). This exception clause has
limited the application of federal enclave laws and the Assimilative Crimes
Act to cases in which an Indian commits a criminal act against a non-Indian
or a non-Indian commits such an act against an Indian. Thus, the tribal
courts retain jurisdiction over a number of lesser offenses when only
Indians are involved.
S. 1 would effect a wholesale expansion of federal jurisdiction over
criminal offenses committed on Indian reservations by deleting in their
entirety Sections 1152 and 1153. Indian reservations no longer would be
treated as discrete jurisdictional entities, but, instead, would be included, along
with all other federally held lands and unorganized federal territories and
possessions, in a category entitled "Special Jurisdiction of the United States".
Section 203 of the proposed Criminal Code provides that "[a]n offense is.
committed within the special jurisdiction of the United States if it is com-
mitted within the special territorial jurisdiction * * * of the United States",,
and the term "special territorial jurisdiction" is defined by Section 203(a)
to include "Indian country".
S. 1 lists no less than forty-six acts or omissions which, if committed or
omitted in areas of special jurisdiction, would constitute a criminal offense
over which federal courts are to have jurisdiction. The extent of federal
jurisdiction thus is increased vastly beyond the thirteen offenses which at
the present time are enumerated in Section 1153.
Furthermore, in contrast to Section 1153, provisions in S. 1 indicate that
the jurisdiction of federal courts over offenses committed in Indian country
may not be exclusive. Section 205(a) of the proposed Criminal Cade declares.
that "[e]xcept as otherwise expressly provided, the existence of federal
jurisdiction over an offense does not, in itself, preclude * * * a state or local
government from exercising its jurisdiction to enforce its laws applicable to.
the conduct involved. * * *" Thus, Indian reservations would be subject under
S. 1 to substantially increased federal criminal jurisdiction, and, possibly,
to state jurisdiction which heretofore has been prohibited explicitly by
federal law.
The proposed Criminal Code's complete failure to recognize the unique
legal status accorded Indian tribes and their courts is evidenced further
by S. 1's treatment of Sections 13 and 1152 of the present Title I.S. Section
13, which is the Assimilative Crimes Act, is continued in force by Section
1803(a.) of the proposed Criminal Code, which provides that "[a] person is
guilty of an offense if, in a place within the special jurisdiction of the United
States * * * he engages in conduct * * * that constitutes an offense under
the law then in force in the state or locality in which such place is located
* * * [and] that does not otherwise constitute an offense under a federal
statute applicable in such place * * *." In addition, S. 1 would delete Section
1152.
i The term "Indian country" is defined in Section 1151 as follows :
"i xcent as otherwise provided in sections 1154 and 1156 of this title, the tern "Indian
country", a, used in IMF, chanter, means (a) all land within the limits of any Indian
30Se-rvation under the jurisdiction of the United States government, notwithstanding the
issuaret' of any potent, and, including rightsof-way running through the resets?ation, (b)
all d?eneudent Indian communities within the borders of the United States whether within
or tvith"ut the limits of a stale. and (e) all Indian allotments, the Indian titles to which
hare not been exlinguislied, including rights-of-way running, through the same." 18 U.S.C.A.
? 1151 (1966).
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The proposed Criminal Code's deletion of Section 1152 and continuation
in force of Section 13 would result in yet a further incursion on the criminal
jurisdiction of tribal courts. The exception clauses contained in the deleted
Section 1152 excluded from the effect of the Assimilative Crimes Act cases
which involved only Indians. In effect, therefore, S. 1 would extend the
Assimilative Crimes Act beyond cases involving non-Indians to criminal
offenses involving only Indians.
S. 1 admittedly contains provisions which indicate that, at least as a
theoretical matter, nothing in the legislation should be construed as ousting
tribal courts of the jurisdiction which they now exercise over criminal
offenses committed on Indian reservations. Section 205(a) provides that
"[e]xcept as otherwise expressly provided, the existence of federal jurisdiction
over an offense does not, in itself, preclude * * * an Indian tribe, band, com-
munity, group, or pueblo from exercising its jurisdiction in Indian country to
enforce its laws applicable to the conduct involved. * * *" Despite this rather
abbreviated and vague disclaimer, the tremendously expanded scope of
federal and possibly state jurisdiction could well have a significant adverse
impact upon the continued vitality and utility of tribal courts which at the
present time exercise considerable jurisdiction over criminal offenses com-
mitted on Indian reservations.
The proposed Criminal Code's approach to federal jurisdiction over Indian
reservations appears to have been prompted by two problems of Constitutional
dimension which have arisen in connection with the administration of Section
1153. See generally Committee Print of Report of Senate Committee on the
Judiciary on the "Criminal Justice Reform and Codification Act of 1974"
(1974). First, several federal courts held that an Indian charged with an
offense under the Major Crimes Act was not entitled to an instruction on a
lesser included offense. See, e.g., United States v. Davi?ti. 429 F.2d 552, 554
(8 Cir. 1970) ; Kills Crow v. United States, 451 F.2d 323, 325 (8 Cir. 1971),
cert. denied, 405 U.S. 999 (1972). Second, Section 1153's adoption of state
penal provisions and definitions of offenses for specified crimes frequently
had resulted in the imposition of harsher penalties and a lower quantum
of proof on Indian defendants than would be imposed upon a non-Indian
defendant committing the same offense. Both these problems raised the
question whether Section 1153 discriminated in an unconstitutional manner
against Indian defendants.
Neither issue, however, warrants the proposed Criminal Code's sweeping
and indiscriminate approach to federal criminal jurisdiction over Indian
reservations. The first question-whether an Indian defendant charged under
Section 1153 is entitled to an instruction on a lesser included offense-has
been resolved recently by the Supreme Court in the favor of Indian de-
fendants :
"* * * [T]he [Major Crimes] Act expressly provides that Indians charged
under its provisions `shall be tried in the same courts, and in the same manner,
as are all other persons committing any of the above crimes within the
exclusive jurisdiction of the United States.' * * * In the face of that explicit
statutory direction, we can hardly conclude that Congress intended to dis-
qualify Indians from those benefits of a lesser offense instruction, when
those benefits are made available to any non-Indian charged with the same
offense." [Original emphasis.] Keeble v. United States, 412 U.S. 205, 212,
36 L. Ed. 2d 844, 850 (1973). Accord, Felicia v. United States, 495 F.2d 353,
354-55 (8 Cir. 1974). Thus, Indian defendants charged under Section 1153
plainly are now entitled to an instruction on a lesser included offense, and,
consequently, this issue no longer can serve as a basis for deleting the Major
Crimes Act from the Criminal Code.
Furthermore, the second problem-whether the imposition of state penal
provisions and definitions of offenses on Indian defendants is constitutional-
can be solved by a legislative technique far more subtle than making Indian
reservations just another federal enclave and emasculating tribal courts in the
process. Whatever Constitutional deficiencies exist in provisions in Section
1153 relating to sentencing and burden of proof can be remedied easily by
amending the offending sections of the Major Crimes Act. Thus, the second
issue also in no way justifies the radical approach to federal jurisdiction
over Indian reservations which is employed in S. 1.
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Although the proposed Criminal Code's treatment of jurisdiction over
Indian reservations is the most objectionable feature of the bill, a number of
additional shortcomings in S. 1 should be noted, Section 685(b) of the pro-
posed Criminal Code, which authorizes and describes the extent of state
jurisdiction over offenses committed by or against Indians in Indian country,
and is identical to Section 1162 of the present Title 18, contains a number
of inaccuracies. Its description of Indian country over which states are
authorized to exercise jurisdiction does not include states which assumed
jurisdiction subsequent to the passage of Section 1102, or those which since
its enactment have retroceded jurisdiction to the United States.
More important, Section 685(b) fails to eliminate a number of the am-
biguities which have made the precise legal implications of Section 1162
almost impossible to determine. Indian tribes have expended considerable
sums of time and money litigating the question whether the state jurisdiction
referred to in Section 1162 is exclusive or concurrent with the jurisdiction
of Indian tribes. See, e.g., Oliphant v. Schile, No. 511-73C2 (W.D. Wash.).
Furthermore, the cases are legion in which Indian tribes have been forced
to resort to legal action in an attempt to determine whether, or under what
circumstances, the state's jurisdiction shall include the power to tax. See,
e.g., Bryan v. Itasca County, No. 44947 (S. Ct. Minn.) ; Confederated Salish
and Kootenai Tribes v. Moe, Civil No. 2145 (D.C. Mont.) ; United States v.
Washington, Civil No. 3909 (E.D. Wash.) ; Confederated Tribes of the Colville
Indian Reservation v. Washington, Civil No. 3868 (E.D. Wash.).
Nor does Section 1162 indicate whether states may assume piecemeal
jurisdiction over selected subject matter or geographical areas within Indian
country. At the present time the State of Washington, for example, has enacted
laws which authorize the imposition of its jurisdiction-on all Indian reserva-
tions in eight selected subject matter areas. See Rev. Code Wash. ? 37.12.
Finally, S. 1 would delete the provisions in the present Title 18 which
govern the use of liquor in Indian country. Specifically, Sections 1154 through
1156 prohibit the introduction, possession or dispensation of liquor in Indian
country, while Section 1161 provides that the prohibitions of Sections 1154
through 1156 shall not apply within the Indian country when "* * * such
act or transaction is in conformity both with the laws of the State * * *
and with an ordinance duly adopted by the tribe * * * ." 18 U.S.C.A. ? 1161
(1966). Sections 1154 through 1156 would not be recodified under S. 1, and,
as a consequence, an Indian tribe's legal basis for preventing the sale of
liquor on its reservation would be eliminated.
In conclusion, the provisions in S. 1 relating to federal criminal jurisdiction
over Indian reservations completely belie the unique status which historically
has been accorded Indian tribes by the Supreme Court and the Congress. The
present version of the proposed Criminal Code should be amended to reflect
the firmly established federal policy that the United States always has
restricted its criminal jurisdiction on Indian reservations in recognition of
the extensive powers of self-government which Indian tribes exercise.
STATEMENT By ALAN R. PARKER ON I3EITALF OF TIIE FRIENDS COMMITTEE ON
NATIONAL LEGISLATION
My name is Alan It. Parker. I am Vice President of the American Indian
Lawyers Association, an unincorporated association of licensed attorneys of
Native American descent who are working in areas directly related to the
legal rights of Indian tribes. However, I file this statement as a private person
speaking on behalf of the Friends Committee on National Legislation.
The Friends Committee on National Legislation is widely representatives of
Friends throughout the United States, having members drawn from 22 of the
28 Friends' Yearly Meetings in the country, but it does not purport to speak
for all Friends, who cherish their rights to individual opinions. Friends have
had a long-satnding concern in the area of criminal justice and social equality,
and have also had a history of involvement in the rights of Native Americans.
That concern is currently expressed in a special programs which relates directly
and exclusively wth Native American legislative issues.
Under existing federal law, the jurisdictional relationships between federal,
state and tribal governments regarding prosecution of criminal offenses taking
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place within the boundaries of Indian reservations are carefully defined. The
overall effect ,of the law has been to protect the right of self-government on
the part of judicial and law enforcement authorities within Indian country.
(See 18 U.S.C. Sections 13, 1151, 1152, 1:153 and 1.162.)
The bill, S. 1, amended, will, if enacted, disrupt this jurisdictional scheme
and result in a virtually total preemption of the tribal government's jurisdic-
tion within the boundaries of a reservation. That is, where existing jurisdictional
law preserves the exclusive authority of tribal governments over certain crim-
inal offense and classes of offenders within the reservation, S. 1 would vastly
expand the nature and scope of federal and state law at the expense of tribal
law. (See proposed U.S.C. Sections 203, 205, 685, 1861 and 1863.) Briefly, Sec-
tion 203(a) would abolish the distinction between Indian country and other
types of federal enclaves for purposes of delineating the reach of federal law,
Section 685(b) expands the scope of state jurisdiction over offenses in Indian
country while Sections 1861 and 1863 would expand the number of enclave laws
and retain provision for assimilation of state law within federal enclaves where
there may be a vacuum on federal law. This is in contrast to existing federal
law which recognizes the special jurisdictional status of Indian reservations
and provides for the application of federal and state law only where the inter-
est of the tribe in asserting tribal authority cannot be supported.
This total disregard for the rights of tribal self-government evident in the
proposed S. 1, amended, has apparently been motivated by an understandable
desire to achieve uniformity in federal criminal law as it applies to federal
enclaves or "areas of special federal criminal law as it applies to federal en-
claves or "areas of special federal jurisdiction." Analysis of the commentary
accompanying various drafts of this legislation reveals that the authors have
failed to appreciate the special status that Indian reservations have enjoyed
by virtue of their unique right of self-government. Simply put, an Indian reser-
vation, in addition to being an area of special jurisdiction, encompasses at the
same time a distinct political community. Recognition of this special status has
long been an integral part of federal Indian policy. (See Worchester v. Georgia,
6 Pet. 515, 1832; Williams v. Lee, 358 U.S. 217, 1959; and McClanahan v. Ari-
zona, 441 U.S. 164, 1973.) By comparison, other federal enclaves such as
national parks or military reservations do not encompass self-governing juris-
dictional entities distinct from federal and state governments.
In short, even the objectives of achieving a desirable uniformity in the federal
enclave laws ought not to override the right of self-government enjoyed by the
Indian tribes which predates the founding of this Republic. It would be a rela-
tively simple matter to retain this special jurisdictional status without disturb-
ing the overall Objectives of the bill as it applies to all other federal enclaves.
The appropriate provisions of the law could simply be retained in Title 18 or
transferred to Title 25 of the Code. Whichever approach is chosen surely ought
to be taken only after soliciting the input of Indian tribes and organizations.
This effort at reform of the federal criminal law could also address itself to
the theory problems associated with public Law 82-280 as those problems are
now being addressed by the Senate Subcommittee on Indian Affairs. Recently
the two major national Indian organizations have articulated a position regard-
ing what they feel are serious shortcomings in Public Law 83-280 and certainly
legislative activity on this point ought to be coordinated with the efforts of the
Senate Judiciary Committee.
STATEMSExT OF M ARVIN J. SoNOSKY
I submit this statement on behalf of the Assiniboine.nnd Sioux Tribes of the
Fort Peck Indian Reservation, Montana, the Standing Rock Sioux Tribe of
North Dakota and South Dakota, and the Shoshone Indian Tribe of the Wind
River Indian Reservation, Wyoming.
I have reviewed the portions of the bill affecting Indians (Section 203(a) (3),
p. 45; Section 205(a), p. 48; and Sections 681-693, pp. 571-575). One cannot be
certain that every possible point is covered, but I submit for your consideration
some of the questions that occur to me.
1. Section 205(a), p. 48. The opening sentence specifies that "Except as other-
wise expressly provided, the existence of federal jurisdiction over an offense
does not, in itself, preclude : '(1) a state or local. government from exercising
its jurisdiction to enforce its laws applicable to the conduct involved ; * * * "
The law is established that state law does not extend to Indians in Indian.
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country. iiftClanahan v. Arizona State Tax Commission, 411 U.S. 164; Williams
v. Lee, 358 U.S. 217; Worcester v. Georgia, 6 Pet, 515. I find nothing in S. 1
that "otherwise expressly provides" that state law shall not extend to Indian
tribes or Indians in Indian country. As a matter of caution such an express
provison should be added to the proposed legislation. Otherwise, litigation is
invited.
2. Section 1863, p. 181: On the same point discussed in Item 1 above, attention
is directed to Section 1863, p. 1.81, which would vest the state with jurisdiction
over any person, including Indians in Indian country (Secton 203(a)(3)), who
violate state law. If the intent is to preserve the right of a reservation Indian
to be free from state law, the section must be modified.
3. Section 685A, p. 573-Application of Indian liquor laws. Present federal
law prohibits the introduction of intoxicants into Indian country (18 U.S.C.
1154(a)). Parenthetically, I note that for this purpose "Indian country" does
not include fee-patented land. in nonlndian communities or rights-of-way
through reservations. (18 U.S.C. 1154(c).) The prohibition can be lifted if the
act or transaction is in "conformity" both with state law and with an ordinance
adopted by the tribe. (18 U.S.C. 1161.) In effect, the statute gives the tribe
local option. Unted States v. Mazurie, 42 L.ed.2d 706 (January 21, 1975).
If I read S.1 correctly, it repeals all of the Federal Indian liquor statues,
18 U.S.C. 1.154, 1156, 3113, 3488, and 3018. This would remove the federal pro-
hibition against the introduction of liquor into Indian country. If this is so,
the tribal right to control liquor in Indian country is concluded. Absent the
federal prohibition, what purpose is served by Section 685A authorizing a tribe
to adopt ordinances "concerning dispensing, possession and use of liquor in
Indian country * * * consistent" with state law.
Further, Section 685A employs the bare word "liquor" instead of "intoxicat-
ing liquor", "malt spiritous or vinous liquor including beer, ale and wine"-
phraseology that has a long history in the case law. Also, Section 685A intro-
duces a new phrase "consistent with" instead of "in conformity with" that has
been in 18 U.S.C. 1161 since 1953. The latter phrase has been administratively
construed. 78 I.D. 36 (1.971).
The Federal Indian liquor laws have a history extending back about 150
years. The subject is not simple. With all due respect, I submit the matter
requires further study before legislation can be drafted that will codify exist-
ing law and weed out the non-essentials. Section 685A as drafted constitutes a
wholesale change in the substantive law. I urge that such far-reaching changes
not be undertaken wthout further study and further input from the Indian
tribes on the precise point.
4. Section 693, p. 571. I should like to suggest an additional amendment to
Section 202(10) of the Act of November 11., 1968, 25 U.S.C. 1302(10). Section
202(10) is now interpreted to require a jury trial, when requested, in every
case in tribal court. Probably over 90% of the tribal court cases are very minor
misdemeanors, punishable by 30-60 days or less. The cost of jury trials is pro-
hibitive for most tribes. Justice is defeated when one accused of a minor offense
requests a jury trial. The tribes simply cannot meet the demand. I suggest that
subsection (10) be amended to read as follows:
(10) [No tribe shall] deny to any person accused of an offense punishable
by imprisonment for more than six months, the right, upon request, to a trial
by jury of not less than six persons. [New language underscored.]
The proposed amendment accords with the definition of a petty offense in
18 U.S.C. 1(3) and the views of the Supreme Court. See Annotation, 26 L.ed.2d
P16.
WILKINSON, CRAGUN & BARKER,
Washington D.C., April 25, 1975.
Senator JOHN L. MCCLELLAN,
Chairman, Subcommittee on. Criminal Laws and Procedures, Committee on
the Judiciary, Washington, D.C.
DEAR SENATOR MCCLELLAN: As counsel for the Araphahoe Tribe of the Wind
River Reservation, Wyoming, the Confederated Sabsh and Kootenai Tribes of
the Flathead Reservation, Montana, the Hoopa Valley Tribe of the Hoopa
Valley Reservation, California, the Three Affiliated Tribes of the Fort Berthold
Reservation, North Dakota, the Quinault Tribe of the Quinault Reservation,
Washington, and the National Congress of American Indians, we submit the
attached statement on S. 1 (a bill to codify, revise and reform title 18 of the
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United States Code). We respectfully request that this statement be included
as part of the legislative record which is being compiled by your Subcommittee
on this important bill.
We appreciate the opportunity to present the views of the above named
Indian tribes and organizations on those provisions of S. 1 which will have a
direct impact on Indian affairs in this country.
Sincerely,
Mr. Chairman : My name is Jerry C. Straus; I am a member of the law firm
of Wilkinson, Cragun & Barker. I ani submitting this statement concerning S.
1 on behalf of the National Congress of American Indians, the Arapahoe Tribe
of the Wind River Reservation, Wyoming, the Confederated Salish and
Kootenai Tribes of the Flathead Reservation, Montana, the Hoopa Valley Tribe
of the Hoopa Valley Reservation, California, the Quinault Tribe of the Quin-
ault Reservation, Washington, and the Three Affiliated Tribes of the Fort
Berthold Reservation, North. Dakota.
We support the basic aims of S. 1 in recodifying Title 18 of the United States
Code, in revising the Federal Rules of Criminal Procedure, and in creating a
more logical system for the graduation of federal offenses generally. However,
only those sections of S. 1 amending Title 25 of the United States Code, and
those sections transferring former sections of Title 18 into Title 25, regarding
federal offenses committed on Indian lands, are of direct concern to us.
We strongly feel that some changes to conforming amendment section 687 of
the bill (pp. 573-74) are warranted, in order to assure Indian tribes a badly
needed remedy against those who trespass upon Indian lands. As presently
worded, conforming amendment section 687 of S. 1 merely transfer 18 U.S.C..
? 1165 into Title 25 of the Code, with minor changes, and provides criminal sanc-
tions only for "hunting, trapping, or fishing" upon Indian lands. No protection
against simple trespass Is afforded by the transfer effected in conforming
amendment section 687, and we believe that enactment of section 687 in its
present form would perpetuate a serious oversight presently existing in the
Federal Criminal Code.
Significant difficulties exist in the enforcement of 18 U.S.C. ? 1165, as it
remains necessary to apprehend intruders in the actual conduct of the narrowly
defined activities of hunting, fishing, trapping, or removing game on Indian
lands in order to render the statute applicable. Specifically, the present wording
of 18 U.S.C. ? 1165, and the substantially similar language embodied in con-
forming amendment section 687, pose unreasonably difficult problems of enforce-
ment and proof. Convictions for violations of Indian hinds by non-Indians are
often unobtainable because of the absence of federal officials at the scene of
the offense at the time the offense is committed, or because of the inability to
prove subsequently the necessary criminal intent to remove game from lands
reserved for Indian use. (With respect to the criminal intent burden under 18
U.S.C. ? 1165, see United States v. Pollmann, 364 F. Supp. 995 (I). Mont. 1973).)
The practical inability to prevent recurring and mirror unauthorized uses of
Indian land by non-Indians is a highly emotional issue and a continuing source
of considerable dissatisfaction among various tribal councils, and consideration
of S. 1 by this Committee at this time offers an excellent opportunity to correct
the situation with a minimum of legislative effort.
To resolve these continuing problems of trespass and unauthorized activities
upon Indian land, we propose that simple changes be included in the present
language of conforming amendment section 687, creating an unambiguous viola-
tion of federal law for simple trespass upon Indian lands.
Such changes in language would eliminate the unmanageable burdens of
proof inherent in the present statute, while doing no violence to the present
regulation of hunting, fishing, and trapping on Indian lands, and would go a
long way toward the, ultimate elimination of a particularly bothersome situ-
ation for residents of our Nation's Indian reservations.
To resolve these continuing problems of trespass and unauthorized activities
upon Indian lands, we request that the following or similar language be sub-
stituted for conforming amendment section 687 of SA:
"Src. 687 Trespass. Upon Indian Land-
"(1) Whoever, without lawful authority or permission from authorized fed-
eral officials or from the tribal or individual Indian owner knowingly goes upon
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any land that -belongs to any Xndian or Indian tribe, band or group and either
is held by the United States in trust or is subject to a restriction against alie-
nation imposed by the United States, for any purpose, including hunting, trap-
ping, or fishing thereon, or for the removal of game, peltries, or fish therefrom,
shall be guilty of a Class B misdemeanor ; and all game, fish and peltries in his
possession shall be forfeited.
"(2) This section shall create a federal offense for the act of unauthorized
simple trespass upon Indian lands."
We would also like to comment upon section 203(a) (3) (pp. 45-45) of the
pending bill which, in effect, proposes a wholesale extension of federal juris-
diction over offenses committed in Indian country. In our earlier statements
and comments submitted to this subcommittee during the 93d Congress, we
objected to this provision as it was then embodied in S. 1400, and we were
greatly disappointed to find that it was included in the revised committee print
of October 15, 1974. Needless to say, we continue in our opposition to this pro-
vision. We fear that this section will extend jurisdiction by implication over
those offenses committed on Indian lands which are particularly local in char-
acter and are presently handled in tribal courts. The provision in section
205(a) (2), which states that federal jurisdiction does not preempt an Indian
tribe's exercise of jurisdiction in Indian country to enforce its laws applicable
to the conduct involved, is not sufficient, in our opinion, to prevent the certain
and substantial derogation of the successful operation of local self-government
in our Indian communities.
Moreover, the implementation of the proposed extension of federal criminal
jurisdiction would aggravate the present inability of federal prosecutors to
enforce effectively the laws regarding offenses by non-Indians on Indian lands.
We continue to doubt the adequacy of present federal resources to assume
successfully any additional criminal enforcement responsibilities on Indian
lands. More importantly, however, the effective denial of the exercise of inher-
ent tribal jurisdiction over such matters constitutes a violation of recognized
tribal sovereignty, and an interference with the exercise of tribal self-govern-
ment. These important attributes of tribal existence are jealously guarded by
Indian tribes throughout our country, and have found strong support in past
and present opinions of the United States Supreme Court. See United States v.
Mazurie, 43 U.S.L.W. 4174 (U.S., January 21, 1975; McClanahan v. State Tax
Comm'n, 411 U.S. 164 (1973) ; Willams v. Lee, 358 U.S. 217 (1959) ; Worcester
v. Georgia, 31 U.S. 515 (1832). We strongly urge your Committee to take full
account of the important principle of Indian tribal sovereignty before final
enactment of this legislation.
HANSON, O'BRIEN, BIRNEY, STICKLE AND BUTLER,
Washington, D.C., January 14, 1975.
PALTL C. SUMMITT, Esquire,
Chief Counsel, Committee on the Judiciary, Subcommittee on Criminal Laws
and Procedures, Washington, D.C.
DEAR MR. SUMMITT: In furtherance of your recent communication to me
under date of December 19 and your discussions with Mr. Fenrich, my asso-
ciate, I am pleased to be able to include here five pages of suggested language
which we believe should be considered as and when S. 1 is taken up by the
Subcommittee in detail. I recognize fully your time strictures and the fact that.
it is your hope that S. 1 will be introduced today. I am sure, however, that we
both recognize that the likelihood of it being passed in the form it is introduced
today is not in the spectrum of normal legislative procedure.
I would also suggest that if there are to be any further hearings concerning
this subject in the Senate that ANPA would like to have the opportunity to
appear.
I would also suggest that there is considerable doubt in the minds of many
as to whether or not there is a substantial requirement for legislation in thin
field. If, however, the Subcommittee, the full committee, and the Senate pro-
ceed, we would respectfully ask that further consideration be given to the sug-
gestions we enclose herewith.
I look forward to hearing from you. concerning these matters.
Sincerely yours,
ARTIIUR B. IIANSON,
General Counsel, American Newspaper Publishers Association.
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ANPA RECOMMMERDF.D CHANGES TO S. 1
1. ? 1128(g)-"national defense information"
a. Objection: Scope of the term is too broad, particularly 1128(g) (7) and
11.28(g) (10) which encompass a potentially unlimited range of information
which could be concealed from the public without national security justifica-
tion. Additionally, information in the public domain, from whatever source,
should not be included,
b. Recommendation: Insert the word "military" as the first word in ? 1128(g)
(6) and (7) and insert the word "military" between "the" and "security" in
? 1128(g) (10). Delete "pursuant to authority of Congress or by lawful act of a
public servant" from the introductory language.
2. ? 121. Espionage.
a. Objection : Failure to differentiate between specific, intent to injure the
United States or aid foreign power and intent to aid the United States by
release of information to the public which might have short term prejudicial
effects but long term benefits, i.e., Pentagon Papers.
b. Recommendation: Two categories of offenses. (1) Change present ? 1121 to
read: "A person is guilty of an offense if, intending that national defense infor-
mation will be used to the prejudice of the safety of interest of the United
States * * *" (2) Create a new offense, with a substantially reduced penalty,
structured the same as ? 1121(a) with the addition of the following:
"(b) Affirmative Defenses: It is an affirmative defense to a prosecution under
this section that :
(1) The information was obtained, collected or communicated with the intent
to inform the United States public for the ultimate benefit of the public; and
(2) The communication of such informaton can or could reasonably be
expected to result in ultimate benefits to the United States which would out-
weigh any prejudice to the safety or interest of the United States resulting
from the communication of such information to a foreign power."
3. ? 1122. Disclosing National Defense Information.
a. Objection : Same as ? 1121.
b. Recommendation : Same as ? 1121.
4. ? 1123. Mishandling National Defense Information.
b. Recommendation : Change ? 1123 (a) (1) and (2) to read : "being in author-
ized (unauthorized) possession or control of national defense information and:
knowing that such information may be used to the prejudice of the safety or
interest of the United States, he :"
Establish the affirmative defense recommended for ?? 1121, 22.
5. ? 1124. Disclosing Classified Information.
a. Objection: No requirement that the information relate of the national
defense and no element of intent to injure the United States or aid a foreign
power. Additionally, a person should have a judicial remedy to declassify infor-
mation without being subject to possible conviction.
b. Recommendation Add to ? 1124(d).
"(3) the information was communicated with the intent to inform the United
States public for the ultimate benefit of the public and the communication of
such information could reasonably be expected to result In ultimate benefits to
the United States which would outweigh any prejudice to the safety or interest
of the United States resulting from the communication of such information to
a foreign power."
Insert language authorizing federal district courts to render declaratory
judgments, subsequent to the exhaustion of administrative remedies, regarding
the lawful classification of the information.
6. ? 111-"property" and "property of another"
a. Objection : Definitions should explicitly exclude the intellectual informa-
ton contained in tangible property (i.e., documents). Copying tangible property
or verbally communicating the information contained in tangible property
should not constitute a theft.
b. Recommendation: Add to definition of "property'' and "property of
another."
"* * * but does not include the information contained in tangible personal
property as opposed to the property itself."
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7. ? 1731. Theft.
a. Objection : Should not apply to a case where someone copies a tangible
object (i.e.,'document) or views the object and then records or transmits the
information contained in the object without taking the object to the depriva-
tion of the owner.
b. Recommendation: The recommended changes in the definition of "prop-
erty" would solve this objection.
8. -? 1732. Trafficking in Stolen Property. ? 1733. Receiving Stolen Property.
a. Objection : To the extent that the definition of "property" applies to the
information contained in tangible objects, the press could be prosecuted under
? 1732 and ? .1733 for receiving and publishing copies of government documents
or verbal leaks from government employees. Additionally, the elements of intent
and knowledge contained in the present statute 18 U.S.C. ? 641 have been
eliminated.
b. Recommendation : Proper definition of "property" will solve first Objection.
Change ? 1732(a) to read:
"(a) Offense : a person is guilty of an offense if the traffic in property of
'another knowing that such property has been stolen."
Change ? 1733 (a) to read :
"(a) Offense: a person is guilty of an offense if he buys, receives, possesses,
or obtains control of property of another with the intent to convert it to his
use.or gain, knowing it to have been stolen."
9. ? 1358. Retaliating Against a Public Servant.
a. Objection : No requirement of intent to injure. This offense would restrict
freedom of press from publishing editorials which criticize public officials for
their actions.
.b. Recommendation : Change introductory phrase to read :
"(a) Offense: a person is guilty of an offense if he intentionally:
-10. ? 1523. Intercepting Correspondence,
b. Recommendation: Add to subsection (a) (2)-"provided that, nothing shall
prohibit a news media organization from receiving or publishing private cor-
respondence which has not been intercepted by or opened by such organization."
UNIVERSITY OF WISCONSIN-MADISON,
LAW SCHOOL,
Madison, Wis., January 29, 1915.
Hon. ROMAN L. HRUSKA,
,U.S. Senator,
'Washington, D.C.
DEAR SENATOR: This is a reply to your letter of January 20 in which you ask
for my reactions to the incorporation of the criminal rules in S.. 1. We did meet
-with members of the Senate Judiciary Committee and representatives of the
Department of Justice. It is the opinion of Judge Lumbard, Wayne LaFave,
and myself that it is appropriate to incorporate the Rules of Criminal Pro-
cedure in S. 1, and it is also our opinion that S. 1 well formulates these rules.
'Indeed, I think your staff is to be commended for the way in which they have
accomplished the task. They have not only accurately incorporated the rules,
but have in a number of instances substantially improved the clarity of the
rules.
As you know, the rules in S. 1 are in the form approved by the Supreme Court
and transmitted to the Congress. These are now pending in Congressman
'Hungate's House Judiciary Subcommittee. The present effective date is August
1, 1975. Should the Congress make changes in the rules approved by the Supreme
Court, it will, of course, be necessary to make corresponding changes in S. 1.
Best regards,
FRANK J. REMINGTON, Professor of Law.
Prof. FRANK J. REMINGTON,
University of Wisconsin Law School,
Madison, Wis.
DEAR PROFESSOR REMINGTON : As Reporter of the Advisory Committee on
Criminal Rules of the Judicial Conference, you are aware that last year Con-
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gress delayed the effective date of the proposed amendments to the Federal
Rules of Criminal Procedure in order to allow sufficient-time for study by the
Congress. The amendments will take effect on August 1 unless Congress acts
otherwise.
Because the Federal Rules of Criminal Procedure are codified in title 18,
S. 1, the Criminal Justice Reform Act of 1975, introduced on January 15, incor-
porates these Rules as part of the revision of title 18. The thrust of the pro-
posed amendments to the Rules is also embodied in the bill because these
amendments, or variants thereof, will take effect before the provisions of S. 1
become effective. (The effective date of S. 1 is delayed for one year following
enactment.)
Douglas Marvin of the Senate Judiciary Committee has informed me that
he, along with Paul Summitt, Chief Counsel of the Senate Subcommittee on
Criminal Laws and Ronald Gainer of the Department of Justice, met with you,
Judge Lumbard and Professor Lafave on the incorporation of the Federal
Rules of Criminal Procedure. It is my understanding that, as members of the
Advisory Committee on Criminal Rules of the Judiciary Conference, you were
of the opinion that incorporation of the Rules of Criminal Procedure in S. 1
was appropriate and that S. 1 well formulates these rules.
Because the scratch of the pen is often of more worth than a verbal recital,
I would appreciate it if you could take the time to respond on the accuracy of
my understanding.
With kind regards,
Sincerely,
RoMAN L. HRUSKA,
U.S. Senator, Nebraska.
Hon. JOHN L. MCCLELLAN, MAY 14, 1975.
U.S. Senate,
Washington, D.C.
DEAR SENATOR MCCLELLAN : The following are the views of the Department
of Justice concerning the amendment of one aspect of the present Juvenile
Delinquency Act.
The present "Juvenile Justice and Delinquency Prevention Act of 1974"
(Public Law No. 93-415, September 7, 1974) contains a provsion which could
cause an undue burden on federal prosecutors and the judiciary under certain
circumstances. This cause for concern stems from the possible application of
the certification provision found in Section 5032 of Title 18 U.S.C. to juvenile
delinquents charged with petty offenses, the penalty for which does not exceed
6 months imprisonment, a $500 fine or both. The great majority of petty offenses
committed by juveniles occur in our nation's parks, forests and military en-
claves and consist primarily of minor traffic violations or disorderly acts which
are ordinarily disposed of through collateral forfeiture.
Under the present act, it certification procedure has been established whereby
the United States, before it can assume jurisdiction in a juvenile case, must
first conduct an investigation after which it must be able to certify to the
United States district court that the juvenile court or other appropriate court
of a State (1) does not have or refuses to assume jurisdiction over the juvenile
offender or, (2) does not have available programs and services adequate for
the needs of juveniles. It is readily apparent that if the requirement for such
a procedure is applied to the handling of juvenile petty offenders on our various
federal enclaves the effect would be quite burdensome and law enforcement on
federal reservations would be seriously impaired.
Therefore itis recommended that the 1974 Juvenile Act be amended in the
new criminal code so that the necessity for such a procedure will not be-
required in the handling of juveniles who have committed petty offenses on
federal enclaves. We strongly urge that the amendment also provide for the
handling of such offenders by the United States Magistrates.
Sincerely,
JOHN C. KEENEY,
Acting Assistant Attorney General.
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[From South Dakota Law Review, VoI. 20, Winter 1975]
THE INDIAN CIVIL RIGHTS ACT OF 1968 AND TIIE PURSUIT OF RESPONSIBLE TRIBAL
SELF-GOVERNMENT
(by Joseph de Raismes*)
This article, along with its companion in this issue, examines the Indian
Civil Rights Act of 1968. The author urges that the Act be interpreted broadly
thereby. granting free access to the federal courts to insure protection of Indian
civil rights.
According to Gerald Wilkinson, Executive Director of the National Indian
Youth Council, it is axiomatic that "every Indian is opposed to the Indian
Civil Rights Act ... until he has been screwed by his tribal council."' Indeed,
it has become an article of faith among advocates of Indian self-determination
that the guarantees provided by the Indian Civil Rights Act of 1968, title 25
United States Code sections 1301-1303, strike at the heart of tribal sovereignty
and threaten the basis of tribal self-government by allowing review of tribal
action in the federal courts according to criteria borrowed from the Bill of
Rights and couched in the familiar language of American constitutional juris-
prudence.'
Law : The Right to Civil Counsel and the 1968 Indian Bill of Rights, 3 COLUM. SURVEY
IIUMAN RIGHTS L. 49 (1970) [hereinafter cited as COLUM. SURVEY HUMAN RIGHTS L.
Note] ;? Note, The Indian Bill of Rights and the Constitutional Status of Tribal Govern-
rnents, 82 IIARV. L. REV. 1343 (1969) [hereinafter cited as IIARV. L. REv. Note] ; Note,
Equitable and Declaratory Relief Under the Indian Civil Rights Act, 48 N.D.L. REV.
(1972)_; Note Indians-Criminal Procedure : Habeas Corpus as an Enforcement Proce-
dare Under the Indian Civil Rights Act of 1968, 46 WASH. L. REV. 541 (1971).
The Indian Civil Rights Act has been decried as an imposition of Anglo-Saxon
values on a conquered people without their consent, and some commentators
have implied that Congress did not adequately consult with Indian people and
their tribes prior to the enactment of the legislation.' Since Senator Ervin's
Subcommttee on Constitutional Rights held extensive hearings over a period
of seven years, Congress cannot be faulted for a lack of effort in consulting
Indian people. An extensive legislative history was in fact compiled.' However,
it is safe to state that Congress did not sufficiently consider the actual effect
of the provisions of the Indian Civil Rights Act on tribal self-government or
the customs and values of the different Indian nations. The Act left many im-
portant questions unanswered, particularly the deference, If any, to be paid
to tribal cultures and governmental structures and the remedies to be afforded
for violations of the Indian Civil Rights Act. As a result of these deficiencies,
.and as a consequence of growing assertions of the transcendent importance of
tribal sovereignty with the demise of the "termination" policy of the 1050's,' the
*A.R., Yale, 1967; J.D., Ilarvard, 1970. Member of the Bar of Colorado. Counsel for
the Mountain States ' Region of the American Civil Liberties Union and Staff Counsel
to the A.C.L.U. Indian Rights Committee. The opinions expressed In this article are
attributable only to the author and not to the A.C.L.U. or the A.C.L.U. Indian Rights
Committee.
1 Statement of Gerald Wilkinson, quoting Chairman of the Mescalero Apache Tribe,
Minutes of the A.C.L.U. Indian Rights Comm. Meeting 21 (Aug. 9, 19, 1974).
2 See, e.g., AMERICAN INDIAN TRIAL LAWYERS ASSOCIATION, THE INDIAN CIVIL RIGHTS
ACT, FIVE YEARS LATER (1974) [hereinafter cited as THE INDIAN CIVIL RIGHTS ACTS,
FIVE YEARS LATER] ; Bean, The Limits of Indian Tribal Sovereignty: The Cornucopia
of Inherent Powers, 49 N.D.L. REv. 303 (1973) ; Reiblich, Indian Rights Under the
Civil Rights Act of 1968, 10 ARiz. L. REv. 617 (1969) ; Warren, An Analysis of the In-
dian Bill of Rights, 33 MONT. L. REV. 255 (1972) ? Note, Federal Law and Indian Tribal
a 17.g., THE INDIAN CIVIL RIGHTS ACT, FIVE YEARS LATER, supra note 2, at 49, 76.
See Burnett, An Historical Analysis of the 1968 "Indian Civil Rights" Act, 9 IIARV.
J. Las. 557 (1972) [hereinafter cited as Burnett].
5 The termination policy was expressed by Congress in the preamble to a joint reso-
hrtion: [I]t Is the policy of Congress, as rapidly as possible to make the Indians within
the territorial limits of the United States subject to the same laws and entitled to the
same privileges and responsibilities as are applicable to other citizens of the U.S., and
In grint them all the rights and prerogatives pertaining to American Citizenship. H.R.
Con. Res, 108, 83d Cong., 1st Sess. (1953).
The policy was Implemented by terminating certain tribes through special legislation
end by allowing states to assume criminal and civil jurisdiction over reservatons within
their boundaries. See F. COHEN, FEDERAL INDIAN LAW 262 (1971). The Indian Civil
Rights Act of 1968 was passed as a compromise, to accomplish the protection of indi-
vidual rights championed by the termination policy while reasserting the sovereignty
of the Indian tribes and repudiating the specific instruments of the termination policy.
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Indian Civil Rights Act has been the subject of extensive controversy and
varying judicial construction.
In the view of this author a government which fails to establish and main-
tain its legitimacy will ultimately forfeit its viability. Unfortunately, tribal
justice systems have often failed to provide equal justice. Accordingly, I would
submit that the rule of law and some impartial review of tribal actions are
critical to the continued defense of the sovereignty of American Indian tribes.
The Indian Civil Rights Act, in establishing criteria of legality, and review
of tribal action by a federal tribunal, can go far toward legitimating tribal
government 'in the eyes of both Indian people and their white neighbors. Re-
vision of the Indian Civil Rights Act may be in order, but the fundamental
rights of Indian people can no longer be ignored.
The ultimate battle is for jurisdiction over non-Indians in Indian country,
for true sovereignty over the tribal land base and control over federal pro
grams. In my view, the Indian Civil Rights Act, despite its flaws, is an im-
portant aid in securing those goals, as well as the ultimate goal of responsible
and effective tribal self-government.
After a sketch of Indian civil rights prior to the passage of the Indian Civil
Rights Act of 1968, this article will consider the background of tribal govern-
ment, the abuses which Indian civil rights must be viewed. In particular, I will
attempt to sketch what I see as the contours of the obligation which lies before
the federal courts and the advocates of tribal self-government. That obligation
is to define a "flexible" means of interpretation which will allow for the con-
tinued defense of tribal sovereignty or tribal cultural autonomy, while per-
mitting the vigorous advocacy and defense of the fundamental human rights of
Indian people.What is needed is a standard, and I propose that the standard
enunciated by the Supreme Court in the case of Wicongin v. Yoder,? under the
free-exercise clause of the first amendment, be applied to protect "central
cultural values" from an overzealous enforcement of the Indian Civil Rights
Act. The case law development since 1968 will be discussed against that back-
drop, concentrating on election, membership, jurisdictional and remedial prob-
lems. Finally, I will discuss some of the problems which I see in the Act, and
I will propose revisions of the statute to enhance responsible tribal self- govern-
ment.
In the landmark case of Worcester v. Georgia,' Mr. Chief Justice Marshall,
in rejecting state jurisdiction over a crime allegedly committed by a white
missionary on the Cherokee reservation. laid down the enduring dictum that
Indian tribes are to be "considered as distinct, independent political communi-
tes " 8 retaining powers of self-government, subject only to supervening
federal authority' Since Worcester, the federal courts have in fact been the
primary protectors of tribal sovereignty. As stated in a recent note :
"The right of tribal self-government is probably the most basic concept in all
of Indian law.... Indeed, the courts have played such a large role in asserting
and reaffirming this principle that, although the right is an inherent part of
original sovereignty, the doctrine itself may be said to be judicial.'?
The doctrine of tribal sovereignty enunciated in Worcester was reaffirmed in
the case of Em Parte Crow Dog 11 The Supreme Court in Crow Dog held that
the alleged murder of one Sioux by another on the reservation was not within
the criminal jurisdiction of any court of the United States, state or federal, and
that only the tribe could punish the offense. The furor caused by the tribe's
refusal to prosecute the accused led in turn to the passage of the Major Crimes
Act of 1885,12 which gave the federal courts original jurisdiction over cases in-
volving the crimes of murder, manslaughter, rape, assault with intent to kill,
arson, burglary and larceny when committed in "Indian Country" by one Indi-
8406 U.S. 205 (1972)-
* 31 U.S. (6 Pet.) 515 (1882).
8 Isl. at 559.
9Id. at 561.
10 Note, Tribal Self-Government and the Indian Reorganization Act of 1931, 70 MICH..
L. REv. 955 (1972).
11109 U.S. 556 (1883).
Act of March 3, 1585, ch. 341, ? 9, 23 Stat. 385, as amended, 18 U.S.C. ?? 1153,.
3242 (1970).
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an against another. To this list, robbery, incest and assault with a deadly weap-
on were later added."
In upholding the constitutionality of the Major Crimes Act in United States
v. Kagama," the Supreme Court once again reaffirmed the principle that unless
Congress dictates otherwise, Indian tribes may legislate and administer their
own criminal and civil laws without outside interference. The Court again
recognized the Indians' "semi-independent position ... not as possessed of the
full attributes of sovereignty, but as separate people, with the power of regu-
lating their internal and social relations...."
The federal preemption of tribal criminal jurisdicton over major crimes was
paralleled by the end of treaty making between the federal government and the
tribes in 1871," and the devastating General Allotment (Dawes) Act of 1887,'
which parcelled out Indian lands, destroying the tribal land base. The latter,
had the immediate effect of reducing tribal control of internal affairs almost to
a nullity. The assimilationist cast of federal Indian legislation endured until
the Indian Reorganization (Wheeler-Howard) Act of 1934," which ended the
allotment policy and had as one of its additional purposes the reorganization
of tribal government. According to Senator Wheeler the Act sought "to stabilize
the tribal organization of Indian tribes by vesting such organizations with
real, though limited authority, and by prescribing conditions which must be
met by such tribal organizations."
Yet even during the darkest hours of Congress' assimilationist policy, the
federal courts remained faithful to the doctrine of tribal sovereignty enuncia-
ted in Worcester and refused to allow incursions into tribal sovereignty with-
out an explicit declaration. by Congress of federal polcy. This deference was
particularly marked in the area of Indian civil rights, that is, the rights of
individual Indians against their tribal governments. From the landmark case
of Talton v. Mayes,20 the federal courts consistently refused to extend the pro-
tections of the Bill of Rights to the relationship between individual Indian
people and their tribes. To be sure, the federal preemption of criminal juris-
diction over the major crimes had made the Constitution applicable to the
most serious cases involving the application of governmental authority to indi-
vidual Indian people, albeit at the cost of heavy federal involvement in the
tribal legal systems. However, the federal courts continued to defend the ex-
clusive tribal civil and misdemeanor jurisdicton. Congress did make the standing
of Indian peole to claim the protection of constitutional guarantees clear in the
Indian Citizenship Act of 1924," but the Act has been of little significance.'
The Talton holding, whch concerned a tribal five-man grand jury asserted to
be unconstitutional tinder the sixth amendment, precluded the assertion of any
remedial right conferred by the Constitution against a tribal government, ab-
sent specific federal legislation. As has been noted :
"Left open by the holding, and never decided by the Supreme Court, was
whether a tribal government, again absent any federal action, may deny its.
members a fundamental right-an inviolable and personal liberty-under the
Constitution. . . The lower federal courts, through, in a series of decisions'
withholding basic Bill of Rights protections, eventually filled that gap"
The so-called constitutional immunity doctrine which tribal governments
13 Act of March 4, 1909 ch. 821, ? ? 328-30, 35 Stat. 1151 ; Act of March 3, 1911 ch.
231, ? 296, 36 Stat. 116'x; Act of June 28, 1932, ch. 284, 47 Stat. 337, 18 U.S.G. ??
1153, 3242 (1970). The crimes of carnal knowledge of a female under sixteen and
assault with intent to rape were added In 1966. Act of Nov. 2, 1966, Pub. L. No. 89-707,
SO Stat. 1101, 18 U.S.C. ?? 1153 3242 (1970). In 1968, assault resulting in serious
bodily injury was added. Act of'Aprii11. 1968 Pub. L. No. 284, 501, 82 Stat. 80,
18 U.S.C. ? 1153 (1970). These crimes, plus infringgement of a few federal laws applic-
able to both Indians and non-Indians, e.g. 18 U.S.C. ??. 438, 1154-65, 1953 (1970) ; 25
U.S.C. ?.? 179, 202 (1970), constitute the- only acts' of Indians against each other on.
Indian land that are federal. crimes, All other such offenses are solely within tribal
jurisdiction.
118 U.S. 375 (1886).
15 Id. at 381.
13 Act of March 3, 1871, ch. 120, ? 1, 16 Stat. 566, 25. U.S C. 71 (1970).
1e Ch. 119, 24 Stat. 388, as -amended 25 U:S.C. ?? 381-58 (1970).,
Act of June 18, 1934, ch 576' ?? 1-18, 48 Stat. 984, as amended, 25 U.S.C.
?? 461-79 (197.0). 1
19 SEN. REP. No. 1080, 73d Cong., 2d Sess. (1934).
20 163 U.S. 376 (1896).
21 Ch. 233, 43 Stat. 253. -
"Johnson,' Sovereignty, Citizenship and tlye American Indians, 15 Aaiz, L. REV. 973
(1973).
23 Lazarus, Title II of the, 1968 Civil RightsAct: An Indian Bill of Rights, 45 N.D.L.
REV. 337, 341 (1969) [hereinafter cited as Lazarus].
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enjoyed had both its good and bad aspects. It permitted tribes to retain their
own legal systems and concepts of justice while avoiding non-Indian interfer-
ence with traditional cultural norms. On the other hand, it permitted tribal
governments to wield unchecked authority over all aspe+ets of tribal life. This
problem was exacerbated after the Indian Reorganization Act of 1934, when
many tribal governments adopted tribal constitutions patterned after those of
the state and federal governments; consequently, their remaining traditional
forms of checks and balances were largely eliminated.
Evidence of the growing dissatisfaction with tribal government and with the
unavailability of means of redress with tribal institutions can be seen in, the
number of lawsuits filed in federal courts seeking judicial review. For example,
reservation Indians have alleged that their tribal governments have arbitrarily
banished them from the reservation,-` restricted their religious freedoms' con-
ducted tribal elections in violtion of their own election rules,28 prevented then
from holding ofce,2' misused tribal lands and land sale proceeds,28 failed to
ensure justice in tribal courts,' and failed to provide decent conditions in tribal
jails.30 Since no federal right was violated under the Talton doctrine, complaints
filed prior to the Indian Civil Rights Act of 1968 were routinely dismissed by
the courts for lack of jurisdiction 30
Exceptions to the constitutional immunity doctrine appeared in the years
immediately preceding the enactment of the Indian Civil Rights Act of 1968. It
became apparent that at least seine courts would no longer adhere to the rule
of absolute immunity and that Talton could be viewed as precluding remedial
guarantees only and not as precludng application of fundamental substantive
provisions of the Bill of Rights.
The Ninth Circuit was the first court to break ranks with the cases of Colli-
Rower v. Garland '12 and Settler v. Yakima Tribal Court.33 In Collifower and
Settler, the Ninth Circuit assumed jurisdiction over disputes between individual
Indians and their tribes pursuant to the Constitution and the federal habeas
corpus statute. The court rationalized that, despite the theory that for some
purposes an Indian tribe is an independent sovereignty, it would be "pure fic-
tion to say that the Indian courts are not in part, at least, arms of the federal
government.""
Collifower concerned a tribal criminal prosecution for trespass and Settler
concerned a prosecution for a violation of a tribal fishing regulation. The Ninth
Circuit concluded that neither type of regulation concerned affairs so "internal"
as to preclude a challenge to the jurisdiction of the tribal court. Nor should he
be precluded from challenging the fairness of a hearing in the tribal court
under the United States Constitution. Thus, although the court was anxious to
emphasize that it did not follow from its decisions that all tribal courts must
comply with every constitutional restriction applicable to federal or state courts,.
the court did extend certain of the protections afforded by the due process clause
of the fifth amendment to tribal court procedure. In other words, the court
began the process of "selective incorporation" of provisions of the United States
Constitution into the relationship between individual Indians and their tribal
governments.
Some commentators have sought to limit the Collifflower precedent to its
facts, and it is true, as Attorney General Robert Kennedy concluded, that Col
U/lower "virtually stands alone in upholding the competence of a federal court
to inquire into the legality of an order of an Indian court." 3? But the case
P4E.g., Martinez v. Southern Ute Tribe, 249 F.2d 915 (10th Cir. 1957) ; Fast Horse
fGrey agle) v. Fort Hall Tribal Council, Case No. 4-73-74 (D. Idaho 1972).
w E.g., Native American Church v. Navajo Tribal Council 272 F* 2d 131 (10th Cir.
1959) ; Toledo v. Pueblo De Jemez, 119 F. Supp. 429 (D.N.M. 154).
2a E.g. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d
529 (Stir Cir. 1967) ; McCurdy v. Steele, 353 F. Supp. 629 (D. Utah 1973) ; Solomon
v. Lallose 335 F. Supp. 715 (D. Neb. 1971).
29 E.g. Luxon v. Rosebud Sioux Tribe, 455 F.2d 698 (8th Cir. 1972), on remand Civ.
No. 71-~6 (D.S.D. March 15, 1972).
28 E.g., McCurdy v. Steele, 353 F. Supp. 629 (D. Utah 1973).
29 E.g., Dicke v. Cheyenne-Arapaho Tribes, Inc., 304 F.2d 113 (10th Cir. 1962) ; Lake
v. Peabody Coal Co., Civ. No. 72-209 (D. Ariz. Sept. 26, 1973).
SO E.g., Prairie Band of the Pottawatomie Tribe v. Puckkee 321 F.2d 767 (10th Cir.
1963) ; Crooked Foot V. United States, Civ. No. 73-3031 (D.~.D. Sept. 5, 1973).
si E.g., Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956).
82 342 171.2d 369 (9th Cir. 1965).
419 F.2d 486 (9th Cir. 1969).
342F.2d at 379.
s5 Hearings on H.R. 15419, 15122, S. 1843 Before the Subcommittee on Indian Affairs
of the House Committee on Interior and Insular Affairs, 90th Cone., 2d Sess. 16
(1968).
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deserves more careful consideraton than it has received, since the passage of
the Indian Civil Rights Act of 1008 has essentially adopted its holding into
federal law.
Mrs. Colliflower was sentenced by the Fort Belknap Court of Indian Offenses
to five days in jail for failing to remove her cattle from land leased by another
person. Claiming denial of rights to trial, counsel and confrotaton of witnesses,
she appealed to the Ninth Circuit, which upheld jurisdiction under the federal
habeas corpus statute. The Colliflower opinion discusses in detail its finding
that the federal executive department created and imposed the tribal courts
upon the Indian community, and still retains "partial control" over them.3" The
court stressed the federal origin of the Fort Belknap tribal court, the federal
role in the development and supervision of the court, the court salaries and
contracts which remain subject to federal approval and appropriation ,37 and the
Fort Belknap Code of Indian Tribal Offenses, which was "taken almost verba-
tim from the regulatons of the Bureau of Indian Affairs." 33
The Collitiower court acknowledged the doctrine of tribal sovereignty and
recognized that Oliver v. Udal,39 had held that adoption by a tribe of the fed-
eral "law and order" code makes the code tribal law, not federal law. Indeed,
the tribe's lack of desire or resources to refine the B.I.A. code or fit the letter
of the law better to their circumstances and their customary law certainly can-
not be held to justify further federal intrusion. But the alien system of the tri-
bal courts, applying the B.I.A.'s "law and order" code, has, in fact, often been
in conflict with the remnants of traditional tribal cultural norms and justice
systems. This would appear to be the thrust of the Ninth Circuit's reasoning.
The Colliflower court also bowed to the principle that the Indian Citizenship
Act of 1924 had not affected the jurisdiction or status of the tribal courts, citing
inter alia, Iron Crow v. Oglala Siouan Tribe," a case which had upheld the
Talton doctrine. On the other hand, the troublesome case of In re Sah Quah,u
was cited for the application of the thirteenth amendment to Eskimos, although
no tribal judgement was at issue in that case.
Talton v. Mayes tie was distinguished, not on the grounds of the procedural or
remedial character of the grand jury issue, but on the grounds that the Su-
preme Court in fact decided Talton on the merits. Colliflower quoted somewhat
ambiguous language of Talton to the effect that "the Indian tribes are subject
to the dominant authority Congress, and ... their powers of local self-govern-
ment are also operated upon and restrained by the general provisions of the
Constitution of the United States." 43
Thus, based upon the particular facts of the history and status of the Fort
Belknap tribal court, the Ninth Circuit found habeas corpus jurisdiction and
remanded to the district court, stating cryptically that
these courts function in part as a federal agency, consequently it is com-
petent for a federal court in a habeas corpus proceeding to inquire into
the legality of the detention of an Indian pursuant to an order of an
Indian court. We confine our decision to the courts of the Fort Belknap
reservation. The history of other Indian courts may call for a different
ruling, a question which is not before us."
The commentators have generally disagreed with the Colliflower court. They
suggest that despite the unique statutory status of the B.I.A.'s Courts of Indian
Offenses "there [is] little qualitative difference between the functions of such
courts and those of tribal courts." 45
To be sure, the Colliflower case left much unsettled. In particular, it failed
to determine which substantive constitutional restrictions should be applied to.
tribal courts pursuant to federal habeas corpus jurisdiction. Colliflower sug-
gested that the fourteenth amendment, directed at the states, might not apply
to tribal courts and that certain other constitutional restrictions applicable of
the "sovereignty that the tribe retains and exercises through its Tribal Coun-
342 s0 F.2d at 379.
87 Id. at 373.
38 Id. at 374.
39 306 F.2d 819 (D.D.C. 1962).
40 231 F.2d 89 (8th Clr. 1956).
41 31 F. 327 (D. Alas. 1886).
d2163 U.S. 376 1896).
43 342 P.2d at 348, quoting Talton v. Mayes, 163 U.S. 376 (1896).
d4rd. at 379.
de Burnett, supra note 4, at 591 n.200. See aZdo Lazarus, supra note 19, at 343;
COLUM. SuavaY HUMAN RIGHTS L. Note, supra note 2, at 73. But Bee HARv. L. REV.
Note, supra note 2, at 1350.
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cal and Tribal Courts ...." 41 The court cited the Insular cases in this regard,
including Territory of Hawaii v. Mankichi,'1 which applied a constitutional
standard of fundamental fairness. However, the distret court had no difficulty
in concluding, on remand, that there had been a total lack of due process and
that Mrs. Colliflower was entitled to be released under any standard."
Although the Ninth Circuit purported not to comment on the validity of Mrs.
Colliflower's claims, the record was cited as supporting them," and it is cer-
tainly true that : "What emerges from a close reading of Colliflower ... is not
a cohesive new theory of constitutional law, but rather a distinct impression
that the Court of Appeals found a gross injustice to have been perpetrated and
simply decided to stop it." "`
In the Settler case, the Ninth Circuit followed its decision in Cornflower but
added a standard for review of tribal court action. The standard was designed
to avoid federal court interference with tribal self-government except in ex-
treme cases. The court reasoned that intervention has always been possible
when the procedures of the tribal court are "so summary and arbitrary as to
shock the conscience of the federal court," 5' thus presumably making the fed-
eral courts' consciences the test of their jurisdiction over tribal actions.
It is important to note that the Ninth Circuit has remained alone among the
federal courts in its acceptance of jurisdiction to review actions of tribal insti-
tutions under the Bill of Rights. The Eighth Circuit upheld the broad Talton
doctrine in refusing jurisdiction in Iron Crow v. Oglala Sioux Tribe o2 How-
ever, it deviated somewhat in Barta v. Oglala Sioux Tribe,G3 and affirmed the
jurisdiction found by the district court 64 in a tax collection action brought by
the tribe against a nonmember. Both the district and circuit courts found juris-
diction under the Indian Reorganization Act of 1934 .and the tribe's organiza-
tion under federal law. However, the circuit court then upheld the tribe's right
to assess a discriminatory tax on nontribal members, despite the due process
protections of the fifth amendment and the equal protection clause of the
fourteenth amendment. Thus, despite the court's jurisdictional holding, the
Eighth Circuit continued to deny the applicability of federal constitutional pro-
visions to tribal actions.
The Tenth Circuit was guided by similar principles in the cases of Martinez
v. Southern Ute Tribe,66 and Native American Church v. Navajo Tribal Coun-
cil."' In Native American Church, as in Barta, the Tenth Circuit acknowledged
jurisdiction, even though the Navajo tribe was not organized under the Indian
Reorganization Act. The court directly faced the religions freedom argument
raised by the Navajo's prohibition of peyote on the reservation and held that
the Bill of Rights (lid not apply to the tribe.
The Ninth Circuit in Colliftozcer distinguished all of the cases from other
circuits on varying grounds, Iron Crow was distinguished as holding only that
the tribal court had jurisdiction over the adultery case at issue.' Further, since
Martinez, Native American Church and Barta did not address the propriety of
federal habeas corpus review of tribal court decisions, the Colliflower court did
not consider them binding on that question. In other words, the Colliflower
precedent rejected the Talton doctrine only insofar as it asserted federal habeas
corpus jurisdiction to review the disposition of cases within the criminal juris-
diction of the tribal courts.
While the federal courts generally continued to decline to apply constitu-
tional guarantees, the state courts began in the 1960's to reflect the erosion of
the Talton doctrine. Thus, the plaintiff in the Martinez case was successful in
seeking a remedy in the Colorado state courts. In Martinez v. Southern Ute
Tribe,` the Colorado Supreme Court, noting that the plaintiff had been denied
a hearing in tribal and federal courts, reasoned that under these conditions to
deprive the plaintiff of a state remedy would be to deny her any remedy what-
46 342 F.2d at 379.
47 1.90 U. S. 197 (1903).
43 Colliftower v. Garland,
supra note 19, at 344 n.29.
40 342 F 2d at 379
60 Lazarus, supra note 19, at 344.
61419 F.2d at 489.
62231 F.2d 99 (8th Cir. 1956).
63 259 F. 2d 553 (8th Cir. 1958).
64 Oglala Sioux Tribe v. Barta..46 V. Supp. 9
65 249 F.2d 915 (10th Clr. 1957)..
272 F.24 1.31 (10th Cir. 1959).
57 342 P.2d at 378.
150 Col. 504, 374 P.2d 691 (1962).
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soever thus depriving her of equal protection of the laws. The court therefore
agreed to hear the case, which had resulted in the plaintiff's exclusion from
the reservation. Similarly, the Idaho Supreme Court, in Boyer v. Shoshone-
Bannock Indian Tribes," recognized the otherwise unprotected position of an
Indian tribal council member in a suit brought in a state court to enjoin tribal
officials from preventing him from holding his elected office. Once again, the
ground for the decision was that the plaintiff must have an opportunity to con-
front the tribe in some court. If both the federal and tribal courts continued to
decline jurisdfction, the state court was compelled to assume jurisdiction and
decide the case.60
This, then, was the posture of Indian civil rights prior to the Indian Civil
Rights Act of 1968. The tribal sovereignty 'doctrine enunciated in Worcester
was alive and well. T-VIMains v. Lee 81 had affirmed the exclusive jurisdiction of
the Navajo tribal court over civil suits brought by outsiders against tribal
members, In continuing recognition of the prerogatives of tribal self-govern-
ment. The doctrine of "constitutional immunity" enunciated in the Talton case
was becoming more difficult to sustain, however? and the Ninth Circuit and the
Colorado and Idaho Supreme Courts had begun to reflect dissatisfaction with
the lack of review of tribal actions as the complaints from individual Indians
became more numerous and more adamant. The Tenth Circuit's denial of con-
stitutional protection to the peyote church in Native American Church stim-
ulated both the judicial revolution of Collifdower and its limited progeny and
the Congressional inquiry which led to the formulation of the Indian Civil
Rights Act of 1968.
TIIE ABUSES OF TRIBAL SELF-GOVERNMENT AND THE GtNESIS OF THE INDIAN CIVIL
RIGHTS ACT OF 1968
Until the passage of the Indian Reorganization Act of 1934, the system and
quality of tribal government varied with the tribe. Prior to their military
defeat by the white man, all tribes had centuries-old methods for governing
themselves, some by hereditary religious or clan leaders. For some tribes, self-
government entirely broke down after their defeat and their eviction from their
ancestral lands. For others, the federal government took over many govern-
mental functions or reorganized tribal government according to its own needs
and priorities. However, in 1934, the federal government imposed on most tribes
a uniform system of elective tribal councils, styled according to the traditional
Anglo-American model. Today there are approximately 250 Indian tribes with
identifiable governments ; 95 of these have constitutions written in conformity
with the Indian Reorganization Act.82 Most of the remainder exercise a form
of self-government organized along similar lines.
But the conflict between traditional and elective leaders continues on many
reservations. Council members are supposed to be elected democratically by
the people, but in practice the elective systems have been so alien to large
numbers of Indians that majorities on many reservations have consistently
refused to vote in tribal elections and continue even today to view the councils
as institutions of the white man rather than of their own people. It is not
infrequent to find the percentage voting in a tribal election varying between
10 and 25 percent of the qualified electorate.
The gap thus created between the tribal governments and the Indians who
do not accept them was severe in the past-Indeed it has been an inhibiting
factor in Indian development for a long time. However, the move to foster
Indian self -determiniation, together with both the greatly increased funds which
have been appropriated for Indians in recent years And the increasing develop-
ment of Indian country, have worsened the situation by increasing the power
and financial resources of the tribal councils and officers. In effect, many small
political and economic Indian "establishments" have been created on the reser-
vations. This system, encouraged by the Bureau of Indian Affairs, has all too
often resulted in accelerating the,growth of corrupt little tyrannies, with little
accountability either to the Individual Indian people of their presumed con-
stituencies or to the culture and traditions of the tribes. These new ruling fac-
tions, together with their friends and relatives, acting In collusion with B.I.A.
69.92 Idaho 247, 441 P.2d 167 (1968).
0 Irl.. at 262, 441 P.2d at 172.
61 558 U.S. at 217 (1959).
62 Kerr, Constitutional Rights, Tribal Justice and the American Indian, 18 J. Pus. L.
311, 816 (1969).
54-398-75-17
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officials and the white interests desiring to exploit the reservation resources,
have come to serve almost as willing arms of the federal government on many
reservations.
The B.I.A. is the key. The Indian Reorganization Act f 1934 had as its
"prime objective . . . which was crucial to any effective establishment of self-
government . . . [the] elimination of the 'absolutist' discretion previously exer-
cised by the Interior Department and the Office of Indian Affairs,"" Yet the
Indian Reorganization Act, according to Commissioner Collier, its architect,
sought to maintain federal "guardianship" while shifting to tribal self-govern-
ment and Indian "administration" and "control" over Indian affairs." This
could, in fact, only be accomplished by retaining broad federal powers to review
and even to veto tribal actions, mitigated by the Indian preference provisions
which were designed to make the B.I.A. more responsive to Indian concerns.'
Even under the Act as passed S ernments aencretary was
still retains close empowered
control r over tribal government. tThe,rationale
for this federal control was that at the time of the adoption of the tribal con-
stitutions and charters under the I.R.A., most Indians had had little experi-
ence in managing their own affairs."
The problem is that the relationship thus formed ?etween the B.I.A. and the
new tribal governments, together with the bureaucratic attitude of the B.I.A.,
may actually have increased federal control over tribal actions 67 Indeed, it is
generally conceded that the Indian Reorganization Act has failed "to fulfill the
promise of shifting to Indians the control of Indian affairs." 88
The B.I.A. oversees most tribal actions Ce and administers all federal Indian
programs.10 B.I.A. approval is required before tribal government may enter into
contracts 71 or expend tribal funds.7? Even more important, every constitution
adopted under the Indian Reorganization Act contain:: a provision allowing the
Secretary of the Interior to veto nearly any ordinance passed by a tribal council
for "any cause." 73 Further, B.I.A.4 approval is a prerequisite to adopting or
amending the tribal constitutions.' Much of this pervasive federal control is
not specifically mandated by statute but is achieved by the B.I.A.'s practice of
formulating model codes and resolutions for passage by the tribes.78 In sum-
mary :
"To most Indians, federal supervision, then, has meant economic exploitation
and paternalism, both of which have been accompanied by efforts to trample
upon or ignore the traditional Indian culture. It appears that neither Indians
nor the federal government can choose between the dilemma of preservation of
tribal lands and cultures or assimilation of the Indian into American society.
"In addition to this, traditonal tribal politics has been consensual politics.
Delay in tribal action has often been the result and consequently 'tribal policy'
often means the status quo . . . . Federal paternalism and lack of leadership
and factionalism within the tribes have produced Indian governments which
endorse the status quo, practice nepotism, and perpetuate personal political
organizations rather than reform or policy oriented governments .. . Federal
legislation and usage, at any rate, have proclaimed self-government but have
treated the Indians as though they were generally incapable of it." 78
03 MICH. L. REV. Note, supra note 10, at 966.
64See Hearings Before House Committee on Indian Affairs, 73d Cong., 2d Sess. 20
(1934).
66 See S. 2755, 73d Conga, Title I, ?? 3-5, 9 (1934).
6s MICH. L. REv. Note, supra note 16. at 968-69.
67 Id. at 976-77.
68 Id. 25 U.S (approvaloof'alienati on of ?land). (1970) (approval of wllls) ; 25 U.S.C. ? 483 (1970)
6 The B.I.A. administers, e.g., Its own welfare and guidance system. a relocation
and employment agency, a vocational training program, a revolving loan fund and a
system of Indian schools.
7- 25 U.S.C. ? 81 (1970).
25 U.S.C. ?? 13, 145 (1970).
73 COLU11. SURVEY IIUM.IN RIGHTS L. Note. supra note 2. at 54-55.
25 U.S.C. ? 476 (1970). See also IIARv. L. REV. Note, supra note 2, at 1350
Sxcbcom-mittee on Constitutional Rts. of the Senate Committee on the Jecdiciari,,
S'umanary Report of Hearing and Investigations on Constitutional Rts. of American
Indians, 88th Cong.. 2d Sess. (1964). HARV. L. REv. Note? supra note 2, at. 1.,50.
See generally COMMISSION ON THE RIGHTS, LIBERTIES, AND RESPQNSIBILITIES OF THE
AMERICAN INDIAN, THE INDIAN, AMERICAS UNFINISHED $II>aNESS (W.
I3rophy & S.
Aberle eds. 1966).
76 Kerr, supra note 62. at 316-17.
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Abuses of Tribal Self-Government
Having sketched the contours of tribal self-government under the Indian
Reorganization Act of 1934, we must now examine the failures of tribal self-
government which led to the enactment of the Indian Civil Rights Act of 1968.
We begin by acknowledging the participation of the federal government in.
these abuses and the existence of many examples of similar abuses in the white
man's governments: federal, state and local. Indian people, who are often the
subject of such abuses, are certainly keenly conscious of the white man's
hypocrisy in this regard.
Be that as it may, in 1961, in response to numerous requests and particularly
in reaction against the Tenth Circuit's decision in the Native American Church
case,' Senator Ervin's Subcommittee on Constitutional Rights of the Senate
Committee on the Judiciary commenced hearings on the rights of reservation
Indians.78 The hearings were held around the country, and many Indian people
testified to various abuses of tribal self-government. In 1966, the hearings
ended, and a Summary. Report was prepared, which details the findings of the
Subcommittee.70 The hearings are summarized in an extensive analysis of the
legislative history of the Act, by Donald L. Burnett, Jr,"
The hearings shocked the Senators on the Subcommitee. Senator Hruska
reported on the floor of the senate that
"[a]s the hearings developed and as the evidence and testimony were taken,
I believe all of us who were students of the law were jarred and shocked by
the conditions as far as [rights] for members of the Indian tribes were con-
cerned. There was found to be unchecked and unlimited authority over many
facets of Indian right." a'
In a similar vein, Senator Ervin, Chairperson of the Subcommittee, stated :
"When the Subcommittee on Constitution Rights began its study of this
problem, most of its members were astounded to learn that under decisions of
the courts, reservation Indians do not possess the same constitutional rights
which are conferred upon all other Americans by the Bill of Rights of the
Constitution." 82
The hearings focused on abuses of tribal self-government. As Donald Burnett
summarized : "Native testimony mixed self-interest and tribal loyalty, bitter-
ness about White mistreatment and cautious acceptance of Anglo-American
precepts. From this mixture emerged a broad picture of constitutional neglect
" n Allegations included harrassment and incarceration of political dis-
sidents, arbitrary denial of tribal enrollment, election fraud, arbitrary banish-
ment from tribal land, restriction of religious freedom and inadequacy, partial-
ity and pervasive corruption of the tribal courts. Apparently, the privilege
against self-incrimination was rarely granted, jury trials were equally rare,
and tribal judges sometimes simply refused pleas of not guilty, dispensing with
any need for a trial. Appellate procedures were similarly attenuated, and
fraught with conflicts of interest and political influence.84
Many of these denials or abridgements of individual rights were due to the
"paucity of resources which most tribes could allocate to law enforcement." 86
However, infringements by tribal councils were often political in nature. The
Navajo Tribe's prohibition of peyote, despite the large representation of the
Native American Church on the reservation, is an example.
The Ervin Subcommittee reacted especially strongly to the documented abuses
of the tribal courts. The tribal justice systems had emerged from systems which
had been collective and consensual in nature and which had emphasized resti-
tution and reintegration into the tribal group, with rules enforced by public
opinion and religious sanctions. However, the new tribal courts were found to
77 Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir.
1959).
7& S. REP. No. 841, 90th Cong., 1st Sess. (1967) ; Hearings on Constitutional Rights
of the American Indian Before the Subcommittee on Constitutional Rights of the Senate
Committee on the Judiciary, 87th Cong., 1st Sess. pt. 1 (1962) ? 87th Cong., let Sess.
pt. 2 (1963) ? 87th Cong.. 2d Sess. pt. 3 (1963) ; 88th Cong.. 1'st Sess. pt. 4 (1964) ;
Hearings on Constitutional Rights of the American Indian, S. 961-68 ~i S.J. Res. 40,
Before the Subcommittee on Constitutional Rights of the Senate Committee on the
Jit.dioiare, 89th Cong., 1st Sess. (1965).
vu See materials cited note 75 supra.
80 Burnett, supra note 4, at 577-82.
s Cong. Rec. S. 35473 (daily ed., Dec. 7, 1967).
82 Id. at 35472.
83 Burnett, supra note 4, at 577.
84 See generally materials cited at note 78 supra.
85 Burnett, supra note 4, at 581.
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frequently disregard fundamental individual rights,` And the thin veneer of
Anglo-Saxon procedure instituted by the B.I.A. in the Courts of Indian Offenses
which preceded the tribal courts was found not to have permeated the tribal
justice systems. The increased power of the tribal courts under the Indian
Reorganization Act had destroyed their traditional nature, and had severely
disreputed the tribal justice systems.
The very establishment of the tribal courts had the effect of Instituting per-
sonal authority and undermining the checks and balances of tribal life, which
were formerly based on a requirement of group consent in an egalitarian social
structure. Death or banishment had been occasionally invoked as sanctions to
enforce group harmony, but these punishments had been conspicuous for their
rarity. Thus, from the beginning, the new tribal court systems, with their
emphasis on personal authority, abstract rules, coercive law enforcement, and
the use of the legal sanctions of fines and incarceration to control behavior,
have been out of step with traditional Indian concepts of justice. Anomalous
in the tribal setting, some tribal courts have become political instrumentalities
of the tribal councils. Judges have consistently lacked training and detach-
ment ; family ties and political affiliations have continued to exert a strong
influence in tribal courts, even as their power has growls.
Perhaps the best study documenting the problems of a typical tribal court is
"Tribal Injustice : The Red Lake Court of Indian Offenses" by William J.
Lawrence.` Lawrence is not always sufficiently charitable toward the tribal
officials. These officials, for the most part, seem to me to be men of good will,
trapped in the blighted tribal court system, rather than authoritarian oppres-
sors, dedicated to subverting the system or tyrannizing their people. But Lawr
ence does document the inadequacies of the system in detail : inadequate salaries,
inadequate education and training, the spoils system, lack of judicial independ-
ence from either the tribal council or the B.I.A., administrative chaos, lack of
transcripts or precedent, an inadequate appeals system-, total disregard for the
most rudimentary components of the due process of law, lack of means to
enforce court judgments, lack of judicial impartiality, inadequate physical
facilities and apathy. From his study of the Red Lake tribal court, Lawrence
was forced to conclude that
"[i}t has become a fact of reservation life today that Indians have now re-
plac.ed non-Indians as the prime exploiters of their own people . [T]heir
affairs and resources are plagued by corrupt, irresponsible and self-interested
officials." ??
Having documented the abuses of the tribal justice systems, the Ervin Sub-
committee was determined to act to guarantee fundamental rights to Indian
people. The only remaining question was what action the federal government
should take.
The Indian Reeponse
Senator Ervin and his Subcommittee were convinced of the need for reform.
of tribal self-government according to the moral values and legal criteria of
the united States Constitution. Accordingly, in 1965. Senator Ervin introduced
Senate Bills 961-968 and Senate Joint Resolution 40, w'nich were
"Addressed primarily to bringing the Constitution to the reservations, inte-
grating tribal systems into the overall legal system of the Country, and pro-
tecting the principle of the consent of the governed.
"S. 961 provided that any tribe exercising its powers of self-government
would be subject to the same limitations and restraints as imposed upon the
federal government, Senator Ervin's only concession to the special nature of
Indian tribes was a recognition of their ethnic character, S. 961 would not
have subjected them to the "equal protection" requirement of the Fourteenth
Amendment, which applied only to the states." 'o
The reaction during the hearings was mixed. The Subcommittee conducted
hearings in nine states and received testimony from 79 witnesses, including
representatives of at least 36 Indian tribes and several national Indian orga-
nizations 90 Senator Ervin indicated that groups like the A.C.L.U. had supported
the legislation, as had the National Congress of American Indians, the Associ-
86 rd. at 477-57, note 45, at 320-23.
y 48 N.D.L. Re8 v.'639r(1972)a[hereinafter cited as Lawrence].
81 Id. at 652-53.
8? Burnett, supra note 4. at 588-89.
? Hearings on S. 961-968 and S.J. Res. 40 Before the Subcommittee on Constitutional
Rights of the Senate Committee on the Judiciary, 89th Cong.. 1st Sess. (1965).
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ation of the Bar of the City of New York, the Department of the Interior,
the Indian Rights Organization, the National Council of Churches of Christ,
and, according to Senator Ervin, "Indian Tribes throughout the United
States." sI But the testimony was not unanimous. According to Burnett :
"The Ilopi claimed to be unaffected, since their constitution was already "in
accordance with the U.S. Constitution." Most tribes, however, echoed the senti-
ments of the Mescalero Apaches who were sympathetic to the purposes of the
bill, but deemed it "premature" because the tribes were not psychologically or
financially prepared for it. At the other extreme were the Pueblos, who were
determined to maintain their closed, traditional societies." 12
Other commentators have also disagreed with Senator Ervin. Thus, M. Smith
noted that the "weight of testimony was opposed to the Act," ea and lames Kerr
relates that the general reaction of Indians to the Act was one of "apathy and
in some cases opposition." a4 Ile indicates that there was "little support among
Indian organizations for the legislation," which was opposed by the National
Congress of American Indians and the National Indian Youth Council" despite
Senator Ervin's assertion.
Senator Ervin apparently took account of some of the criticism, and he intro-
duced a new bill, S. 1843, in the next Congress, as a replacement for S. 961. It
followed a suggested draft offered by the Department of the Interior, which
had agreed with some of the Indian critics of the legislation, that "the blunt
insertion of all constitutional guarantees into tribal systems would produce dis-
order and confusion." n6 Senate Bill 1843, which became the Indian Civil Rights
Act of. 1908, speciifically omitted the constitutional prohibition against estab-
lishment of religion in deference to the semitheocratic tribes. Also omitted
were the right to a jury in all criminal prosecutions, and the full right to a
jury in all criminal prosecutions, and the full right to assistance of counsel, as
well as the fifteenth amendment injunction against racial discrimination. Fed-
eral habeas corpus was substituted for trial de nave in the federal courts as
.the only remedy expressly granted by the statute. For the full text of the Act,
see the Appendix to these articles.
According to Lazarus," there was less Indian opposition to the Act, as re-
vised, than had been expressed in the earlier hearings. Indeed, aside from the
testimony of individual Indian people, endorsements of S. 1843 by a number of
tribes do appear in the Congressional Record.9? Even Herr, concluded that "a
majority of the tribal leaders who have studied the new law approve of
it ? 99
The summary given by Burnett is most convincing, however :
"Most of the tribes testifying . . . were sympathetic to the purposes of the
legislation and amenable to the eventual merger of Indian and non-Indian
systems of justice. They were cautious, however, about taking large steps
beyond their psychological preparedness or financial capability." I
Indian Civil Rights and the Confrontation at Wounded Knee: A Warning
The Indian peoples' antagonism to their tribal governments have split many
reservations. I first became familiar with the frustrations of the Oglala Sioux
during the Wounded Knee confrontation and from my participation in the case
of Oglala Sioux Civil Rights Organization v. Wilson,' A number of tribal mem-
bers had unsuccessfully attempted to oust their tribal chairman, Richard
Wilson, charging him with corruption, nepotism and with being a puppet of
white interests. This frustration was a major contributing cause to the out-
burst at Wounded Knee. Similarly, I have witnessed the poignant conflict aris-
ing out of the attempt of the traditional "longhouse" government of the
Iroquois (Six Nations) Confederacy to regain the authority which it has lost
to the elective govrenments of the scattered reservations of the Northeast.
Cheyennes, Ilopis and Navajos have had serious internal divisions over the
91 S. KeviN, .INTHRIrgnewCH WITII CIVIL RIGHTS, S. RHP. No. 721, 90th Cong., lst:
Sees. 29-33 (1967).
92 Supra note 4, at 589.
91 Smith. Tribal Sovereignty and the Indian Bill of Rights, 3 CIV. RTS. DIG. 9, 16
n.45 (1970)..
94 Kerr, supra note 62, at 333.
05 Id.
9Q Burnett, supra note 4, at 557.
m Lazarus, supra note 19, at 348 n.47.
Fls 113 Cone. REC. S.1.8157 (daily ed. Dec. 7, 1967).
95 Kerr, supra note 62, at 333.
'Burnett, supra note 4. at 601.
2 Civ. No. 73-5036 (D.S.D.).
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secretive leasing activities of their leaders, and numerous other groups, includ-
ing the Cherokees, the Pawnees and other tribes in Oklahoma, and Indians in
Minnesota, Nebraska, and throughout the Dakotas, have been in conflict with
their governments.
The result of these and of a number of allied developments has been the
growth of opposition, often sparked by activists, traditionalists and Indian
landowners, against the reservation "establishments." Members of the "estab-
lishment" are termed derisively "uncle tomahawks" or "apples," because they
are viewed as tools of the white interests and betrayers of their own people.
These are disputes which can and should be channelled into the legal system.
In fact, redress in federal court may well be the only effective mans now avail-
able to reform tribal governments. This, then, is the ultimate basis for my
support of the Indian Civil Rights Act.
The issues raised in the Oglala Sioux case 3 go to the very heart of the intra-
tribal conflict which ultimately resulted in the seige of Wounded Knee. They
are the critical issues of tribal government. Surely, the existence of an "auxil-
iary police force," allegedly harrassing political supporters of the American
Indian Movement on the Oglala reservation, would have been ample grounds
for intervention of the federal judiciary. The Wounded Knee confrontation
might even have been prevented by timely action. Intervention in such a situ-
ation can only serve to redeeein the legitimacy of tribal political institutions
when they are threatened by an usurpation of power or by civil war. For if we
deny legal redress, we must accept the legitimacy of revolt ; the right of revo-
lution was certainly a legitimate part of the Indians' former legal systems, and
the Declaration of Independence asserts it to be a fundamental right of all
people. That, for me, is the real dilemma posed by Wounded Knee.
Thus, it is a great mistake to view the Wounded Knee confrontation as
-"irrelevant" to the plight of the Oglala people : a "media event" staged by the
American Indian 'Movement in order to dramatize its demands to the federal
government.' Wounded Knee was an expression of genuine grievances against
the tribal, state and federal governments.' Absent some accountability of Indian
tribal institutions, it is my conviction that Wounded Knee is a harbinger of
what is to come.
THE NEED FOR A FLEXIBLE INTERPRETATION OF THE IN9IANCIVIL RIGHTS ACT OF 1968
Previous Commentary on the Indian Civil Rights Act
Many commentators have severely criticised the Indian Civil Rights Act of
1968 as an unjustified abrogation of tribal sovereignty. The point is repeatedly
made that Indian tribal sovereignty should not be destroyed by federal flat and
without the tribal consent which was the hallmark of the federal Indian policy
announced in the Indian Reorganization Act of 1934. The feasability and the
advisability of the Indian Civil Rights Act are questioned, and some com-
mentators have advocated outright repeal.
Most of the writers, however, have advocated a "flexible" application of the
Act by the courts. Unfortunately, only a few have approached the difficult
question of precisely what exceptions should be allowed to the Indian Civil
Rights Act, specifying areas in which federal intervention may be inappro-
priate.'
Those few writers who have discussed the problem urge deference where
culture, including such "anachronisms" as the Pueblos' theocracy, is seen as
essential if the traditions, the spirituality, and the sovereignty of the Indian
people are to survive. The interpretation of the "due process" and "equal pro-
tection" clauses of the Indian Civil Rights Act 8 are viewed as critical matters
of judgment for the federal courts, involving the adaptation of those constitu-
tional clauses to the tribal milieu and particularly to the tribal justice systems.
8Id.
4 See, e.g., Shultz, Bamboozle Me Not at Wounded Knee, HARPERS MONTHLY 46
(1973).
s See, e.g., V. DELORIA, GOD IS RED (1973). See also 5 AAWESASNE NOTES, Nos. 2, 3,
Special Issues April, June (1973) ; Hearings Before the Subcommittee on Indian Affairs
of the Senate Committee on Internal and Insular Affairs on the Causes and Aftermath
of the Wounded Knee Takeover, June 16-17, 1973, 93d Cong., 1st Sess. (1973).
6 COLUM. Sunvsr HUMAN RIGHTS L. Note supra note 2.
7 Peehota & Cross, The 1968 Indian bill of Rights: An Interpretation, Survey of
Indian Law (priv, pub. 1971) ; Reiblich, COLUM. SURVEY HUMAN RIGHTS L. Note,
HARV. L. REV. Note, all supra note 2; Kerr, supra note 62.
825 U.S.C. ? 1302(8) (1970)
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Membership and similar "internal" decisions of the tribe are viewed as inap-
propriate areas for federal court action. Elections are another area in which
restraint has been urged. The exclusion power of the tribes is generally sup-
ported as a necessary adjunct to their right to a separate and culturally dis-
tinctive way of life. The informal nature of the tribal courts is approved and
deference to the tribal justice system is urged. The right to retained profes-
sional legal counsel in tribal criminal cases ? also comes under considerable
attack.
The 1969 Harvard Law Review Note, "The Indian Bill of Rights and the
Constitutional Status of Tribal Governments"" 11 is the most extensive and satis-
factory exploration to date of the problems of the application of the Indian
Civil Rights Act to tribal governments. After urging that Indian people should
not be excluded from constitutional protection, and that reform of tribal insti-
tutions is definitely required," the Note goes on to suggest that the Indian
Civil Rights Act be "flexibly" interpreted. The Note concludes that "a more
appropriate definition of clue process for the tribes would require fairness as
defined by their different culture. Standards of due process should be evolved
which synthesize tribal culture and Anglo-American personal freedoms." 12
In practice, of course, the "synthesis" turns out to be a dilution of the Indian
Civil Rights Act. Thus, the Note suggests that the constitutional provisions of
the Act be interpreted by analogy to the category of the Insular cases, as sug-
would"
apply
fundamental fairness" and
gested n universal definition of la due Only process, that constitutional
to tribal government"
The Note makes the argument that the extensive verbatim copying of consti-
tutional language should not be interpreted as manifesting a Congressional
intent to apply to tribal governments the same substantive standards that the
federal courts have evolved in applying the language to state and federal gov-
ernments. This argument is unconvincing, to say the least. As is conceded in
the Note, the contrary' view is strengthened by statements in the legislative
history to the effect that tribal governments were bound to respect the "same
constitutional rights" as the stae and federal governments 1G In my view, there
is little doubt that Congress meant to apply evolving constitutional guarantees
directly to tribal governments, with the specific exceptions made in the final
version of the Indian Civil Rights Act. The real question is whether or not the
courts should assert the countervailing interests of tribal sovereignty and cul-
tural integrity, and if so, on what basis and to what extent.
The Note argues that the traditional election procedures of the Pueblos of
New Mexico should not be held to be in violation of the due process guarantees
of the Indian Civil Rights Act. As the Note observes : "The legislative record
recognizes theocracy as a legitimate tribal cultural value to be preserved." 19
This result was reached without such a principled basis in the Tenth Circuit
case of Groundhog v. Keeler," which held that the Indian Civil Rights Act did
not mandate democracy in tribal governments.
The Note also argues that ethnic qualifications for voting, including blood
quantum restrictions, should be viewed with considerable tolerance unless they
violate fundamental fairness.
"An approach taking into account the avowedly exclusive nature of the tribe
is consistent with congressional purpose: outsiders have no recognized right to
share in the community, and the tribe may apply its own cultural standards to
determine who the outsiders are. But once the individual has been defined as
being within the cultural group, or has been allowed to develop a substantial
stake in it-especially insofar as he is ethnically related to the tribe-his official
status ought not to be affected by blood distinctions." 18
Except for an articulation of the rights of marriage, this seems a fair
standard.
Focusing next on the question of free speech and free exercise of religion,
the Note observes that Indian tribes were "homogeneous communities which
0 25 U.S.C. 11 1302 (6) (1970).
70 82 HARV. L. REV. 1343 (1969).
11 Id. at 1351.
12 Id.
14 342 F.2d 369 (9th Mr. 1965).
1+ HAav. L. REV. Note, supra note 2, at 1353.
15 Id. at 1355.
in Id. at 1361.
17 442 F.2d 674 (10th Cir. 1971).
16 HAav. L. REV. Note, supra note 2.
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have traditionally suppressed open internal conflict or partisanship," leading
to the conclusion that "full protection for free speech would undermine a eui-
tural value." 10 Nonetheless, the Note is quite emphatic in asserting that "al-
though free speech might cause some disruption in the tribe, it would seem that
to protect the priority of interests thought important by Congress requires that
tribal members be privileged in their political speech.190
The note bases its conclusion on the practical observations that
"[t]he disruption that might be caused to the tribe by free speech would be
greatest when the dissatisfaction of members with. tribal life was greatest,
exactly the situation in which tribal culture should receive least protection.
Additionally, protection of free speech is an apposite principle for courts to
enforce because it tends to foster tribal practices consistent with the members'
desires and thus enables the court to give greater deference to the determina-
tions of the tribal government when its actions are attacked as unfair."
However, the Note attempts to limit the protection of the Indian Civil Rights
Act to tribal members. Although conceding that the language of the statute
extends protection to all persons, the Note nonetheless, approves of the exclu-
sion of nonmembers fromreservations because of political agitation. The Note's
defense of this conclusion on the ground that "[c]ultural autonomy is antago-
nistic to political pressure from the outside," z2 is singularly unconvincing.
Some protection of the "outside agitator" on Indian reservations is essential
particulary in a period when it appears that militant Indian movements will
be pan-tribal in scope if they are to he successful at all, and when Indian
people have become increasingly mobile. If nothing else, the events at Wounded.
Knee and the allegations of the Oglala Sioux case 20 must have shown the neces-
sity for the invocation of the Indian Civil Rights Act in similar situations. The
alternative is more confrontations, more lawlessness, and ultimately less tribal
autonomy.
Full enforcement of the free exercise clause is imperative, and, as the Note
recognizes, includes the extension of that protection to organizations such as
the Native American Church. Thus, even though the tribes are allowed to
establish religions, there must be a requirement of religious tolerance. Other-
wise, Congress' deference to Indian theocracy may have created a monster.
The Note's discussion of procedural due process is unfortunately not particu-
larly cogent, in that it again hinges protection on tribal membership. On this
basis, the Note appears to question the result in Dodge v. Nakai, * the first
major case under the Indian Civil Rights Act. In that case a nonmember OEO
attorney was successful in overturning a tribal exclusion order. Consistent with
its defense of the exclusion of nonmembers even for purely political reasons,
the Note would allow the tribal council to exclude nonmembers with only a
minimum hearing requirement.
I cannot agree that the member-nonmember distinction should determine the
scope of the protection to be afforded by the free speech and due process provi-
sions of the Indian Civil Rights Act. Firstly, and perhaps most importantly,
this is an era of increasing Indian militancy, which will see increasing parti-
cipation by non-tribal members in tribal politcal processes. Secondly, we are
increasingly seeing intermarriages between tribes. The definition of tribal
membership accepted by the Note would allow one spouse's tribe to exclude
the other spouse from all political processes, or expel him or her from the
reservation, even though he or she might have spent most of his or her life
on that reservation. Likewise, their children could be excluded from tribal
privileges, making the burden of marriage outside tine tribe onerous or perhaps
even prohibitive. Conceding that full participation in tribal political processes,
including the right to vote, must remain within the tribe's authority, I would
reject any further limitation on the political rights of nonmembers.
The desire for the power to exclude outsiders without judicial supervision
stems ultimately from the historical limitation of tribal jurisdiction which has
left the tribes defenseless against outsiders. Yet what is needed is not less
supervision of exclusion, but rather the dvelopmnt of the tribal courts and
processes to the point where their jurisdiction can be successfully enlarged or-
19 Td.
20 hd.
~ Id. at 1363-64.
11 Id. at 1364.
23 Oglala Sioux Civil Rts. Orz. v. Wilson, Cir. No. 73--6036 (D.S.D.).
2s 298 F. Supp. 17 & 26 (D. Ariz. 1968).
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fully asserted, through, for example, the "long-a.rn1" statutes now in effect on
the Oglala, Blackfeet, Gila River and Salt River reservations.25
I reject the use of the member-nonmember dicotomy for exclusion purposes
even though I recognize the necessity that tribes have some control over non-
members coming to their reservation. It is my firm belief that uniform laws
uniformly enforced can beter accomplish control over nonmembers so long as
deference is paid to the tribes' need for cultural autonomy. This unfortunately
would result in increased federal court scrutiny of tribal membership criteria
since the courts would have to determine membership for exclusion purposes.
Control of these membership criteria is, however, the key to the survival of
tribal groups. For my part, the preservation of this membership power seems
far more important than the preservation of the power to exclude "outside
agitators." Thus, while the tribes may have to yield on the issue of exclusion
of nonmembers, they should retain the ultimate control over the setting of cri-
teria for tribal membership.
What the Harvard Law Review Note fails to supply is a doctrinal basis for
not applying the guarantees of the Indian Civil Rights Act in a particular
situation and a test to determine its applicability. Thus, although the Note
seems to me have suggested the proper parameters, the rubric of tribal sov-
ereignty is not helpful or persuasive. A key to the interpretation of the Indian
'ivil Rights Act therefore seems still to be required.
The Yoder Analogue
The most striking analogue to the kind of process required in interpreting
the Indian Civil Rights Act is found in the case of Wisconsin v. Yoder. 2' In
Yoder the Supreme Court restricted the reach of the Wisconsin compulsory
education law when it was found to conflict with the "central cultural values"
of a discrete society and subculture, the Amish. Concededly, Yoder dealt with
explicitly religious objections to compulsory education. But the courts could
apply the same test in interpreting and applying the Indian Civil Rights Act
in light of those cultural values found to be "essential" to the tribal cultural
milieu.
In Yoder, the Court held that the free exercise clause of the first amend-
ment, made applicable to the states by the fourteenth amendment, necessitated
a balancing process when the religious beliefs of the Amish were found to con-
flict with the state's interest in compulsory education. The Court in Yoder was
careful to emphasize that only a form of state regulation which would gravely
-endanger, if not destroy, the free exercise of the Amish religious beliefs could
be abrogated by the first amendment. The opinion, written by Mr. Chief Justice
Burger, discussed in detail the beliefs of the Amish, and specifically found that
the Amish objection to formal education beyond the eighth grade was "firmly
grounded in ... central religious concepts." 27
Summarizing its holding, the Court concluded that :
"Aided by a history of three centuries as an identifiable religious sect and a
long history as a successful and self-sufficient segment of American society,
the Amish in this case have convincingly demonstrated the sincerity of their
religious belief, the interrelationship of their belief with their mode of life, the
vital role which belief and daily conduct play in the continued survival of Old
-Order Amish communities and their religious organization, and the hazards
-presented by the State's enforcement of a statute generally valid as to others.
Beyond this, they have carried the even more difficult burden of demonstrating
the adequacy of their alternative mode of continuing informal vocational educa-
tion in terms of precisely those overall interests that the State advances in
support of its program of compulsory high school education. In light of this
convincing showing, one which probably few other religious groups or sects
could make, and weighing the minimal difference between what the State would
require and what the Amish already accept, it was incumbent on this State to
show with more particularity how its admittedly strong interest in compulsory
education would be adversely affected by granting the exemption to the
Amish." se
From the above quotation, it is apparent that the Court in Yoder was artic-
25Tim INDIAN CIVIL RIGHTS, FIVE YEARS LATER, supra note 2, at 25, 29, 81.
20 406 U.B. 205 (1972).
27 Id. at 210.
2e IS. at 235-36.
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ulating a relatively narrow exemption from the compulsory education statute.
Those advocates of tribal sovereignty who desire broad exemptions from the
provisions of the Indian Civil Rights Act would undoubtedly be unhappy with
the limited Yoder standard. In particular, the insistence of the Court in Yoder
in grounding its decision on the free exercise clause rather than on principles
of community sovereignty acts to limit the scope of the decision.
Of course, the Amish community does not enjoy the same long-standing rec-
ognition of sovereign status accorded to Indian tribes, nor is there any treaty
or other obligation between either the United States or the State of Wisconsin
and the Amish people. Thus, the Indian's right to a separate mode of life is
more firmly established than that of the Amish. Also, for the Indian, religion
and culture are either interdependent or equivalent; so, even more than the
Amish, Indians must be entitled to a "separate" way of life. Yoder must pro-
tect Indian "central cultural values" from abridgement under the Indian Civil
Rights Act.
It is submitted that the action of the United States Congress in enacting the
Indian Civil Rights Act abrogated whatever absolute tribal sovereign immu-
nity from suit which might have preceded the enactment, although some ques-
tion remains as to immunity from damages. Accordi_ugly, if some vestage, of
tribal sovereignty is to be preserved, a consistent principle must be found to
defend that tribal sovereignty. The concept of sovereign immunity from suit
will not suffice; it protects to much, too indiscriminately. It is in the light of
the inadequacy of the older concept of tribal sovereign immunity that I pro-
pose a newer concept, based on the principle that the "central cultural values"
of tribal life are entitled to protection under the free exercise clause of the
first amendment, and that rights protected by the free exercise clause must
override certain provisions of the Indian Civil Rights Act of 1068.
Yoder is a starting point. It should be clear by direct analogy that the South-
western Pueblos cannot be faulted for allowing young male members to disobey
compulsory school attendance laws during their period of apprenticeship in the
ceremonial clans. Similarly, I would urge substantial deference to the process
of appointment of the theocratic leadership of the Pueblo tribes even though
that appointment process is essentially undemocratic. This deference should,
perhaps, also be extended to their decisions. Where the leadership is less "tra-
ditional," however, as in the case of the plains Indians, the argument to extend
special deference is weaker. On the other hand, a court should not be reluctant
to enter into a dispute involving even a theocratic government, when it is clear
that the actions of that government threaten the very basis of tribal existence.
Further, some provisions of the Act must probably remain inviolate, such as
the right to freedom of speech.
The case of Groundhog v. Keeler," stands for the proposition that neither the
United States Constitution nor the Indian Civil Rights Act require election of
tribal officials. Accordingly, the most basic fear articulated by the Pueblos in
the legislative hearings concerning the Act has apparently been obviated by the
construction given to the Act by the federal courts. This is the kind of "flex-
ible" interpretation which a Yoder approach could provide, and on a more
compelling basis than the unsatisfactory defense of tribal sovereignty as
exemplified by the opinion in Groundhog.
The Yoder approach has several advantages over the tribal sovereignty con-
cept. It balances the free exercise rights of the tribe against the fundamental
rights of individual Indian people. This approach is clearly superior to an ap-
proach which attempts to balance the rights of the people against the "sov-
ereignty" of the tribe or to defer to the tribe's sovereignty in "intra-tribal"
disputes. Under the Yoder test, both rights can be evaluated, and the facts can
dictate the result, rather than the result being dictated by the arbitrary and
outworn concept of sovereignty, borrow from Anglo-Saxon jurisprudence. The
notion that "the King can do no wrong" has no place in tribal justice systems.
Thus, tribal sovereignty as a concept has no force in evaluating the legitimate
scope of the Indian Civil Rights Act.
The primary objection which will he raised is that Yoder contemplates a
rather high burden of proof to make out the tribes' free exercise claims. To
some extent, the historical status of the tribes will given them an advantage
over the Amish, since the Indians' right to a separate way of life is well estab-
lished as a part of our jurisprudence. Moreover, I would generally favor a
liberalization of the criteria necessary to present a free exercise case under
2442 F.2d 674 (10th Cir. 1971).
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Yoder. However, technicalmatters concerning the burden of proof are not the
critical issue. The issue presented is how to "weigh individual rights and tribal
values to determine operative standards for each situation." s0 The Yoder
analogue makes this balancing process easier in that it specifies that the tribal
values or central cultural values at stake must be delineated in the context of
a particular tribe and a particular culture by inquiring into any tribal free
exercise claim. Yoder thus gives the courts a procedure, and, to some extent, a
standard, upon which to begin the difficult process of interpretation which the
Indian Civil Rights Act requires.
The Judicial Response
Perhaps the most comprehensive and sensitive discussion of the issues pre-
sented by the Indian Civil Rights Act which has appeared in judicial opinions
to date is that of McCarty v. Steele 31 In that ease, Judge Anderson articulated
a flexible interpretation of the Indian Civil Rights Act similar to that urged by
many commentators and similar to that which would obtain under the Yoder
analogue :
"[T]he record suggests some concern at least that those guarantees incor-
porated by the Indian Civil Rights Act not be unduly disruptive of tribal cul-
ture. Some such guarantees of fairness might be adapted to the Indians through
the application of general rules of fairness rather than strict rules of pro-
cedure. It would thus appear that the Indian Civil Rights Act is properly con-
sidered in the context of federal concern for Indian self-government and cul-
tural autonomy : its guarantees of individual rights should, where possible, be
harmonized with tribal cultural and governmental autonomy.
"Thus, for instance, usual standards of equal protection and due process may
be modified where their imposition otherwise would threaten basic tribal inter-
est. Where, as here, plaintiffs seek compliance with existing tribal procedures'
applications of flexible equal protection and due process safeguards of the
Indian Civil Rights Act appears appropriate." 8R
Judge Anderson is not the only federal judge to recognize the necessity for
such a "flexible" interpretation. But the question remains : How well have the
courts responded to the challenge of applying the Indian Civil Rights Act? In
my opinion, they have generally not responded well.
As the federal courts began to receive cases predicated on the Indian Civil
Rights Act, they quickly saw the thrust of the Act in abrogating the judicial
doctrine of tribal constitutional immunity which had for so long allowed them
to "wash their hands" of intratribal disputes under the Talton ruling. The
judicial reaction to the abrogation threat varied, depending primarily, I suspect,
on the situation of the tribe at issue and the willingness of the federal judge in
each case to intervene in intra-tribal disputes.
The Eighth Circuit and the Tenth Circuit were conspicuous in affirming the
rights of tribal sovereignty. In Daly v. Crow Creek Sioux Tribe," the plaintiffs.
requested the federal court to require that the tribe allow tribal members living
off of the reservation to vote in tribal elections and permit persons of one-
quarter blood to hold office. The court denied relief, stating in part:
"Indians, in designing their own apportionment plan and election rules, are
entitled to set those requirements they find appropriate so long as they are
uniformly applied.
"[T]he tribe has a sufficient cultural interest in setting a higher blood quan-
tity requirement to hold office than for mere membership in the tribe if it so
desires.
"[W]hether or not the tribe should take into account members of the tribe
who do not reside on the reservation . . . is a purely internal decision which
must be made by the tribe itself." 84
The Eighth Circuit has also indicated that the federal courts will abstain
from entertaining any complaint under the Indian Civil Rights Act unless the
plaintiff can first show exhaustion of all reasonably available means to obtain
relief from the tribe itself. 'Under this rationale, the court declined to hear a
condemnation dispute between a tribal member and the tribe, because the
plaintiff had failed to seek an appeal in the Superior Tribal Court from the
disputed Junior Tribal Court judgment Se
5? Ilnav. L. Rav. Note. supra note 2, at 1369.
51353 F. Supp. 629 (D. Utah 1973).
"Id. at 683-34.
sa 483 F.2d 700 (10th Cir. 1971).
5'+ Id. at 705, 706, 707.
w O'Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140 (8th Cir. 1973).
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The Tenth Circuit has signalled a similar wish to retain to some extent the
immunity doctrine. In Groundhog V. Keeler,"" case involving a challenge to the
Congressional enactment permitting the B.I.A. to appoint the principal chief of
the Cherokees, the court specifically urged in dictum that "in some respects the
equal protection requirement of the Fourteenth Amendment should not be
embraced in the Indian Bill of Rights." 17
In other cases, however, the circuit courts have not been so reluctant to exer-
cise jurisdiction. The Eighth Circuit has upheld general civil rights jurisdiction
pursuant to 28 U.S.C_ ? 1343(4) in addition to the remedy of habeas corpus
provided by the Indian Civil Rights Act itself and has entertained jurisdiction
over a tribal election dispute in Lwrun v. Rosebud Sioux Tribe." The Ninth
Circuit affirmed section 1343(4) jurisdiction in Johnson v. Lower Elwha Tribal
Community" On the other hand, the Tenth Circuit managed to avoid the juris-
dictional issue in Sattery v. ztrapaho Tribal Council,' by affirming the decision
of the district court." The circuit court rejected the district court's rationale
that the Indian Civil Rights Act failed to provide an express grant of juris-
diction to review intra-tribal matters. However the circuit court upheld the
district court's findings that the complaints themselves, relating to the admin-
istration of the tribal enrollment ordinance, failed to state facts which showed
a denial of due process or equal protection, Thus, the Tenth Circuit, in a gen-
erally opaque opinion, replicated the Eighth Circuit's more reasoned deference
to tribal enrollment practices in Daly, while intimating that its earlier decision
in the Martinez v. southern Tite Tribe 4= was probably no longer good law.
The response of the lower federal courts to the Indian Civil Rights Act has
also been cautious, but many courts have provided reli+ef. Election disputes have
been the most frequent.. In addition to the Eighth Circuit's holding in Luxon,
the Utah and Nebraska district courts have provided relief in McCurdy v.
$teele 43 and Solonnn v. LaRose," both of which involved attempts to frustrate
elections by ignoring the tribal election code, similar to the issue raised in
.Roper v. Shoshone-Bannock Indian Tribes."
On the other hand, the plaintiffs in Means v. Wilsona' were denied relief, even
though the plaintiffs alleged multiple violations of the tribal election code. The
district court first indicated that its interpretation of the Eighth Circuits opin-
ion in Lmron was that intra-tribal controversies could not be entertained under
title 28 United States Code section 1313(4), since "an action involving an
internal controversy among Indians over tribal government is a subject not
within the jurisdiction of a federal court under Luxon." 4T
The court went on to hold that the plaintiffs had failed to exhaust tribal
remedies, even though the plaintiffs had filed a detailed protest with the tribal
Election Board, the only remedy provided by Oglala law, and the Board had
refused to act. This writer would argue that the abstention doctrine of O'Neal
only applies after the tribal court has assumed jurisdiction, particulary since
the Oglala Sioux Tribe asserts its sovereign immunity from suit. Further, it
seems quite proper to urge that the federal courts take jurisdiction when there
is a strong inference of bias. The course of the dispute between Russell Means
and Richard Wilson certainly supports srch an inference. The alternative is to
deny relief altogether in most election disputes. For an example of the treat-
ment of election complaints in tribal court, the outcome of the case of Boyer v.
Shoshoae-Bannock Indian Tribes is instructive. After the Idaho State Supreme
Court opinion was handed down,de the Fort Hall Court took jurisdiction. Six
years after the Fort Hall Court took jurisdiction and a full decade after the
disputed election, the tribal court issue its final judgment dismissing the
amended complaint on the ground of tribal immunity from suit "
26442 F.2d 764 (10th Cir. 1971).
rd. at 682.
9' 41,5 F.2d 698 (8th Cir. 1972).
29 464 7'.2d 200 (9th C1r_ 1973).
40453 F.2d 278 (10th Cir. 1971).
41 Pinnow & Shoshone Tribal Council, 314 F. Stipp. 1157 (D. Wyo. 1)70).
4 249 F.21 915 (10th Cir. 1957).
43 353 F. Supp. 629 (D. Vitals 1973).
44 335 F. Supp. 715 (D. Neb. 1971).
45 92 Idaho 257. 441 P.201 167 (1965). gee n1-gin White Engle v. One Feather. 478 F.2d
7311 (8th Cir. 1973) ; Wounded Head v. Tribal Council, Civ. No. 73-5096 (D.S.D.
April 19, 1974) ; ignited States v. San Carlos Apache Tribe. Civ. No. 74-52 TUC (D.
Ariz. April 12. 1974) ; Armstrong v. I3oward. No. 6-72-CIV-31 (D. Minn. Jan. 22.
1974) : St. Mark's v. Cnnnnn, Civ. No. 2928 (P. Mont. Oct. 23, 1970).
4' Civ. No. 74-5010 (D.S.D. Sept. 20, 1974).
477r7. at slip opinion 13.
49 Boyer v. Shoshone-Bannock Indian Trihen, 92 Idaho 257, 441 P.2d 167 (1968).
"13oyer v. Shoshone Bannock Indian Tribes (Ft. Mall Ind. Ct. Sept. 10, 1974).
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265
The third reason supporting the dismissal of the complaint in Means v.
Wilson was the court's announced holding that the complaint fails to state a
claim upon which relief can be granted, because : "This court should not set
aside a tribal election under the Indian Civil Rights Act in circumstances in
which a non-Indian local election under the Fourteenth Amendment would not
be set aside."" The basis for the court's ruling was the Eighth Circuit's holil
ing in Pettengill v. Putnam County," that criminality, fraud, or discriminatioiu
must be shown to justify federal intervention In irregularities in the adminis-
tration of local elections. Of course, Pettengill was based on a judgment of
comity, to avoid federal "tinkering with the state's election machinery,"' :a
doubtful rationale when the allegation is that the machinery has brokers down,
as in the Means case. The court's holding is even more questionable, in light of
the allegations of violations of federal criminal and civil conspiracy laws and
interference with free speech and due process rights under title 25 United
States Code section 1302(].), (8) contained in the Means v. Wilson complaint.
The problem with the holding is clear, in that It amounts to a severe judicial
limitation of what appears to be one of the most important provisions of the
Indian Civil Rights Act, according to the number of cases filed, i.e., the appli-
cation of standards of fairness to tribal elections. Under the court's holding,
the federal. courts will not require the tribes to follow their own election rules.`
Thus, the Luxon, McCurdy and Solomon courts would have been powerless to
act under the Means holding.
The greatest weakness in the opinion is that it fails to take account V. the
tribal situation. This author feels that the effect of the political struggle
between Means and Wilson should have been considered. Not to do so was to
fail to respond to the real dictates of the situation.
In summary, the Means v. Wilson decision would seem to imply that election
disputes are not proper cases for federal court review under the Indian Civil
Rights Act. This case illustrates well the failure of the federal courts to act
under the Indian Civil Rights Act. I would submit that no cultural value would
be abridged by a new election on the Pine Ridge Reservation and that the
decision fails to reinforce the cultural and political integrity of the tribe. These
are the considerations we must ponder in order to make sense of the Indian
Civil Rights Act.
In contrast to Means v. Wilson, the federal courts generally have intervened
in election cases, as discussed above with respect to the Luxon, McCurdy and
Solomon cases. They have however recognized tribal determinations of eligibil-
ity, as in the Daly case. In more difficult cases, concerning reapportionment, the
courts have affirmed the one-man, one-vote principle under the Indian Civil
Rights Act in White Eagle v. One Feather, and in St. Marks v. Canaan. n The
White Eagle opinion carefully considered' the cultural issues at stake, but
determined that the voting procedures of the tribe are not entitled to special
deference, since they are derived from Anglo-Saxon models. This analysis is
well taken. Thus, the Eighth Circuit concluded :
We have no problem of forcing an alien culture, with strange procedures, on
this tribe. What the plaintiffs seek is merely a fair compliance with the tribe's
own voting procedures in accordance with the principles Baker v. Carr and
subsequent cases b0
The other recent election cases 67 have generally denied relief and include a,
specific finding that the twenty-sixth- amendment (18-year old vote) does not
apply to Indian tribes through the Indian Civil Rights Act in Wounded head v.
Tribal Council." This seems to he correct, although the opinion is not very de-
tailed. The only recent case in which relief wassecured was through a consent
decree filed in United States v. San Carlos Apache Tribe,"' after the federal
government had acted to enjoin the tribal election because of procedural defects.
Other than election disputes, enrollment disputes have perhaps been the most
frequent cases brought under the Indian Civil Rights Act. Although the old
'? Means v. Wilson, Civ. No. 74-5010 at 23 (D.S.D. Sept. 20, 1974).
81472 P,2d 121 (8th Cir. 1973).
62 Id. at 122.
83 Brie:P for United States as Aniicus Curiae, Mean4 v. Wilson, Civ. No. 74-5010
(D.S.D. Sept. 20, 1974).
84478 F. 2d 1311 (8th Cir. 1973).
66 Civ. No. 2928 (D. Mont. Oct. 23, 1970).
88 478 F.2d at 1314.
6a Cases cited note 144 -supra.
68 Civ. No. 78-x,090 (D.S.D. April 19. 1974).
69 Civ. No. 74-52 TUC (D. Ariz. April 12; 1974).
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Martinez 80 rule of absolute immunity has been abrogated by the Indian Civil
Rights Act, the consensus of the courts has been to defer to tribal determina-
tions of membership criteria, as long as the enrollment ordinance is fairly and
impartially administered. The leading cases are the Ninth Circuit's decisions
in Laramie v. Nicholson," Thompson v. Tonaslcet," and the South Dakota Dis-
trict Court's decision in Yellow Bird v. Oglala Sioux Tribe," The Ninth Circuit
in Laramie and Thompson reversed the district court's denial of jurisdiction,
based on Johnson v. Lower Eiwha Tribal Community" and on the fact that
both cases asserted discriminatory administration of the enrollment ordinance
at issue. Yellow Bird, on the other hand, was dismissed because the plaintiffs
alleged only that the enrollment criteria were arbitrary and capricious."
The only other reported membership challenge now in litigation is being
pressed by the Department of Justice in Martinez v. Santa Clara, Pueblo." The
case challenges the right of the Pueblo to exclude from membership and from
public housing the children of Pueblo women and non Pueblo men, while admit-
ting children of a Pueblo man who is married to a Navajo woman "T Masquer-
ading as a simple sex discrimination case, this case seems to be to be highly
ill-advised, and one can only hope that the court will be receptive to the
Pueblo's interest in determining membership criteria. This is clearly one area
where courts should fear to tread, since the cultural values at stake are high
indeed.
Aside from the legitimate attempt to insulate tribal governments by specify-
ing areas where federal court intervention may be inappropriate, by whatever
standard, there has been a simultaneous effort to reduce the jurisdictional and
remedial resources available ender the Act. I believe very strongly that any
limitation on the scope of the Indian Civil Rights Act should be achieved by
means of a principled discussion of the areas of tribal sovereignty which are
so critical to the integrity of "central cultural values" of the tribe as to be
protected by the first, amendment. I'nfortunately, the published opinions have
rarely reached such a plane, although a number of more technical issues have
been addressed. Thus, aside from the absolute bar to federal court intervention
suggested by the doctrine of tribal sovereign immunity and its derivative,
abstention from interference with intra-tribal disputes, it has been urged: (1)
that jurisdiction under the Indian Civil Rights Act should be limited to the
habeas corpus power explicitly conferred by the Act; (2) that tribal sovereign
immunity should apply to liability for damages if not to liability for equitable
relief; and (3) that considerations of comity between the federal courts and
tribal governments should require exhaustion of tribal remedies, including
tribal court remedies, prior to entertaining suits in the federal courts. Each
issra will be addressed in turn.
Jurisdiction
The first of these contentions, the technical argument that the Indian Civil
Rights Act does not confer jurisdiction beyond the narrow grant of habeas
corpus jurisdiction specifically included in the Act, has been rejected by the
great majority of the courts which have considered the issue. The Indian Civil
Rights Act is clearly an "act of congress providing for the protection of civil
rights," and the federal courts therefore have upheld jurisdiction under title
28 United States code section 1343(4), the general civil rights jurisdictional
provision "?
As has been seen, the Indian Civil Rights Act was designed to create "a body
of substantive rights, patterned in part on the federal Pill of Rights, to extri-
cate the individual Indian from the legal no man's land," which had been
created by the line of decisions holding that a controversy between an Indian
and his tribal government was an internal controversy not subject to the juris-
sa Martinez v. Southern Ute Tribe, 249 1r.2d 915 (10th Cir. 1957).
61487 F.2d 315 (9th Cir. 1973).
&1487 F.2d 316 (9th Cir. 1973), cert. denied, 95 S. Ct. 132 (1974).
"Civ. No. 74-5009 (D.S.D. Aug. 8, 1974).
64 454 F. 2d 200 (9th Cir. 1973).
Civ. No. 74-5009 (D.S.D. Aug. 8, 1974).
$ Civ. No. 9717 (D.N.1i. 1974).
,s Tohneon v. Lower Eheha Tribal Community, 484 11.2d 200 (9th Cir. 1973) Luzon
v. rosebud Sioux Tribe. 455 F.2d 698 (8th Cir. 1972) ; McCurdy v. Steele, 353 F. Supp.
029 (D. Utah 1973) ; Spotted Eagle v. Blaekfeet Tribe. 301 F. Supp. 85 (D. Mont.
1969) ; Dodge v. Nakal, 298 P. Supp. 17 & 26 (D. Ariz. 1968).
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diction of the federal courts' Accordingly, the courts have held that Congress
has created certain rights in the Indian Civil Rights Act and given correspond-
ing jurisdiction of actions to secure those rights. In such a context, the federal
courts have the power to fashion remedies appropriate to the protection of the
rights established by the Act. As was held by Judge Bratton in Loncassion v.
Leekity:
"Violations of constitutional rights, however, do. not always take the form
of incarceration, and if enforcement of the Act were limited to habeas corpus
proceedings, some provisions of the Act would be unenforceable and thus mean-
ingless. Because it cannot be presumed that Congress would pass an Act con-
taining provisions which could not be enforced, the existence of the habeas
corpus provision in the Act cannot be said to limit federal court jurisdiction
to those proceedings." 10
The most comprehensive treatment of the jurisdictional issues under the
Indian Civil Rights Act is found in the recent article by Barbara A. Larson
Webb and John. R: Webb.77 This article supports the courts in finding jurisdic-
tion under section 1343(4) and also under section 1331, the federal question
jurisdiction statute, so long as the requirement of "substantiality" is met. Thus,
the courts appear to have overcome the jurisdictional hurdle, contradicting
the conclusion earlier expressed by commentators such as Lazarus, that the
Indian Civil Rights Act may indeed have "provided a right without an effective
remedy." n The Webb article concludes from the legislative history that al-
though the specific issue of remedies was not addressed by Congress, "the im-
portance of the rights, and the historical record of an established probability
of the federal judiciary refusing to apply any constitutional prohibitions
against the tribes, suggests that Congress intended this Act as a reversal of
that policy. The limited remedy of habeas corpus would not meet that goal." 'a
Some commentators, including Mr. Ziontz in his companion article, have been
critical of any extension of federal jurisdiction under the Act," while others
have supported broad jurisdictional authority as an essential tool in the flex-
ible interpretation of the guarantees provided by the Act.` At least one
Note 78 has criticized the habeas corpus remedy as overly disruptive of the
autonomy of the tribal justice system and has suggested the use of more flex-
ible remedies. It seems to be,well recognized that Congress neglected any seri-
ous consideration of the remedial issue, leaving, the question for the courts.
There is no evidence that Congress meant to limit rights under the Indian
Civil Rights Act to situations involving alleged criminality, and it is clear that
Congress did intend that the rights conferred by section 1302 be as enforceable
by Indans as they already are by the rest of the citizenry under the fourteenth
amendment and the Civil Rights Act of 1871. The plain language of the Act,
the legislative history previously cited and the historical context from which
the Act emerged are all proof of this fact. Thus, for the federal courts to
refuse jurisdiction except under the habeas corpus provisions of the Act would
work a serious limitation on the scope of the rights provided by the Indian
Civil Rights Act, without any basis in principle or precedent. Fortunately,
the courts have avoided such a judicial repeal of the Act, and the jurisdic-
tional issue appears to be settled at this time.
Sovereign Immunity
The courts have generally recognized that the sovereign immunity the tribes,
their officers and employees enjoyed prior to the enactment of the Indian Civil
Rights Act has been abrogated insofar as..is necessary for the federal courts
to enforce the rights guaranteed by the Act 77
eo See, e.g., Talton v. Mayes, 163 U.S. 370 (1896.) ; Solomon v. LaRose, 335 P. Supp.
715 (D. Neb. 1971) ; Loncaesion v. Leekity, 334 F. Supp. 370 1971).
48 N.D.L. 115;v. 695 (1972).
7 Lazarus, supra note 91, at 850.
7s Webb & Webb; supra note 4, at 679.
74 See also Burnett, supra note 4 at, at 618.
76 E.g., IIAnv. L. Rnv. Note, supra note 2, at 1371-73.
7B N.D.L. Rssv. Note, supra note 2.
77 Laramie v. Nicholson, 487 F.2d 315. (9th Cir. 1973) Daly v, United States, 4S3
P.2d 700 (8th Cir. 1973) ; Luxon v. Rosebud Sioux Tribe, 455 F.2d 698 (8th Cir. 1972)
McCurdy v. Steele, 353 F. Supp?. 029 (D. Utah,.1973) ; Seneca Const, Rts. nrg, v.
George, 348 F. Supp. 4(W 1972) ; Solomon v. LaRose, 33) F. Supp? 715 (D.
Neb. 1971) ; Loncaesion V. Leekity, 334 F. Supp. 370 (D.N.M. 1.971) ; Spotted Bagle v,
Biaekfeet Tribe, 301 F. Supp. 85 (D. Mont. 1969) ; Dodge v. Nakal, 298 F. Supp. 17 &
26 (D. Ariz. 1968).
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2,68
In the leading case of Loncassion v. Leekity,Se a boy shot by Zuni policemen
sued the Pueblo of Zuni for damages for subjecting him to unreasonable and
excessive farce and for negligently hiring and training the policeman. The
Pueblo sought dismissal on grounds of sovereign immunity. The district court
replied :
"Congress having exercised its power to subject tribes to suit by passing the
Indian Civil Rights Act, a tribe cannot claim immunity from suit under the
Act. The Act does not, in so many words, provide that a tribe may be sued
under its provisions nor does it explicitly waive sovereign immunity as a
defense. However, since enforcement of the provisions of the Act could only
occur through suits in courts of law, the Act must be held to imply that suits
may be brought under its provisions. To hold otherwise would render the Act
an unenforceable admonition." i9
One variant of the sovereign immunity defense urged by many tribal law-
yers is to concede the equitable jurisdiction of the federal courts pursuant to
section 1343(4) while continuing to deny that the tribes may be subject to
liability for damages absent specific Congressional authorization. At the out-
set, it should be admitted that this argument has some force, and it should
be kept in mind that the federal courts have generally been reluctant to abro-
gate state immunity from damages under the eleventh amendment, making a
rule of tribal immunity from damages consistent with our overall constitu-
tional scheme." Moreover, Indian tribes are generally not wealthy, and pro-
tection of the tribal financial base may be critical to th!sir survival as independ-
ent sovereignties.
On the other hand, a denial of relief by way of damages will effectively
insulate the tribe from liability for certain kinds of violations of individual
rights under the Indian Civil Rghts Act. It may be argued that lability of trib-
al officers will provide adequate compensation for any such violations. But,
assuming that the Act is construed to permit such ac'.ions, liability of tribal
officers will surely be subject to some form of. qualified privilege." One may
legitimately wonder whether a further propogation of the doctrine of Ex Parte
11oung,12 which makes individual liability of government officers the primary
means for recovery of damages occasioned by abuses of state sovereignty, is
really advisable in this area.
If the Indian Civil Rights Act is to be limited, it should be limited in a
principled way, depending on the amount of interference with "central cultural
values," not by an arbtrary limitation, depending upon the type of relief
available or sought. The eleventh amendment does not apply to tribes, and
the concept of sovereign immunity from suit for damnages, a policy which "runs
counter to prevailing notions of reason and justice," should not be expanded
into new ground when its raison d'etre has itself been repudiated.
Loncassion v. leekity has demonstrated that the federal courts are willing
to imply a remedy in damages for violations of the Indian Civil Rights Act.
In Loncassion, the Pueblo and a tribal policeman were both held to be liable
for damages. To deny the plaintiff relief by way of damages would have been
to deny him any remedy at all for the defendants' illegal conduct. The courts'
supervision of the amount of the damages is the ultimate bulwark to prevent
harm to tribal sovereignty from overzealous enforcement; of the Act, and the
danger to tribal resources can be easily minimized. Senate Bill 1343.. proposed
by the executive branch, contemplates insurance coverage coupled with waiver
of tribal sovereign immunity up to the amount of the policy for all contrac-
tual tribal activities.`
The sovereign immunity issue is by no means free from doubt. The tribes'
historical immunity goes beyond the Talton deference to tribal self-government
in "internal affairs" or "intra-tribal" controversies, and constitutes a general
bar to suit against the tribes in the absence of express Congressional action
abrogating the immunity 6R Further, some commentators have argued that the
79 334 F. Stipp. 370 (D.N.M. 1971).
79 rd. at 373.
so See, e.a., Edelman T. Jordan, 94 S. Ct. 1347 (1974) ; Scheuer v. Rhodes. 94 S. Ct.
1683 (1974).
81 CP. Scheuer T. Rhodes, 94 S. Ct. 1683 (1974).
93 209 U.S. 123, (1908).
&a Larson v. Domestic & Fore!gn Corporation, 337 U.S. 682, 709 (1949) (Frankfurter,
T.. disaentinr).
e4 Letter of August 1, 1973. Sollciter Frizell to Senator Jackson.
as y.a.. Thebo v. Choctaw Tribe of Indians. 66 F. 372 (Six Cir. 1891) Twin Cities
Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir. 1967).
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Indian Civil Rights Act "does not constitute Congressional consent to suits
against the tribes." "?
However, the consequences of upholding tribal sovereign immunity from
suit under the Indian Civil Rights Act are potentially as serious as a total
denial of jurisdiction. Thus, although the one established exception to the
doctrine of sovereign immunity is the allowance of suits against individuals
actng outside of the scope of their authority on the principle of Ex Parte
Young,84 the Indian Civil Rights Act specifically applies only to tribal action
and not to actions of individuals." Despite the implication of Loncassion V.
Leekity, ? a good argument can therefore be made, and seems to be accepted
in the recent decision in Means v. Wilson;?D that the Indian Civil Rights Act
does not reach individual. action absent a showing that the defendants acted
within the scope of their tribal offiees.?' On that basis, the combination of tribal
sovereign immunity and lack of jurisdiction over individuals would totally
preclude relief under the Act, or, at the very least, would totally preclude relief
in damages. This would in turn sharply reduce the effectiveness of the Act
and the scope of the protection provided and would make the vindication
of rights against political repression, such as the rights involved in the Oglala:
Sioux case,U2 impossible.
As far as the specific argument of executive privilege from liability for
damages based on some standard such as "good faith discretionary acts" is
concerned, personal immunity or privilege must be qualified so as to afford
substantial protection under the Indian Civil Rights Act. On the one hand,
tribal officials must not be deterred in their duties by fear of liability for
damages ; on the other hand, tribal officials must be deterred by the substan-
tive provisions of the Indian Civil Rights Act. Liability should certainly de-
pend upon some finding of fault, but the articulation of a qualified executive
privilege should be left as narrow as possible, and dependent upon affirmative
findings by the federal courts.
Some commentators have argued that even though habeas corpus relief
may not be sufficient to enforce the provisions of the Indian Civil Rights Act,
the damage remedy should be denied because of its threat to Indians' limited
tribal and individual resources. Some tribes have complained of oppression
simply from the necessity of defending such suits.' However, it must be noted
that it is the tribes who have not adhered to elementary standards of fairness
in tribal court proceedings in the past ?i that have been among the first to
invoke their sovereign prerogatives.? And if expense is the real objection,
federal funding should be made available to relieve the problem.
Access to equitable and declaratory relief against tribes, but not damages,
would be more acceptable to most advocates of tribal sovereignty, and has
been suggested in a recent article.U6 Of course, the remedial distinction is irrele-
vant to the issue of subject matter jurisdiction, and the doctrine of tribal
immunity from suit is jurisdictional in nature. Since jurisdiction under title
28 United States Code section 1343(4) expressly includes a grant of authority
over actions "to recover damages," it is difficult to. see how such a remedial
distinction could be sustained, except by judicial restraint in, appropriate cases.
But remedies should indeed be carefully tailored to fit each case brought under
the Indian Civil Rights Act.
Sovereign immunity, which has bedeviled the federal courts when invoked
by the states under the eleventh amendment, has hindered the enforcement
of the provisions of the fourteenth amendment, especially under the present
Supreme Court.' But despite the long-standing quarrel, the courts have never
squarely faced the issue of whether or not the fourteenth. amendment neces-
sarily abridges the provisions of the eleventh to the extent required for its
?? Webb & Webb, supra note 170; at 706. See- also Lazarus, supra note 23 at 349-
5o.
8720'.1 U.S. 123 (1908). See also Barr v. Mateo, 300 U.S. 364 (1959) ; Webb & Webb,
supra, note 170.
88Unlike the Civil Rights Acts, 42 U.S.C. ?? 1981, 1983, 1985, 1986', 1988, which
apply to individual action, albeit "under color of state law."
693,14 F. Supp. 370 (D.N.M. 1971).
?? Civ. No. 74-5010 (D.S.D. Sept. 20, 1974).
?t Id. at slip opinion 27.
??Oglala SiouxCivilEtta. Org. v. Wilson. Civ. No: 73-5036 (D.S.D:).
?A THE INDIAN CIVIL RIGHTS ACT, FIVE YEARS LATER, supra note 2, at 55.
94 Tie vrence, supra note 87.
03 TILT: INDTAN CIVIL RIGHTS ACT, FIVE YEARS LATER, supra note 2; at 57-60i.
?? Webb & Webb, supra note 170.
07 See Edelman v. Jordan, 94 S. Ct. 1347 (1974).
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full enforcement. Thus, the issue which the courts must face in deciding
whether or not the Indian Civil Rights Act waives tribal sovereign immunity
is precisely the question which has been avoided for so long with respect
to the fourteenth and eleventh amendments. Since the Indian Civil Rights Act
does not share the individualized focus of the fourteenth amendment, but
directly focuses on the tribes' exercise of the powers of self-government, the
issue is whether the courts will seek to enforce the Act or whether they will
seek to frustrate the Act through new doctrines of tribal immunity from
damages. Because tribal resources are so limited, the courts must be circum-
spect in granting damages, but the courts must retain that power. Federally
funded insurance for contractual activities is a start, but a more comprehen-
sive insurance is required, and it is the obligation of the federal government,
which waived the tribes' sovereign immunity, to pay the price of civil rights
for Indian people.
Abstention and Exhaustion
The abstention doctrine and the exhaustion of tribal remedies requirement
also present perplexing problems within the context of th.u Indian Civil Rights
Act. These problems are vividly illustrated by the recent division of the Eighth
Circuit in O'Neal v. Ohcyenne River Sioux Tribal Council.' O'Neal concerned
an action brought in federal court by Indian plaintiffs against several officials
of the Cheyenne River Sioux Tribe subsequent to a Junior Tribal Court order
that property of the plaintiffs be seized on behalf of the tribe. Under these
circumstances, the Eighth Circuit held that the plaintiffs should have first
applied to the Superior Tribal Court for relief before applying to the federal
courts. The circuit court affirmed the district court's dismissal of the suit for
failing to exhaust all available tribal remedies declaring that these remedies
need not be pursued when bringing conventional civil rights suits, because
"Congress wished to protect and preserve individual rights of the Indian
peoples, with the realization that this goal is best achieved by maintaining
thr unique Indian culture and necessarily strengthening tribal governments.
From this perspective an exhaustion requirement is consistent with the
statute." 89
Nonetheless, the Eighth Circuit made it clear that
"[E]xhaustion is not an inflexible requirement. A balancing process is evi-
dent ; that is, weighing the need to preserve the cultural identity of the tribe
by strengthening the authority of the tribal courts, against the need to imme-
diately adjudicate alleged deprivations of individual rights." 1
It seems to me that, even conceding the general policy of federal judicial
deference to the decision-making prerogatives of the tribal courts, the courts
should be loath to grant deference to the decisions of tribal courts when ac-
tions of tribal officials are concerned and delay risks substantial injustice.
That is why the abstention in Means v. Wilson 2 is so disturbing. Further, a
federal court should never dismiss a case for failure to exhaust tribal judicial
remedies ; rather, it should abstain, retain jurisdiction and remand the case
to tribal courts The lack of any real separation of powers between the Indian
tribal judiciary and tribal administration makes the availability of a trial de
novo in the federal district court imperative, at least in cases involving chal-
lenges to tribal officials, such as Means v. Wilson.
5 482 F.2d 1140 (8th Cir. 1973).
gold. at 1144.
114. at 1146. The Harvard Law Review Note also addressed this question, but pro,
duced an equally ambiguous response :
The question remains whether federal courts should apply a condition of exhaustion
of tribal remedies before giving federal remedies to enforce the statute. This determina-
tion should be based on the statutory pun oses. One purpose was to continue the policy
of strengthening tribal courts, this would support an exhaustion requirement. Yet the
purpose of protecting Individual rights might be defeated by such a condition in some
cases, as where a delay risks serious harm with little chance of a tribal remedy. Where
the balancing of these purposes is not determinative of this and similar questions,
courts should refer to federal judicial policies concerning relations with other decision-
making bodies, and yet articulate those policies' Import in light of the unique relations
between federal courts and tribal institutions . . . [thus, in the case of Dodge V. Nakaij,
the District Court suggested that an implied condition of exhaustion of tribal remedies
should usually operate ; this suggestions, was based on congressional policy favoring
Indian self government, enhancement of the Indian judiciary through responsibility,
and dimunitton of federal intervention. The court held. though, that no exhaustion was
required In that case because, due to the presence in that ease of defendants not amen-
ahle to tribal court jurisdiction, such a requirement would result in a multiplicity of
law suits and a delay of any effective remedy. IHAnv. L. REV. Note, supra note 2, at
137;leans v. Wilson, Civ. No. 74-5036 (D.S.D. Sent. 20. 1974).
s See Clark v. Land & Forestry Comm., Civ. No. 74-3021 (D.S.D. Aug.. 9, 1974).
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The same considerations are pertinent to the question of exhaustion of ad-
Ininistrative remedies. At the most, as noted in O'Neal, the exhaustion of state
administrative, rather than judicial,, remedies is the most which s required
in title 42 United States Code 1983 actons.4 By analogy, it is submitted that
in a majority of cases, and especially where tribal officials are challenged,
exhaustion of tribal administrative remedies should be the maximum require-
ment prior to exercising federal jurisdiction under the Indian Civil Rights
Act. Ths is particularly true where the tribe has set up an exclusive- admini-
strative procedure and claims immunity from suit in tribal court, as in Means
v. Wilson.
Thus, the O'Neal case should be confined to its facts. Once a plaintiff enters
the tribal court, and the tribal court takes jurisdiction, he must pursue his
tribal court remedies to their filial conclusion before a federal court will inter-
vene in the tribal judicial process. This is a sound principle, worthy of gen-
eral recognition. Upon the conclusion of tribal judicial proceedings, the plain-
tiff may then obtain relief in the federal court under the Indian Civil Rights
Act, provided that he makes allegations of a denial of rights protected by the
Act. If the plaintiff chooses to forego his tribal court remedies, the federal
court should properly require a showing that the tribe has- asserted a defense
of immunity or lack of jurisdiction or that recourse to tribal judicial reme-
(lies would more probably than not be futile. In cases involving challenges
to tribal officials, the federal courts should avoid the imposition of an exhaus-
tion requirement, particularly where delay substantially prejudices the plain-
tiff's case.
The Dilemma of Cultural Imperialism
"We hold these truths to be self-evident : that all men are created equal,
and that they are endowed by their creator with certain inalienable rights ;
that among these are life, liberty, and the pursuit of happiness."' Indeed, we
hold it to be "self-evident" that all men are equally endowed with virtually
all of the human rights which we have found to be indispensible to a system
of ordered liberty and which we have elaborated in our Bill of Rights and
our constitutional law. The rub is in the- "we. The "we" is the white, Anglo-
American social structure, with a peculiar historical and sociological back-
ground, a civilization which was transplanted from Europe and which con-
quered and colonized the North American continent. This "we" transplanted the
1.8th century ideals enshrined in the United States Constitution, ideals which
in turn continue to govern American political life. Thus, even at the time of
the Declaration of Independence, the "all men" alluded to was clearly under-
stood to exclude Native Americans.
This is the problem-in its most stark terms-which faces anyone attempting
to "sell" the Indian Civil Rights Act to the Native American population which
remains in North America after the destruction and pillage of its lands, its
culture, and its spirituality by the white "idealists" from across the sea. It is
not only that the human rights extended by the Indian Civil Rights Act do not
arise from the Indian or tribal experience and. culture. It is worse because these
rights arise from the white man's culture-from manifest destiny, missionary
zeal and from capitalist individualism-indeed, from the very aspects of the
white man's culture which have acted as the motivating force behind the ex-
ploitation of the Native American people and their homeland.
There can be no more repugnant act of- cultural imperialism than the impo-
sition of alien values on another people, as the course of our relationship with
Indian people has repeatedly shown. Americans, however, are biased toward
the melting pot mystique; the interaction of cultures is a major ingredient
of our culture, and the,assimilation of immigrant peoples into American liberal-
ism and liberty is our dominant national myth. Even though cultural imperial-
ism is thus to some extent inevitable, and the Indian Civil Rights Act may
be viewed as balancing the impositions of the past, it nonetheless appears to
be another such imposition. -
But is the Act really of the same quality as past intrusions? To answer
this question we must closely examine the probable effect of the Act. Has the
availability of civil liberties been of importance in our society? Moreover, what
should Anglo-Saxon libertarian ideals mean to tribal societies? Is there some
standard of fundamental rights which goes beyond a particular culture or
4 See, e.g., Monroe v. Pape. 365 U.S. 107 (1961).
6 DECLARATION OF INDEPENDENCE, PREAMBLE. -
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a particular society? Was it not a form of cultural imperialism to fight racism
in the American South, for example? If we are to pass judgment on the Indian
Civil Rights Act, we must face these issues.
The Necessity of Recognizing Fundamental Rights
I believe that the cause of fundamental rights must be defended. I believe
that all governments and ultimately all organizations exercising authority
over individuals, must be compelled to recognize the inherent dignity and.
equality of each and every individual member of the human family-as an in-
dispensible prerequisite to any possibility of freedom, justice and peace in the
world. The disregard and contempt displayed by governing agencies toward
this dignity has, as an historical matter, resulted over and over again in bar-
barous and inhuman acts which have outraged the collective conscience of
the human family. Thus, it seems that governing bodies, disposing of the coer-
cive power of modern sovereignty, are, by their very natu?e, disposed to crush-
ing individuals in their collective lumbering toward collective goals. As "civil-
ization" presses its way into the lives of more and more groups of the human
famly, it inevitably brings wth it the particular curse of collectivism.
The United Nations has recognized that protection of fundamental indivi-
dual rights must be recognized by all nations and has adopted the Universal
Declaration of Human Rights. Philosophers have had a concept of individual
rights in virtually every culture and in virtually every age, and John Rawls
has recently given voice to the secular conscience of humanity in his seminal
book, A Theory of Justice, which has reinvigorated the philosophy of natural
rights. And we must recognize the alternative : those persons who are inevit-
ably denied fundamental rights, however defined, will resort to physical vio-
lence against the collectivity to resist tyranny and oppression."
It will be objected. that the situation of the American Indian tribes is unique
and that the enforcement of fundamental rights in America has not been suc-
cessful in avoiding widespread exploitation and oppression in the past. Both
of these observations are true to some extent. I do not believe, however, that
the uniqueness of the Native American people and the particular genius of
their traditional cultures and tribal groups shoud prevent us from seeking to
enforce the fundamental rights of all of the people now living together in.
America, nor do I believe that our failures in the struggle to enforce the same
rights against Anglo-American governments should now deter us from contin-
uing the struggle.
Sovereignty is a western concept, derived from the historical growth of the
nation states of Western Europe. In the opinion of the author, it has been the
cause of much suffering, in that the nation-state exists on n dynamic of exploi-
tation and war. It is an unworthy concept, particularly when opposed to the
concept of guaranteeing the fundamental human rights. Thus, I would urge
that the criticism of the Indian Civil Rights Act not be predicated on a defense
of "tribal sovereignty." despite its continuing significance as the basis for the
legitimate treaty claims of the Native American people against the United
States government.
The Indian Civil Rights Act is. certainly a form of cultural imperialism, and.
I am sympathetic to the fact that the past erosion of tribal culture does not
justify further erosion now. However, to the extent that the plight of Indian
people is. the fault of the federal government, tribal sovereignty must not pre-
vent action to remedy that plight. In the final analysis, appeals to sovereignty
as a basis for refusing violations of fundamental human rights by the Native
American tribes. in. defense of their political and. cultural autonomy, are mis-
placed and constitute a disservice to the Indian community.
Proposed Revisions of the Indian Civil Rights Act
Having emphasized my support of the Indian Civil Right, Act, it may appear-
peculiar to now. advocate its revision, but I do believe. that Congress could
have done a much better job. The imminent establishment of the American
Indian Policy Review Commission' makes the proposal of revisions in the
statute particularly appropriate at this time, since the joint resolution creating
the commission has as one of its duties :. "a consideration. of alternative meth-
ods to strengthen tribal government so that the tribes might fully represent
their members and, at the same time, guarantee the fundamental. rights of
individual Indians."
UNIVERSAL DECLARATION OF HUMAN RIGHTS, PREAMBLE, U.N. Doc. No. 15-23148,
(1062).
7 H.R.J. Res., 93d Cong., 2d Sees. (1974).
8Id. 2(6).
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The most obvious revision of the Indian Civil Rights Act would be the pro-
vision of a discrete judicial forum as an alternative to the federal district
courts; this idea should not be adopted, of course, unless the Indian people
agree. Title IV of the Indian Reorganization Act of 1934, or originally pro-
posed, would have established a federal Court of Indian Affairs with similar
duties :
"This court would have taken over original jurisdiction from the district
,courts in certain matters such as crimes against the United States committed
on a reservation and commercial disputes between a tribe and outsiders. Fur-
thermore, the court would have appellate jurisdiction over the tribal courts in
those cases in which it would have original jurisdiction. All mention of these
:special courts was eliminated from the final Act, primarily because the com-
mittee members and Indians disagreed, with each other and among themselves,
whether they would be a boon or a hindrance to tribal sovereignty." ?
Although no agreement is yet apparent, Indian legal symposia have raised
the issue of such a court, an "inter-tribal Indian controlled court of appeals,"10
to oversee the tribal courts. There is a broad realization that the essential
issue under the Indian Civil Rights Act is the due process issue and the neces-
:city of reform of the tribal courts.'
It is clear that there must be an impartial appellate body of some kind
if the tribal courts are ever to become truly independent of political control.
But, the tribal courts must .also assert their independence. They must begin to
strike down actions of the tribal council or tribal executive branch found to
be in violation of the tribal constitution or laws. They must begin to enforce
their tribal bills of rights. They must develop their professional competence,
and they must be given legal and administrative resources by the federal
:government. This is a difficult undertaking but it is essential to the continued
viability of the tribal courts.
Aside from such a dramatic reform, other, less drastic, amendments are
possible and should be considered. In the event that the "traditional courts"
,of the Pueblos do function as dispensers of customary Pueblo law, Congress
should seriously consider S. 2173, the 1969 Ervin Bill, introduced to exempt
them from the Indian Civil Rights Act.
I would not, however, agree with the proposed limitation of the coverage
of the Act to Indian people contained in S. 2173. To repeat, it seems to me that
the real battle is for jurisdiction over non-Indians in Indian country. It is to
be noted that none of the recent sets of demands issued by various Indian
organizations, either during the Trial of Broken Treaties or the confrontation
at Wounded Knee, urged the repeal of the Indian Civil Rights Act. Rather, the
demands centered upon the return to a relationship based on treaties and
directly supported the extention of tribal jurisdiction to non-Indians. As I see
it, the Indian Civil Rights Act, or an acceptable replacement, is an essential
prerequisite to the goal of responsible and effective tribal government, because
it makes such comprehensive jurisdiction possible.
The repeal of the limited right to counsel provided by the Act also seems
contradictory to the end of the extending jurisdiction to non-Indians, who will
require effective representation in tribal courts. Further, I would oppose revi-
sione entailing new jurisdictional limitations, abstention doctrines, or soveregn
immunity defenses for the reason stated earlier-that any limitaton on the
scope of Indan civil rights should be principled. not technical, in nature. Also
I would rely on the federal courts, or an Indian court of appeals, to elaborate
the scope of the protections provided by the Act.
CONCLUSION
In the maze of shifting attitudes toward Indian policy, the conflicting poles
of assimilation and separatism have often been intermeshed. So it is today.
The future envisioned by the B.I.A. Is the gradual contracting of federal
services to the tribes and the transfer of administrative responsibility for
B.I.A. services to the tribes, while the B.I.A. maintains overall control of
tribal programs. In revulsion against the specter of "termination" of the spe-
cial federal responsibility toward tribal Indians, Indian people have been will-
ing to embrace such a continuing federal "guardianship" role.
If we assume such a continuing participation by the federal government in
Indian tribal affairs, we are almost compelled to accept the judgment of the-
e Mien. L. REv. Note. supra note 10, at 963.
x? THE INDIAN CIVIL RIenre ACT, FIVE YEARS LATER, supra note 2, at 56.
xx 15, at 48, 103-05.
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Colliflower case,12 that the tribe, as a federal "instrumentality," should be sub-
ject to suit in federal court.13 Too often, the veil of tribal sovereignty has.
given the B.I.A. an exclusive franchise to manipulate and control tribal affairs
and to avoid the prospect of appeal to outside help by individual Indian people
who are truly interested in self-determination, but who find that they cannot
free themselves from the suffocating control of a massive federal bureaucracy.
The Indian Civil Rights Act has codified the Colliflower case and resolved this
dilemma.
It is not the fault of the Indian people that their tribal legal systems are
so compromised today. It is the fault of the white man, who, in the brief
period of his colonization of the North American continent, has virtually
destroyed American Indian tribal customary law. Many of the oral traditions
have died, and the reservation experience has been traumatic for all of the
tribes. Some have resisted the white man's ways; others have not. Most have
reorganized their governments to correspond to the white man's Indian Reor-
ganization Act, and they have organized tribal justice systems in the white
man's way. Now they are faced with the white man's Indian Civil Rights Act,
which makes tribal institutions responsible to the federal courts.
To the extent that customary law still functions in the tribes, it can and
should be preserved. However, we must recognize that for many Indian people,
customary law is dead. With the continuing imposition of white civilization on
the tribes and the reorganization of tribal government has come the destruc-
tion of customary political and moral authority. Many tribal governments thus.
do not reflect tribal law or custom, and "traditionalists" find themselves op-
posed to tribal governments on these reservations. Customary law and cus-
tomary tribunals exist outside of the formal legal system as a part of Indian
religion, but only rarely are recognized by the tribal government.
In my view, there is every reason in conscience to defer to the judgments
of Indian customary law and to protect thereby the "central cultural values"
of tribal Indian people. But there is no reason to defer to the judgments of
nontraditional Indian governments exercising municipal powers under the
charter and guardianship of the federal government. The point in need of clar-
ification is how to tell the difference.
I have attempted to articulate a standard of judicial restraint which recog
nizes the need to take account of areas of sovereignty which should be pro-
tected from federal judicial interference pursuant to the Indian Civil Rights
Act. It is my belief that the test should follow the Yoder case. Thus, where
a separate ethnic community has developed its culture in a context entirely
different than that of Anglo-American constitutional history, and where an
important goal of that culture is preservation of traditional ways. the depart-
ures of that culture from constitutional standards should be recognized as
"central cultural values" protected by the free exercise clause of the first
amendment.
The Yoder test mandates a searching inquiry into the customary or tradi-
tional basis of challenged tribal actions. Therefore, a claim that a given
institution or practice should be protected under the free exercise clause must
be based on a showing of some historical continuity and some ongoing function
in tribal life. If the tribe can meet the burden of showing a strong and com-
pelling nexus between the autonomy demanded and a necessary tribal value,
fundamental human rights may be compromised by the tribe. The point I am
striving to make is that such a searching inquiry is quite feasible and that it
is the only principled way to preserve tribal "central cultural values" while
allowing inquiry into the basis of tribal actions abridging individual rights.
Simplistic rubres will not suffice. What is needed is an evaluation of the tribal
justice system in each instance. pinpointing the sources of customary authority
and the remaining customary rules and adjudicating persons or bodies, so that
the tribe's free exercise rights can be accurately weighed against the indi
vidual's rights under the Indian Civil Rights Act.
Accordingly, it is submitted that Congress' use of constitutional language
should not be taken as requiring m odification of tribal governmental procedures
and laws to fully comply with the same constitutional standards imposed on
state and federal governments. Rather, Congress' use of constitutional lan-
guage, when read in the light of the free exercise clause, mandates that the
courts evolve constitutional standards appropriate to the concept of Indian
iz 342 F.2d 369 (9th Clr. 1965).
13 C1, Marsh v. Alabama, 203 U.S. 501 (1946).
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tribes as ethnically and culturally autonomous units. The fundamental rights
of the Indian people should not be forfeited to the sovereignty of the tribes,
but they should be balanced against the tribes' free exercise right of cultural
autonomy. .
What of the future? There will be more activists, and there may well be
more confrontations, more Wounded Knees. More Indians will develop a pan-
tribal perspective, especially in their spiritual life. Increasingly, pan-tribal
political movements will come into being. Will we see the emergence of plural-
stic democracy on the American political model? A return to pre-Indian Reor-
ganization Act modes of organization? Or new, Indian-evolved, forms of gov-
ernment? I do not dare predict. If tribal life is to have vitality, it must develop
in a legal context which provides for responsible tribal self-government. There
must be accountability to standards of fairness which protect both the funda-
mental rights of individual Indians and the cultural integrity of the tribes.
Thus despite its deficiencies, I believe that the Indian Civil Rights Act is a
valuable instrument for the reform of tribal institutions. It has legitimated
tribal jurisdiction, especially over non-Indians, and it is an important step in
the pursuit of responsible tribal self-government.
[From the Washburn Law Journal, Vol. 14, No. 11
CREATIVE PUNISII TENT : A STUDY OF EFFECTIVE SENTENCING ALTERNATIVES
(By David F. Fisher)
1. Introduction
II. Purposes of Punishment
III. Forms of Punishment
IV. Social Satisfaction Without Imprisonment
A. Offender and Criminal
Offense and Crime
V. The Creative Sentencing Technique
A. Restitution
B. Correlation
C. Significance
VI. Limitations on Application
A. Statutory Authority
B. Reasonableness
Personal Right
D. Fairness
VII. Sentencing Guidelines
A. The Problem with Judges
B. Check List for Determination
1. INTRODUCTION
Criminal jurisprudence has been defined as "the problem of trying to control
anti-social behavior by imposing punishment on people found guilty of violating
rules of conduct called criminal statutes." 1 In the realm of criminal juris-
prudence, imposition of.punishment is perhaps the most weighty action taken
by a judge. No other final order equals sentencing in its far-reaching effect,
both on society and the individual offender. Despite sentencing's importance,
however, an offender's treatment after conviction "is the least understood, the
most fraught with irrational discrepancies, and the most in need of improve-
ment of any phase in our criminal justice system." 2
In devising any sentencing policy it first must be noted that sentencing is not
a neutral act ; it is a human process occurring within a social environment
of laws, facts, ideas and people. A sentencing procedure's validity depends
upon the extent to which each of these factors is taken into consideration.
Traditionally, ideas of crime and punishment have been inseparable ; conse-
quences of a conviction have been described as a matter of course as "pun-
ishment."' Punishment may be defined as a preventive measure designed to
11I. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 3 (1968) [hereinafter cited as
PACRERI.
* Unitere Mates v. Waters. 437 F.2d 722, 723 (D.C. Cir. 1970).
a 73. Hart, The Aims of the Criminal La-w, 23 LAW & CONTEMP. PROB. 401, 405
(1958).
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protect society, reform offenders, educate the community in deterrence, and
"influence development of social morals and social dise,ipline among citizens."'
In assessing sentencing procedures, these various purposes, upon which most
sentencing provisions are founded, must be carefully scrutinized. With some
variation, the traditional objectives of criminal punishment have been repro-
bation, retribution, deterrence and reformation.
To the extent punishment is merely a penalty, it is an expression of social
reprobation, a "public condemnation based upon the disturbance and excite-
anent brought about by crime." ? It constitutes the compensation. or expiration
afforded society for a material injury effected upon it by wrongdoers. The
wrongdoer himself is of little consequence." Society flies the punishment's
gradation to conform with its abhorrence of the particular crime without
adjustment for indiv;dual circumstances. Incapacitation as a basis for punish-
ment partially relies on this reasoning. While offenders are incarcerated,
society assumes it is free of their depredations and justice is thereby effected.
Retribution embodies the theory that man is a responsible moral agent to
whorl rewards are due when be makes correct moral choices, as socially
defined, and to whom punishment is due when he makes wrong ones.' Thus,
retribution has been defined as "deserved punishment for evil done, or .
merited requittal",8 it is required atonement whether or not it reduces crim-
inal activities. The criminal law serves as an acceptable basis within the social
framework for accomplishing this atonement? Retribution has been condemned
its "unjustifiable vengence," 1? a "legalization of primitive and infantile reac-
tions."' Once labeled an offender a person is "fair game" and society's collec-
tive emotions come forth as a conviction that its injury must be "repaid.""
Punishment acts as a deterrent to the extent it is used to reduce or eliminate
the incidence of antisocial behavior. It is the unpleasantness of discouraging
measures, i.e., death, corporal punishment, financial penalties, deprivation of
liberty, and attaching social stigma which is hoped achieves this objective 13
It is doubtlessly accurate to say "any imaginative realization that one will
be hissed off the social stage or suffer pain is bound to act as a strong deter-
rent."" However, sev ral commentators claim this objective is highly over-
rated as a realistic achievement of current criminal sanctions.15 Society can-
not hope to deter "those whose lot in life is already miserable beyond the point
&N. WALKER, SENTENCING IN A RATIONAL SOCIETY 10 n.7 (1969) [hereinafter cited
at WALKER] (quoting from Yugoslav Criminal Code of 1951, Art. 3). See also R. vox
IIENTIG, PUNISHMENT: ITS ORIGIN, PURPOSE AND PSYCHOLOGY 1 (2d ed. 1973).
5 SALEILLES, THE INDIVIDUALIZATION OF PUNISHMENT 185 (2d ed. 1968) thereinafter
cited as SALEILLES].
0 "In the eyes of criminal justice the offender is but an abstract, nameless individual,
as later he becomes a mere number in the workyards of the jail or penitentiary." IS.
at 4.
7 See PACKER, supra note 1, at 37-38.
$WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE 1244 (college ed.
1967) Sir James Fitajames Stephen chose to be more blunt : "[The] criminal law
proceeds upon the principle it is morally right to hate criminals [and society]
justifies that sentiment by inflicting upon criminals punishments which express it." 2
J. STEPHENS, HISTORY OF THE CRIMINAL LAW OFENGLAND 81-82 (1883).
P See PACKER, supra note 1, at 10.
10 DeGrazia, Crime Without Punishment: A Psychiatric Conundrum, 52 COLUM. L.
REV. 746, 750 (1952).
11 K. MENNINGER, THE HUMAN MIND 449, 455 (3d ad. 1945).
12 IC. .111ENNINGER, THE CasME OF PUNISHMENT 190 (1966) ; See SALEILLES, Supra note
5, at 192. It becomes an Indelible taint. The criminal is of another race ; he is the
savage come to life again ; and is to be bounded without mercy ; he is the extreme anti-
social being, wholly refractory to the requirements of social life.
13 See Meyer Reflections on Some Theories of Punishment, 59 J. CRIM. L.C. & P.S.
1395, 597 (196?). There are generally two theories of deterrence: special or individual
deterrence and general deterrence. Jerremy Bentham emphasized. the former, contending
,only so much punishment need be inflicted as will effectively deter the particular
.offen,Ter concerned. This has been labeled Bentham's "frugality of punishment" theory.
See WALKER, supra note 4, at 3-4. Sir James ll'itzjames Stephen, on the other hand,
has argued the primary objective of deterrence Is to reflect an example for all other
persons tempted to commit crime, thereby reducing the possibility they will submit
to temptation. Toward this end, punishment must do more than merely deter an indi-
vidnnl. See 2 J. STEPHEN, IIISTORY OF THE CRIMINAL LAW OF RNGLAND 92 (1983).
1411. Cohen, Moral Aspects of the Criminal Law, 49 YALE L.S. 987, 1015-16 (1940).
Cohen goes on to say: (T]o Justify punishment it is not necessary to prove that it
alwa. a prevents crime by its deterren quality. It is enough to indicate that there would
be more crime if all punishment were abolished." IS. at 1015-16.
15 See NATIONAL COUNCIL ON CaIMR AND DELINQUENCY, GUIDES FOR SENTENCING 2-3
{1957) ; PACKER, supra note 1, at 45-46; WEixoams, Tun URGE To PUNISH 149-50
{1956).
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of hope . . those Whose value systems are closed to further modification,
either psychologically . . or culturally . ." or those whose conduct is co n-
pulsory. o Other commentators suggest certainty of detection and punishment
has a greater consequence in deterrence than the penalty's severity 17
The modern approach in punishment theory combines goals of community
protection and criminal rehabilitation, taking the criminal's background and
personality into account, rather than merely penalizing the offender for his
misdeed." The so-called "rehabilitative ideal" is primarily offender-oriented
in that the punishment's duration is measured by what is thought necessary
to beneficially change the offender's personality.19 Theoretically this is achieved
through "proper programs of education and training, medical care and assist-
ance, according [the prisoner] basic amenities of life, and through gradual
re-establishment of his ties with the' community." 2A
Fundamental problems in sentencing arise from a lack of agreement as
to which social purposes it should promote.81 Realistically, it must be recog-
nized that the desire for vengence and reprobation is strong among men 32
Deterrence and rehabilitation are also highly regarded,, necessary objectives
to be achieved. Thus, no penal philosophy can focus upon a single objec-
tive ; "rather will it be a somewhat dubious mixture of heterogeneous ele-
ments ...:" 28
III, FORMS OF PUNISHMENT
The most common means of dealing with minor offenses is the fine. Its
amount generally relates to the material gravity of the offense and thus has
reprobation and retribution as primary objectives 2' Theoretically, "it quickens
the sense of social responsibility" by making the offender undergo some
tangible sacrifice 2? When a judge's realistic alternatives are limited' to fines
or imprisonment, there is inevitable discrimination between offenders who can
afford a fine and those who cannot. The United States Supreme Court has
ruled that jailing an indigent for mere nonpayment of a fine is violative of
equal protection.`' However, this ruling does not cure recurrent inequality
when imprisonment is a legitimate statutory alternative to a fine. Those
apparently unable to "pay" for their crime financially will more readily be
accorded the harsher treatment. In this respect the fine fails to accomplish
Imprisonment isolates from the community persons likely to commit crim-
inal acts and serves as a disciplinary and training center helpful in beginning
cetrain rehabilitative programs. It was first devised as a rehabilitative alter-
native to . more puritanical penalties such as display in the stocks, public
whippings , and physical mutilation 24 Unfortunately, the predominant theory
today appears to be that incarceration should serve primarily as an. incapaci-
tative technique.28 This ignores the obvious fact that eventually the offender
16 PACKER, supra note 1, at 45 ; see S. RUBIN, THE LAW OF CRIMINAL CORRECTIONS.
748-52 (2d ed. 1973) [hereinafter cited as CRIMINAL CORRECTIONS].
"BARNES, THE STORY OF PUNISHMENT 254 (1930) ; J. Andenacs, The Preventive"
Effects of Punishment, 114 U. PENN. L. REV. 949, 964-70 (1966).
18 D. Lay, A Judicial Mandate, TRIAL, Nov., 1971, at 14. McGuire & Holtzof, The
Problem of Sentence in the Criminal Law, 20 B.U.L. REV. 423 (1940). See also PACKER,
supra, note 1, at 53.
15 PACKER, supra note 1., at 54.
20 D. Lay, A Judicial Mandate, TRIAL Nov., 1971, at 14.
21 See J. HOOARTH, SENTENCING AS A'IIUMAN PROCESS 3-6 (1971 .
22 See Donuts, THE COMMON LAW 41 (1881) ; CRIMINAL CORRECTIONS, 811,pra note
16, at 745.; M. Cohen, Moral Aspects of the Criminal Law, 49 YALE L.J. 987, 1010?
(1940).
23 Mannheim, Some Aspects of Judicial Sentencing Policy, 67 YALE L.J., 961, 971
(1958).
24 WALKER, supra note 4, at 82-83.
25Best & Birzon, Conditions of Probation: An Analysis, 51 Oro. L.J. 809. 821 (1963).
2a'i'ate v. Short, 401 U.S. 895 (1971) ; Williams v. Illinois, 399 U.S. 235 (1970).
2T W. Nelson, Emerging Notions of Modern Criminal Law in the Reliolutionary Era
An Historical Perspective, 42 N.Y.U.L. REV. 450. 459-61 (1967). Nelson quotes the.
following passage from an address by Governor Hencocls to the General Court, Mass-
ehusetts, 1793: "It may be well worthy of your attention to Investigate the question
tl ee p public the whipping posts, igso frequently oadministered in branding, as well as the that
means to prevent the commission of crimes, or absolutely necessary to the good order
of government or to the security of the people. It is an Indignity to human nature,
and can have but little tendency to reclaim the sufferer. Crimes have generally Idleness
for their source, and where offenses are not prevented by education, a sentence to hard
labor will perhaps have a more salutary effect than mutilating or lacerating the human
body ...." Id. at 461.
28 S. BATES, PRISONS AND BEYOND 76 (1936).
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will be released.' Unless imprisonment has accomplished some rehabilitation,
incapacitation will have protected society only briefly.' Little has been done,
however, to achieve rehabilitative goals-at least on the local level. For
example, mandatory sentences are provided to maximize a penalty's deterrent
effect and are seldom advocated for corrective reasons.' Thus, courts often
pronounce sentences unnecessarly drastic from the corrective or precautionary
view and which are often uneconomical and inhumane.
It may also be informative to examine the facility used to "rehabilitate" an
offender. A recent survey of representative police and county jails revealed
reformation was not a firm objective." The average age of jail facilities sur-
veyed was 34,5 years with little modernization. Several facilities were
squeezed into a single floor of the local county courthouse. Not a single county
maintained educational facilities nor were study release programs provided.
Each had occasional work release programs but none were permanently
established. None of the counties surveyed provided equipment or space for
inmates' physical activity or exercise. One county referred to the "pen" where
inmates were allowed fresh air. and occasional jogging exercises were allowed
in catwalks surrounding the cells. There were no full time personnel assigned
to care for any jail within the counties surveyed. Supervision and responsi-
bility for inmates' welfare was distributed among a curious group with various
other responsibilities and backgrounds, e.g., dispatchers, records keepers, jani-
tors and city patrol. The interest with which these people attended to the
responsibility necessarily was secondary to their primary duties. Rehabilita-
tion was not well-advanced.
The American Bar Association has recommended sentencing alternatives
which feature the individual's freedom. This is at least a tacit recognition
that our jails and prisons have not accomplished rehabilitative goals. Indeed,
they tend to institutionalize offenders, rendering them even less capable of
social integration because of broken ties with the outside community.
Indeterminate sentencing and semi-detention have been devised as means to
assure a more rehabilitative approach in criminal incarceration. An indeter-
minate sentence consists of two confinement periods announced by the court,
one being a minimum, the other a maximum.80 A prisoner so sentenced is
eligible for parole after the minimum term is completed, depending on his
rehabilitation, and he must be discharged at completion of the maximum.
The procedure's asserted advantages of flexibility and evenhandedness seem
quite worthy ; however, the meager rehabilitative capacities of local penal
institutions have already been noted. Justifying such a sentence on rehabilita-
tive bases seems tenuous at best. Indeterminate sentences are also criticized
for lack of guidance afforded a judge in formulating terms of incarceration
and the procedure's tendency to subject a prisoner to an "unknown destiny,
land] sure probing, prodding, poking, etc. to determine release ; like a ripe
olive." a' The American Bar Association has taken the position it is "unsound"
for a legislature to require a minimum term of imprisonment. 40
C Approximately 95% or all offenders incarcerated are eventually released. NATIONAL
OUNCIL ON CRIDSE & DELINQUENCY, GUIDES FOR SENTENCING 2 1957).
30 See Note Sentencing Felons to hnprisonncent under the Kansas Criminal Code: The
Need for a Consistent Sentencing Policy, 10 WASHBURN L.J. 270, 271 (1971).
WALKER, supra note 4, at 14S-49.
82 Id.
11 The survey was conducted in 1973 by a local government agency. The source has
requested the agency's name and those of the counties surveyed remain confidential.
However, all findings are verifiable in UNITED STATES DEFT OF JUSTICE, LOCAL JAILS :
A REPORT REPRESENTING DATA FOR INDEPENDENT COUNTY AND CITY JAILS FROM THE
1970 NATIONAL JAIL CENSUS (1973).
34D. Lay, A Judicial Mandate, TRIAL, Nov., 1971, at 14. "Our prisons have been blunt-
ly described as little more than `warehouses of human degraaation.' They are nothing
more than 'a walled institution where adult criminals in lar'-e numbers are held for
protracted periods, with economically meaningless and insufficient employment, with
vocational training or education for a few, with rare contacts with the outside world
in
cellular conditions varying from the decent to those which a zoo would not tolerate,
the
others o likebmind tfro om {runthe ning itheeriskoofssharing itheirnincar future an to " Id. deter
See also N. Carlson, The Law and Corrections, 6 U. SAN FRAN, L. REV. 77, 83 (1972).
g' ABA STANDARDS RELATING TO SENTENCING ALTERNATIVES AND PROCEDURES ? 2.5(c)
Commentary (Approved Draft. 1968) [hereinafter cited as ABA STANDARDS]. "A sen-
tence not involving total confinement is to be preferred in the absence of affirmative
reasons to the contrary."
36 See, e.g., KAN. STAT. ANN. ? 21-4603 (Supp. 7973).
37 See CONRAD, CRIMP AND ITS CORRECTION: AN INTERNATIONAL SURVEY OF ATTITUDES
AND PRACTICES .rig (1967) ; GLASER, COHEN & O'LEARY, THE SENTFNCING AND PAROLE
PROCESS 9 (1966).
39S. Rubin, The Model Sentencing Act. 39 N.Y.U.L. REV. 251, 258 (1964). Butt see
KAN. STAT. ANN. J 21-4606(21 (Senn in73i
4? ABA STANDARDS, Rupra" 071aenaenchn 41 U. Cis. L. REV. 1, 38 (1972).
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Semi-detention utilizes a weekend custody intended to deprive the offender
-of leisure hours without interfering with his working week. Night custody
is another form. Both are desirable because they help to avert adverse influ-
ences on an offender by reducing his contract with fellow inmates while per-
mitting him to retain normal social contacts.
The diversionary program has also been implemented to soften the harsh
impact of the criminal justice system. Essentially, it is an agreement between
-prosecutor and offender whereby the latter is conditionally diverted out of
the system before an adjudication of guilt. Should the offender violate the
-conditions during the diversion period, prosecution for the defendant is dis-
charged without a conviction `1
Penologists have become increasingly aware that the criminal justice system
has not been achieving some of its valued objectives." Many believe undue
emphasis has been placed on retribution, thus creating a system which is often
counter-productive. Imprisonment, for example, is the most expensive method
of dealing with a criminal, both in terms of custodial cost" and in loss of the
prisoner's productive power and support for dependents. It also frequently
subjects the prisoner to cruel and inhumane conditions which reinforce his
resort to crime upon release "
Semi-detention and diversion have not been extensively Incorporated into
.sentencing systems. However, these experiments may lead to the general adop-
tion of more innovative sentencing concepts.
IV. SOCIAL SATISFACTION WITHOUT IMPRISONMENT
Many penologists now believe that fear of detection and moral condem-
nation better advance the ends of reprobation, retribution and deterrence
than does imprisonment.' It may be postulated that social vengence is sought
only to the extent outrage and indignation are released pursuant to a defen-
dant's arrest and conviction. Once this is done, the vengence campaign melts
out of the social memory even prior to sentencing."' The question then arises
whether incarceration is necessary to placate or protect society, at least in the
case of certain criminals and crimes.
A. Offender and Criminal
Many offenders society punishes are not habitual or dangerous criminals,
but merely persons who at one time inadvertently or by irresistible impulse
committed a legally punishable offense. Such offenders generally lack moral
culpability and responsibility.k7 Unlike those who commit dangerous offenses
or deliberately choose crime as a way of life,9e the chance offender is usually
a repentant having no desire to be "hissed off the social stage"" through
social reprobation or retribution. Thus, the plea has been made that punish-
ment be commensurate with guilt and subjective motivation rather than
merely determined by the crime's objective severity." The chance offender
would be an excellent subject for new and innovative sentencing techniques.
41 See generally MODEL PENAL CODE ? 9, Comment (Proposed Official Draft 1962)
WALKER, supra note 4, at 83-85.
412 Brancale, Diagnostic Techniques in Aid o l Sentencing, 23 LAW & CONTEMP. PROD.
442 (1958) ; Korn, Of Crime, Criminal Justice and Corrections, 6 U. SAN FRAN. L.
REv. 27, 45-63 (1966).
4 Offenders can be kept under probation supervision at much less cost than in insti-
tutions. The average state spends about 83,400 a year to keep an offender imprisoned
while it costs only about one-tenth that amount to keep him on probation. PRESIDENT'S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE RE-
PORT: CORRECTIONS 28 (1967).
" see generally PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRA-
TION Or JUSTICE, TASK FORCE REPORT: THE COURTS 11-12 (1967) ; WALKER, supra note
4, at 76-77; Lay, A Judicial Mandate, TRIAL, Nov., 1971, at 14; Schreiber, Indeter-
m,inate Therapeutic Incarceration of Dangerous Criminals: Perspectives and Problems,
-66 VA. L. REv. 602, 604-05 (1970).
s See WALKER, supra note 4, at 19-22.
40 See PACKER, supra note 1, at 103-35 ; SAILELLES, supra note 5, at 232-35.
?v I d.
48 See MODEL SENTENCING ACT ? 5 (1968). This section establishes criteria for iden-
tifying dangerous offenders, placing them in any one of three categories : (1) one who
commits a crime which inflicted or was an attempt to inflict serious bodily harm, coupled
with a propensity to commit crime; (2) one who commits a crime seirously endanger-
ing , nother's life or safety and having a previous criminal conviction ; and (3) one
mho narticlpntes in organized crime or racketeering.
ae Cohen. Moral Aspects of the Criminal Law. 49 YALE L.J. 987. 1016 (1940).
50 See Williams v. New York. 337 U.S. 241. 248-49 (1949) : SALEILLES. supranote. 5,
,at 9: Deeare.Criminal Sentincing: The Role of the Canadian Courts of Appeal and
the Concept of Uniformity, 6 CRIM. L.Q. 324:. 356 (1963).
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Society has long struggled with the problems associated with crime pre-
vention. However, it is not every crime against which society demands protec-
tion by means of an offender's incapacitation "l The reason is that incapacita-
tive measures are extremely drastic and, as noted, often not necessary to
satisfy the social conscience. Crimes involving extreme violence, organized
racketeering and narcotics trafficking, because of their gravity, should be dealt
with more severely than non-violent or victimless crimes. The latter category,
together with the chance offender category noted above, is the focus of the
following sentencing principles : the creative sentence.
V. THE CREATIVE SENTENCING TECIINTQUE
At the present time, the trial judge's options regarding imposition of punish-
ment are extremely limited. Essentially he has three: imprisonment, fine or
some form of probation. It has been said these alternatives are "too restric-
tive to achieve the remedial action that is required in the bulk of cases."'
However, by improving upon the third-probation-it is hoped an effective
sentencing policy might be devised to treat the nonviolent or chance offender.
A key element in this strategy is dealing with the problem in its social con-
text. Therefore, the proposed creative sentencing technique places a premium
on the individual's interaction with the community ; incarceration is consid-
ered only as a drastic alternative. In this context, the proposal demands
basically three things of a sentence: physical restitution, correlation to the
offense committed, and significance to the individual offender.
A. Restitution
The offender must make physical restitution to society or the individual
victim of his offense. This measure is designed to appease the social conscience
by economic or moral reparation rather than vengence inflicted by imprison-
ment or fine ?` For example, many perpetrators of securities fraud, forgery,
petty larceny and similar offenses can profit handsomely from their illegal
activities. Often, victims are without resources to seek restitution civilly, or
the perpetratorhimself has already distributed the ill-gotten gains for his own
benefit.' A creative sentence might require the offender to repay these sums
on an installment basis or lump sum contribution according to his ability to
pay.' When the offender is without means to provide economic reparation for
property damage or personal injury, he may be required to perform services
for his victim, such as machine repairs or yard work, according to his
capabilities.
Should the particular crime be victimless, the perpetrator may be directed
to work for the community's benefit in a social agency, at no public cost
during his free time, If the offender has some outstanding ability or talent
that can be used by the community or its agencies he could be required to
51 WALKER, supra note 4, at 131.
s2 But see L. Pierce, Rehabilitating Rehabilitation. STUDENT LAWYER 9, 10-11 (Jan..
1974). The author notes a report based upon a 1970 survey of thirty-three states con-
ducted by the ABA Commission on Correctional Facilities and Services. It allows 63'
of the persons sentenced to prison for more than one year were sentenced for nonviolent
crimes. In the federal system, 900/c sent to prison each year are nonviolent offenders.
as Seymour, Major Surgery for the Criminal Courtsf, 38 BROOKLYN L. REv. 571, 578
(1972).
54 Monetary reparation or restitution to aggrieved parties for loss or damage caused
by the defendant's unlawful act is frequently made a condition of probation either pur-
suant to express statute or a broad grant of authority concerning probation conditions.
Best & Birzon, Conditions of Probation: An Analysis, 51 Gno. L.S. 809, 826-28. See
also ABA STANDARDS, supra note 35, 1 2.7(d) : ABA STANDARDS RELATING TO PROBA-
TION ? 3.2(c) (viii), Commentary (Tent. Draft, 1970) ; MODEL PENAL CODE ? 301.1(2) (h),
Comment (Tent. Draft No. 5, 1056).
15 In allowing reparation or restitution It must be remembered the criminal law is-
not meant to supplant a civil suit or reduce the criminal court to a collection agency.
Two cases represent a divergence of opinion on the issue. State v. Morgan, 8 Wash. App.
189. 504 P.2d 1195 (1973), refused to consider the possible effect a damage award
In a criminal action may have upon a future civil action arising from the same Inci-
dent. In allowing the reparations, the cou*t left this determination to the lcnislatur''.
People v. Becker, 349 Mlch. 476. 486, 84 N.W.2d 883, 8:36 (10.1371, on the other band,
suggests it may not be lawful to give the defendant a sentencing alternative which
requires him to give up a hearing as to his civil liability. It may be wise to provide
by statute that such probation conditions shall effect a set-off In any civil action brought
to recover the same damages.
68 One commentator suggest a fund be established by probationers whose activities
have caused loss to large numbers of people. Upon filing a verified proof of claim, vie-
tims could recover proportionately from this fund. Sevmonr.. Ma.ior Surgery }or the-
C'imin.al Courts?, 38 BROOKLYN L. REV. 571, 576 (1972). For a descrintion of a pos-
sihle n'.oced'ire to be used for an installment plan, see Towns v. Stat- 25 Ga. App. 419,
103 S.E. 724 (1920).
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donate that particular talent, ability or skill where needed. The court could
merely refer the offender to a participating agency which then notifies the
court upon completion of the required term of service. Public. welfare agen-
cies, private social agencies, Alcoholics Anonymous, the church, physical and
mental health services, and fraternal and service organizations are but a few
of the places where such labor would be welcome.
The creative sentencing adjusts the punishment for each individual case to
effect the greatest possible return to society. It accomplishes both reparation
to the community and reformation of the offender through the responsibilities
imposed upon him 61
B. Correlation
The punishment inflicted should have some correlation to the particular
offense for which the individual has been convicted. For example, reimburse-
meat. may be a pertinent consequence for the offense of theft by means of a
forged check. This would help. the offender to acquire a sense of responsibility
for the particular act as well as his own financial affairs, These desirable
goals would not be achieved as readily by a similar program for an offense
other than a theft, such as a narcotics violation es
Social service work closely related to the offense or even a required writing
on the particular evils of his act may disclose to the offender society's special
interest in suppressing the conduct. For example, an Oregon court recently
found a young lady guilty of recklessly causing a forest fire which cost
$40,700 to extinguish. Her sentence was to accompany forestry officials on
reforestation and reseeding projects, doing some of the work herself.69 She
also will be required to compile seasonal data on forest fires occuring within
the state and be prepared to give talks at area schools on the dangers of
forest fire.
Another example involves a duck hunter who had killed a rare polish mute
swan, having "mistaken" it for a goose. He could have been sentenced to six
months in jail and fined $500. Instead, he was ordered to spend two weeks
working at a state game preserve and write a report on the book, "Ducks,
Geese and Swans of North America." 80 Similar programs generally give offend-
ers a sense of accomplishment that prison or fine rarely offer.
C. Significance
Probably the most important criterion of the creative sentencing technique
is that punishment should have particular significance to the offender. Even
those commiting petty offenses often become indifferent to an act's possible
statutory consequences. The creative sentencing technique would relate the
punishment to the offender's life pattern in order to create a realization that
society will not allow such indifference to continue. A California court recently
placed a convicted pickpocket on a year's probation. One of the conditions is
that he wear mittens whenever venturing into a crowd. Police are to arrest
the pickpocket if they catch him barehanded in a crowded area during the
probation period. Thus, the sentence is significant in its correlation with his
offense as well as his means of "livelihood."
A recent Florida case followed a similar pattern when an unemployed artist
was convicted for possession and sale of cocaine. The sentence required the
offender to teach art in an area school for mentally retarded children. It was
reported the experience has been so rewarding the individual is now a member
of the school's paid staff.62 Another case in Seattle, Washington, involving a
person convicted of exhibiting obscene movies, ended in a sentence requiring
one hundred hours of service to a charity of the offender's choice and estab-
lishment of a $2,000 trust fund to be used in purchasing educational films for
area schools.tl6
n Sew Best & Birzon, Conditions of Probation : An Analysis, 51 GEO. L.J. 809, 826-
28 (1963).
ea Indeed. there is a line of authority which holds restitution or reparation can be
decreed only in cases where the crime directly gives rise to the loss or injury ; not
where the loss and crime are merely related In time and place. People v. Baker, 37 Cal.
Arm. 3d 717, 112 Cal. R.ptr. 1.37 (1974) ? People v. Williams, 247 Cal. App. 2d 394,
409, 55 Cal. Rptr. 550, 556 (1966) ; People v. Becker. 349 Mich. 476, 486. 84 N.W.2d
NAT o(1 L5) State v, B G e 3,7110 Vt. 221. 231, 3 A.2d 521, 525 (1939).
SWNA.38
ao Td. But see Butler v. District of Columbia, 846 F.2d 798 (D.C. Cir. 1965) (finding
a condition the defendant write an essay outside the scope of the local probation
statute),.
81 Topeka Daily Capital, Jan. 2, 1973. at 1, col. 2.
'- TIMS MAGAZINE. Sept. 2, 1974, at 79.
93 Topeka Daily Capital, Jan. 3, 1973, at 1, col. 2.
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Even in cases when the criminal law stands at the limit of Its power, as
when an offender is wholly unresponsive to punitive measures, a sentence may
be geared to open new interests in socially acceptable undertakings. Rather
than concentrating on what the law can do to convicted persons, it may serve
rehabilitation to allow them to provide for others in a social service setting.
Utilizing the three criteria of restitution, correlation and significance, the
creative sentencing technique offers judges broad powers to impose sentences
designed to serve both accused and community. Purposes achieved by the tech-
nique are multiple:
1. It aids the offender in realizing and accepting his responsibilities as a
member of society and begin a reformative program designed to promote
self-satisfaction,`
2. It facilitates the offender's reintegration into the community, thereby
avoiding various negative aspects of imprisonment and reducing the state's
financial burden,06
3. It vindicates the law's authority as well as society's emotions and pro-
motes public protection ;
4. It minimizes the conviction's impact upon the offender's innocent depen-
dents.
VI, LIMITATIONS ON APPLICATION
In devising a creative sentencing technique, one cannot overlook various
necessary limitations on its application.
A. Statutory Authorization
The criminal law is essentially a creature of legislative formulation. Unless
that body has facilitated creative sentencing's use by a broadly stated sent-
encing provision, a judge's alternatives are restricted. Although some com-
mentators condemn use of imprecise policy provisions,' many jurisdictions
have enacted them. Federal law, for instance, states that the court : "may
suspend the imposition or execution of sentence and place the defendant on
probation for such period and upon such terms and conditions as the court
deems best."'
Kansas law provides that its article on sentencing : "be liberally construed
to the end that persons convicted of crime shall be dealt with in accordance
with their individual characteristics, circumstances, needs, and potentialities
. whenever . . . not detrimental to the needs of public safety."
Further provisions state "nothing . . . contained [within the sentencing article]
shall limit the authority of the court to impose or modify any general or
specific conditions" as long as compatible with sentencing policy. Theoretic-
ally, such authority frees judges from any substantial limitations on creative
sentencing.
Although a statute authorizes courts to exercise broad discretion concerning
probation conditions, the judgment exercised still must be a legal judgment,
consonant with constitutional and statutory safeguards. Ilence, conditions im-
posing a jail term under the rationale it deters offenders by giving them a
taste of incarceration generally have been held invalid absent express statu-
tory authority.70 The same has been said of general exile from the community"
and restitution for losses not arising directly from the particular act for which
-The main objective [of the criminal law] is to change the person's attitudes and
to help him cope with his circumstances, gain Insight into his own motvations, reorient
hs feelings, and achieve a measure of self-control, CRIMINAL CORRECTIONS, supra note 16,
at 666.
6E Jerome Hall has stated it a different way. "[T]he principle purpose of a system of
criminal justice is to preserve and improve the moral fabric of impersonal relations upon
which social life, freedom, and creativity depend."
Address by Jerome Hall The Purposes of a System for the Administration of Criminal
Justice, at Georgetown niversity Law Center, Oct. 9, 1963.
66 See M. FRANKEL, CRIMINAL SENTENCING: LAW WITHOUT ORDER 5 (1973) ; CRIMINAL
CORRECTIONS, supra note 16, at 130-45.
6718 U.S.C. ? 3651 (1970).
68KAN. STAT. ANN. ? 21-4601 (Supp. 1973). See also MODEL SENTENCING ACT ? 1
(1963).
69 KAN. STAT. ANN. ? 21-4610 (Supp. 1973). M Colo t194,v477a P. det3747 (1970) ; Pe ple' 4.40 Robinson 253 SMicha 807, v235 fN W.' 276
(1931). The apparent reasoning behind these decisions is probation serves fo maximize
ButvseeaExipartte MCClone, 1219 nearion Is KanT739, 284 P. 3650 (1930)n~IGrayev. inGraham. 12S
Kan. 434, 278 P. 14 (1929). lirv
2
.1 So monwealthe 397tS.w.2d 780 (Ky. App. 12966)) ; People v.(Smith,9252 Mich.' 4,d 232 N.W.
397 (1930) ; State ea rel. Halverson v. Young, 278 Minn. 381, 154 N.w.2d 699 (1967).
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the defendant was convicted.' Hopefully, such restrictions will be used spar-
ingly to the end creative sentencing's purposes can be achieved.
B. Reasonableness
Any sentence imposed must have a reasonable relationship to the accused's
treatment and the public's protection or reparation." In this sense, creative;
sentences should be used only when they will serve a constructive purpose and.
their enforcement is practical. A. reasonableness test has invalidated provisions
requiring banishment," waiver of the right to appeal a conviction, discon-
tinuance of certain employment, 8 cutting one's hair" and refraining from
playing college or professional basketball.48 Under proper circumstances, as
when a particular activity or condition has directly contributed to the crime's'
perpetration, any one of these measures may have survived the reasonableness
test.
A patently unreasonable probation condition was approved by the California.
Court of Appeals in 1936.79 The condition required the defendant submit to
sterilization by vasectomy pursuant to his conviction for statutory rape. In
reaching. its decision, the court relied on the defendant's also having veneral
disease. The condition was held to be reasonably related to the defendant's
rehabilitation because the judge believed this disease could be transmitted to
the offender's progeny. However, a moment's thought discloses that this
measure would not directly affect the defendant's physical sexual motivation
nor reduce the tendency to spread disease because conception is not a pre-
requisite. The case has been criticized for imposing a condition which is exces-
sive in view of the crime committed.8?
Reasonableness also requres any restitution or reparation be related to the
offender's ability to pay. In this way the sentence does not prevent his suc-
cessful re-establishment in the community nor automatically end with a jail.
term for failure to meet impossible requirements.81
C. Personal Right
Admittedly, a defendant forfeits certain personal rights upon his conviction.
for a crime. This forfeiture includes many rights which are essential ingred-
ients of life, liberty and the pursuit of happiness. Despite his conviction, how-
ever, the defendant nevertheless retains some rights unimpaired. On occasion,
a sentence may be imposed which violates such rights. In one case, the United
States Court of Appeals for the Ninth Circuit held invalid as an unwarranted
intrusion on the accused's privacy a condition he donate a pint of blood to
the Red Cross 82 This case, involving a threat of direct physical abuse, demon-
strates a clearer example of the criminal law's limitations than those dealing
with rights not usually protected, e.g., prohibition of certain employment from
72 People v. Williams, 247 Cal. App 3d 394, 55 Cal. Rptr. 550 (1966) ; People v.
Becker, 349 Mich. 476, 84 N.W. 833 1957) ; State v. Barnett, 110 Vt. 221, 3 A.2d 521
(1939).
73 A Probation condition is invalid if it :
(1) has no relationship to the crime of which the defendant is convicted,
(2) relates to conduct that is not itself criminal, or (3) requires or forbids conduct
that is not reasonably related to future criminality.
Peple v. Mason, 5 Cal. 3d 759, 704, 488 P.2d 630, 632, 97 Cal. Rptr. 302, 304 (1971).
See also In re Bushman, 1 Cal. 3d 767, 770-77, 463 P.2d 727, 733 83 Cal. Rptr. 375,
381 (1970) ; People V. Keefer, 35 Cal. App. 3d 156, 169, 110 4al. Rptr. 597, 606
(1973).
74 State ex rel. Baldwin v. Alsbury, 2.23 So. 2d 546 (l'la. 1969) ; Weigand v. Com-
monwealth, 397 S.W.2d 780 (Ky. App. 1966) ; State ex rel. Halverson v. Yount? 278
Minn. 381, 154 N.W.2d 699 (1967). The Young case stated the provision was ' repug-of the
prob
public safety.' Id.aat 385,154 N.W.2d at 702habilitate offenders
which n ithout compromising inghPolic
75 State v. Rhinehart, 267 N.C. 470, 1488 58.6E12d 051 N>J2d 252 (1971). Defendant was
78 People v. Brown, 133 Ill. App. , 272 convicted of assault and battery. The court held there was no reasonable basis for
requiring him to cease his employment as a, bartender, a circumstance in itself unre-
lated to the offense committed.
77 Inman v. State, 124 Ga. App. 190, 183 S.E.2d (1971). Here, defendant's convic-
tion was for possession of narcotics ; his hair did not affect the act itself.
7e People V. Higgins. 22 Mich. App. 479, 177 N.W.2d 716 (1970). Defendant's convic-
ton was s Impede an rehabilitation br eakn promote entering. The court found the condition more
likely
79 People v. Bankenship, 16 Cal. App. 2d 606, 61 P.2d 352 (1936).
so People v. Dominguez, 256 Cal. App. 2d 623, 64 Cal. Rptr. 290 (1967). This case
held invalid a condition the defendant not become pregnant again while in an un-
married state. The conviction had been for robbery and the defendant, already the un-
wed mother of two, was again pregnant at the time of sentencing.
Si PrESIDIDNT'S CoasalISSION ON LAW El.NrORCEMENT AND ADMINISTRATION OF JUSTICE,
TASK FORCE REPORT: CoRalCTLONS 18-19 (1967).
62 Springer v. United States, 148 P.2d 411 (9th Cir. 1945).
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which the accused derives his livelihood' or requiring certain religious
behavior.' Such conditions are at least questionable. However, because the
defendant does forfeit certain rights and also has acquiesced in the sentencing
conditions imposed, the court's authority is quite broad. For instance, one
condition regularly found valid is an agreement to submit to warrantless
police searches at any time, even when probable cause is lacking ?0
The United States Constitution, although it guarantees to all citizens the
equal protection and enforcement of the law,B8 permits qualitative differences
in meeting out punishment.7 There is no requirement that two persons con-
victed of the same offense and whose individual characteristics differ must
receive identical sentences."' However, the guarantee does prohibit substantial
differences in penalties having no rational basis in fa t.88
The rationale used in many states for permitting conditions such as ban-
ishment,90 warrantless searches 91 and temporary confinement 92 is that the
defendant, once having accepted probationary terms, cannot later complain of
them. These jurisdictions hold probation to be a privilege,B3 and something
the defendant may reject when sentenced should he considdr the terms harsher
than the penalty the court would otherwise impose. Other courts, however,
have realized a defendant does not actually have a great measure of choice in
deciding to accept probation, despite questionable conditions, over a term of
incarceration.a It seems reasonable to assume that when a condition requires
a waiver of precious constitutional rights, it must be narrowly drawn to
achieve its purpose. To the extent the condition is overbroad it is not reason-
ably related to a defendant's reformation or the community's protection and
therefore is an unconstitutional restriction.
D. Fairness
Any condition imposed must be fundamentally fair. A court should not
require behavior which would be illegal, immoral or impossible of perform-
ance. Hence, conditions requiring one's consent to unannounced police
searches of a premises he manages, but does not own,99 or that a chronic
alcoholic immediately give up liquor forever,97 have been disallowed as impos-
sibilities. Nor should a condition result in harsher punishment than the maxi-
mum available under alternatives of imprisonment or fine.
63 Cf. People v, Brown, 133 111. App. 2d 861, 272 N.E.2d 252 (1971). But see People
v. Keefer, 35 Cal. App. 3d 156, 110 Cal. Rptr. 597 (1973) (condition prohibiting pro-
bationer's selling furnaces because he used unfair practices) ; People v. Frank, 95 Cal.
App. 2d 740, 211 P.2d 350 (1949) (discontinuance of practice of medicine because
probationer intieed a child during an examination) ; Yarbrough v. State, 119 Ga. App.
40, 166 S.E.2d 35 (1909) (discontinue practice of law where conviction of unrelated
offense found unprofessional).
8s Jones v. Commonwealth, 1S5 Va. 335, 38 S.li.2d 444 (1946) (overturning condi-
tion requirin gregular church attendance).
92People v. Mason 5 Cal. 3d 759. 488 P.2d 630, 97 Cal. Rptr. 302 (1971) ; Rossi v.
Superior Court, 33 ~a1. App. 3d 160, 108 Cal. Rptr. 710 (1973) People v. Bremmer,
30 Cal. App. 3d 1058, 106 Cal. Rptr. 797 (1973) Himmage v. State, 88 Nev. 29.6, 496
P.2d 763 (1972) ; State v. Schlosser, 202 N.W. d 130 (N.D. 1972), However, it must
appear the probation order contained the provision and the defendant snecifcally agreed
to it, thereby waiving his fourth amendment rights. People v. Cals,'s, 37 Cal. App.
3d 898, 112 Cal Rptr. 685 (1974) ; People v. Grace, 33 Cal, App. 3d 447. 108 Cal. Rptr.
66 (1973).
80 U.S. Coxs'r. Mond XIV, ; 1.
87 Williams v. Illinois, 399 U.S. 235. 243 (1970).
88 See CRIMINAL Connu.cTioNs, supra note 16. at 134-36.
89 See Hart, The Aims of the Criminal Law, 23 LAw & CONTSMP. Pxon. 401, 439
(10381: 21 AAr. Jua. 2d Criminal Law ? 582 (1965). Cf. Williams v. Illinois, 399 U.S.
235 (1970).
90Ea, parte Sherman, 81 Okla.Crim. 41, 159 P.2d 755 (1945); Ex parte Snyder, 81
Okla. Crim. 34, 159 P.2d 7:02 (1945).
97 People v. Mason, 5 Cal. 3d 759,488 P.2d 630, 97 Cal. Rptr. 302 (1971).
921n re McCl.ane, 129 Kan. 739, 284 P. 365 (1.930) ; Gray v. Graham, 125 Kan. 434,
278 P. 14 (1929).
93 Accord, Earnest v. Willingham. 406 1'.2d 681, 682 (10th (7ir. 1.969) ; Thomas v.
Slatted States, 327 V.2d 795, 797 (10th Cir. 1964) ; Yates v. United States, 308 F .92d
737. 738 (10th Cir. 1962),
' State v. Oyler. 92 Idaho 43. 48. 436 P.2d 709. 712 (1968) : People v. Becker, 349
Rich. 476, 486, 84 N,W.20 833, 836 (1957).
043 Huffman Y. United States. 259 A.2d 342, 346 (D.C. Ape. 1969) ; State v. Harris,
1143 Kan. 387, 389, 226 P. 715 (1924) ; In re Patterson, 94 '.Can. 439, 146 P. 1009
(191 ).
n7 Sweeney v. United States, 353 F:2d4 10 (I(7thACi. 11965) State v. Oyler. 92 Idaho
43. 436 P.2d 709 (1968). Contra, Upchurch v. State, 289 Minn. 520, 184 N.W.2d 607
(1971) ; Sohata v. Williard. 247 Ore. 151, 427 P_2d 758 (1967), These latter cases ap-
parently hold the defendant's consent bound him to the condition.
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A. The Problem With Judges
As noted at the outset, criminal sentencing is probably the most weighty
action taken by a judge ?' As a result, the trial judge must be meticulous in
his decision. He must not allow social vindictiveness to sway him to undue
severity nor advanced social science to sway him toward a degree of clemency
unacceptable to the public conscience "
Although various codes provide express criteria to be considered by judges
when imposing sentences of imprisonment 1 or fine,' there are generally no
criteria explaining how or what type of probation conditions should be im-
posed in a particular case.' Major criticisms of present sentencing practices
focus upon the extraordinarily broad discretion allowed judges which inevit-
ably injects self-formulated philosophies, personal attitudes and individual
concerns into each judgment.' In addition, absence of meaningful legislative
standards governing imposition of probationary conditions has been said to
aggravate sentence disparity in two respects. A judge may fail to consider
possible relevant data furnished in a.pre-sentence report due to lack of guid-
ance in its use. Ile also may be reluctant to risk public criticism ill the event
of further criminality by the probationer when he.lis unable to justify his
action at least in part by legislative direction'
The primary argument justifying total discretion is that punishment's indi-
vidualization through the creation of ,"free agents" best achieves rehabilitative
goals .6 However, most judges lack extensive training in the use of informa-
tion supplied by pre-sentence reports.' As a result, they sometimes fail to draw
intelligent conclusions concerning sentence types or probation conditions to be
imposed in an individual case' Judge Marvin Frankel suggests liberal appel-
late review of sentences' and mixed sentencing tribunals as remedies to
reduce sentence disparity. Professor John Hoga:rth. suggests using sentencing
institutes to provide short-term initial training and periodic refresher courses
for trial judges.' Commendable attempts have been made to educate judges in
this very important decision-making process, including. sentencing institutes,"
regional seminars'' and courses offered by the National. College of State Trial
ps See United States V. Wiley. 184; T' Supp.= 879,. 680 (N.D. Ill. 1960):
uo J. Ulman, The Trial Judge's Dilemma: A Judge's View, PROBATION AND CRIMINAL
JUSTICE 114 (S. Glueck ed. 1933). 1'973)' ; MODEL 1'ENAr CODE ~$ 7.03,
1 See? e.g., KAN. STAT. ANN. ? 21-4606 (Supp
7.04. Comment (Proposed Official Draft 1966). 1973) ; biopei PENAL, CODE 7.02,
2See, e.g., KAN. STAT. ANN. ? 21-4607 (Supp
Comment (Proposed Octal Draft 1966).
s Kansas, for instance, has a statute which suggests a list of conditions a judge
may choose from in prescribing probation. : J AN STAT. ANN. ? 21-4610 (Supp. 1973).
however, there is nothing to tell a judge when he sould prefer on -condition over an-
other in any particular case. He has full discretion to choose ainonn those suggested.
4M. FRANKEL, CRIMINAL SENTENCING: LAW WITHOUT ORDER 5 (1973), "[O]nr legis-
lators have not done the most rudimentary job of exacting meaninrCul sentencing
'Jaws' when they have neglected even to sketch democratically determined statements
of basic purpose. Left at large wandering in deserts of unehartercd discretion, . the
edges ,suit their own value systems Insofar as they think about the problem at all.
,4,cc`ord, Ladish, Legal Noma: and Discretion in the Police and Sentencing Processes, 75
ITARV. I,. Rev. 904, 916 (1962) ; S. Rubin, The Model Sentencing. Act, 39_ N.Y.U.L.
11EV. 251, 257-58, (1964).
5 Ps.ESInENT'S COMMISSION ~0-f`' LAW ENNORCEMENT AND ADMINISTRATION Or JUSTICE.
TASK FORCE REroaT : THE COURTS 22-23 (1967).
a See Palmer, ,A Model of Criminal Dispositions: An, Alternative to O, icial,Discretion
in Sentencing 62 GEO. L'.J. 1; 3-4 (1973).
7 See J. HocARTH; SENTENCING As A HUTIA14 PROCESS 390-91 (1971) ; Burr, lppelate
Review as a Means of Controlling Criminal Sentencing Discretion. A 6Vorka(?e; _ Alter-
nativeY. 33 U. PITT.. L, REV. 1,9: (1971) `Woods, Punishment Under Law,, 1,. Calm.
L. Q. 423 (1959).
.
. 5at 185.
s Cf. SALEIrLES, supra note
n M. FrankelLawiessness in , Sentencing, 41 U. CIN. I, Rcv,.,1. 23-24 (1972).
's 17. FRANKEL, CRIMINAL SENTENCING: LAW WITIIOTJT ORDER 74 (19731. Judge
Frankel's suggested sentencing tribunal would consist of the judge, a psychiatrist or
psychologist, a sociologist and educated:
11 Tior 1RmM, SENTENCING AS A HUMAN Pnocnss 349-90 (1971).
~2 Con re's has -withoriced federal Institutes and joint councils on sentencing. 23
6TT~,,(n`.1'. S 33??(a) (1970)-To date there have been approximately eight such gatherincs
involving various circuit court systems. See, e.g. Seminar and Institute on Dism'rity
op Renters"es for the Sixth, Seventh and Eighth Judicial Circuits. 40 F.R..D. 401. 428-e7
(1264,1: Sentencing Institute. Ninth Circuit, 27 F.R.D. 287, 303-2,,(,1960) ; Pilot In-
*tr+.fe on Sentencipg,26 F.R.D. 231, 264-32t (1959):
Is Sentencing councils have suet regularly ip the, Federal District 'Courts for the
Diofriet of Michigan, Eastern District of. Tiew York and Northern. District
of Illinois. See PRESTDENT'S COMMISSION, 4N JAW EN OIT ,SMEp Ti AND. ADMTNISTRATXO'T OF
TUS'ITCE TAFK FOITCE REPORT : THE COURTS 24-z5 (100 f7) M? Frankel, T aufessne88 in
Scntencinq, 41 IT. CIN. L. REV. 1, 20-21" (1072). - - -
54-11.)';-75--19
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Judges in Reno, Nevada. However, these training sessions have not been fre-
quent nor widespread in use and generally have been narrow in scope"
B. Check List for Determination
Starting with the premise that inconsistency In sentencing begins with
vagueness in the law, the President's Task Force on the Administration of
Justice recommends general reduction of outright prohibitions and restrictions
on probation and, in their stead, the provision of statutory standards to
guide the courts in using their decision-making discretion." Acknowledging
judges' expertise in the law, but also their inadequacies regarding sentencing
in its social setting, the proposed creative sentencing technique would provide
a statutory check list similar to the following for determination of probation
conditions.
A. Crimes Committed
1. Crime Type
a. Gravity According to Legislative Classification
b. Crime Against Persons or Property
2. Actual Circumstances Surrounding the Crime
a. Manner In Which Committed
b. Amount of Violence Involved
3. Degree of Culpability
a. Premeditation
b. Intent to Directly Cause or Threaten Serious Harm
c. Provocation or Excuse
4. Extent of Crime
a. Isolated Offense
b. Organized Criminal Enterprise
5. Use of Dangerous Weapons
6. Extent of the Crime's Impact on the General Public
B. General Deterrence Considerations
C. History of Prior Delinquency or Criminal Activity
D. Offender's Attitude
1. Toward the Crime
a. Remorse, Repentence
b. Willingness to Make Reparaton or Restitution
c. Hostility
2. Towards Society Generally
3. Towards People Generally
E. Personality Traits
1. Propensity to Commit Crime
2. Likelihood Offender Will Respond to Probationary Treatment
F. Lifestyle and Background
1. Employment
2. Hobbies and Interests
3. Special Skills or Knowledge
G. Financial Condition
H. Potential Injurious Effects of Institutionalization to the Individual or
Dependents
The purpose of such standards is to create an image of the defendant as
an individual which will assist the judiciary in determining the probation con-
dition's purpose, extent and character. To assist In proper consderation of a
case, it would be helpful and expeditious to require the court to use a sentenc-
ing study sheet or assessment guide listing the above criterial8 This will
assure that all relevant aspects of the sentencing problem in an individual
case will be weighed and considered. Thus, creativity is facilitated and the
general purposes of the criminal law satisfied.
Creative sentencing, as a theory, should be implemented through an ex-
panded probationary format. At present, statutes do little more than define
14 See M. Frankel, Lawles8ne88 in Sentencing, 41 U. CIN. L. REV. 1, 18-21 (1972).
15 PRESIDENT'S COMMISSION ON LAW ENFO$CEMSNT AND 4DMINSBTRATION OF JUSTICE,
TASK FORCE REPORT; CORRECTIONS 18-19 (1867). See also J. HOGARTH, SENTENCING AS
A HUMAN PROCESS 386-87 (1971) ; Note Criminal Procedurc: Capital Sentencing by a
Stanrlard7es8 Jury, 50 N.C.L. REV. 118, 12d (1971).
18 See J. HOGARTH, SENTENCING AS A HUMAN PROCESS 395-96 (1971).
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probation as a term" while courts attempt to expound its objectives" It
is apparent traditional probationary measures have a marked rehabilitative
emphasis." They rarely are propounded as a means to satisfy other necessary
objectives of the criminal law." Creative sentencing, on the other hind,,
should attempt to balance conflicting legal and social principles, including
reprobation, reformation and deterrence a To achieve this end it is acknowl-
edged a creative sentence should have inherent sting and the restrictions im-
posed should be realistically punitive in quality.
The three elements of a proper creative sentence-restitution, correlation
and significance-are based on the premise that the sentencing court should
have available a full panoply of remedies to administer as circumstances
warrant. Options available should increase beyond the extremes of total insti-
tutional confinement and nonrestrictive probation. To aid this development
and reduce uncertainty and lack of agreement among judges, sentencing
criteria should be implemented either by statute or general adherence to
specific sentencing principles by the judiciary.
The author does not presume to offer sure cures or panaceas for post-
conviction inadequacies in the law. Criminal jurisprudence is an extremely
complicated institution of civilized society. What is proposed here only seeks'
a more flexible approach toward correction of essentially antisocial behavior
within a framework of "ordered liberty." Further study and formulation of
alternatives is encouraged and a plea made to sentencing magistrates to use
their imagination, but to use it in a manner "adapted to the sense of justice.""
UNITED SOUTHEASTERN TRIBES, INC.,
Sarasota, Fla., April 24, 1975.
Hon. JOHN L. MCCLELLAN,
Chairman, Senate Judiciary Committee, Subcommittee on Separation of Powers,
Dirlcsen Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN : This letter is intended as a comment to SB-1,
with particular references to those sections which pertain to Native Americans.
(Sections 203(a) (3) ; 205(a) (2) 685(b) ; 1861 and 1883.
First, I wish to compliment the Senate Judiciary Committee on its excellent
and comprehensive work which has brought SB-1 to its present state. The
task you have set for yourselves in recodifying and updating Title 18 was
certainly a monumental one-as witness the three volumes of reports issued
by your committee.
I am head of the Legal Research and Service Department of United South-
eastern Tribes, Inc., an inter-tribal council of seven federally-recognized
tribes. Our members are: the Miceosukee Tribe of Indians of Florida, the
Seminole Tribe of Florida, the Mississippi Band of Choctaw Indians; the
Seneca Nation of Indians of New York, the Eastenr Band of Cherokee Indians
of North Carolina, the Chitimacha Tribe of Louisiana and the Coushatta
Tribe of Louisiana.
It is not easy to classify the circumstances in which our member tribes find
themselves. Some of our member tribes are in 280 states, others are not. All
17See, e.g., KAN. STAT. ANN. ? 21-4002(3) (Sapp. 1973). "'Probation' is a procedure
ander which a defendant, found guilty of a crime upon verdict or plea, is released by
the court after imposition of sentence, without imprisonment subject to conditions im-
posed by the court and subject to the supervision of the probation service of the state,
county Or court."
"The United States Supreme Court has described probation as : "an amelioration
of the sentence by delaying actual execution or providing a suspension so that the
stigma might be withheld and an opportunity for reform and repentence be granted
before actual imprisonment should' stain the life of the convict." United States v. Mur-
ray, 275 U.S. 347, 357 (1928). See also Yates v. United States, 308 F.2d 737 (10th
Cir. 1962).
10 See Logan v. People, 138 Colo. 304, 308, 332 P.2d 897, 899 (1958) -, People V.
Becker, 349 Mich. 476, 494, 84 N.W.2d 833, 839 (1957) ; S. HOGARTH, SENTENCING AS A
HUMAN PROCESS 4 (1971).
",See NATIONAL COUNCIL ON CRIME AND DELINQUENCY, GUIDES FOR SENTENCING 13
(1957) ; Address by Jue William Herlands. Institute on Sentencing for United States
District Judges, Denver, Colo., Feb. 1964, in 35 F.R.D. 381, 490 (1964) ; 21 AM. Jun. 2d
Criminal Law ? 585 (1965).
"See also Williams v. New York, 337 U.S. 241. n.13 (1949). The Court cites with
approval certain basic considerations for determining an appropriate sentence: (a)
the reformation of the offender ; (10 the protection of the community ; (c) the dise1-
plining of the wrongdoer ; and ((4 the deterrence of others from committing like
offenses.
22 S'ALEILLES, supra note 5,.at 3.
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of them must constantly deal with the difficult questions of Federal-State-
Tribal jurisdiction. Some are in the process of developing new tribal codes or
modifying existing ones. All are even now digesting and adjusting to the 1968
Civil RightsAct as it applies to them. Some are in the process of considering
amendments to their constitutions.
In each of these situations lies a long history of development of tribal
customs and traditions as well as inter-relationship between the Tribe, the
State. and the Federal Government. In short, the questions dealt with in
SB-1 relating to Native Americans are extremely complex. They are at the
very root of the tribal government's responsibilities to tribal members and of
the tribal government's responsibilities to tribal members and of the relation-
ship of law that requires careful study and much contact at the tribal level
to adequately consider the respective rights and needs of the people to be
affected by the laws ; as well as to properly understand the effect of any
changes in the relationship between the tribe, its members, the state, and the
federal government. At this point I respectfully suggest that it does not
appear -that this essential study has yet been undertaken by the Judiciary
.Committee.
On the other hand, Congress has now undertaken a study-encompassing
the very questions involved here-as one responsibility of the American
Indian Policy Review Commission. Even though there is a two-year timetable
for the full report of the study commission they will surely begin on this
portion quite soon, since an amendment to Y.L. 83-280 is before the Congress
and there is so much concern by Indian people over that law.
In matters relating to American Indians changes need to be made too
quickly. And once made they take effect relatively slowly. As a result, it
seems only reasonable for Indians to hope and expect that Congress will use
much effort to comprehensively study the specific problems related to them
when undertaking changes such as those in question in 8B-1.
I have reviewed the comments of Alan R. Parker, Marvin J. Sonosky, Robert
Pirtle, Robert Dellwo and James B. Ilovis, and heartily agree with them. In
particular, I concur with the conclusion that the status quo not be changed
so as to expand Federal or State jurisdiction over Indian tribes or tribal
members until there has been an opportunity for both further study and more
intensive Indian input. On this latter point I have grave concerns over Sec-
tion 203, which fails to consider that Indian country has a ,different. history
from Federal enclaves or that there exist tribal governments responsible. to
the people who live on the reservations-governments which trace their
origins to a period predating the founding of the U.S. Government as an inde-
pendent nation.
In conclusion, I urge the Committee to change or delete those portions of
Sections 243(a) (3) ; .205(a) (2) ; 685(b) ; 1861 and 7863, so as to, maintain
the status quo until further study can be made and detailed Indian input can
be assured.
Yours very truly,
DONALD JAY SOLOMON,
Department head.
ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS,
Washington, D.C., March 21, 1975.
Senator JOHN L. MCLELLAN,
Sezzate Judiciary Committee, .SSubcommittee- on Criminal -Laws and Procedures,
Dirlesen Senate Offlec Building, Washington, D.C.
DEAR SENATOR MCCLELLAN : This is in further response to your letter of
October 15, .1974, concerning the revised bill, S. 1, which has now been-intro-
duced in the 94th Congress.
The bill was forwarded to to Judicial Conference's Committee on the Admin-
istration of the Criminal Law which has conducted an extensive study of the
bill, and its predecessors, during the past five years.
At- its meeting on -March 7, 1975, the Judicial Conference of the. United
States considered'and approved the report of the Committee on the-Adminis-
tration of the Criminal Law, making specific proposals and coniInents relating
ro 5. .1 as
introduced In the 94th Congress: A copy pf the full 'report of the
Conference on this matter is enclosed, together with the report of the Com-
mittee, .,,,.. . ,.. ..
Neither the Conference nor the Committee has made at, this time tiny
further recommendation on the provisions of S. 1 relating `to appelldte review
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289
of sentencing. The Conference has expressed on the record its firm opposi-
tion to this concept and at its September 1974 meeting approved the.. report
of the Committee on the Administration of the Criminal Law in favor of the
approach embodied in the proposed amendment to Rule 35 of the Federal Rules
of Criminal Procedure with certain modifications.
We will be pleased to furnish any additional information or assistance
concerning S. 1 that may be helpful.
Sincerely yours,
WILLIAM E. FOLEY,
Deputy Director.
Enclosures.
REVISION OF TIIE .FEDERAL CRIMINAL CODE
At the four' previous sessions of the Conference held in 1973 and 1974 the
Committee reported on phases of three proposals for the revision of the Fed-
eral Criminal Code ; one submitted by the Brown Commission, one submitted
by the Senate 'as 5.1, 93rd Congress, and a third containing the views of the
Department of Justice, introduced as S. 1400, 93rd Congress. Judge Zirpoli
stated that S. 1 as introduced in the 94th Congress takes into account the
opinions received from all sources on the three `prior proposals, including an
acceptance of several of ,the recommendations made by' the Committee and
previously' approved by the Judicial Conference. The Committee, however"
made certain specific proposals and comments relating , to the new S. 1, 94th
Congress, which the 'Conference approved and requested Judge Zirpoli = to
present to the Congress at the time hearings are held' on S. 11, as follows
Section 112 (a) of the new S. 1 would abrogate the rule of strict construc-
tion. The Committee expressed its objections to this provision, and the Con-
ference concurred in this view at the April 1973 session (Conf. Rept., p. 15).
The Conference agreed that the abrogation of therule will introduce a litigable
issue at the trial and appellate levels without corresponding benefits to the
litigants. The Conference agreed that introducing the words "fair import of
their terms to effectuate the general purpose of this,.title" as a rule of con-
struction might result in an undesirable imprecision in drafting criminal
legislation arid: in unnecessary constitutional confrontations.
JURISDICTION `
Judge Zirpoh reported that S. 1, 93rd. Congress, and S. 1400,, 93rd Congress,
would generate the least expansion of federal jurisdiction and were, there-
fore, preferable. to the National Commission approach. He advised that this
preference had been accepted in the draft of S. 1,: 94th Congress. The new
bill recognises the : concern for the efficient administration of court calendars
which are dependent upon a wise and sensitive exercise of prosecutorial dis-
cretion by requiring in an amendment to 28 U.S.C. 522 that the Attorney
General submit annual reports to the Congress, setting forth the number of
prosecutions: commenced during the preceding fiscal year under each section
of Title 18, identifying the number of, such prosecutions commenced under
each jurisdictional base applicable to each such section.
CULPABLE STATES OF MIND
S. 1, 94th Congress, classifies the offense elements into (1) conduct, (2) cir'
cumstances surrounding the conduct, and (3) the results of the conduct, and.
then defines the state of mind with relation to each. The Conference agreed.
that this complex be productive of unnecessary litigation;, that it will confuse.;
judges and juries and that it may perhaps cause injustice. The Conference
agreed with the Committee recommendation that the preferred definitions are :
A person engages in conduct: (1) "Knowingly" it, when he engages in the
conduct, he does so voluntarily and not by mistake, accident or other innocent
reason; (2) "intentionally" if, when he 'engages in the conduct, he 'does so
knowingly and with the purpose of doing that which the law prohibits , or .
failing to do that which the law requires; (3) "recklessly" if, when he engages'.
in conduct with respect to a material element of an offense, he disregards a
risk of which he is aware that the material element exists or will result from
his conduct. His disregard of that risk must involve a gross deviation from
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the standard of care that a reasonable person would observe in the situation ;
except that awareness of the risk is not required where its absence is due to
voluntarily intoxication ; (4) "negligently" if, when he engages in conduct
with respect to a material element of an offense, he fails to be aware of a
risk that the material element exists or will result from his conduct. His
failure to perceive that risk must involve a gross deviation from the standard
of care that a reasonable person would observe in the situation.
Section 511 provides that a prosecution for an offense necessarily include
in the offense charged shall be considered to be timely commenced even though
the period of limitation for such included offense has expired, if the period
for. limitation for the offense charged has not expired and there is, after the
close of evidence at the trial, sufficient evidence to sustain a conviction for
the offense charged. This is contrary to existing law and the Conference agreed
with the Committee that the rationale for a lesser period of time for a lesser
offense applies whether it is the offense charged or a lesser included offense.
Section 512 provides that immaturity prevents prosecution, other than
for murder, of any person under sixteen years of age but does not bar a juve-
nile delinquency proceeding under Chapter 36, Subchapter A (Sections 3601-
3606). This provision does not take cognizance of the new treatment of juve-
niles contained in Public Law 93-415 (1974) and the Conference is of the
view that this subchapter should accordingly be redrafted. The Conference
also expressed concern that the formulation of Section 512 does not treat the
problem of persons less than sixteen years old committing minor offenses in
areas under exclusive control of the United States and urged that specific
authority be granted magistrates to deal with such cases.
Under this heading appear the following defenses : Section 521. Mistake of
Fact or law, Section 522. Insanity, Section 523. Intoxication, Section 531.
Duress, Section 541. Exercise of Public Authority. Section 542. Protection of
Persons, Section 543. Protection of Property, Section 551. Unlawful Entrap-
ment, and Section 552. Official Misstatement of Law.
The Conference agreed with the Committee's criticisms, which are generally
applicable to all of these defenses : that codification is not necesary or desir-
able. The Conference noted particularly that Section 522 on insanity contains
a formulation not previously considered by the Committee or the Conference.
It treats mental disease or defect as a defense only when the state of mind
required as an element of the offense is lacking as a result of mental disease
or defect. The Conference agreed with the Committee recommendation that
this section should not be codified but if a section on mental disease or defect
be included, it favors the adoption of the National Commission's version. This
follows the formulation of the American Law Institute.
It is believed that Section 522, as drafted, would freeze the insanity defense
and not permit changing concepts and knowledge to work their way into the
law. This would only serve to increase litigation and confuse juries. The Con-
ference agreed with the need of an alternative verdict "not guilty by reason
of insanity" but expressed the view that such a verdict should be incorporated.
in the Federal Rules of Criminal Procedure.
Section 551 relating to unlawful entrapment also involves codification of
an offense which the Conference believes should not be codified because of
the intricacies inherent in evolving legal concepts. Further, important pro-
cedural issues, such as the type of proof needed to raise the issue of entrap-
ment, whether the defense may be pleaded inconsistently and the kinds of
evidence admissible to show predisposition, are not codified.
OFFENSES OF GENERAL APPLICABILITY
The Conference favors substitution in Section 1001, criminal attempt, of the
phrase "intent to commit" in place of "state of mind required for the commis-
sion of a crime" and the substitution of "substantial step" for "amounts to
more tha nmere preparation for, and indicates his intent to complete." The
Conference agreed with the Committee recommendation that a clearer formu-
lation would read "A person is guilty of an offense, if acting with intent to
commit a crime, he intentionally engages in conduct which, in fact, constitutes
a substantial step toward commission of the crime."
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As to Section 1002, criminal conspiracy, the Conference prefers the present
language "do any act to effect the object of the conspiracy" to the language in
S. 1 "engages in any conduct with intent to effect any objective of the agree-
ment."
Section 1003, criminal solicitation, previously criticized by the Conference,
was again regarded as effective in that there is no demonstrated need for a
general provision on solicitation ; the provision is fraught with the potential
for abuse as a prosecutorial tool; and the substance of the proposal is already
covered by the provisions on complicity-accomplices. The Conference reaffirmed
the view that the defense of renunciation is too closely circumscribed.
Judge Zirpoli Advised the Conference that his Committee did not make any
further recommendation on the provision of S. 1 relating to appellate review
of sentencing inasmuch as the Conference has already firmly expressed itself
in opposition to this concept. He reiterated the view of his Committee pre-
sented to the September 1974 session of the Judicial Conference (Conf. Rept.,
p. 58) that the Committee favors the alternative to appellate review of sen-
tences provided by the proposed amendment to Rule 35 of the Federal Rules
of Criminal Procedure with certain modifications, as follows: (1) that the
panel of review judges consist of one circuit and two district judges, (2) that
membership on the panel be rotated as far as is practicable in the discretion
of the assigning judge and (3) that the motion to review such sentences shall
apply to any sentence which may result in imprisonment regardless of the
period thereof.
COMMITTEE ON THE ADMINISTRATION OP THE PROBATION SYSTEM
The report of the Committee on the Administration of the Probation Sys-
tem was presented by the Chairman, Judge Albert C. Wollenberg.
ITEM FOUR.-THE PROPOSED NEW FEDERAL CRIMINAL CODE-SENATE 1, As
AMENDED JANUARY 4, 1975
In the preparation of this report, which is limited to Parts I and II of S. 1,
as amended January 15, 1975, and in which we make specific recommendations,
the Committee was fortunate to have had the benefit of the assistance of Mr.
Harold Koff sky, former head of the Legislation and Research Section of the
Criminal Division of the Department of Justice, without whose able and pre-
cise comparative study of previously considered proposed new federal criminal
codes this report could not have been prepared within the limited time avail.
able to the Committee.
The committee reported to the Judicial Conference on the Proposed New
Federal Criminal Code suggested by the National Commission on Reform of
Federal Criminal Laws, chaired by Governor Edmund G. Brown in April, 1972.
This Report was limited to Part A. General Provisions, and the Committee in-
tended to continue its examination of other parts of the Code. Before the other
parts of the Proposed Code could be reviewed, Senators McClellan, Ervin, and
Hruska introduced on January 6, 1973, S. 1, 93rd Congress, 1st Session. There-
after, in February, 1973, the Office of Management and Budget requested the
views of the Judicial Conference on a draft bill, prepared by the Department
of Justice, which was introduced by Senators Hruska and McClellan on March
27, 1973 as S. 1400, 93rd Congress, 1st Session. Both S. 1 and S. 1400 covered
the same areas as the Brown Commission proposal but both contain other im-
portant provisions worthy of study.
The Committee made a comparative study of the three proposals which re-
lated to the general provisions and a final report on these provisions was sub-
mitted in April, 1973. The Committee planned to continue its comparative study.
However, after extensive hearings by the Subcommittee on Criminal Laws and
Procedures of the Senate Committee on the Judiciary, S. 1, 94th Congress, 1st
Session, was introduced on January 15, 1975. This is an extremely large bill
surpassing its predeccessor in the 93rd Congress, which had been described as
the largest bill ever introduced in the Senate. The Office of Management and
Budget had again asked for Judicial Conference views on S. 1, 94th Congress,
1st Session. Once more this report must be limited to General Provisions and
Offenses of General Applicability (Criminal Attempt, Criminal. Conspiracy and
General Solicitation) of S. I., 94th Congress, due to the constraints of time.
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The Committee reaffirms the Preliminary Statement Inits April, 1973 report
with these additional observations. We wish to add to the praise given to the
Brown Commission for its magnificent endeavors, our appreciation of the efforts
of the Subcommittee on Criminal Laws and Procedures of the Senate Commit-
tee on the Judiciary, and the Department of Justice in building on the work of
the Brown Commission. In addition, we pointed out, in our April, 1973 report,
the distinguished performance of the federal courts in meeting the problems
of increased workload and responsibility. We believe that the novel problems
of a code, together with the challengs to be met in implementing the Speedy
Trial Act of 1974 will also be handled in an exemplary manner.
The Committee was particularly pleased that many of its recommedations
were adopted in S. 1, 94th Congress. We note Chapter 4.. Complicity, has been
drafted so as to comply significantly with the Committee's recommedations. In
addition, we opposed a criminal facilitation provision. S. I omits this area.
Some of the other acceptances of the Committee's recornmedations appear be-
low. However, we regret that several. important recommendations were not ac-
cepted, particularly those related to codification of defenses. The Committee
remains convinced that rules for the exercise of public authority, protection
of persons and property, and use of deadly force are not proper subjects for
codification. Such rules would pose formidable problems for judges in instruc-
ting juries. Our continued objections are treated specifically below.
In our April, 1973 report we commented op the Brown Commission's codification.
of presumptions (section 103). This area is treated under Rule 25.1-Burdens of
Proof, F.R.Cr.P. in the rules portion of S. 1. 94th Congress and is a concern of
the Advisory Committeeon the Criminal Rules rather than this Committee.
Section 112(a) of S. 1, 94th Congress, 1st Session, would abrogate the rule
of.strict construction. The Committee expressed its objections to this provision
in its report of April, 1973 to the Judicial Conference. We reiterated these ob-
jections since we believe that abrogation of the rule will introduce a litigable
issue at the trial and appellate levels without corresponding benefits to the
litigants. The Committee is of the opinion that introducing the words "fair
import of their terms to effectuate the general purpose of this title" as arul.e
of constuctibn might result in an undesirable imprecision in drafting criminal
legislation and in unnecessary constitutional confrontations.
The Committee has studied the provisions of S. 1, 94th Congress, with regard
to the expansion of federal jurisdiction which would be caused by enactment
of these provisions. Our review of the National 'Commission proposal. S. 1, 93rd
Congress, 1st Session, and the Department of Justice bill, S. 1400, 93rd Congress,
1st Session, led us to conclude that the latter two bills Would generate the least
expansion of federal jurisdiction and therefore were preferable to the National
Commission approach. The Committee's preference in this regard has been ac-
cepted in S. 1, 94th Congress.
The Committee's recommedations as to limiting phraseology and drafting
technique are followed in this last version of the Code. The, drafting technique
recommended and utilized requires that in each instance, those offenses which
may be appended for prosecution in connection with a particular offense must
be set forth.
In the Committee's comment of April, 1973, it was stated that: ". . we be-
lieve that the efficient administration of court calendars would be, to a large
extent, dependent upon a wise and sensitive exercise of prosecutorial discretion,
. " S. 1 of. the 94th Congress recognizes this concern and attempts to meet
it by requiring, in an amendment to 28 U.S.C. ? 522 that the Attorney General
submit annual reports to the Congress setting forth the number of prosecutions
commenced during the preceding fiscal year under each section of Title 18, iden-
tifying the number of such prosecutions commenced under each jurisdictional
base applicable to each such section. This procedure is designed to act as a re-
straint on the exercise of concurrent Federal jurisdiction and as a means for
Congress to review such exercise.
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The Committee devoted a substantial amount of time to intensive consider-
ation of a formulation of the degrees of culpability and in its April, 1973
report offered definitions of "knowingly," "intentionally," "recklessly," and "neg-
ligently." (The Committee agrees with abolishment of the degree of culpabil-
ity-"willfully.") The Committee believes firmly that its formulationis prefer-
able to any of the other versions proposed.
S. 1, 94th Congress classifies the offense elements into (1) conduct, (2) cir-
cumstances surrounding the conduct, and (3) the results of the conduct and
then defines the state of mind with relation to each. This complex procedure
causes the Committee more concern than most of the previously considered form-
ulations. The Committee believes that it will be productive of unnecessary liti-
gation, that it will confuse judges and juries, and that it may perhaps cause
injustice. Acceptance of a guilty plea under Rule 11, F.R.Cr.P. will be more
complex and difficult causing even a bright defcndent to have difficulty in under-
standing the differences among the degrees of culpability. The same difficulties
would appear in charging juries. The Committee's formulation is simpler,
clearer, would achieve the same objectives as S. 1, and would not alter the
substantive sections of the Code if adopted. The definitions we prefer are :
"A person engages in conduct :
"(1) 'knowingly' if, when he engages in the conduct, he does so voluntarily
and not by mistake, accident or other innocent reason ;
"(2) 'intentionally' if, when he engages in the conduct, he does so knowingly
and with the purpose of doing that which the law prohibits or failing to do
that which the law requires ;
"(3) 'recklessly' if, when he engages in conduct with respect to a material
element of an offense, he disregards a risk of which he is unaware that the
material element exists or will result from his conduct. His disrgard of that
risk must involve a gross deviation from the standard of care that a reasonable
person would observe in the situation ; except that awareness of the risk is not
required where its absence is due to voluntary intoxication ;
"(4) 'negligently' if, when he engages in conduct with respect to a material
element of an offense, he fails to be aware of a risk that the material element
exists or will result from his conduct. His failure to perceive that risk must
involve a gross deviation from the standard of care that a reasonable person
would observe in the situation."
OARS TO PROSECUTION
Section 511, Time Limitations, provides, among other things, that a prosecu-
tion for an offense necessarily included in the offense charged, shall be consid-
ered to be timely commenced, even though the period of limitation for such in-
cluded offense has expired, if the period of limitation for the offense charged
has not expired and, there is, after the close of evidence at the trial, sufficient
evidence to sustain a conviction for the offense charged. This is contrary to
existing law. A.skias v. U.S., 251 F.2d 909 (D.C. Cir., 1958). We believe that
the rationale for a lesser period of limitation for a lesser offense applies wheth-
er it is the offense charged or a lesser offense included offense.
Section 512. Immaturity, prevents prosecution, other than for murder, of any
person under sixteen years of age. However, It does not bar a juvenile delin-
quency proceeding under Chapter 36, subchapter A (sections 3601-3606). It is
noted that cognizance of the new treatment of juveniles contained in P.L. 93-415
(1974) is not taken in subchapter A. This subchapter should accordingly be re-
drafted. The Committee has expressed its concern that the formulation of sec-
tion 512 does not treat the problem of persons less than sixteen years old com-
mitting minor offenses in areas under the exclusive control of the United States.
We believe that specific authority should be granted magistrates to deal with
such cases.
DEFENSES
Under this heading appear the following defenses Section 521. Mistake of
Fact or Law, Section 522. Insanity, Section 523. Intoxication, Section 531.
Duress, Section 541. Exercise of Public Authority, Section 592. Protection of
Persons, Section 543. Protection of Property, Section 551. Unlawful Entrapment,
and Section 552. Official Misstatement of Law.
The Committee reiterates its criticisms which are generally applicable: to all
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these defenses, that codification of them is not necessary or desirable. This
codification is an ambitious attempt to put in statutory form principles which
are evolving and which would be best left to continue to develop through deci-
sional law. It would do no harm to the structure of the code to omit them and
the benefit of continued testing of ideas in court greatly outweigh any benefit
to be derivedfrom freezing the concepts contained in these sections.
In addition to these general comments, the Committee believes particuar
comment on several sections are appropriate.
Section 522. Insanity, contains a formulation not previously considered by
the Committee. It treats mental disease or defect as a defense only when the
state of mind required as an element of the offense is lacking as a result of
mental disease or defect. The proedure for treating offenders with mental dis-
ease or defect it set forth in Sections 3611 through 3617. It should be noted that
Section 3612(c) provides for a special verdict of (1) guilty, (2) not guilty, or
(3) not guilty by means of insanity.
The Committee did not have Section 522 before it prior to its April, 1973
report. However, after careful consideration, the Committee continues its recom-
mendation that this subject not be codified but if a section on mental disease
or defect be included, the Committee favors the adoption of the National Com-
mission's version which follows the A.L.I. formulation. The Committee is
persuaded to recommend against Section 522 by the reasoning of the National
Commission which rejected it. The National Commission reasoned "that any
effort to refer the mental illness issue to the general formulations on culpabil-
ity could lead only to a confusing and contradictory judicial interpretation of
the culpability requirements, as judges were forced, without legislative guid-
ance, to develop a jurisprudence relating to mental illness under the rubrics
of 'intent,' 'knowledge,' and 'recklessness.' " The Committee believes that the
problem would be exacerbated by the proposed complicated culpability defini-
tions. In another view, it is tautological to provide that. if a person lacks the
state of mind required as an element of the offense, he is not guilty of the
offense.
In sum, Section 522 would freeze the insanity defense and would not permit
changing concepts and knowledge to work their way into the law, it would
increase litigation and confuse juries. The Committee agrees with the need of
an alternative verdict of "riot guilty by reason of insanity" but we believe such
a verdict should be incorporated in the Federal Rules of Criminal Procedure.
Another section upon which the Committee wishes to make specific comment
it Section 551. Unlawful Entrapment. In both of the prior reports, the Commit-
tee recommended against codification of this defense because of the intricacies
inherent in evolving legal concepts. The Committee also notes that important
procedural issues, such as the type of proof needed to raise the issue of en-
trapment, whether the defense may be pleaded inconsistently and the kinds of
evidence admissible to show predisposition, are not codified. Accordingly, the
Committee's belief that this defense should not be codified until all issues are
clarified is strengthened.
Section 1001. Criminal Attempt, was endorsed by the Committee in its April,
1973 report as to concept, but the Committee suggested clearer language which
was not accepted in S. 1, 94th Congress. The Committee would substitute "in-
tent to commit" instead of "the state of mind required for the commission of
a crime" and substitute "substantial step" for "amounts to more than mere
preparation for, and indicates his intent to complete." The Committee's recom-
mended formulation would read, "A person is guilty of an offense, if acting
with intent to commit a crime, he intentionally engages in conduct, which, in
fact, constitutes a substantial step toward commission of the crime." We be-
lieve that this formulation is clearer and more readily understood by a jury and
a defendant pleading guilty, and we also believe that it narrows the breadth
of the provision.
Section 1002. Criminal Conspiracy, occasions two comments by the Commit-
tee. Under present law, it is generally held that acquittal of all but one of the
conspirators requires acquittal of the remaining conspirator. Section 1002
would not mandate such a result. We believe the concept of agreement in a
conspiracy militates against this innovation. S. 1 requires that the overt act
requirement be met by : "engages in any conduct with intent to effect any
objective of the agreement." Present law states : " . . do any act to effect the
object of the conspiracy. . .." Whether any change in result was intended is
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not clear. In any event,. the committee believes the language which is well
understood and has been used for many years is preferable.
Section 1003. Criminal Solicitation, was criticized in our April, 1973 report
for three reasons: (1) no need for a general provision on solicitation has been
demonstrated, (2) the provision is fraught with the potential for abuse as a
prosecutorial tool, and (3) the substance of the proposal is already covered
by the provisions on complicity-accomplices. We reaffirm this position.
In all three sections, an affirmative defense of renunciation is permitted.
In Criminal Conspiracy and Criminal Solicitation the defense must include
the prevention of the crime by the defendant. In Criminal Attempt the stand-
ard is "the defendant avoided the commission of the offense attempted by
abandoning his criminal effort, and if mere abandonment was insufficient to
accomplish such avoidance, by taking affirmative steps which prevented the
commission of the offense." It was the position of the Committee in its April,
1.973 report and which we reaffirm as to S. 1, 94th Congress, that the defense
of renunciation is thus too closely circumscribed. For the defendant to prove
that he prevented the commission of the offense would render this defense
nugatory.
Respectfully submitted,
ALFONSO J. ZIRPOLI,
Chairman.
THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA,
Washington, D.C., March 24, 1975.
Hon. JOHN MCCLELLAN,
Chairman, Criminal Laws and Procedures Subcommittee, Committee on the
Judiciary, U.S. Senate, Washington, D,C.
DEAR MR. CHAIRMAN : The Associated General Contractors of America is a
national association representing 8,500 construction firms which perform about
80 percent of the annual contract construction volume of the United States. Our
membership represents the full range of the industry, including the construc-
tion of highways,- buildings, municipal and utilities projects, and heavy and
industrial facilities. The industry employs approxmately five million workers,
about 3.5 million of whom are employed directly on construction job-sites.
We appreciate the opportunity to present our views on 5.1, the Criminal
Justice Reform Act of 1975, and we hope the Subcommittee finds our com-
ments helpful in its deliberations on this important legislation.
This association commends the Subcommittee for its efforts to reform the
substantive criminal laws of the United States. As an industry closely tied
to all aspects of interstate commerce, we are especially aware of the need for
a codification of Federal criminal law.
Under the present system, the Federal law, in many instances, is unclear or
inconsistent. This has led to varying interpretations in different parts of the
country. Thus justice often depends upon a local interpretation of the offense,
the defenses permitted, the jurisdiction and the penalty. It is the matter of
jurisdiction which is of particular concern to our industry.
In recent years the construction industry, accounting for over 10% of the
Gross National Product, has been repeatedly harassed by wanton job-site
violence. There have been many cases of serious construction site violence
resulting in bodily injury and loss of millions of dollars in property. Because
local authorities are usually reluctant to act, most of this violence goes unpun-
ished and unabated.
Therefore, the Associated General Contractors of America commends the In-
clusion in this Bill of strong criminal sanctions against persons- or groups of
persons who interfere with interstate commerce by organizing to commit vio-
lent, threatening, or coercive actions, regardless of their motivation. Such
provisions, if enacted, would alleviate the situation caused by the Enm.ons
decision (U.S. v Travis Paul Enmons, 410 U.S. 390, 1973) whereby the Supreme
Court held that the Hobbs Act was not applicable to employer-employee
disputes. - - -
We urge Congress to act swiftly on this much needed and long overdue legis-
lation. Our views were well summarized by Senator Roman IIruska in his
statement of January 15, 1975. "9.1 offers Congress the opportunity to restruc-
ture Federal criminal law so as to better -serve the ends of justice in its
broadest sense--justice to the individual, and justice to society as a whole."
Sincerely, J. M. SPROUSE,
Executive Director.
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Hon. JOHN L. MCCLELLAN,
Chairman,
THE AMERICAN LAW INSTITUTE,
New York, N.Y., May 14, 1975.
Subcommittee on Criminal Law and Procedures,
Senate Committee on the Judiciary,
Washington, D.C.
DEAR SENATOR MCCLELLAN : A copy of the 1975 charted results of our annual
survey on the status of substantive penal law revision projects in 53 jurisdic-
tions is enclosed for your and the Subcommittee's possible interest.
With high regard,
Very truly yours,
RTIODA LEE BAUCH,
STATUS OF SUBSTANTIVE PENAL LAW REVISION 1
1. Revised codes; effective dates: (25)
* Ark. Crim. Code, Act 280 of 1975; 1/1/1976.
* Colo. Rev. Stat. Ann., Ch. 40 (1971 Perm. Cum. Supp.) ; 7/1/1972.
Conn. Gen. Stat. Ann., Tit. 53A; 10/1/1971.
* Del. Code Ann., Tit. 11; 7/1/1973.
Fla. Laws 1974, Ch. 74-383; 7/1/1975; see also Ch. 74-379 (death penalty).
* Ga. Code Ann., Tit. 26; 7/1/1.969:
* Hawaii Laws 1972, Acts 9 & 102; 1/1/1973.
* Ili. Ann. Stat., Ch. 38, $ 1-1; 1/1/1962.
Ill. Unified Code of Corrections, Ill. Ann. Stat., Ch. 38, ? 1001-1-1; 1/1/-
1973.
* Kan. Stat. Ann., ? 21-3101 (1973 Cum. Supp.) ; 7/1/1970.
* Ky. Rev. Stat., Ch. .500; 1/1/1975.
La. Rev. Stat., Tit. 14; 1942.
Minn. Stat. Ann., Ch. 6Q9 ; 9/1/1963.
* Mont. Rev. Codes Ann., Tit. 94 (1973 Special Pamphlet) ; 1/1/1974.
* N.H. Rev. Stat. Ann., Tit. 62 (1973 Supp.) ; 11/1/1973.
N.M. Stat. Ann., Ch. 40a; 7/1/1963.
* N.Y. Rev. Pen. Law ; 9/1/1967.
N.D. Cent. Code, Tit. 12.1 (1973 Supp.) ; N.D. Lawns 1973, Ch. 116; 7/1/-
1975.
* Ohio Rev. Code, Tit. 29 (1974 Replacement Unit) ; 1/1/1974.
Ore. Rev. Stat., Tit. 16 (1973 Replacement Part) ; 1/1/1972.
* Pa. Stat. Ann., Tit. 18; 6/6/1973.
* P.R. Pen. Code, Act 115 of July 22, 1974; 1/22/1975.
* Texas Pen. Code (Vernon's Texas Code Ann. 1974) 1//1974.
Utah Code Ann., Tit. 76 (1973 Supp.) ; 7/1/1973.
Va. Code, Tit. 18.2 ; 10/1/1975.
* Wis. Stat. Ann., Tit. 45; 7/1/1956.
II. Current substantive penal code revision projects:
A. Revision completed; not yet enacted: (18)
* Alabama (Proposed Revision of Criminal Code ]Oct. 1974[ to be intro-
duced in 1975 Legislature)
Alaska (status uncertain)
*California (Proposed Criminal Code reintroduced [S.B. 565]) (S.D. 1239
[Corrections Code] introduced 5/2/1973)
* Indiana (H.B. 1314 introduced 1/14/1975; tabled)
Iowa (S.F. 1150, introduced Feb. 1974, reintroduced as S.F. 85 Feb. 1975
& passed by Senate, as amended; pending in House)
* Maine (Proposed Criminal Code, Leg. Doe. No. 314, introduced in Sen-
ate, S.P. 113, 1/28/1.975; pending in Judiciary Committee)
* Maryland (Proposed Draft of Proposed Code expected to be referred to
Legislative Council)
* Michigan (Bill reintrodced in 1975; pending in Senate Judiciary Com-
mittee)
1 As of April 1975 (53 jurisdictions). This chart was prepared and In maintained
by Rhoda Lee Bauch, The American Law Institute, 435 W. 116th St.. New York City
10027. Information as to any changes to be noted will be gratefully received.
* Indicates publication of substantial commentary.
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* Missouri (S.B. 93 & H.B. 179 introduced in 1975)
Nebraska (Proposed Code to be reintroduced)
* New Jersey (Assembly Bill 3282 introduced 4/7/1975)
Oklahoma (S.B. 46, Introduced in 1975, being studied by Senate Commit-
tee on Criminal Jurisprudence)
* South Carolina (Crime Study Committee of Legislature plans to intro-
duce proposed revised Criminal Code in next legislative session)
South Dakota (State Bar Committee's Proposed New Criminal Code [1974]
to be considered by Judicial Council in May & by State Bar at Annual
Meeting in June)
* Tennessee (S.B. 600 & H.B. 677 pending in Legislature)
* United States (S. 1 introduced 1/15/1975; pending in Judiciary Subcom-
mittee on Criminal Law & Procedure) (H.R. 333, introduced 1/15/1975,
& H.R. 3907, introduced 2/27/1975, pending in Judiciary Subcommittee
on Criminal Justice)
* Vermont (H. 419, introduced 4/3/1975, passed by House as amended ;
Senate will consider bill Jan. 1976 legislative session)
* Washington (Proposed Criminal Code: E.S.B. 2230, S.B. 2314, S.S.B.
2093, S.S.B. 2092 & S.S.B. 2313, introduced 1975, 44th Reg. Sess. of
Legislature)
B. Revision well under way: (1) Arizona.
C. Revision authorized-work not yet begun: (2) District of Columbia, North
Carolina.
D. Contemplating revision: (1) West Virginia.
III. Revision completed but abortive: (2)
Idaho (Idaho Penal & Correctional Code, Tit. 18, enacted effective 1/1/-
1972 but repealed effective 4/1/1972)
*,Massachusetts (Bill reported to have failed in Committee)
IV. No overall revision planned: (4) Mississippi, Nevada (recodification with
minor changes enacted 1967), Rhode Island, Wyoming
HOVIS, COCnRILL & ROY,
Yakima, Wash., May 5, 1975.
Mr. PAUL C. SUMMIT, `
Chief Counsel, Subcommittee on Criminal Laws and Procedures, U.S. Senate,
New Senate Office Building, Washington, D.C. .
DEAn PAUL : Enclosed please find a copy of "Public Law 280: The Limits of
State Jurisdiction Over Reservation Indians" by Carole E. Goldberg, that was
recently published in Volume 22 UCLA Law Review, p. 535. Ms. Goldberg has
prepared this article under a research grant and it is apparent that she has
devoted considerable time to its preparation. It clearly supports legislation
retroceding state jurisdiction on the request of Indian tribes, and should be
considered by you and the committee.
Sincerely yours,
By JAMES B. HOVIS.
PUBLIC LAW 280: THE LIMITS OF STATE JURISDICTION OVER RESERVATION INDIAN,
(By Carole E. Goldberg *)
I. INTRODUCTION
Since the earliest years of this nation, courts and legislatures of both the
federal government and the states have struggled to define the relationship
between the American Indian and the multiple governments of the United
States Although many separatist and culturally distinct groups have presented
special legal problems because their culture is closely tied to the land, because
they occupied much of North America prior to the European settlement and the
American westward expansion, because they were specially subjected to federal
control in the United States Constitution,' and because the Government of the
United States reserved areas of land for them in trust under treaties ending
* Acting Professor of Law, University of California, Los Angeles B.A. 1968 Smith'.
College; J.D. 1971, Stanford. This Article was supported in part by the, NSF. Rann.'
Div. Research Grant No. NSF-61-294-22 to the Lake Powell P2toject.
' b1ee, e.g., Worchester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
s U.S. Corer. art. I, $ 8, cl. 3, authorizes Congress to "regulate Commerce with .
the Indian tribes ...."
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years of warfare' The persistent question has been the degree of autonomy the
Indians retain within their reserved lands. Court decisions have firmly estab-
lished plenary congressional power over the affairs of the nation's Indian
"wards." ` What remains less certain is the allocation of power between the
tribes and the states absent congressional action. While early decisions of the
United States Supreme Court intimated that reservations were wholly separate
from the states and hence immune from state legislative and judicial intru-
sion,' this principle has been undermined,' and no comparably clear-cut stand-
ard has emerged to replace it.
Over the years, Congress and the Department of the Interior, which have
shared responsibility for formulating and implementing Federal Indian policy,
have operated on a variety of divergent models for appropriate interaction be-
tween the Indians and the states. One model focuses on. the inclusion of Indian
reservations within the state boundaries. the rights of Indians as state citizens,
and the desirability of Indian assimilation into the mainstream of American
culture; its policy implications have included removing Indian lands from trust
status and subjecting Indians to state law. Another model focuses on the unique
status of Indian tribes as sovereignties antedating the European settlement
of America, the special federal responsibility for Indian welfare, and the de-
centralized nature of jurisdiction in the United States generally ; it has tended
to produce policies fostering tribal autonomy and economic development of
reservations through federal training, subsidies, loans, technical assistance,
and insulation from the burdens of state law.' In between are models which
favor either assimilation or tribal autonomy, but interpose the federal govern-
ment as an umpire, protectingIndian or state interests against extreme abuses
by the other.
Since assimilation is cheaper for the federal government and preferred by
states that dislike the presence of an Indian sovereignty within their borders,
only feelings of respect and responsibility for the Indians have prevented the
federal government from consistntly folowing this poicy regardess of its fre-
quently adverse effects on the Indians' This article concerns the most recent
significant and comprehensive attempt by Congress to reconcile the conflicting
impulses-Public Law 280 (hereinafter referred to as PL--280)" Passed in
1953, PL-280 was an attempt at compromise between wholly abandoning the
8 Under this arrangement, the Indians acquired a beneficial right to use and occupy
the land, while the federal government retained the fee and thus the power to decide
whether the land should be sold, leased encumbered, or taxed. See, e.g., 25 U.S.C. ?
192 (1970) : U.S. Dept of the Interior, tiegulations of the Indian Office (1904), quoted
in M. PRICE, LAW AND THE AnERICAN INDIAN 530-31 (1973). See Comment, Indian
Taxation: Underlying Policies and Present Problems, 59 CALII'. L. REV. 1261. 1268-69
(1971).
'McClanahan v. State Tax Comm'n, 411 U.S. 164 (1973) United State v. Kagama,
118 U.S. 375 (1886).
5 See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 593 (18,32).
6 See, e.g., Williams v. Lee, 358 U.S. 217, 219-20 (1959) (states have jurisdiction
over reservation Indians if such jurisdiction does not infringe on tribal self-govern-
ment) (dictum) United States v. McBratney, 104 U.S. 621. 624 (1882) (states may
prosecute non-Indians for crimes committed against other non Indias on the reserva-
tion).
'This policy shaped the Allotment Act of 1887, ch. 119, 24 Stat. 388-91 (profusely
amended, this Act is still in force, 25 U.S.C. If 331-58 (1975)), which distributed
reservation lands to individual Indians as an incentive to the development of an
agrarian way of life. The allotted lands were to be removed from trust status when
the Indians demonstrated their adaptation to that way of life. Although no such altera-
tion occurred, the allotment system resulted In indiscriminate liquidation of the fed-
eral trust responsibility, often over Indian protests, and a sharp decline in Indian
land holdings.
The same policy accounted for the numerous statutes passed during the 1950's ter-
minating the trust status of individual reservation. See, e.g., 25 U.S.'. (? 677 (1970)
(Ute) ; 25 U.S.C. ?? 691-708 (1970) western Oregon tribes), 25 U.S.C. ?$ 891-902
(1970) (Menominee).
s Tribal self-government and economic development were encouraged by the Indian
Reorganization Act of 1934, 25 U.S.C. ?5 461-78 (1970).
A return in recent years to similar policies is manifested in President Nixon's
1970 Message to Congress, 116 CONG. REc. 23131 (1970), and In recent federal legis-
intton facilitating long-term lensing tnss. of (Indian Sland. 25 U92d. . * 415 970). (See2] also
S. Con. Res. 26, 92d Cong.,
9In 1970 President Nixon acknowledged in a message to Congress : "The removal
of Federal trusteeship responsibility has produced considerable disorientation among
the affected Indians and has left them unable to relate to a myriad of Federal, State
and local assistance efforts. Their economic and social condition has often been worse
after termination than It was before." 116 CoNG. Rne. 23132 (1970).
19 Act of Aug. 15, 1953, ch. 505, 67 Stat. 588-90 (now codified as amended in seat-
tered sections of 18, 28 U.S.C.).
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Indians to the states and maintaining them as federally protected wards, sub-
ject only to federal or tribal jurisdiction. The statute originally transferred to
five willing states" and offered all others, civil and criminal jurisdiction over
reservation Indians regardless of the Indians' preference for continued autono-
my.' PL-280 did not, however, terminate the trust status of reservation lands.13
From the outset, PL-280 left both the Indians and the states dissatisfied, the
Indians because they did not want state jurisdiction thrust upon them against
their will, the states because they resented the remaining federal protection
which seemed to deprive them of the ability to finance their newly acquired
powers. Predictably, disagreement between the Indians and the states erupted
over the scope of jurisdiction offered by PL-280 and the means by which trans-
fers of jurisdiction were to be effected. Among the matters in dispute were
whether states assuming jurisdiction under IIL-280 acquired the power to tax
and zone on Indian reservations, and whether states asserting PL-280 jurisdic-
tion had satisfied the procedural prerequisites for doing so.
Recent social, economic, and political developments have made the Indians
and states especially anxious that their respective Interpretations of PL-280
prevail. The expansion of metropolitan areas near Indian reservations has in-
creased the states' interest in regulating and exploiting residential and recre-
ational development on trust land. States have been notably desirous of ac-
, five were California, Minnesota, Nebraska, Oregon, and Wisconsin. Alaska was
added in 1958. Act of Aug. 8, 19,58, Pub. L. No. 85-615, ? 2, 72 Stat. 545. With respect to
civil jurisdiction the Act provides:
Each of the States or Territories [sic] listed shall have jurisdiction over civil
causes of action between Indians or to which Indians are parties which arise in the
areas of Indian country listed opposite the name of the State or Territory to the same
extent that such State or Territory has jurisdiction over other civil causes of action,
and those civil laws of such State or Territory that are of general application to
private persons or private property shall have the same force and effect within such
Indian country as they have elsewhere within the State or Territory:
State or Territory of- Indian country affected
Alaska-a _____________________ All Indian country within the Territory.
California ------------------ All Indian country within the State.
Minnesota ------------------ All Indian country within the State, except the Red
Lake Reservation.
Nebraska ------------------- All Indian country within the State.
Oregon - All Indian country within the State, except the Warm
Springs Reservation.
Wisconsin All Indian country within the State.
28 U.S.C. ? 1360(a) (1970).
In regard to criminal jurisdiction in the mandatory states the Act provides
"Each of the States or Territories [sic] shall have jurisdiction over offenses com-
mitted by or against Indians in the areas of Indian country listed opposite the name
of the State or Territory to the sane extent that such State or Territory has juris-
diction over offenses committed elsewhere within the State or Territory, and the
criminal laws of such State or Territory shall have the same force and effect within
such Indian country as they have elsewhere within the State or Territory:
18 U.S.C. ? 1162(a) (1970).
12 Section seven of the Act originally offered all other states the option to take
jurisdiction, yet had no requirement that Indians in those "optional" states consent.
The consent of the United States is hereby given to any other State not having
jurisdiction with respect to criminal o>j'enses or civil causes of action, or with respect
to both, as provided for in this Act, to assume jurisdiction at such time and in such
manner as the people of the State shall, by ai8rmative legislative action, obligate
and bind the State to assumption thereof." Act of Aug. 15, 1953, ch. 505.' ? 7 72
Stat. 590, as amended BE U.S.O. ?? 1321-26 (1970) (requiring Indian consent for future
assertions of jurisdiction).
1325 U.S.C. ? 1360(b) (1970) ; 18 U.S.C. ? 1162(b) (1970).
State or Territory of- Indian country affected
Alaska --------------------- All Indian country within the State, except that on
Annette Islands, the Metlakatla Indian community
may exercise jurisdiction over offenses committed
by Indians in the same manner in which such
jurisdiction may be exercised by Indian tribes in
Indian country over which State jurisdiction has
not been extended.
California ------------------ All Indian country within the State.
Minnesota ______________ ___ All Indian country within the State, except the Red
Lake Reservation.
Nebraska ------------------- All Indian country within the State.
Oregon All Indian country within the State, except the Warm
Springs Reservation.
Wisconsin All Indian country within the State.
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quiring pollution and subdivision control 14 The discovery of substantial energy
resources on reservations, and consequent industrial development, have spurred
similar state interest in regulating and taxing those activities 15 At the same
time, tribal governments have been receiving encouagennent from the federal
government to develop tribal enterprises and strengthen their administrative
apparatus,1A increasing their interest in freedom from state power.17 Finally,
growing demands on the part of Indians that they receive their share of state
services and their share of representation in state legislatures 1a have produced
concomitant demands on the part of the states that Indians submit to state
jurisdiction.
The jurisdictional stakes are considerably higher today than they were when
PL-280 was enacted ; at the same time federal Indian policy is more devoted
to fulfilling federal responsibility for Indians and bu [ding effective tribal
governments. Broadly speaking, the model for federal Indian policy seems to be
changing from one favoring state power with minimum protection for Indian
interests to one favoring tribal autonomy with minimum protection for state
interests. Nevertheless, since PIr-280 is the most direct evidence of congressional
intent with respect to state jurisdiction, the debate over the scope of state
power on Indian reservations must contend with policy choices Congress made
when PL-280 was enacted. Amendments to the Act adopted. in 1968 did, however,
bring PL-280 more in conformity with current policy by rendering all future
assertions of state jurisdiction under the Act subject to the affected Indians'
consent, and authorizing states to return jurisdiction to the federal govern-
ment 1? But controversies persist over jurisdiction claimed by the states prior
to these amendments.
This article will explore the legislative history of PL--280 and later amend-
ments, the grounds for state and tribal objections to their provisions, and the
ways in which the Indians and states have sought legislatively and judicially
to resolve troublesome issues concerning the mechanisms and jurisdictional
impact of PL-280. It will demonstrate how PL-280 has replaced complex juris-
dictional doctrines as the touchstone for determining state power to affect the
interests of reservation Indians, and how this statuory preemption has increased
the need for careful statutory interpretation. Finally, it will suggest appro-
priate understandings of the most controversial provisions which both comport
with the original legislative intent of PL-280 and complements current federal
policy of encouraging strong trbal government while protecting state interests
against serious tribal abuse.
PL-280 differed from earlier relinquishments of federal Indian jurisdiction
in that it authorized every state to assume jurisdiction at any time in the
14 See, e.g., Memorandum from Field Solicitor William G. Lavell to Acting Superin-
tendent, Colorado River Agency, United States Dep't of Interior, Re: Sovereign Status
of Chemechuevi Tribe of Indians (August 27, 1974) (copy on file in UCLA Law Review
Office). The memo addressed the issue of whether county officials can regulate tribally
owned campgrounds used primarily by non-Indians.
15 See Bennett, Problems and Prospects in Developing Indian Communities, 10 ARIZ. L.
REV. 649 (1968) ; Comment The Indian Stronghold and the Spread of Urban America,
10 ARIZ. L. REV. 706 (196?) - Comment Indian Law: The Pre-Emption Doctrine and
Colonies De Santa re, 13 NAT. itEs. L.J. 5135, 536 (1973).
16 E.g., President Nixon's 1970 Message to Congress on Indiana strongly urged that
Indian tribes assume responsibility for administering federal social welfare programs
on the reservation. 116 CONG. REC. 23132-33 (1970). See Executive Proposal No. 32,
submitted to Congress by the Secretary of Interior, April 1 1971, cited an T. TAYLOR,
THE STATES AND THEIR INDIAN CITIZENS 142 n.17 (1972) [hereinafter cited as INDIAN
CITIZENS]. Over 800 contracts between the Bureau of Indian Affairs (hereinafter
referred to as B.I.A.) and the tribes were In effect on October 4, 1971, varying from
the management and operation of educational and social welfare programs to the rental
of dump trucks. Interior News Release (Oct. 4, 1971), reported in INDIAN CITIZENS.
supra at 143 n.19.
i7 A good example of this emerging conflict is evident on the Navajo reservation,
where the tribal government recently established an Environmental Protection Com-
mission with power to Impose fines and issue cease and desist orders to persons or
entities violating Commission orders. Resolution, Navajo Tribe' Council, Aug. 10, 1972
(Copy on file in CLA Law Review Office).
is See Shirley v. Superior Court, 109 Ariz. 510. 514 P.2d 939 (1973), cert. denied,
415 U.S. 917 (1974) (holding that the immunity from service of process and tax
cempt status of a reservation Indian did not di!_nualify hiDm from holding a county
elective office) : Acosta v. County of San Diego. 126 Cal. App., 2d 455. 272 P.2d 92 (4th
Dist. 1954) ; In re County of Beltrami v. County of Hennepin, 264 Minn. 406, 119
N.W.24 25 (1963) (Indians entitled to state welfare benefits) ; ARIZONA STATE INDIAN
SEMINAR, SUBCOMMITTEE REPORT ON TAXATION AND SERVICES TO ARIZONA RESERVATION
INDIANS (1973). These efforts have been stimulated by the work of federally funded
Indian legal services offices.
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future. Previous transfers had been limited to some or all of the reservations
in a single state,20 and had followed consultation with the individual state and
affected tribes by the Bureau of Indian Affairs (hereinafter referred to as
B.LA.21 Although PL-280 itself had begun as an attempt to confer jurisdic-
tion on California only' by the time it was reported out of the Senate, the
prevailing view was that "any legislation in [the] area should be on a general
basis, making provision for all. affected States to come within its terms ...." e3
The Senate Report of the bill in committee suggests why Congress was con-
cerned with effectuating a general transfer of jurisdiction after years of an
ad hoe policy which had involved careful evaluation in each case from the
point of view of both Indians and the states. The Report indicates the fore-
most concern of Congress at the time of enacting of PL-280 was lawlessness on
the reservations and the accompanying threat to Anglos living nearby 24
In 1953, responsibility for law enforcement on the reservations was irrationally
fractionated. If a non-Indian committed a crime against another non-Indian or
a crime without an apparent victim, such as gambling or drunk driving, only
state authorities could prosecute him under, state law." But if either the of-
fender or victim was Indian, the federal government had exclusive jurisdiction
to prosecute, applying state law in federal court under the Assimilative Crimes
Act.28 Finally, if offender and victim were both Indians, the federal. govern-
ment had exclusive jurisdiction if the offense was one of the "Ten Major
Crimes ;" 2' otherwise, tribal courts had exclusive jurisdiction.21 Since. federal
law enforcement was typically neither well-financed nor vigorous,9' and tribal
courts often lacked the resources and skills to be effective 30 the result, de-
scribed by House Indian Affairs Subcommittee member Wesley D'Ewart, of
Montana, was "[t]he complete breakdown of law and order on many of the
Indian reservations " 31 Throughout the hearings on PL-280 and its
predecessor bills in the previous Congress, Representative D'Ewart repeatedly
voiced "[t]he desire of all law abiding citizens living on or near Indian reser-
vation for law and order."' The primary law enforcement thrust of PL-280
is further evidenced by the fact that several predecessor bills offered the
states criminal jurisdiction only," and PL-280 itself exempted several reserva-
10 Act of June 8, 1940 ch. 276, 54 Stat. 249 (criminal Jcrisdletion to Kansas) ; Act
of May 31, 1946 ch. 09, 60 Stat. 229 (criminal Jurisdiction to North Dakota over
the Devils Lake keservation) ? Act of June 30, 1948, ch. 759, 62 Stat. 1161 (criminal
Jurisdiction to Iowa over the ?ac and Fox Reservations) ; Act of July 2, 1948, ch. 809,
62 Stat. 1224 (criminal jurisdiction to New York) (codified at 25 U.S.C. 1 232 (1970)) ;
Act of Oct. 5, 1949, ch. 604 63 Stat. 705 (civil and criminal jurisdiction to California
over Agua Callente Reservation) ; Act of Sept. 13, 1950, ch, 947, 64 Stat. 845 (civil
jurisdiction to New York).
u For a description of this process in New York see Comment, The 'Jew York Indians'
Right to Self-Determination, 22 BUFFALO L. Rnv. 985 (1973).
23H.R. 1063 83d Cong. 1st Sass. (1953) ; Transcript of Hearings on H.R. 1063
Before the Su'comm. on I'ndian Affairs of the House Comm. on Interior and Insular
Affairs, 83d Congg, 1st Sess, (1953). These hearings were not published. A transcript
was produced by the United States during the briefine of McSlanahan v.
State Tax Comm'n, 411 U.S. 164 (1973) before the United States Supreme Court.
Copies of the transcript for two days of hearings-June 29, 1953 and July 15, 1953-
are on file in the library of the UCLA School of Law and in the UCLA Law Review
Office. The Jnne 29 transcript will hereinafter be cited as Hearings Transcript I and
the Jul., 15 transcript will hereinafter be cited as Hearings Transcript IT.
'13 S. REP. No. 699, 83d Cong., 1st Sess. 5 (1953) [hereinafter cited as S. REP. No.
6991.
24 See, id.
25 No federal legislation asserted jurisdiction over such crimes. State Jurisdiction was
affirmed by United States v. McBratney, 104 U.S. 621, 624 (1882).
-18 2718 U.S.C. ?? 1152 (1970). This Is jurisdiction illthe case In non-PL-280 states today,
granted by this section Is expressly
excluded where the state has accepted PL-280 Jurisdiction. See ]8 U.S.C. ? 1162(c)
(1970) 25 U.S.C. ? 1321 (1970). The absence of state jurisdiction over such crimes
has been affirmed. In re Carmen's Petition, 165 F. Supp. 942 (N.D. Cal. 1958), a.ff'd
sub nom. Dickson v. Carmen, 270 F.2d 809 (9th. Cir. 1959) (despite arguments that
the Indians' advanced social development made them no longer subjet to federal guard-
lanahip).
23 See Davis, Criminal Jurisdiction Over Indian Country in Arizona, 1 ARIZ. L. REv.
62 (1959) ; Taylor, Development of Tripartite Jurisdiction in Indian Country, SOL.
REv., July 1973, at 1.
29 Ststement of Representative D'I;wart In Hearings on. H.R. 11,5.9, H.R. 3235, and H.R.
.16211 Refore the Subeomm,. on Indian Affairs of the House Comm. on Interior and Insu-
lar Affairs on State Leval Jurisdiction in Indiana Country, 82d Cong., 2d Sess., ser. 11,
at 14 (1952) [hereinfater cited as 1952 Hearings]. -
30 This inadequacy was due as much to long distances between Indian reservations
and federal courthouses, as to lack of coordination of efforts by B.I.A. and F.B.T. in-
vestigators. For a contemporary study of the problem refer to 5 NATSONAL AMERICAN
INDIAN COURT JUDGES AsS'N, JUSTICE AND TIin AMERICAN INDIAN (1974).
4119552 Hearin,v.4, supra note 29, at 16.
9 Td. See also Hearings Transcript I. supra note 22, at 23-24.
33 H.R. 459, H.It. 3235, H.R. 3624, 8'2d Cong., 2d Sess. (1952).
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tions completely from state jurisdiction solely because they had legal systems
and organizations "functioning in a reasonably satisfactory manner."'
Of course, conferring jurisdiction on the states was not the only available
solution to the very real law enforcement problem. The B.I.A. could have
encouraged greater use of existing cooperative agreements between the tribes
and state law enforcement officials which permitted the `states to make arrets
for the most widespread and troublesome Indian crimes ; " the Justice Depart-
ment could have deputized more state officials ; 3e and the federal government
could have strengthened federal law enforcement efforts or offered financial
and technical assistance to enable the tribes to develop their own courts and
other law enforcement machinery. Anw of these solutions might have been at-
tempted had the goal of Congress been merely to improve law enforcement
services pending the development of adequate tribal institutions. State crim-
inal jurisdiction was preferred to other alternatives however, because it was
the cheapest solution ; Congress was interested in saving money as well as
bringing law and order to the reservations.'
There is much less evidence of the congressional rationale for conferring
civil jurisdiction on the states, and much less factual support for that deci-
sion. State civil jurisdiction over reservation Indians was believed to have been
somewhat more extensive than state criminal jurisdiction," though typically,
state courts were powerless to resolve claims against reservation Indians aris-
ing on the reservation 39 Since federal law governed many important civil
relations involving Indians,`0 the B.I.A., charged with administering these
laws," played a considerable governing role on the reservations. In this con-
text, the Senate Report on PL-280 declared that the Indians "have reached
a stage of acculturation and development that makes desirable extension of
State civil jurisdiction .. "" The implication of this and similar statements
was that Indians were just as socially advanced as other state citizens, and
should therefore be released from second-class citizenship as well as the pater-
nalistic supervision of the B.I.A.
Considering the absence of any significant investigation of the Indians' stage
of social development prior to the broad delegation of jurisdiction to every
state by PL-280, it seems unlikely that Congress knew or cared about the In-
dians' readiness for state jurisdiction" Furthermore, it is difficult to reconcile
this theme of advanced accultration with the prevailing notion that state
3+ S. REP. No. 699, supra note 23, at 6. The Red Lake of Minnesota, Warm Springs of
Oregon, Menominees of Wisconsin, and later the Metlakatlas of Alaska were all excepted,
although the Menominees sought and obtained submission to PI, 280 in 1954, 18 U.S.C.
? 1162 (1970); 28 U.S.C. ? 1360 (1970) (originally enacted as Act of Aug. 24, 1954,
eh. 910, ? 2, 68 Stat. 795). See S. REP. No. 2'223, 83d Cong., 2d Sess. (1954).
ss The agreements aredescribed in INDIAN CITIZENS, supra note 16, at 163; INSTITUTE
OF INDIAN STUDIES, UNIV. OF SOUTH DAKOTA, PROGRAM AND PROCEEDINGS-THIRD AN-
NUAL CONFERENCE ON INDIAN AFFAIIIS; INDIAN P&OBLEMS OF LAW & ORDER (1957)1 [here-
inafter cited as LAW & ORDER].
n The practice Is described In STATE LEGISLATIVE RESEARCH COUNCIL, SOUTH DAKOTA,
JURISDICTION OVER INDIAN COUNTRY IN SOUTH DAKOTA 7 (rev, version 1964) [herein-
after cited as JURISDICTION IN SOUTH DAKOTA] ; W. FARBER, P. ODEEN & R. TSCHETTER,
INDIANS, LAW ENFORCEMENT AND LOCAL GOVERNMENT 78-79 (Gov't Research Bureau In
cooperation with Institute of Indian Studies, niv. of South Dakota, Rep. No. 37, 1957)
[hereinafter cited as LOCAL GOVERNMENT].
x+99 CoNG. REc. 9263 (1953) (statement of Rep. Harrison of Wyoming).
35 For example, Brown, The Indian Problem and the Law, 39 YALE L.J. 307, 314-15
(1930), asserts that reservation Indians "may, except where specially restricted by act
of Congress, . .sue and be sued in the state ...courts." See Vermillion v. Spotted Elk,
85 N.W.2d 432 (N.D. 1957) (upholding state jurisdiction over a personal injury suit
between two Indians involved in an auto accident on the reservation).
au State courts have been found without jurisdiction to enforce sales taxes on reserva-
tion lands (Your Food Stores, Inc. (NSL) v. Village of Espanola, 68 N.M. 327, 361
P2d. 950, cert. denied, 368 U.S. 915 (1961)) to hear tort actions arising on the reserva-
tion against reservation Indians (Valdez v. Johnson, 68 N.M. 478. 362 P.2d 1004 (1901) ;
Smith v. Temple, 82 S.D. 650, 152 N.W.2d 547 (7.967) ), to heat divorce actions between t Court
346 reservation Indians (Whyte Distract and to h.e140 tiions2against reserva-
reserva-
cert. denied, 363 U.S.. 829 (19 980)),
tion Indian parents (State ex rel. Adams v. Superior Court, 57 Wash. 2d 181, 356 P.2d
985 (1960) ; In re Colwash, 57 Wash. 2d 196, 356 P.2d 994 (1960)). Recently, how-
ever, the Supreme Court of New Mexico approved service of state process on reserva-
tion Indians for claims arising off the reservation. State Sec., Inc. v. Anderson, 84
N.M. 629, 506 P.2d 786 (1973). The same court sanctioned a support order entered
in state court against a reservation Indian where the marriage and support obligation
arose off the reservation Natewn v. Natewa. 84 N.M. 69. 499 P.2d 68+ (1972).
40 E.g., 25 U.S.C. ? 415 (1970) (leasing of trust lands) ; 25 U.S.C. ? 262 (1970)
(trade with the Indians).
4125 U.S.C. ? 2 (1970).
u S. REP. No. 699, supra note 23, at 5-6.
The B.I.A. did consult with some Indian tribes In states which were to be granted
immediate jurisdiction. As a result, it recommended that certain reservations be exempt-
ed from those grants. The investigation went no further, however. Hearings Transcript
I, supra note 22, at 17-18.
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criminal jurisdiction was necessary because the Indians were disorderly and
incapable of self-government" Most likely, civil jurisdiction was an after-
thought in a measure aimed primarily at bringing law and order to the reser-
vations, added because it comported with the pro-assimilationist drift of fed-
eral policy, and because it was convenient and cheap.'
The choice Congress made in PL-280 did not wholly satisfy either the tribes
or the states. The source of the Indians' displeasure was the absence of a
provision for tribal consent prior to state assumption of jurisdiction. The
states, on the other hand, were unhappy about the absence of a provision
either granting federal subsidies to states that accepted jurisdiction or remov-
ing reservation lands from tax-exempt trust status. These aspects of the law
have generated efforts directed at Congress, the state legislatures, and the
courts to mold or remold PL-280 to suit the Indians' or states' preferences.
The next section of this Article will explain the origins of these dissatisfactions
and evaluate the legislative solutions proposed for them in Congress and the
state legislatures. The final section will consider struggles in the courts over
the proper interpretation of procedural and substantive provisions of PL-280
and will suggest the solutions dictated by legislative history read in light of
general principles of jurisdiction on Indian reservations.
A. Controversy Over Indian Consent
Indian antagonism to PL-280 has stemmed almost entirely from its initial
unilateral imposition of state law. Congress omitted a tribal consent require-
ment from PL-280 for the same reasons it abandoned its policy of conferring
jurisdiction state by state after consultation with the affected tribes'" In both
instances, concern about bringing law and order to the reservations at reduced
federal expense dictated immediate transfers of jurisdiction to the states.
Thus, when Congressperson D'Ewart inserted a tribal consent provision in one
of the predecessor bills to PL-280" in order to obtain the support of the
tribes in his state, B.I.A. Commissioner Dillon S. Meyer stated :
"[I]t might be possible to pass a referendum in some of the reservations
against action by the State, where they have a completely inadequate law
and order code and completely inadequate court system and completely inade-
quate policing system, and we would recommend if we found that situation
that they be included anyhow.
Indian opposition to the absence of a tribal consent provision in PL-280 was
initially based on the principle of tribal sovereignty. The departure from
past practice of consulting with the Indians prior to transferring jurisdiction
was considered a deliberate slight.'
Another reason for opposition was the fear that state jurisdiction would in
practice operate to the disadvantage of the Indians. The Indians in many in-
stances preferred federal to state jurisdiction because the B.I.A., for all its
faults, at least perceived the Indians as its special responsibility and concern.
Many Indians feared that their people would be discriminated against in
state courts and given longer sentences simply because they were Indians; 50
that state law enforcement officials would ignore crimes when Indians were
44 ?See S. REP. No. 699, supra note 23, at 5.
i6 Most of the pre-1953 bills conferring jurisdiction over Indians on the states had
applied only to criminal iurisdiction, and the predecessor bills to PIS-280 on which
hearings were held in 1952 extended jurisdiction to the states only over criminal
offenses committed by or against Indians. See notes 20, 33 & accompanying tekt supra.
These bills clearly did not contemplate the preeminence of state regulatory power over
the reservations, since they allowed for concurrent federal and tribal jurisdiction as
well. E.g., H.R. 459, 82d Cong., 2d Sess. (1952). All that the bills seemed to envision
was a switch from the federal government enforcing state criminal law under the
Assimilative Crimes Act to the states enforcing their own laws.
46 Refer to accompanying notes 20-34 supra.
41 H.R. 459, 82d Cong., 2d Sess. (1952) (as amended in Committee). 1952 Hearings,
supra note 29, at 10-11.
ds 1952 Hearings, supra note 29, at 27.
49 See Statement of. Frank George, First V.P., Nat'l Cong. Am. Indians, in 1952
Hearings, supra note 29, at 87; LAw & ORDER, supra note 35.
50 LAW & ORDER, n ra note 35, at 50, 71; 5 U.S. COMM'N ON CIVIL RIGHTS, REPORT :
JUSTICE 146-47 (1961) [hereinafter cited as CIVIL RIGHTS REPORT] ; 1 NATIONAL AMER-
ICAN INDIAN COURT JUDGES ASSN, JUSTICE AND THE AMERICAN INDIAN: THE IMPACT OF
PUBLIC LAW 280 UPON THE ADMINISTRATION OF CRIMINAL JUSTICE ON INDIAN RESERVA-
TIONS 5-11 (1974) [hereinafter cited as THE IMPACT OF PL-280 J. McCluske.9. Indian
Needs and Concerns Regarding the Criminal Justice System, Part I: Problems. Aug.
1973 (submitted to Wis. Council on Crim. Justice) (copy on file in UCLA Law Review
Office). The widespread foregoing li can abe proved uthorities indicate d disproved, the d need for further empirical study before
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the victims but act vigorously when a white was harmed,61 and that many of
their elders were not sufficiently fluent in the language and customs of white
America to enable them to cope with state jurisdiction." They disliked the
ousting of their functioning tribal courts 6, and law-making bodiei3 and feared
that the state institutions taking their place would be neither sufficiently
sensitive to Indian traditions nor adequately staffed and financed. The latter
fear was especially warranted in view of PL-280's failure to provide a tax
base or subsidies to the states to support their newly acquired law enforce-
ment obligations.
Between 1953 and 1968, a wide variety of influential persons and organiza-
tions urged Congress to add an Indian consent provision to PL-280.x' Some
states, however, did not wait for Congress to act. Instead, they undertook. by
themselves to accommodate the Indians' desire to determine when and how
state jurisdiction should be assumed. Since the 1968 amendments (adding
Indian consent provisions) to PL-280 did not affect prior assertions of juris-
diction under the Act, the nature and validity of these efforts retain import-
ance.
The five, later six, states that were granted PL-280 jurisdiction Immediately
and irrevocably (mandatory states) H lacked the flexibility to condition their
jurisdiction on Indian consent. By virtue of language in PL-280 any jurisdic-
tion other than state jurisdiction on the reservations was henceforth invalid,
except as provided in the Act. While Congress had consulted with these states
prior to passage of PL-280 in order to ascertain their desire for such jurisdic-
tion, and had exempted certain reservations in these states at the Indians'
request, it had not authorized the mandatory states to create further exemp-
tions in response to Indian wishes. In contrast, the states merely authorized
to assume jurisdiction at their discretion (optional states) could take the In-
dians' wishes into account before asserting their power, and many did so,
either formally or informally. For some states, this recognition of Indian
sovereignty was spontaneous ; in others, it was formed by the bitter experielice
of states such as Wyoming,", South Dakota,67 Washington," and New Mex-
61 LAW & ORDER, suppra, note 35, at 55: CIVIL RIGHTS REPORT, supra note 50, at 146-
47 ; THE IMPACT OF PL-280, supra note 50, at 7.
bs LAW & ORDER, supra note 35, at 47-48, 52-53, 72-73.
EJ The role of tribal courts in states exercising PI-280 jurisdiction remains unclear.
The Associate Solicitor, Indian Affairs, for the Department of the Interior, has indi-
cated that because PI-280 preserved tribal hunting and fishing rights, tribal courts
may continue to adjudicate controversies concerning those rights. 78 Interior Dec. 103
(1971). Whether tribal courts may survive PL-280 as a general matter, so long as
they apply state law or rules consistent with state law, has never been tested.
64 President Eisenhower announced when he signed 11L--280 that although it was
desirable as a step toward complete Indian equality, the sections authorizing state
jurisdiction without Indian consent left him with "grave doubts". W. BROPHY & S. AB-
ERLE, THE INDIAN :AMERICA'S UNFINISHED BUSINESS 186 (1966).
The President recommended immediate amendment of the Act to remedy this error ;
but despite the ggintroduction of twenty-three separate bills and pleas from very
the'Ri p
ghts, Liberties,wand Respponsibilities of the American I dian oalso recommended,
in 1961, that a referendum provision be added, on the ground that:
"Under [PL-280] a State can now summarily take this drastic step [assuming juris-
diction over Indians] without considering the consequences to the Indians, without
providing any safeguards against the discrimination which exists in some places, and
without setting any standard for the services to be performed."
COMMISSION ON THE RIGHTS, LIBERTIES, AND RESPOSIBILITIDS OF THE AMER-
ICAN INDIAN, A PROGRAM FOR INDIAN CITIZENS 27 (1961) [hereinafter cited as AMER-
ICAN INDIAN]. In his March, 1968, Message to Congress on the American Indians, Presi-
dent Johnson again put the prestige of the Presidency behind the principle of tribal
participation and consent. 114 CONG. EEC. 5394-95 (1468). See also Hearings on H.R.
15419 and Related Bills Before the Subcomm. on Indian Affairs of the House Comm.
on Interior and Insular Affairs, 90th Cong., 2d Sess. 27 (1968) [hereinafter cited as
1968 .Hearings].
65 See note 11 supra.
60 In a state referendum In 1964, Wyoming rejected an attempt to amend its con-
stitution to empower the legislature to accept PL-280 Jurisdiction. The sponsor of
the measure had not bothered to consult with the Indians prior to introducing It.
Statement of Marvin S. Sonosky, in 1968 Hearings, supra note 54, at 110.
"In 1964. after the South Dakota legislature had enacted ,a measure unilaterally
extending state jurisdiction to the reservations, the Indians instituted a referendum,
bombarded the voters of the state with publicity and literature opposing the measure,
and secured the law's defeat. DEP'T OF INDIAN AFFAIRS, STATE OF tiIONTA NA, TRIBAL
GOVERNMENTS AND LAW AND ORDER 19-20 (1968)- [hereinafter cited as TRIBAL GOVERN-
MENTS].
68Weshington's first attempt to accept PL-280 jurisdiction met With strong Indian
opposition and was defeated. Thereafter, in 1957, a bill was passed with the support of
the Indians which permitted Washington to assume jurisdictiononly after a tribe had
requested It do so. See CIVIL RIGHTS REPORT, supra note 50, at, 146. The Indians were
partially defeated on the tribal consent issue In 1963, however, when Jurisdiction wr's
e,tendei1 unilaterally to some subject matters. WASH. REV. CODE ?? 37.12.010-060
(Supp. 1971).
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ico," in which the Indians had waged vigorous and successful battles against
bills and constitutional amendments imposing state jurisdiction unilaterally.
Although Arizona c0 and Iowa" simply asserted jurisdiction without seeking
concurrence of the affected Indians, and Idaho and Washington ignored Indian
preferences as to some subject matters02 Florida first solicited the consent
of the Seminole tribe," Nevada consulted with every tribe in the state prior
as assuming jurisdiction,' and Idaho,' Montana," North Dakota,' South Da-
kota,' and Washington" established some form of Indian consent procedure
despite the absence of a requirement in PL-280.
These state-imposed Indian consent provisions took several forms. Typically,
they announced that the state would assume jurisdiction over any tribe that
registered its assent in a tribal referendum. But sometimes, as in South Dakota,
they shifted the burden of objecting to state jurisdiction to the tribe," pro-
viding that state jurisdiction would prevail throughout the state unless a tribe
voted to the contrary. North Dakota even permitted individual Indians to
certify their consent to state jurisdiction.7' Finally, at least one state estab-
lished procedures whereby a tribe that had tendered its consent to state juris-
diction could revoke it."
Although PL-280 did not specifically authorize the assumption of state juris-
diction on a reservation-by-reservation or Indian-by-Indian basis, these states
chose to interpret it in that manner, as did the courts reviewing the validity
of the jursidiction so acquired." Nevertheless, assumption of jurisdiction in
either manner was questionable. The language of section seven of PL-280 which
authorized optional assumption of jurisdiction speaks In terms of the United
States consenting to state acceptance of civil and criminal jurisdiction "as
provided for in this act." This language suggests that the optional states were
to assume as much jurisdiction as the mandatory states, that is, jurisdiction
over "[a]ll Indian country within the state."" If that language is interpreted
narrowly, it could invalidate not only the jurisdiction accepted one reserva-
tion at a time, but also the jurisdiction which has been accepted in some
states one county at a time, or one subject matter at a time.
It is possible that Congress intended to demand congruence between the
way mandatory and optional states acquired jurisdiction. Its goal may have
been to force the states to assume the entire financial burden of Indian juris-
diction within their boundaries, even if there was only one trouble-spot for
state purposes. However, prior to passage of PL-280, Congress had granted
jurisdiction to states over fewer than all the reservations within their borders,"
and PL-280 itself had exempted several well-governed individual tribes in the
"THE IMPACT Of PL-280, supra note 50, at 91.
11ARxz, REV. STAT. ANN. ?g 30-1801, 36-1856 (Supp. 1973) (water pollution con-
trol).
01 IOWA ConE ANN. ?? 1,12-.15 (Supp. 1974). Iowa extended Its civil jurisdiction
over the Sac and Fox Reservations, which were already subject to state criminal juris-
diction.
62IDAIIO CODE ? 67-5101 (1973); WASH. REV. CODE ?? 37.12.010-.60 (Supa. 1971).
a3 Letter from Harry R. Anderson, Assistant Secretary of the Interior-, to Lewis A.
Sigler, Consultant on Indian Affairs, Comm. on Interior and Insular Affairs, Mar. 28,
1.968, in 1968 Hearings, supra note 54, at 29.
' LAW & ORDER, supra note 35, at 54. Contra, 1968 Hearings, supra note 54, at 29
(letter cited not 63 supra).
' IDAHO CODE ? 67-5102 (1973).
Ga MONT. REV. Conn ANN. ?? 83-802, 83-806 (1966). For a discussion of the consid-
erations that influenced Montana's decision to Include a tribal. consent provision, refer
to Dsr'T OF INDIAN AFFAIRS, STATE OF MONTANA, A STUDY OF PROBLEMS ARIsiNc;
FRODI THE TRANSFER OF LAW & ORDER JURISDICTION ON INDIAN RESERVATIONS TO THE
STATE OF MONTANA 11 (1961).
"N.D. CENT. CODE ? 27-1.9-02 (1974).
"S.D. COMPILED LAWS ANN. ? 1-1-13 (1967). The law provides for state jurisdiction
unless within three months the tribe rejects it In a referendum held at its own expense.
The South Dakota Indians' objections to this law are discussed in LAW & ORDER, supra,
note 55, at 30-31. 49-50, 80-91.
no WA SIT. REV. CODE ? 49-50, 80-91.
(Supp. 1971).
70 S.D. COMPIssn LAws ANN. ? 1-1.-13 (1907). Refer to note 68 supra.
7L See N.D. CNNT. Cons ?? 27-19-02, 27-19-06 (1974). Although some individuals
]have done so, no individual tribe has accepted state jurisdiction to,date. THE IMPACT
OF PL-280. supra note 50, at 93.
72 MONT. REV. CODE ANN. ? 83-806 (1966).
73Makah Indian Tribe v. State, 76 Wash. 2d 485, 457 P.2d 500 (1969), appeal dis-
?mi.csed,, 397 U.S. 316 (1970).
nE.g., 28 U.S.C. ? 1360(a) (1970). At least one state court has expressed. the view
that statewide acceptance of jurisdiction complied literally with PL-280 even If It was
conditional on the affected Indians' or tribes' consent. Makah Indian Tribe v. State,
76 Wash. 2d 485, 457 P.2d 590 (1969). That court was correct to the extent that the
state was not accepting jurisdiction one tribe at a time, but rather was accepting in
advance for every tribe in the state that would assent.
76 See note 20 supra.
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mandatory states.76 Thus Congress seemed to have recognized that the presence
of several tribes within the same state was not a sufficient basis for treating
them alike. Congress would hardly have disapproved of the states making
the same assumption. Further evidence that Congress intended to permit state
aceptance of jurisdiction contingent on Indian consent is the fact that the law
and order purpose of PL-280 is not subverted if a state voluntarily agrees to
assume the risk that a lawless reservation will reject state jurisdiction. Final-
ly, if jurisdiction is assumed over an entire reservation (as opposed to indi-
vidual Indians or subject matters) there should be no confusion resulting from
the presence of overlapping legal systems and law enforcement officials. Thus,
although there was some uncertainty about the permissibility of states accept-
ing PL-280 jurisdiction subject to the consent of individual tribes,77 there
was never serious doubt in the state legislatures or the courts that such legis-
lation conformed with PL-280.
In 1968, Congress eliminated the need for self-imposed limits on state juris-
diction in the future by establishing a tribal consent provision in PL-280
itself. Congress provided in the Civil Rights Act of 1968'8 that henceforth no
state could acquire PL-280 jurisdiction over the objections of the affected
Indians." Furthermore, in an action which most legislators believed did no more
than make explicit existing law, the VW Act declared that state jurisdiction
could be acquired one tribe at a time, so long as a majority of the adult en-
rolled members of the tribe expressed their consent in a special election."'
Finally, in a more controversial action, it allowed acceptance of jurisdiction
over some subject matters, but not others."
This change in PL-280 is significant evidence of a. shift in federal Indian
policy from the pro-assimilationist orientation of the 1950's to a greater con-
cern for strengthenng tribal institutions and encouraging economic develop-
ment on reservations 8' Interestingly, the opposition to tribal consent was not
couched in law and order language this time. Rather, the opponents stressed
the need for state control of economic development on the reservations,67 a
need which has precipitatel much conflict over PL-280 in recent years. espe-
cially in the Southwest. Later actions by Congress indicate a willingness to
permit enclaves of tribal sovereignty within a state, despite the parade of
horribles described by state officials," so long as the federal government main-
tained control over tribal decisions which might seriously endanger state
interests.'
The significance of the addition of a tribal consent provision to PL-280 lies
not only in its recognition of the principle of Indian self-determination, hilt
also in its new conception of the role of state jurisdiction on reservations. The
tribal consent provision transformed PL-280 from a law which justified state
,jurisdiction on law enforcement, budgetary, and assimilal lonist grounds to one
which justified state jurisdiction as a means of providing services to Indian
communities. Among the strongest arguments in favor of the 1968 Act's
70 See note 34 supra.
77 Clarification was sought by the Commission on the Riehts. Liberties, and 'ltespon4i-
I,ilities of the American Indian among others. AMERICAN INDIAN', supra note 54, at 29.
7826 U.S.C. ?? 1321-26 (1970). Congress substituted new mechanisms for accepting
PL-280 In optional states, but preserved all jurisdiction acquired pursuant to the
mechanism it replaced.
79 25 U.S.C. ? 1326 (1970) provides : "State jurisdiction acquired pursuant to this
subchapter with respect to criminal offenses or civil causes of action, or with respect
to both, shall be applicable in Indian country only where the enrolled Indians within
the affected area of such Indian country accept such jurisdiction by a majority vote of
the adult Indians voting at a special election held for that purpose. The Secretary of
the Interior shall call such special election . when requested to do so by the tribal
council or other governing body, or by 20 per centum of the such enrolled adults.
'?Under 25 U.S.C. 1321(a) (1970) (criminal jurisdiction) and 25 U.S.C. ? 1.322(a)
(1970) (civil jurisdiction), a state may extend its power to all Indian country "or any
part thereof." 25 U.S.C. ? 1326 (1970) provides for the special election.
8125 U.S.C. ? 1321(a) (1970) provides that states may assume criminal jurisdiction
"over any or all offenses" J 25 U.S.C. 1322(a) (1970) provides that states may
assume civil jurisdiction over any or all . . . civil causes of action arising within
. Indian country ... .
8V See President Johnson's Message to Congress of Mar. 6, 1968, 114 CONC. REC.
-894-95 (1968).
Statements of Hon. P. L. Tims, Mayor of Scottsdale, Ariz., and Donald Rider,
Executive Director, New Mexico Municipal League, in 1968 Hearings, supra note 54.
at 76-91.
"Among the projected problems were "thousands of similar homes and the support-
ing business and Industry-on the reservation. The same people living 1.00 feet apart,
one. subject to State law, the other perhaps not." IS. at 77. Others mentioned were
mosquito control, and the reservation turning into a "hijackers' hangout" because of
lack of law enforcement. I(L.
&'l:.g.. control over long-term leasing decisions that might result in severe air pollu-
tion in areas adjacent to the reservation. 25 U.S.C. ? 415 (1970).
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amendment was that the institution of state jurisdiction under PL-280, far
from improving reservation law and order and elevating Indians from second-
class citizenship, had subjected them to discriminatory treatment in the courts,
as well as discrimination in the provision of state services.' Once tribal con-
sent became a prerequisite to state jurisdiction, and jurisdiction could be
acquired one subject matter at a time, the way was opened for tribes and
states to negotiate for the extensio of state jurisdiction in those situations
where it was to their mutual advantage.
The beneficial impact of the 1968 amendments to PL-280 should not be
overemphasized, however, The Indian consent provision was not made retro-
active, and thus earlier assumptions of state jurisdiction over Indian objec-
tions were not affected. Moreover, it did not enable Indians who had consented
to state jurisdiction under a state-initiated consent provision to reconsider their
decisions.
B. Controversy Over Fniancing State Jurisdiction
The absence of an Indian consent provision in PL-280 reflected insensitivity
to the interests of the Indians ; the absence of federal subsidies to PL-280
states demonstrated similar insensitivity to the dilemma of states handed
jurisdiction but simultaneously denied the means to finance it. This financial
dilemma dtrives from a basic inconsistency in federal policy. On the one hand,
Congress wished to satisfy state demands for improved law and order on the
reservation ; on the other hand, Congress was itself unwilling to pay for such
improvements or to enable the states to do so by lifting the tax-exempt status
of Indian trust lands."'
The failure to resolve this inconsistency had disastrous consequences for
states acquiring PL-280 jurisdiction. Local governments acquiring jurisdiction
were required to hire more police, more judges, more prison guards, more pro-
bation and parole officers, and more juvenile aid officers, and to build new
police stations, courthouses, and jails. It could have been predicted that a state
Which undertook law enforcement on the reservation as vigorously as else-
where in the state would incur higher expenses than the federal government,
even allowing for the greater expenses of operating a federal as opposed to a
municipal court.68 The new resources available to the states under Ph -280
such as fines and court costs were clearly inadequate; estimates based on
federal experience indicated such funds would cover only about 10 percent of
all newly-acquired law enforcement expenses.fi9 The mandatory PL-280 states
were hardest hit ; 00 they could not avoid the economic consequences of fed-
eral withdrawal from the reservations by refusing jurisdiction under the Act 91
89 Harry It. Anderson, Assistant Secretary of the Interior, in a letter to Rep. Wayne
N. Asppinall, Chairman, Comm. on Interior and Insular Affairs. May 27, 1968, stated the
following with respect to the proposed amendment of PL-280 requiring tribal consent :
[This change] is highly desirable. Our flies are replete with resolutions and commu-
nications from many Indian groups urging this change. The change would do much
much to allay the fears, whether real or imagined, of the Indian people that they may
be subjected to strange courts before they are ready, or before they are assured of
fair and impartial treatment." Printed in 1968 Hearings, supra note 54, at 25.
87 This inconsistency was exposed during the hearings on PL-2S0 when Congressperson
Young of Nevada confronted counsel for the B.I.A., Harry Sellery, with the questionable
value of offering the states jurisdiction but denying them the power to tax Indian
property as the means of financing it. Counsel responded that if federal financial
assistance were made availabl to fill the gap, "there [would] be some tendency . for
the Indian to be thought of and perhaps to think of himself because of the financial
assistance which comes from the Federal Government as still somewhat a member of
a race or group which is set apart from other citizens of the State. And it is desired
to give him and the other citizens of the State the feeling of a conviction that he is
in the same status and has access to the same services, including the courts, as other
citizens of the State who are not Indians." Hearings Transcript I, supra note 22, at S.
When counsel was reminded that differentiation between Indians and non-Indians would
be icreased by the failure to provide federal financial aid, since the Indians would
enjoy a unique exemption from state property taxes, he replied curtly : "The Depart-
ment [of the Interior] has recommended, nevertheless, that no financial assistance be
afforded to the States.' Id. at 9.
68 E.g., in South Dakota it was reported that if the state took jurisdiction over the
Indians, and each county absorbed its own added cost of law enforcement, operating
cost alone "would double law and order expenses in most affected counties, and mul-
tiply them many times in others." JURISDICTION IN SOUTH DAKOTA, 8upra note 36.
at 11.
89 In Arizona, for example, the tribes and federal government spent approximately
8700,000:00 on law enforcement and tribal courts in 1958. Fines collected in tribal
courts only totaled $90,000.00. J. ANGLE, FEDERAL, STATE AND TRIBAL JURISDICTION ON
INDIAN RESERVATIONS IN ARIZONA 22 (Am. Ind. Ser. No. 2, Bureau of Ethnic Research,
State of Arizona (1959)) [hereinafter cited as JURISDICTION IN ARIZONA].
90 Letter from Harry R. Anderson, Assistant Secretary of the Interior, to Lewis A.
Sigler, Consultant on Indian Affairs, Comm. on Interior and Insular Affairs, Alar. 28,
1968. In 1968 Hearings, supra note 54, at 30.
91 Only Nevada had sufficient foresight to request that it be excluded from the group
of mandatory states because certain county governments were unwilling to assume
the future additional expenses. See S. REP. No. 699, supra note 23, at 6.
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Financial hardship for the states translated into inadequate law enforcement
for the reservations. The most notable failure among the mandatory states was
Nebraska, where the Omaha and Winnebago reservations were left without
any law enforcement at all once federal officers withdrew" This bitter experi-
ence made Indians and local governments alike wary of state assumption of
,jurisdiction under the Act in the optional PL-280 states. State legislatures
attempted to assuage local government fears or objections by (1) acceptance
conditional upon federal reimbursement, (2) acceptance of jurisdiction only
in consenting counties, (3) acceptance of jurisdiction over some subject mat-
ters but not others, and (4) acceptance of jurisdiction over non-trust lands
only.
The first alternative of conditioning each county's jurisdiction on the receipt
of federal aid, attempted in South Dakota,83 was tantamount to not accepting
PL-280 jurisdiction at all. Despite persistent pleas from the states, federal
subsidies to localities exercising PL-280 jurisdiction were rare, the only re-
ported instance being an Interior Department grant of $50,000.00 to Klamath
County, Oregon in 1955 for the purpose of assisting in the development of a
law enforcement plan on the Klamath Reservation " Particularly during the
1950's, the budget of the B.I.A. was repeatedly slashed below Bureau re-
quests, making grants from that quarter impossible "
The second alternative of accepting jurisdiction only over consenting coun-
ties, although questionably valid under PL-280,?? allowed the states flexibility
x2 The responsible local governments claimed that they lacked funds to station deputy
sheriffs on the reservations, so they required the Indiana to rely on the nearest sheriff
to answer calls as he was able. CIVIL BIGHTS REPORT, supra note 50, at 148. As one
member of the Omaha tribe described the situation: "We had some killings going on
there, one right on main street, which could have been prevented if we had law and
order. This is not exaggerating . How this situation can exist in the United States
is beyond me. Someone starts kicking the ball around, and we're lost. . . We had a
special deputized sheriff for a while until they claimed that he arrested so many In-
diana. None of them could pay their fine, and they had to lay it out in the jail. They
said that just by keeping the Indians they couldn't afford to furnish us with a deputy.
[Nlow the guys are daring him. They stand around in the streets and drink." LAW
& ORDER, supra note 35, at 77. The situation was so desperate that in 1957, the gover-
nor of Nebraska. flew to Washington to demand that the B.I.A. take back jurisdiction,
something the Bureau was not authorized to do under PL-280. Id. at 49, 76. When
this effort failed, Nebraska eventually provided for state aid in amounts up to $3,000.00
plus special state-appointed deputy sheriffs for each county containing more than thrity-
five thousand acres of Indian trust or restricted land, as well as for each county in
which "sixty percent or more of the persons convicted for violation of state criminal
laws were Indians . . . ." NEB. REV. STAT. if 23-362, 23-364 (1970).
JURISDICTION IN SOUTH DAKOTA, supra note 36. at 5-8, 11.
M Id. at 10.
u" TRIBAL GOVERNMENTS, supra note 57, at 111 LAW & ORDER, supra note 35, at 54-
55.
90 A state which argues for acceptance of PT-280 jurisdiction county by county
must claim that the language in section seven of PL-280 directing optional states to
accept jurisdiction "as provided for in this Act:' did not limit states to accepting juris-
diction at once and over all Indian country. Many of the reasons supporting jurisdic-
tion conditioned on Indian consent also support jurisdiction over consenting counties
only. But there are noteworthy difference between the two.. First, county-by-county
jurisdiction opens up the possihlity of only some portions of a reservation being sub-
ject to state jurisdiction, a situation likely to confuse reservation residents, thwart
eny assimilative functions of PL-280. and frustrate law enforcement efforts. This
eventuality is rendered unlikely in Nevada, however, by the governor's power to deny
a county's request for exemption from state jurisdiction (affirmed in Davis v. Warden.
SS Nev. 443, 498 P.2d 1346 (1972)), and Impossible in Montana, where any county
overlapping part of a given reservation may veto state jurisdiction over that entire
reservation. The Montana solution is preferable, both because, it completely precludes
the undesirable situation, and because In Nevada the only way to avoid state jurisdic-
tion existing over part but not all of a reservation is to force. a decidedly unwilling
county to assume jurisdiction. Either arrangement, however, should suffice for purposes
of upholding the validity of this type of PL-280 acceptance.
A. second distinguishing feature of jurisdiction conditioned on county acceptance as
opposed to jurisdiction conditioned on Indian consent Is that states have the power
to elminte local governments' objections to PL-280 jurisdieiton either by providing sup-
plemental state aid or by taking over law enforcement Itself on the reservations. Indian
obiections to state jurisdiction, on the other hand, may rest on the desire to retain
self-government, feelings of unpreparedness' for state jurisdiction, or other concerns
which the state could not necessarily alleviate. Given the states' greate rpower to
remove the sources of counties' objections, it might be argued that optional states
should he required either. to make financial arrangements at the time they assume PL-
280 jurisdiction to support added expenses across the state, or not accept that juris-
diction at all. There is little evidence, however, that Congress intended to put the
States to this choice under PL-280. That Congress agreed to remove Nevada from the
list of mandatory PL-280 states because of objections by local governments to the
likely cost supports an interpretation of PL-280 that instead. would allow each state
to take the same objections into account. Thus, It Is not surprising that when PL-280
-as amended in 196$ to allow piecemeal state acceptance of jurisdiction over the state's
Indian country (25 U.S.C. ?6 1321(a) 1322(x) (1970)), almost no one argued that
such assumptions of jurisdiction bad been impermissible in the past when jurisdiction
over a particular area had been made conditional on county consent.
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in responding to the financial needs of local governments in areas with Indian
country. This scheme was tried with some variations in both Nevada and Mon-
tana. In Nevada, each county was required to take jurisdiction unless the
governor approved its application for exemption.' Montana's law differed, in
that the burden was not on the county to ask for an exemption ; if any county
encompassing any portion of a reservation declined jurisdiction, the state
would not assume jursidiction over that entire reservation"
The third alternative, accepting jurisdiction over some subject matters but
not others, was adopted by Arizona, Idaho, South Dakota, and Washington."
It allowed the states to assume responsibility for the reservations only in sub-
ject areas which were very important to the state and/or financially manage-
able.
It is clear that the 1968 amendments to PL-280 prospectively authorize
this method of asserting jurisdiction; but previous assertions of this type are
still in. doubt 1 There is nothing in the legislative history surrounding the
enactment of PL-280 that definitely indicates whether Congress intended to
permit partial jurisdiction by subject matter. The best evidence of congressional
intent is a statement by Congressperson Aspinall of Colorado during congres-
sional debates on the 1968 Civil Rights Act. Representative Aspinall, who had
been on the Indian Affairs Subcommittee of the House Committee on Interior
and Insular Affairs at the time PL-280 was enacted, and was Chairperson
of the Committee in 1968, maintained that the 1968 Act "would substantially-
amend [PL-280] :* * * by permitting states to assume partial jurisdiction
over. an Indian reservation.:" .
In view of the absence, of a tribal .consent provision in PL-280 and the
paramount legislative purposes of. saving federal money and bringing law
and order to .Indian reservations, it makes sense that Congress would not have
allowed such partial assumptions of jurisdiction by optional states: So long as
PL-280 jurisdiction could be unilaterally imposed.by the states, a state assert-
ing partial jurisdiction could, for example, extend its personal income tax to
reservation Indians and provide no law . enforcement at all ; it could collect
fines for speeding violations and make no further efforts at maintaining law
and order. Such selective `exercises of jurisdiction would do little more than
exploit the Indians ; they would ,hardly further the law enforcement, fiscal, or
even the assimilative purposes of PL-280. Law enforcement would be compli-
cated immensely. Indeed, during hearings on the 1068 Civil Rights Act, the
Assistant Secretary of the Interior described several instances of just such
confusion which had occurred in states with partial jurisdiction by subject
matter." Furthermore, the federal government might well be harmed fiscally
by partially jurisdiction which absorbed sources of revenue on the reserva-
tions while ignoring the most expensive law enforcement problems. Arguments
Er NEV. REV. STAr. ? 41.430 (1967).
"" MONT. REV. Cons ANN. 4 83-802 (1966).
N Arizona assumed jurisdiction over air and water pollution on the reservation. ARZz.
REV. STAT. ANN. ?? 36-1801,.36-1856 (Sugp. 1973). Idaho and Washington asserted
jurisdiction over compulsory school attendance, public assistance, domestic relations,
mental Illness, juvenile delinquency, adoption proceedings, dependent children. and
operation of. motor vehicles over public roads. IDAHO CODE ? 67-5101 (1973) ; WASH.
REV. Cons ? 37.12.010 (Su p. 1971). South Dakota took jurisdiction only over civil
and criminal causes of action on highways through Indian country. S.D. COMPILED
LA-WS ANN. ? 1-1-17, 1-1-21 1967).
1 Prior to the 1968 Civil. Rights Act's amendments to PL-280, the Assistant Secretary
of the Interior had expressed his belief that the power to accept jurisdiction by subject
matter was implicit in the law. Letter from Harry R. Anderson, Assistant Secretary
of the Interior, to Rep. Wayne N. Aspinall, Chairperson, Comm. on Interior and Insular
Affairs, Mar. 29, in 1968 Hearings, supra note 54, at 25. But the greater uncertainty
of others was manifest in legislation introduced by Senator Metcalf of Montana, in
1961, supported by a resolution from the Arizona legislature, proposing that "tribes
and state governments be authorized to agree on piecemeal extension of jurisdiction
namely,. by one subject matter at a time," (TRIBAL GOVERNMENTS, supra note 57, at 28-
29) as well as in the recommendation from the Commission on Rights, .Liberties, and
Responsibilities of the American Indian that same year that PL-280 be amended "to
provide in express terms that, with tribal consent, a state may take jurisdiction piece-
meal as to subject matter . AnsERzCAN INDIAN, supra note 54, at 29. In addition,
when the 1968 Civil Rights Act was introduced, authorizing acceptance of jurisdiction
by subject matter in the future, a representative from the Department of Justice con-
tended that such authorization constituted a change in the law, in the direction of
jurisdictional complication. Letter from Warren Christopher, Deputy Att'y Gen., to Rep.
Wayne N. Aspinall, Mar. 29, 1968, in 1968 Hearings, supra note 54, at 28.
2114 CONG. REC. 965 1968). On the uses of subsequent expressions of legislative
intent in construing statutes refer to Mattz v. Arnett, 412 U.S. 481, 505 n.25 (1973).
t Letter from Harry It. Anderson. Assistant Secretary of the Interior, to Mr. Lewis
A. Sigler, Consultant on Indian Affairs, Comm. on Interior and Insular Affairs. Mar.
28, 1968, in 1968 Hearings, supra note 54, at 30.
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of this type convinced the Supreme Court of South Dakota to invalidate that
state's attempt to assert partial jurisdiction by subject matter.`
In contrast? the Idaho and Washington supreme courts sustained their states'
acceptance of jurisdiction only over certain subject areas' by pointing out that
since their state laws authorize complete jurisdiction over any tribe that so re-
quests, abuses of state power and jurisdictional complications cannot occur.'
Any tribe concerned about uniformity can obtain it by consenting to complete
state jurisdiction (although not by blocking state jurisdiction altogether). This
analysis is misleading, however, since it fails to acknowledge the situation that
is permitted to exist pending tribal consent to complete jurisdiction--a situation
where reservation Indians look to state power for some purposes, and to tribal
or federal power for others. Whether Congress intended for this condition to
exist is the question the courts must decide, regardless of whether the states
or the Indians are responsible for it. For example, Congress may have wanted
to end the confusion generated by the existence of multiple law enforcement
authorities on a single resrvation by forcing states to choose between assuming
the entire jurisdictional burden for agiven reservation and not assuming it at
all. The Washington and Idaho solutions are inconsistent with this congression-
al intent and should be disapproved.
Many of the objections to partial jurisdiction are neutralized when tribal
consent is required before even. partial jurisdiction may he asserted. In fact,
when PL-280 was amended in 1968 expressly to permit partial jurisdiction. it
was also amended to require tribal consent prior to any assumption of PL-280
jurisdiction.' The combination of the two is important because it allows tribes
to prevent state explotation of the reservations through selective subject matter
jurisdiction. If Indians decide they are capable of governing themselves effec-
tively except in a few selected areas, they may request the state to assume re-
sponsibility for only the few problem areas. The risk of confusion resulting from
multiple jurisdictions operating in a single reservation would then be volun-
tarily undertaken by all the parties who might be affected by it.
Pre-1988 partial assumptions of jurisdiction should be struck down as in-
consistent with PL-280 where they are still in force in Arizona, Idaho, and
Washington. While these attempted acceptances of PL-280 jurisdiction may be
responses to legitimate concerns about the cost of state jurisdiction, they do
not comport with the spirit and intent of the original law.
The fourth alternative utilized by the states to minimize the financial hard-
ship of PL-280-assumption of jurisdiction only over taxable non-trust lands
within the reservations-is a unique feature of Washington's 1963 PL-280
jurisdiction e Since there is no pattern to the distribution of trust and non-
trust lands on a reservation, Washington has created a jurisdictional labyrinth
by mandating that on nuts-trust land state jurisdiction encompasses every sub-
ject matter, while on trust land, it applies only to certain enumerated subject
matters unless the tribe ask for full state jurisdiction under PT-280,
As in the case of partial jurisdiction, Washington may justify its compli-
cated rules differentiating trust and non-trust land on the ground that the tribes
are empowered to establish uniformity by tendering their convent." But this
justification fails for many of the same reasons. It is unlikely that Congress in-
tended to permit the proliferation of law enofrcement authorities necessitated
by Washington's differential treatment of trust and non-trust land, regardless
of whether the Indians or the states are responsible. Indeed, one suit challen-
*In re Ilankin's Petition, SO S.D. 435, 125 N.W.2d 839 (1964). This case held South
Dakota's attempt to assert jurisdiction only over criminal and civil causes of action
arising on highways within the reservation to he an improper acceptance of PL-280
jurisdiction. S.D. CowrILEo LAws ANN. 1 1-1-21 (1967).
e Boyer v. Shoshone-Bannock Indian Tribes, 92 Idaho 257, 441 P.2d 167 (1968)
\iakah Indian Tribe v. State, 76 Wash. 2d 485, 457 P.2d 590 (1969), appeal dismissed,
397 U.S. 316 (1970).
6 Makah Indian Tribe v. State, 76 Wash. 2d 485, 457 P.2d 590 (1969), appeal dis-
mnissed, 397 U.S. 316 (1970). The issue has been reopened In federal court and decided
against the Indians. Confederated Bands & Tribes of the Yakima Indian Nation v.
Washington, Civil No. 2732, at 5-6 (F.D. Wash.. Dec. 1, 1972), citing Quinault Tribe
of Indians v. Gallagher, 368 F.2d 648 (9th ('Jr. 1966), cert. denied, 387 U.S. 907
(1907) (affirming the validity of partial jurisdiction). An appeal from that ruling is
pending.
7 25 U.S.C. ? 1326 (19701.
6 WASx. REV. COPE J 37.12.010 (Supp..1971).
9 See notes 103-05 & accompanying text supra.
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ging this portion of the statute has raised the argument that the resultant con-
fusion is so great as to create a denial of due process of law to reservation
residentsl? Without going this far, it is sufficient to say that PL-280 did not
contemplate such fine distinctions on the part of states accepting its jurisdiction.
For those states which had received mandatory grants of jurisdiction or had
accepted PL-280 without an adequate understanding of the financial hardship
they were inviting, none of the four alternatives provided relief. The only real
solution was federal aid or return of jurisdiction to the federal government and
the tribes.
C. Retrocession
Had PL-280 originally contained a provision permitting the states and the
tribes to demand the return or "retrocession" of state PL-280 jurisdiction to
the federal government, much of the dissatisfaction with the Act would have
been avoided, though federal dissatisfaction might have been greater. Retro-
cession would have allowed both states and tribes to experiment with state
jurisdiction, the states to determine whether it was too costly, the tribes to de-
termine whether it fairly met their needs. In addition, retrocession would have
permitted jurisdictional arrangements to reflect changed circumstances. If a
tribe subject to PI-280 jurisdiction developed new economic resources, or new
generation of tribal members wished to establish strong tribal governing in-
stitutions,13 the state could be required to relinquish jurisdiction.
Notwithstanding these potential benefits from retrocession, the device received
little attention during the debates over PL-280 and its predeccor bills," and
no recognition in the statute itself. The failure to include a means by which
states effect retrocession is perhaps attributable to a congressional wish to rid
the federal government forever of its costly superviory responsibilities on the
reservations. The omission of a provision allowing Indians to demand retro-
cession is undoubtedly explained by the very law and order and pro-assimila-
tionist impulses that accounted for the absence of an Indian consent provision.
Eventually, however, Congress extended the advantages of retrocession to the
states, although not to the Indians. By 1968, the states' financial difficulties
with PL-280 had become so apparent that relief was provided in the form of a
section of the 1968 Civil Rights Act enabling any state which had previously
assumed jurisdiction under PL-2S0 to offer the return of all or any measure of
its jurisdiction to the feedral government by sending a resolution to the Sec-
retary of the Interior. The Secretary could accept or reject retrocession in his
discretion.' Under this provision, the Indians could not participate in the retro-
cession decision, although they might attempt to do so informally through ap-
peals directly to the Secretary.
The absence of an Indian veto over state-initiated retrocession was undesir-
able from the Indians' point of view because the states could decide to retrocede
only part of their PL-280 jurisdiction, and might use that power to relieve
themselves of the most costly forms of jurisdiction while retaining those most
offensive to the India.ns.14 Perhaps Congress believed that the Secretary's veto
power over a state's proposed retrocession would make a tribal veto unnecessary
in those situations where a state's partial retrocession seriously disadvantaged
11 Confederated Bands & Tribes of the Yakima Indian Nation v. Washington, Civil
No. 2732, at 8-9 (P.D. Wash., Dec. 1, 1872), discussed in Tin IMPACT OF I11-280,
supra note 50, at 42-43.
"See Chamber & Price, Regulating Soverefgnfy: Secretarial Discretion and the
Leasing of Indian Lands, 26 STAN. L. Ruv, 1061 (1974).
I` During the 1952 Hearings one Indian spokesman did note:
"[T]he bill or bills as written provide for the Indians to have only one chance to
decide whether or not they want State law and order. Furthermore, if they do decide
to have State law and order they cannot go back; they cannot change their minds
later, and. go back to tribal or Federal law and order. At least they cannot do so without
first getting the consent of Congress.
Statement of Frank George, First V.P. -of Nat'l Cong. of Am. Indians, in 1952
Hearings, supra note 29, at 88.
1325 U.S.(,. ? 1324 (1970) Why this opportunity was not extended to states acquir-
ing jurisdiction after 1968 is somewhat unclear, since both optional and mandatory
states were authorized to return jurisdiction accepted before 1968. A possible ground for
distinction is that the 1968 Act, by expressly authorizing partial assumptions of juris-
diction, rendered retrocession less financially imperative for the states. In addition.
Congress may have felt that states should not be as free as retrocede Jurisdiction
acquired after Indian consent which the 1988 Act's amendments of. PL-280 required
before jurisdiction could be acquired
14 There is little legislative history to illumniate why the Indian interests were
ignored. With the exception of one protest in a written statement from the governor
of the Pueblo de Santa Clara, New Mexico that there is no provision made for the
retrocession of jurisdiction back to its true owner" (1968 Hearings, supra note 54, at
06), the hearings, reports, and debates relating to the Act contain no more than re-
phrasing of the retrocession provision. E.g., id.'at 15, 21.
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the Indians, or where the Indians actually preferred to retain complete state
jurisdiction.
A more glaring omission was the failure to create any rnechanisnl by which
Indians could initiate and force retrocession on an unwilling state which had
acquired jursdetion. It Is difficult to justify this omission on assimilationist
grounds or on the ground of the inadequacy of tribal law enforcement facilities
because other language in the 1968 Act required tribal consent before any initial
extension of state jurisdiction, regardless of the quality of law enforcement
machinery on the reservation. Perhaps objections to allowing tribal-initiated
retrocession derived from concern that the tribes would seek to retrocede less
than all the jurisdiction the state had initially assluned, under circumstances
where the state was unwilling to exercise only the remainder. Or perhaps Con-
gress felt that reservations which had already been subjected to PL-280 juris-
diction were so weakened as to be incapable of resuming self-government.
Just as they did not wait for Congress tc, require Indian consent to PL-280
jurisdiction, some states have not waited for Congress to authorize tribes to
intate retrocession, and have bound themselves under stae law to return juris-
diction at the Indians' request. Thus, when Montana extended its criminal jur-
isdiction to the Flathead reservation conditional upon tribal consent in 1.963, it
also enabled the tribe to withdraw its consent wthin two years after extending
it.'5 The only state to assume PL-280 juri diction since' 1968, Utah, has also
accorded the Indians Initiative and control over the retrocession process. In
1971, Utah bound itself to retrocede "all or any measure of the criminal or
civil jurisdiction acquired by it . . . whenever the goveri:or receives a resolu-
tion from. a majority of any tribe ... certifying the results of a special elec-
tion and expressly requesting the state to retrocede Jurisdiction over its people
or lands or any portion thereof***." 18
This provision Is significant because it denies the state a veto over tribal 'de-
cisions to retrocede, yet permits partial retrocessions as to subject matter or ge-
ographical area. It is noteworthy that despite forecasts that Indians will abuse
their power to retrocede selectively, at least one state has willingly accepted
that possiblit:y.
A bill recently introduced into Congress by Representative Pettis of Califor-
nia 77 sought to grant a limited amount of initiative in the retrocession process
to those Indians who had not consented to jurisdiction In the first place." Al-
though the bill made little progress toward enactment, it Is a useful focus for
problems relating to retrocession that persists despite the 1968 Act's amend-
ments. Under the terms of the bill, if a majority of a tribe votes for the renmov-
al of all state PL-280 jurisdiction over that tribe, the stato automatically loses
its jurisdiction one year after certification of the vote to the state and the
Secretary of the Interior. If the vote is to remove less than all the state's
PL-280 jurisdiction, however, it becomes effective only if thestate consents. In
neither situation may the Secretary exercise a veto over the tribe's decision to
abolish the state's PL-280 jurisdiction lv
'5 UTAa Cons ANN. ? 63-36-15 (Supp. 1973).
11MONT. REV. CODE ANN. ? 83-806 (1966). Montana's statute does not seems to have
contemplated the tribe revoking consent as to less than all the jurisdiction the state
had assumed originally. Nor does It concern itself pith the necessity of obtaining federal
acceptance of any revocations of tribal consent, acceptance whi,-h the Secretary of the
Interior claimed he was incapable of making prior to his authorization In the 1968
Civil Rights Act. See LAw & ORDER, supra note 35, at 49 (describing Nebraska's at-
tempted retrocession in 1957, rejected by the Secretary of the`Tnterior) ; Proclamation
of Governor Daniel J. Evans, State of Washington, Aug. 15. 1088 at 2 (noting the
Justice Department's refusal to recognize an attempted retroceskion_of jurisdiction over
the Quinault Tribe in 1965).
Since the Flathead tribe in Montana did not effect it valid revocation prior to 1904,
the problem was conveniently avoided in that state. The tribe voted at one point to
withdraw Its consent but rescinded their vote eight days later. Since the withdrawal
had not been communicated to th Governor the revocation of consent was deemed
ineffective. State ern red. McDonald v. District Court, 1.59 wont, 156, '4.96 P.2d 78
(1972).
17 H.R. 8347, 93d Conga, 1st Sess. 2 (1973). No hearings were held on the bill.
18 #d. The Pettis bill Is inadequate because it denies initiative In the retrocession
process to consenting tribes. Even if a tribe had the opportunity to decline state juris-
diction at the outset, it is possible that the,tribe accepted jurisdiction in the mistaken
belief that it would be beneficial. Especially since Congress, despite Its trust responsibil-
ity, does not supply funds or experts to the Indians to assist them in evaluating the
costs and benefits of state jurisdiction prior to consent, Congress should at least permit
them to change their minds once the negative evidence is in, even if only during a one
or two year trial period.
10 The absence of a secretarial veto is not mentioned in the bill. But the bill refers In
several places to the Indians' "right" to remove themselves from PL-280 jurisdiction.
4nd all that Is required, once the Indians for retrocession and obtain consent of the
state if necessary, is that the Secretary be notified of the results.
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This bill is at least partly a response to complaints by California Indians
that state enforcement of laws such as housing codes and zoning ordinances
on the reservation has been unduly interfering with tribal plans for economic
development." As a solution to such problems the bill is not wholly successful,
since it permits tribes to rid themselves of offensive aspects of state jurisdic-
tion over state objection only if they are willing to forego state jurisdiction
altogether.
By requiring state consent for partial retrocessions, the bill may be expressing
the legitimate concern that tribes will reject only those aspects of jurisdiction
most lucrative or significant to the state, leaving the state with a burden it
does not find worth shoulderng. This problem, which is equivalent to the prob-
lem Indians face now that states can retrocede only part of their PL-280 jur-
isdiction,21 is not insoluble. The principle that states may be required to retain
PI-280 jurisdiction which they do not want was established in PL-280 as orig-
inally enacted, was perpetuated in the 1968 Act's amendments,22 and comports
with the evolving view of state jurisdiction on Indian reservations as a means
of providing services to the Indians. Even granting, however, that a state's
preference regarding the extent of its remaining PL-280 jurisdiction is entitled
to respect, a provision in the bill requiring secretarial approval of partial retro-
cessions initiated by the tribes would suffice to ensure such consideration, and
would be consistent with the general trend in federal Indian policy favoring
tribal autonomy within broad limits set by the federal government 22
Despite the generally salutary effects of the 1368 Act's amendments to PL-
280, the retrocession provisions currently- in existence, as well as those pro-
posed in Congress, manifest an uneasy and unsatisfactory compromise be-
tween state and tribal demands. Now that assimilation and -saving federal
money are no longer highest priorities of federalIndian policy, and tribal all-
tonomy coupled with minimum safeguards for state interests are prevailing
goals, a coherent view of PL-280 as a measure designed to serve the -Indians
militates in favor of giving the tribes more initiative in the retrocession proc-
ess, regardless of whether they initially consented to jurisdiction. - -
IV. COMPETING INTERPRETATIONS OF PL-280-
Political debates over, who should bear the cost of Indian jurisdiction and
who, should make decisions about -allocation of Indian jurisdiction between the
federal government, the states, and the tribes, should not- be viewed apart
from litigation. that has arisen concerning (1) the. procedures for, effecting
PL-280 transfers (2) the scope of the jurisdiction transferred. Judicial resolu-
tions of these disputes affect both the degree to which Indians. are' displeased
with unilaterally assumed state jurisdiction or limited retrocession, and the
states with congressional failure to subsidize their assumptions of PL-280 juris-
diction. For - example, insofar as a tribe's objections to PL-28Q jurisdiction
center on fears that they will be deprived of control over economic develop-
Inent by the application of zoning-type restrictions, those, objections may be
neutralized by an interpretation of PL-280 which excludes exercise of state
jurisdiction by county as opposed to state legislative bodies (since counties
more often exercise zoning powers). Similarly, a state's dissastifaction with the
financial burden of PIS-280 may vary depending on the scope of jurisdiction it
20 Public Lap, 280 Status Report, 5 CAL.. INDIAN LEGAL SERVICES NEWSLETTER, Sept.
1973 at 11-16.
21 fee, text accompanying notes 112-13 supra.
22 This is evident in cases which declared that when a state offers to- retrocede juris-
diction under the 1968 Act, the Secretary may accept some of the proffered jurisdiction
and require the state to retain the rest even if the. state would prefer all or nothing.
Omaha Tribe v. Village of walthill, 334 F. Sapp. -823 (D. Neb. 1971), af'd. 460 71`.25
1327 (8th Cir. 1972) ; United States' v. Brown, 334 F.. Supp. 536 (D. Neb. 1971).
Nebraska had offered to retrocede jurisdiction over two reservations within a single
county. The Secretary accepted retrocession as to one of the reservations only, since
Indians on the other reservation desired continuation of state jurisdiction. Subsequently,
the Nebraska legislature attempted to rescind the entire offer on the- ground that the
Secretary could not :accept less than all of the proffered Jurisdiction. The epurts affirm-
ed the Secretary's action relying on lanoiage in the 196$ Civil Rights Act empowering
the, Secretary to accept retrocession. of "all- or -any. measure of the . . jurisdiction"
acquired under PL-280. 25 U.S.C. ? 1323(a) (1970).
23 Such a provision could require that the Secretary determine whether the potential
benefit to the tribe from the partial removal of state jurisdiction exceeds the poten-
tial detriment to the state, a determination similar to the epe;,the Secretary presum-
ably now makes in. deciding- whether to accept less tfian:.all of a state's proffered PL-
230.jurisdiction,
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acquires in exchange, such as zoning and taxing powers. Just as the resolutions
of these disputes are affecting political positions regarding PL-280, so political
concerns are in many instances motivating attempts to raise and judicially
resolve these very disputes.
A. The Procedures for Effecting PL-280 Transfers
Indian oponents of PL-280 who lacked the power to prevent state jurisdic-
tion before 1968 have attempted to invalidate that jurisdiction by attacking
the means by which it was accepted. The states. on the other hand. have
sometimes accepted PL-280 in ways that seemingly departed from the re-
quirements of the Act because the mandated procedures were cumbersome
or politically difficult to satisfy. Resultant controversies over the validity of
purisdiction thus acquired have taken several forms because PL-280 divided
the states into three groups for purposes of accepting jurisdiction over Indi-
ans ; each group was provided with its own distinct transfer mechanism.
1. The Mandatory States
The original five mandatory states, with the addition of Alaska in 1958, com-
prised the first group.- PL-280 announced that hereafter those states "shall
have jurisdiction" over offenses committed by or against Indians on the reser-
vations, and over civil causes of action between or involving Indians which
arise on the reservations, to the same extent that they have jurisdiction over
such causes of action arising elsewhere in the state." The language appears to
be self-executing-to confer immediate jurisdiction on the states without the
need for state legislation to make it effective.
Indian litigants have questioned, however, whether jurisdiction can be dele-
gated to the states at all.' Furthermore, they have asked whether such dele-
gation, if permissible, can be effectuated by unilateral congressional action.
Such challenges to PL-280 failed in a protracted habeas corpus proceeding
involving a Klamath Indian who had been convicted in an Oregon state court
of having murdered a white man on the Klamath Reservation." The thrust of
the Indian's claim was that the federal government had plenary authority
over tribal Indians pursuant to enumerated powers in the Constitution and
that jurisdiction had never existed in any other governmental body. Thus,
it was argued, Congress could not delegate its constitutionally ordained pow-
ers to the states; and even if Congress could, withdrawal of federal jurisdic-
tion, rather than automatically instituting state law, would leave a jurisdic-
tional vacuum due to the states' lack of residual power.
Both states and federal courts considering the habeas corpus petition dis-
agreed, finding that the state'_s inherent police power sustained Oregon's
exercise of jurisdiction pursuant to PI.--280 even without legislative accept-
ance. They reasoned that congressional plenary power over tribal Indians,
confirmed by the Supreme Court in 1836,2' is effective only so long as Congress
chooses to exercise it. In the absence of congressional action, state police power
is automatically operative. One court which considered the petition relied
upon the theory that federal power over Indian tribes is derived from con-
gressional perception of the Indians' need for supervision, rather than from
the Constitution!' Perhaps sensing the difficulties engendered hf postulating
congressional power on expediency, another court ruled that federal power
was limited to that actually exercised by Congress because the states only
surrendered their sovereign powers to that extent's This latter view was fol-
lowed recently in Nebraska, also a mandatory state, where the state supreme
court held :
The inherent police power of the states applies both to Indians and to Indian
country, except to the extent that the federal government has preempted the
field, and therefore the federal government may withdraw from the field and
turn jurisdiction back to the states when it chooses to do so .31
Although the results in both cases undoubtedly effectuated Congress's intent
24. See note 11 supra,
2518 U.S.C. f 1162(a) (1970) ; 28 U.S.C. I 1360(a) (1970) (text cited in note 11
surd.
5 Agoa Caliente Band of Mission Indians' Tribal Council v. City of Palm Springs,
347 F. Supp. 42 (C.D. Cal. 1972).
27 Anderson V. Britton, 212 Ore. 1, 318 P.2d 291 (1957), cert. denied. 356 U.S. 962
(1958).
29 United States v. Kagama. 118 U.S. 375 (1886).
20 Anderson v. Britton, 212 Ore. 1, 16-19. 318 P.2d 291, 295-300 (1957).
30 Anderson v. Gladden. 188 F. Supp. 660 (D. Ore. 1960), eff'd, 293 F.2d 463 (9th
Cir.). cert. denied, 368 U.S. 949 (1961).
31 Robinson v. Sigler, 187 Neb. 144. 148. 187 N.W.2d 756. 759 (1971).
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in enacting PL-280,32 the reasoning in both cases is troublesome, primarily
because the cases fail to explore the possibility that the concept of inherent,
residual state power over Indians might conflict with the concept of inherent
sovereignty in the tribe. While the United States Supreme Court has recently
cautioned in another context that "reliance on platonic notions of Indian sov-
ereignty""' should be avoided whenever possible, it has also reaffirmed the
Indians' semi-autonomous status "'as a separate people, with the power of
regulating their internal and social relations, and thus far not brought under
the laws of the Union or of the State within whose limits they {reside]."',
The federal tradition of recognizing this sovereignty was established with the
early practice, since abandoned, of dealing with Indian tribes by treaty. Thus
it cannot be assumed, once Congress decides to forego the exercise of its plen-
ary power over the Indians, that residual state power automatically fills the
vacuum. More plausible is an approach which assumes that the constitutional
grant of plenary power to regulate Indians under the Indian commerce clause
and the treaty-making clause's directly transferred from the states to Congress
the power to override preexisting rights of tribal self-government. The power
thus acquired by Congress was not designed to overlap equivalent state power,
as was much of Congress's power over interstate commerce. This difference
is largely attributable to the historical need for a uniform national policy
to protect hostile Indians and settlers from one another.36 From this premise
it follows that states can acquire jurisdiction over such matters only by ex-
press delegation from Congress. Congresional silence cannot serve as a license
to the states to exercise residual police power.
Confusion over this question of residual state power accounts far much of
the divergent case law interpreting the meaning and effects of PL-280. The
souurce of thi sconfusion seems to be the non-territorial nature of Indian sov-
ereignty as recofinized by the United States Supreme Court. That is, the Court
has not defined such soverignty as exclusive power within the boundaries of
the reservation. Rather, it has defined it as a collection of those powers neces-
sary for the establishment and maintenance of viable, meaningful, self-gov-
ernment for Indian people. Once the Court acknowledged that according to
its definition of Indian sovereignty the states were not precluded from assert-
ing jurisdiction over non-Indians who had committed crimes against other
non-Indians on the reservation," the states swept to the conclusion that In-
dians and Indian reservations have no special status absent federal statutes
or treaties occupying the field. What the Court meant, however, is that Indian
self-determination is to be viewed functionally-in terms of the purposes for
which people desire to govern themselves-rather than territorially. This func-
tional approach has not always been successful in providing clear jurisdictional
guidelines,a and is less satisfactory than a territorial concept for that reason ;
but its basic dictate, that Indians are free from state power in areas neces-
sary to effectuate their self-determination, is wholly inconsistent with the no-
tion of residual state police power over Indians and Indian country expounded
in the Nebraska and Oregon cases deciding that mandatory PL-280 states need
not formally accept its jurisdiction "
32 Congress obviously did not expect that mandatory PL-280 states would have to
enact legislation accepting jurisdiction over reservation Indians, or they would have
required such acceptance as they did for the optional states. Instead, Congress relin.
quished jurisdiction over the mandatory states and assumed state jurisdiction would
follow.
Y3 McClanahan v. State Tax Comm'n, 411 U.S. 164, 172 (1973).
241d. at 173, quoting/ United States v. Ka.5ama, 118 U.S. 373, 381-82 (1886).
35 U.S. CoxsT. art. I, ? 8, cl. 3, art. II, ? 2, el. 2.
36 Compare, for example, congressional preemptive power in, the area of foreign
relations, which operates regardless of conflict between state law and international
treaties. Zschernig v. Miller, 389 U.S. 429 (1968)
37 United States v. Mei3ratney 1'04 U.S. 621 (1882).
as Compare, e.g., Ghahate v. 'Bureau of Itevenue, 80 N.M. 98, 451 P.26 1002 (1969).
with Commissioner of Taxation V. Brun, 286 Minn. 43, 174 N.W.2d 120 (1970), both
of which attempted to utilize this, approach in determining whether reservation Indians
could be subjected to state income taxes.
39 As in the case of the commerce power,. there may be instances where the func-
tional test does not require the state to stay its hand in the face of congressional
silence ; but the state would he ousted if Congress spoke or occupied the field. Assuming,
for example, that states may serve process on Indian reservations for causes of action
against tribal Indians arising off the reservations without running afoul of Indian
sovereignty Congress may nevertheless be able to prohibit such exercises of state
power. Indeed, cases declaring the broad preemptive effect of PL-280 seem premised
on the a istence of such congressional power. See notes 182-84 & accompanying text
Infra. But of. State See. Inc. v. Alabama, 84 N.M.629, 506 P.2d 7S6 (1973). The closest
analogy would b_e the functional test that Is used to determine whether congressional
Wardenssilence matte (1rel3twg t99I terse to commerce is preemptive. Cooley V. Board of
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If these decisions stemmed from a desire to effectuate congressional pur-
pose, their concern was excessive. Even starting from the premise of residual
state power, it does not necessarily follow that mandatory PL-280 states
must take some action to accept jurisdiction over reservation Indians. In a
1960 opinion" advising Minnesota, a mandatory PL-280 state, that it need
not take such action, the Attorney General of Minnesota conceded that absent
federal treaty or statute conferring it, state jurisdiction does not extend to
reservation Indians because the rights acquired by Minnesota's Enabling Act
are subordinate to the Indians' "prior right of oceupancy.f 4' Yet he did not
conclude from the absence of residual state jurisdiction that Congress is pre-
cluded from declaring effectively that state jurisdiction shall apply on the
reservations. His position seems to have been that although a retreat by Con-
gress from exercise of its jurisdiction over Indians does not automatically
institute state jurisdicion. a retreat coupled with a directive that states
shall asume such jurisdiction is operative regardless whether a state formally
accepts it.
Recent United States Supreme Court decisions emphasizing congressional
control over the means by which jurisdiction over Indians is transferred from
the federal government to the states' suggest that the Court will agree with
the Minnesota Attorney General that formal state acceptance by mandatory
PL-280 states is unnecessary. If so, the peculiar contours of congressional
power over matters affecting tribal sovereignty will be revealed.
Unlike congressional power over interstate commerce, this power never
overlaps residual state police power. Yet unlike other nonoverlapping powers,
such as congressional power to declare war, it is delegable to the states. Put
another way it is capable of being conferred in whole or in part on the states
if Congress feels that it is consistent with its responsibilities to the Indians to
do so, yet otherwise not shared with the states at all."
2. The Optional States
The remaining two groups of states set apart by PL 280 for purposes of
accepting jurisdiction over reservation Indians were required by Congress
to do precisely what the defendants in the Oregon and Nebraska eases had
insisted that their states do-enact legislation accepting jurisdiction. Con-
gress divided the optional states into two groups, those with disclaimers and
those wthout. The disclaimers were provisions inserted in the proposed consti-
tutions of candidates for statehood, which limited the jurisdiction which the
newly admitted states would assert over Indians and Indian country. They
were the result of negotiations between the federal government and territorial
representatives, and corresponded to provisions in the federal legislation which
eventually authorized statehood.
For the optional states without disclaimers, the procedure for accepting
PL-280 was quite straightforward. Section seven of PL-280 provided that any
state not included among the mandatory states and not prevented from assum-
ing jurisdiction by provisions of its Enabling Act may assume civil and/or
criminal jurisdiction to the same extent as the mandatory states -"at such time
and in such manner as the people of the State shall, by an affirmative legisla-
tive action, , obligate and bind the ? State to assumption thereof."." Nevada
(1955),46 Florida (1961)," Idaho (1963),' and Iowa (1967) 48 all- states with-
out disclaimers, have assumed jurisdiction under this .provision. without gen-
erating any controversy over the procedural correctness of the transfer.`9
"1960 MINN. ATT'Y GEN. REP. 34.
Id.. At 87. - _ - .. .
4 McClanahan v, State Tax Comm'n, 411 U.B. 164 ,(1973); Kennerly v. District
Court, 400 U.S. 423 (1971).
43 It is perhaps closest to that area of interstate commerce regulation removed, from
state power by the commerce clause. Since Congress seems to have the power to deter-
mine which areas of regulation fall within that category by delegating powers to,the
states (Cooley v. Board of wardens, 53 U.S. (12 How.) 299 ( 551). a parallel may he
drawn to congressional power to delegate jurisdiction over regervation Indians to the
stated.
44 Act of Aug. 15, 1953, ch. 505, ? 7, 67 Stat. 588.
S6 NEV. REV. STAT. ? 41.4.10 (1967). Nevada originally declined status as a mandatory
state becnnse of the financial burdens Imposed by I'L-280.
-49 FLA.: STAr ANS.
"IDAHO CODE ?? 67-5101 to 51,03 (173). .
"IOWA CoDE ANN?? 1.12 14.(Supp 1973).
.
"when the 1963 Civil Rights ,Act repealed section seven ;and replaced it with a
trihAl_ consent procedure it explicitly prgserved these pre-1968 transfers. 25 U.S,C. ?
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Congress assumed the eight optional states with disclaimers 60 would have
to repeal their disclaimers by constitutional amendment before PL-280 juris-
diction could be validly accepted. Indians have pressed to enforce the require-
ment because constitutional amendments cannot be effected without a refer-
endum, and the Indians succeeded in several state ballotings prior to 1968 in
convincing the public that PL-280 is both unfair to the Indians and an unac-
ceptable burden on state taxpayers."
The disclaimers generally declare that until the United States and "the
people of the state" in question consent to the contrary, all lands held by any
Indian tribe, the title to which has not been extinguished by the United States,
shall remain "under the absolute jurisdiction and control of the Congress of
the United States." 6= In debate over PL-280, members of Congress took the
language to mean that even with congressional permission, legislatures in these
states could not act to accept PL-280 before the disclaimers were eliminated
by constitutional amendment 63 Since in at least a few of these states, B.I.A.
investigators prior to the passage of PL-280 had revealed that Indian tribes
and/or local officials welcomed a transfer of federal jurisdiction to the states,6'
and since Congress was unwilling to remove barriers to state jurisdiction un-
der the disclaimers by extinguishing Indian title, a provision (section six) was
added to PL-280 stating :
"Notwithstanding the provisions of the enabling Act for the admission of a
State, the consent of the United States is hereby given to the people of any
State to amend, where necessary, their State constitution or existing statutes,
as the case may be, to remove any legal impediment to the assumption of civil
or criminal jurisdiction in accordance with the provisions of this subchapter.
The provisions of this subchapter shall not .become effective with respect to
such assumption of jurisdiction by any such State until the people thereof have
,appropriately amended their State constitution or statutes, as the case may
be." 86
Six of the eight states with disclaimers have enacted legislation asserting
full or partial jurisdiction over reservation Indians.GO Yet five of these six-
Washington, Montana, Arizona, North Dakota, and Utah-have not amended
their state constitutions, claiming amendment is not a prerequisite to the as-
sumption of jurisdiction under PL-280.
The states first argue that their constitutional disclaimers do not deny them
the jurisdiction PL-280 offers.67 The language of PL-280 provides that no law
enforced by a state under its aegis may require the alienation, encumbrance,
or taxation of Indian property held in trust by the United States, or the reg-
ulation of such property in a manner inconsistent with federal statute or
treaty.'8 States argue that the disclaimers prohibit just such alienation, en-
cumbrance, taxation or regulation, but no more; therefore, their repeal is not
5? Although Alaska has a disclaimer, it was included with the mandatory states. The
optional states with disclaimers are Arizona, Montana, New, Mexico,. North Dakota,
Oklahoma, South Dakota, Utah, and Washington.
51 See notes 56-59 & accompanying text supra.
62 see, e.g., S.D. CONST. art. XiIII.
53 S. REP. No. 699, supra note 23, at 16-7 (including report, on PL-280 by Dept. Of
Interior).
54 G6 25 U.S.C. ? 1324 (1970) (emphasis added) priginally enacted as Act of Aug, 15,
1953, ch. 505, 6, 67 Stat. 590) (insi nificant y amended thereafter). 'The reference
to amendment of state statutes was not intended as a possible substitute for consti-
tutional mtndmebt; rather it was-directed at three states which had embodied dis-
claimers in statutes as well as their constitutions, since those states might feel that
federal permission was necessary to repeal both forms of disclaimer. Hearings Transcript
Ij, supra note 22, at 6-7.
5?Arizona (197), Aaxz. Ray. STAT. ANN. ? 86-1801, -1865 (Sup. 1978).,Montana
(1963) MONT. REV. CODE ANN. ft 88-801. to -806 (1966): North Dakota (1963), N.D.
CENT. ~oD~. ? 27-19-01 to -13 (1974). South Dakota (1957 and 1961), S.D. COMPILED
LAWS ANN. - ? 1-1-12 to -21 (1967). Utah (1971 UTAH CODE ANN. ?$ 63-36-9 to -21
(Supp. 1978). Washington (1957 and -1963); WASH. REV. eons ?? 37.12.010-:070
(Sup p. `1971).
67 This position is advanced in State em rot. McDonald v. District Court, 159 Mont.
156, 496 P.2d 78 (1972).
ss Nothing in this section shall authorize the alientation; encumbrance, or taxation of
any real or personal property, including water rights, belonging to any Indian or any
Indian tribe, band. or community that is held in trust by the United States or is
subject to a restriction against alienation Imposedby the United States; or shall author-
ize regulation of the ' use- of Such property in a manner inconsistent with any I+'ederal
treaty, agreement, or statute or with any regulation made pursuant thereto ; or shall
confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise,
the ownership or right to possession of such property or any interest thereto, 28 U.S.C.
? 1360(b) (1970). A similar section is found in 18 U.S.C. ?. 1162(b) (1970).
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necessary before states can accept jurisdiction under PL-280. Alternatively,
they note that the disclaimers only require that Indian reservations "shall be
and remain Under the absolute jurisdiction and control of the United States."
Since Congress can repeal PL-280 at will and return jurisdiction to itself, the
states claim Indian lands are never outside the absolute control of Congress
under the Act "
Although numerous states have adopted this interpretation of the dis-
claimers,?? it conflicts directly with historical explanations of the origins of
these measures. At the time Congress required the disclaimers they were nec-
essary to protect native Indian populations from homesteaders and settlers.
By demanding the disclaimers, the federal government acknowledged its obli-
gation to stand between these two hostile groups and prevent continuing ex-
ploitation of the Indians.' Congress began insisting on disclaimers of state
jurisdiction over Indian reservations immediately after United States Supreme
Court decisions first indicated the possibility that such jurisdiction could be
exercised..?" Viewed in this light, the disclaimers are more than protection
against Indian loss of real property interests ; they are congressional insula-
3
tion against state jurisdiction over reservation Indians.'
The United States Supreme Court's dictim in Organized Village of Kake v.
Egan 44 suggests to the contrary that the purpose of the Alaska disclaimer was
to discourage Indian claims for compensation for their land, claims that might
otherwise have, been brought on the theory that the federal government had
ceded Indian land to Alaska in making it a state.86 This suggestion is wholly
gratuitous, however. The basic issue in Jake was whether the Indians could
claim an exemption from state regulation pursuant to the exception in PL-280
protecting hunting and fishing rights. Under the Court's holding, the state
never needed the assistance of PL-280 to assert jurisdiction over the fishing
area in question because the territory had never been reserved for the Indians
by Congress. For this same reason the disclaimer which pertained .only to lands
reserved for Indians never precluded state jurisdiction of this type.' The scope
,of the disclaimer, was thus irrelevant to the result and need not have been
broached yet even accepting Bake as an authoritive interpretation of the Alas-
ka disclaimer, that disclaimer may be a special case, since the Indians of Alas-
ka were never isolated from and hostile to the rest of the population, as were
Indians in the older western states. Accordingly, Congress may have had no
interest in requiring Alaska to disclaim jurisdiction over Indians which the
Alaska territory had always exercised and which the State of Alaska was ex-
59 E.g., State ex red. McDonald v. District Court, 159 Mont. 156, 496 P.2d 78 (1972)_
001n 1957, the Attorney General of Arizona contended that his state's disclaimer
was absolute only with respect to the state's right to tax, dispose of, levy upon, or
otherwise adversely affect land and property held in fee by the United States and the
Indians. Otherwise, he asserted, that the state had disclgimed jurisdiction only in
cases where Congress . has, exercised its "absolute jurisdiction and control." 1957 Or.
ARIZ. ATT'Y Gmr. 96, 100. The Attorney General In office in 1966 reaffirmed this view,
announcing that the state disclaimer applied "to Indian land considered as property,
and not as a territorial area withdrawn from the sovereignty of the State." 1966 Op.
ARiz. ATT'Y GEN. 41, 42, ,quoting Porter v. Hall, 34 Ariz. 308, 321 271 P. 411. 415
(1928). The Attorney General off Utah reached the same conclusion In a 1962 opinion.
in which he stated that his state's Enabling Act merely reserved title to Indian lands in
the United States, and does not deprive the state of sovereignty or remove the land
from the territorial jurisdiction of the state. 1952 UTAH A.TT'Y GEN. BIENNIAL Bar.
210. Although the Supreme Court of North Dakota first interpreted its disclaimer to
encompass jurisdiction over Indians themselves as well as their land (State v. Lohnes,
69 N.W.2d 508 (N.D. 1955)), the court later reversed its position with respect to civil
cases (Vermillion v. Spotted Elk, 85 N.W.2d 432 (N.D. 1957)), and found that the
disclaimer does not prevent assertion of state jurisdiction over tort actions between
Indians arising on the reservation, even when jurisdiction has not been .accepted under
PL-280. Several New Mexico decisions Pain v. Hughes, 76 N.M. 502. 417 P.2d 51
(1966)), and a decision of the Supreme (e.g., ourt of Montana'.,(State ex rel. Iron Bear v.
District Court; 512 P.2d 1292 (1973)), relying on dictum by the United States Supreme
Court Interpreting the Alaska disclaimer (Organized Villfge of Sake v. Egan; 369 U.S.
60, 65-66, 69 (1961)), have asserted that the reservation of "absolute jurisdiction"
over Indlan lands to Congress in the disclaimer was not a reservation of exclusive
jurisdiction," and in any event that the disclaimer was of proprietary interest in the
land, "of governmental -interest. See also Tonasket v. State. 525 P?..d, 744, 752 (Wash.
Sun. Ct. 1974);
ft TRIRAL'GovERNMENT9, eupra note 57, at 3.
g" Comment, State Taxation on Indian Reservations, 1966 UTpg L. Rev. 132, 137.
es1teClanahan v. State TaxComm'n, 411 U.S. 164, 175-76 (1973
'..T69 U.S. 00 (1961)?
-old. Wt '65-60, '69.
W AT,ASKA. ;cfissT. art.NII, 1 12. Alternatively. the into pretation of the disclaimer
was dictum because Alaska was a mandator,, PL-280 state. The language in' PL-280
directing that Alaska "shell" have jurisdiction over Indian country superseded the
disclaimer.
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pected to continue exercising.87 It follows that states relying on Keke have
been misinterpreting their disclaimers in order to escape the need to repeal
them before accepting PL-280 jurisdiction.
Prevailing state interpretation of disclaimers are not simply incorrect ; they
also contradict the congressional understanding of the Enabling Acts when
it passed PL-280.?" However, since Congress has repealed the Enabling Acts for
purposes of PL-280,0? and has left it to the states to remove remaining barriers,
the states' position is that even if Congress believed the state disclaimers were
barriers, the states can effectively determine that they are not so for purposes
of accepting PL-280.
Not only do these states contend that they are free to determine whether
their disclaimers pose barriers to asserting PL-280 jurisdiction, they also main-
tain that even if the disclaimers do pose barriers, PL-280 leaves to the states
the decision of how to go about removing them. Both the Washington and
Montana supreme courts have held that legislative repeal is sufficient because
state law allows it, despite unequivocal language in the hearings,70 reports,"
and floor debates 7l on PL-280 establishing that Congress believed disclaimers
could be removed as barriers to assertion of P):,-280 jurisdiction only by state
constitutional amendment. These courts maintain Congress was only concerned
about removal of disclaimers in a manner effective under state law,73 and the
Ninth Circuit has also adopted this position." Attempts have been made to
obtain a determination of the issue by the United States Supreme Court, but
thus far the Court has managed to avoid it either by denying certiorari, or
most recently in Tonasket v, Washington 75 remanding the question to the
state.46
Essentially, both the arguments that repeal is. not necessary and that repeal
by constitutional amendment is not necessary reduce the problem to a matter
of congressional intent-how important was it to Congress that the procedures
it prescribed in PL-280 be followed precisely? It is unlikely that Congress
viewed constitutional amendment as fulfilling any function in the scheme of
PL-280 other than satisfying state requirements, because Congress did not. re-
quire states without disclaimers to hold a popular referendum before accepting
jurisdiction. Nevertheless, the language of PL-280 clearly requires constitution-
al amendment, and the legislative history confirms the congressional intent
07 Refer to discussion in Montoya v. Bolack, 70 N.M. 196, 372 P.2d 387 (1962).
In this regard it is worth noting that Congress Included Alaska among the manda-
tory PL-280 stales rather than subsuming it unde section six (cited in text accompa-
nying note 154 supra), along with other states with disclaimers, some of which were
interested in PL-280 Jurisdiction from the, outset. Congress may have felt free to do
so, without concern about possible obstacles under state law to the exercise of jurisdic-
tion under PL-280, because it thought, Alarka's .disclaimer had a more restrictive scope
than those in the older western states. Interestingly, the disclaimer in the Alaska
Constitution does not repeat the Alaska. Statehood Act's reference to "absolute jurisdic-
tion & Control" over Indian lands remaining in the United States.
as States adopting this interpretation seem to believe, however, that it 4s not the under-
standing of the clause that Congress holds which matters, but the states'. It is con-
ceivable that Congress adopted the provision simply out of an excess of. caution and
fear that states would interpret the disclaimers broadly ; yet the legislative history
nowhere indicates that the provision in I'1-280 requiring repeal was added out of any-
thing other than a genuine belief that the disclaimers constituted a stumbling block
to state exercise of PL-280 jurisdiction.
69 The operative languafe in sactian six of PL-280 is "notwithstanding any provi-
sions of the enabling Act.' 25 U.S.C. ? 1324 (19700, (originally enacted as Act of Aug.
15, 1953, ch. 505 1 6, 67 Stat. 590 (reenacted in vil Rights Act of 1968, Pub. L. No.
90-284 tit. Iv 04, 82 Stat. 79). During hearings on PL-280, counsel for the House
Committee on in erior and Insular Affairs st sted that this language "would make clear
that Congress was repealing the Enabling Act." Hearings Transcript II, supra note 22,
at 9.
70 Hearings Transcript II, supra note 22, at 2-4, 7-8, 23-24.
71 S. R?P. No. 699, supra note 23, at 6-7.
7299 CONG. REC. 10782 (1953). - - - -
76 See Makah Indian Tribe v. State, 78 Wash. 2d 485, 457 P.2d 590 (1969), appeal
dismissed, 397 U.S. 316 (1970) ; State ex red. McDonald v. District Court, 159 Mont.
156, 496 P.2d 78 (1972).
74 Qul 387 U SD alt Tribe of Indians v. Gallagher, 388 -P.2d 648 (11th Cir. 1960), cert. denied,
75411 U.S. 451 (1973).
76 These delays have begun to influence decisions on the. issues. On remand, the
Supreme Court of Washington reaffirmed its ruling in Tonasket that Washington had
effectively assumed PL-280 jurisdiction without a constitutional amendment, relying in
part on the fact that it would be "manifestly unfair and unjust to those who have
in good faith relied upon that jurisdiction or been affected by St." Tonasket v. State,
525 P.2d 744, 753 (1974). This disruption of prior.legal relations should be ,compared,
however, with the future unfairness of subjecting Indians to .state jurisdiction. over
their opposition. Congressional authorization for retrocession upon. Indian ;initiative
would provide the least disruptive resolution of this problem, since it : would, alter
jurisdiction prospectively only.
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to impose that requirement 7' Without question Congress has the power to im-
pose conditions on a state's assumption of juridiction over reservation Indians,
regardless of the soundness of congressional understanding of state law.78 Thus,
the burden would seem to fall on the states to demonstrate why the clearly
manifest intent of Congress should be disregarded.
Two recent United States Supreme Court decisions suggest that this burden
will be most difficult to sustain. In Kennerly v. histrir;t Court 49 and McClan-
ahan v. State Tax Commission 8? the Court insisted on the preemptive effect
of PL-280 on state efforts to acquire jurisdiction over reservation Indians.
In Kennerly, although Montana had a disclaimer, it asserted jurisdiction with-
out complying with the formal requirements of PL-280, relying instead on a
tribal ordinance which provided that state and tribal jurisdiction would be
concurrent. In McClanahan, Arizona, also a disclaimer state, attempted to
apply long-standing state income tax statutes to reservation Indians, although
Arizona had not even obtained the formal tribal consent required by the 1968
Civil Rights Act. The Supreme Court denied the validity of jurisdiction in both
cases.because it had not been acquired in strict conformity with PL-280. Fur-
ther, in Kennerly the Court implicitly rejected a mode of asuming 'PL-280
jurisdiction which could be considered a functional equivalent of requirements
in the statute.82 This rejection is especially significant for purposes of under-
standing whether states must repeal their disclaimers by means of popular
referendums.
The Court's insistence on formal compliance is best comprehended in relation
.to.its preference for statutory preemption over complex, abstract notions of
Indian sovereignty as the tool for analyzing Indian jurisdiction problems. The
Court's position now is that Congress has "in almost all cases" defined "the
boundaries of federal and state jurisdiction," and that these comprehensive
and detailed boundaries limit all attempts at assertion of jurisdiction over
reservation Indians." The Kennerly and McClanahan decisions have thus effec-
tively dissuaded further state court assertions of jurisdiction in the absence of
compliance with PL-280 requirements and strongly imply that the only valid
way of assuming jurisdiction is by repealing disclaimers by constitutional
77 On remand, the Supreme Court of Washington in Tonasket relied heavily on lan-
guage in section six of PL-280 consenting to the repeal "where necessary, [of anyl
State constitution or existing statutes as the case may be, to remo... e any legal impedi-
ment to the assumption of civil and.' criminal jurisdiction 25 U.S.C. J 1324
(1970) (emphasis added). According to the court, the italicized words establish an
inference that "the question of whether a state constitutional amendment be necessary
to comply with Public Law 83-280 Is essentially one for state resolution." 525 P.2d at
753. This is a slender reed to rely on in rejecting weighty legislative history. The
words "where necessary" may have been inserted as a means of indicating that not
every state constitution had a disclaimer possibly interfering with jurisdiction over
reservation Indians, or that not every state with a relevant disclaimer also had
statutory restrictions.
78 See text accompanying notes 26-42 supra.
78 400 U.S. 428 (1971).
-411 U.S. 164 (1973).
e' Ironically, it was two other Supreme Court decisions which had encouraged non-
PL-280 states to attempt to increase state power over reservation Indians. Williams v.
Lee, 358 U.S. 217 (1959), raised the question of a non-PL-280 state's jurisdiction to
enforce a contract against a reservation Indian. Although the Court denied jurisdiction,
It did so on the basis of a test which the states interpreted as an open invitation to
exercise more control over the reservations. According to the Court in Williams, if
state jurisdiction would impair the Indians' ability to govern themselves. the state
could not exercise power in the subject area; if not, the state was not barred from
exercising jurisdiction simply because a claim against an Indian arose on the reserva-
tion. Significantly, the Court did not consider PL-280 "applicable federal legislation"
with preemptive impact. In Organized Village of Kake v. Egan, 369 U.S. 60 (1952), the
Court s narrow interpretation of the Alaska disclaimer encouraged states with dis-
claimers not to view them as barriers to increased state power.
The effects of Williams and .llake were manifested in state court and attorney general
opinions in every area of the law. See not 38 supra. Relying in part on the existence
oP PL-280, state courts did not utilize Williams and X'ake to, increase their jurisdiction
over divorces between reservation Indians, determinations of' dependency with respect
to Indian children, imposition of sales taxes, and causes of action in tort against reser-
vation Indians. See cases cited note 39 supra. Williams and K.ake did, however. encour-
age aggrandizement of state power over: income taxes (Ghahate P. Bureau of Revenue,
80 N.M., 98, 451 P.2d 1002 (1969; 1957-19581 UTAN ATT'Y GEN. BIENNIAL REP. 292;
1957 Or. ARIZ. ATT'Y GEN. 96). enforcement of personal contracts unrelated to tribal
matters (Kennerly v. District Court, 154 Mont. 488, 466 P.2d 85 (1970), vacated. 400
U.S. 423 (1971)), and criminal, actions. against Indians acting on the reservation ((1959-
1.9601 FLA. ATT'Y GEN. BIENNIAL REP. 473).
82 400 U.S. 428, 427 (1971).
88 McClanahan v. State Tax Comm'n. 411 U.S. 164, 172 U.S (1973). Thus the ques-
tion of residual state power was neatly skirted. The feeling persists, however. that the
court selected a preemption approach precisely to squelch claims of such residual
power.
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amendment, enacting legislation, and since 1968, obtaining Indan consent 8'
This conclusion is bolstered by the fact that sustaining the requirement will
not thwart or subvert any purpose of PL-280, and in fact may provide the
Indians with more influence on the state's decision to assume jurisdiction," a
result consistent with the thrust of PL-280 since 1968.
B.. The Parameters of PL-280 Jurisdiction
Tribes which had state jurisdiction thrust upon them against their wishes
pursuant to PL-280 have demonstrated their discontent not only by challenging
the methods by which states assumed this jurisdiction, but also by arguing"
for a narrow reading of the powers PL-280 confers on the states. In particular
Indians have contended that state jurisdiction under PL-280 is (1) limited in
the civil area to jurisdiction over causes of action, so that states lack general
regulatory power in areas such as zoning and taxation, (2) limited to enforce-
ment of state as opposed to county or municipal laws, and (3) subject to ex-
plicit statutory exceptions in the areas of hunting and fishing rights, land
use control, and taxation, which should be interpreted very generously in the
Indians' favor. The resolution of these contentions will have important impli-
cations for the vitality of tribal governments in PL-280 states, because a judi-
cial finding in favor of the Indians on these issues will limit state jurisdiction
in those areas where tribes feel the strongest need for autonomy-areas like
taxation and land use which affect opportunities for economic development.
1. Is State PL-,280 Jurisdiction Limited to Causes of Action?
Section four of PL-280 offers a state : "jurisdiction over civil causes of action
between Indians or to which Indians are parties which arise in the areas
of Indian country ... to the same extent that such State . . . has jurisdiction
over other civil causes of action, and those civil laws of such State . . . that
are of general application to private persons or private property shall have the
same force and effect within such Indian country as they have elsewhere with-
in the State * * *." 57
On its face, the italicized portion of this section seems to preclude the argu-
ment that ?PL-280 simply authorizes state courts to serve process on reserva-
tion Indians for "causes of action. such as tort law [and] contract law" M
arising on the reservation, with regulatory and licensing functions to be per-
formed by the tribes themselves 85 Nevertheless, Indians who have disputed
this broad understanding of state PL-280 jurisdiction have pointed out -some
8- Thus PL-280 was found to preempt state jurisdiction in Martin v. Juvenile Court,
493 P.2d 1093 (Colo. 1972) (paternity actions) ; Blackwolf v. District Court, 158
Mont. 523, 493 P.2d 1293 (1572.) (delinquency proceedings) ; and. Crow Tribe of Indians
v. Deernose 158 Mont. 25, 487 P.2d 1133 (1971)) ((mortggage foreclosure). However in
State ex rel. Iron Bear v. District Qpurt, 512 P,2d_1292 (Mont. 1973), the Supreme
Court of Montana refused to rule that the state's failure to accept PL-280 precluded
it from granting divorces to two consgnting reservation Indians. Prior to the passage
of PL-230, the tribe had enacted an ordinance decreeing that no tribal marriage or
divorce would be valid unless it was concluded in accordance with state law ; further-
mnore, the tribe had ceased granting either marriages or divorces. Despite such evidence
of tribal acquiescence in state jurisdiction, which was also present in the Kennerly
case, the decision is incorrect in its disregard for the preemptive effect. of PL-280. The
concurring opinion's suggestion that a contrary result would deny Indians the equal
protection of the laws ignores both the possibility that Montana could acquire jurisdic-
tion to grant divorces under PL-280, and that no state law precludes the tribe from
granting marriages and divorces entitled to recognition under state law. Id. at 1299.
85-.For example, since Indian support will be important in achieving passage of a con-
stitutional amendment the Indians can bargain for retrocession provisions in the state
legislation accepting P280.
Comment, Indian Taxation: ,Underlying Policies tend Present Probtenis. 59. CALIF, L.
REV. 1261 (1971) ; Public Law 280 Status Report, 5 CAL.' INDIAN LEGAL- SnaviCES'
NEwSLSTTxu, Sept. 1973; at 15-16.
8128 U.S.C. ? 1360(a) (1970) (emphasis added).
88 Opening Brief of Appellant at 34, Tonasket v. State, 525, P.2d 744 Wash. Sup.
Ct. 1974) (case heard on remand from the Supreme Court of the United tates). See
also Agua Caliente Band of Mission Indians' Tribal Council v. City of Palm Springs,
347 F. Supp. 42, 48-49 (C.D. Cal. 1972) ; Israel & Smithson, Indian Taxation, Tribal
Sovereignty i economic Developments, 49 N.D.L. Rev. 267 (1973).
88 The statement in the Senate Report noting that PL-280 permits state courts both
"to adjudicate, civil controversies arising ',n Indian reservations, and to extend to
those reservations the substantive civil laws of the respective States" seems to confirm
this assessment of the law. S. REP. No. 699, supra note 23, at 5. The counsel for the
B.LA. at the hearings on PL-280 also supported this interpretation when he stated
that the law. "would mark a definite step forward in the inclusion Into the general
body of the people of the Indians of that particular State with respect to civil and
criminal jurisdiction so that they will be subject to the same laws and the same.
rules as the other citizens."
Statement of Harry. A. Sellery, Jr., Chief. Counsel, B.I.A., June 29, 1953, in Hearings
Transcript I, supra note.22, at 5, Furthermore, the language of PI-280 excepting from
state jurisdiction the power to encumber trust property or regulate it in a manner
inconsistent with federal law would seem unnecessary if regulatory jurisdiction had
not been conferred at all. 28 U.S.C. ? 1360(b)',(1970). (quoted in note 58 supra),
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ambiguities of legislative intent and language that lend support to their con-
tention that state civil power under the statute is not regulatory in nature.90
The first mention of civil jurisdiction during the 1952 Hearings over PL-280
appears in a letter from the Department of the Interior, suggesting that a pro-
posed bill granting California jurisdiction over criminal offenses by or against
Indians be amended to include the following provision :
"The courts of the State of California shall have jurisdiction, under the laws
of the State, in civil actions and proceedings between Indians or between one
or more Indians and any other person or persons to the same extent that the
courts of such State have jurisdiction in other civil actions and proceed-
ings * * *.,, 91
This language resembles language in the 1950 Act granting jurisdiction to the
New York courts "in civil actions and proceedings" involving Indians.92 Neither
the Hearings nor the Act mentions general regulatory power. Furthermore, the
1968 Amendments to PL-280 repealing section seven and substituting a provi-
sion for Indian consent stated :
"State jurisdiction acquired pursuant to this subchapter with respect, to
criminal offenses or civil causes of action, or with respect to both, shall be
applicable in Indian country only where the enrolled Indians . . . accept such
jurisdiction by a majority vote * * *." 99
The United States Supreme Court has interpreted this provision as extending
"State civil and criminal jurisdiction to litigation involving Indians arising
in Indian country," 94 notwithstanding reiteration in the 1968 Act's amendments
of the language in original section four of PL-280 to the effect that civil laws
of the state shall have the same force and effect on the reservation as else-
where in the state.9" Finally, during House bearings: on the propsed amend-
ment, Senator Sam Ervin, its chief sponsor, made the following significant
statement :
"Public Law 280 relates primarily to the application of state civil and crim-
inal law in court proceedings, and has no bearing on programs set up by the
States to assist economic and environmental development in Indian territory.01
This legislative history fails to define the extent of civil jurisdiction under
PL-280. While it is certain that Congress wanted state courts to hear civil
lawsuits against reservation Indians and to apply some state law when it
decided them, it is unclear how far Congress intended to go in eliminating
tribal power over such public actions as licensing of professionals, regulation
of land use, and taxation of activities on the tribal land. Such public actions
are usually backed up by the threat of criminal or civil enforcement in the
state courts. But to the extent that the language and history of PL-280 focus
on litigation, there may have been some intention to reserve- these largely
administrative responsibilities to the tribes.B7
Any attempt to put this distinction into practice encounters serious con-
ceptual obstacles, however. If the Indians are arguing that PL-280 simply
authorizes state courts to apply federal or tribal law in- civil suits against
reservation Indians. the arrangement could be understood as an instance of
the general principle that a sovereign entity possessing judicial power over
controversies ned not also possess power to make rules governing those con-
troversies.BB Although this distinction is conceptually workable, it defies the
9? The precise outlines of this contention are not clear, for it could mean that only
state judge-made law' applies to- Indian defendants with tribal' a.nd federal' statutory law
governing as in pre-Erie diversity cases; or, it could mean that only private rights
of action may be enforced against Indians in state court,, whether those rights be
statutory' or common law. - -
91 Letter from Mastin C. White, Acting Assistant Secretary of Interior, to Hon. John
It. Murdock, Chairperson, Comm. on Interior and Insular Affairs, Feb. 27, 1952, in 1952
Hearings, supra note 29, at 30.
9225 U.S.C. 233 (1970).
03 25 U.S.C. 1326 (1970) (emphasis added).
.94 Kennerly v. District Court. 400 U.S. 428, 428 (1971).
95 25U.S.C. ? 1322(a) (1970).
991968 Hearings, supra note 54, at 136 (emphasis added).
9z The language in section four of PL-280 providing that "any liberal ordinance
heretofore or hereafter adopted . . In the exercise of any authority which [the tribe]
may possess" will he given full force and effect ih determinin civil suits in state court
only if they are consistent with state law (25 II S.C. ? 1a22(c) (1970) (originally
enacted as Act of Aug. 15, 1953, ch. 505, ? 4. 67 Stat. 55891) is not dispositive, since
it avoids the question of how much "authority" the tribe will retain after adoption of
PL-280.
9R The states, for example, can decide cases arising under the, laws of the United
States even though they lack the power to pass many laws on the same subjects. Thus,
state courts can decide cases involving construction of federal patent laws, even
though they are unable to enact their own patent laws. U.S. Cossx. art. I, 1 8, See
American Well Works Co. v. Layne & Bowler Co.. 241 U.S. 237 (1916) ; C.hisum, The
Allocation of Jurisdiction Between State and Federal Courts in Patent Litigation. 46
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language and purpose of PL-280 and has not been suggested by the Indians"
Rather, the Indians concede some state law is applicable to reservation Indians
under PL-280, but only that related to such areas as torts and contracts.
This distinction introduces a host of new and different interpretive problems.
If it means that state common law but otherwise federal or tribal statutory
law applies in suits against reservation Indians, it is difficult to discover
either the basis for the distinction in the language of PL-280 or in the policy'
considerations that underlie it. Section four's reference to the "civil laws of
such State" having the same force and effect on reservations as elsewhere
in the state suggests no such limitation on the applicability of state law, nor
does the language simply conferring jurisdiction on state courts to decide civil
disputes involving reservation Indians. One reason why Congress might have
intended to extend only state common law to the reservations is that state
judges might encounter greater difficulties in discerning and applying tribal
analogies to common law than in applying tribal statutes. It seems unlikely,
however, that Congress intended that the applicability of state law to a case
against, an Indian defendant depend on whether a state or tribe has codified
or modified by statute its common law rules.
If the Indians are not arguing that states wholly lack legislative jurisdiction
or that they lack the power to apply anything but judge-made law in litiga-
tion against Indians, they may instead be arguing for a more functional dis-
tinction between state power to regulate and state power to adjudicate "causes
of action." While states will usually enforce regulatory schemes by authorizing
state agencies to bring injunctive "causes of action" or suits for civil penalties,
the Indians may attempt to distinguish such. litigation from litigation governed
by state rules` under PL-280 on the ground that the plaintiff is public, not
private, or the interest vindicated is public, not private' Again , . it is difficult
to connect this very specific distinction wth the much more general language
of PL-280 applyng state law to the reservation, unless one focuses on use of
the words "private persons or property"; but even with this hurdle surmounted,
the precise contours of the distinction as well as its rationale are difficult to
grasp. The public has some interest in every private lawsuit. Furthermore, any.
attempt to differentiate public and private suits on the basis of public versus
private enforcement is difficult to justify in terms of PL-280 because a state's
choice between public and private enforcement of a regulatory scheme, such as
its fair employment practices law, has little bearing on the extent to which a
law will infringe upon tribal authority.'
The purpose of pointing out these conceptual problems with the Indians'
position regarding state regulatory power tinder PL-280 is to suggest that the
language in the Act seized upon by the Indians as indicative of a limited role
for state civil jurisdiction' was the product of ambiguous drafting, and not
of fundamental policy choices. It is most likely that criminal and civil juris-
diction were designed to be coextensive, and similarly regulatory in nature.
This conclusion does not mean that various forms of state regulation of activity
9B for example, because of clear legislative history on the subject, the Indians do not
usually acknowledge any limitation on state criminal jurisdiction under PL-280. Thus,
state regulation of on-reservation activity seems to be permissible where the activity
is subject to criminal sanctions, as in the case of tax fraud or the crime of practicing
medicine without a license. The Indians might attempt to eliminate this inconsistency
between the scope of state evil and criminal jurisdicton by delneating two categories
of state criminal laws, one regulatory"-punishing for failure to comply with state
action-and one merely prohibitory." Conceptual difficul-
law demanding affirmative
ties would follow, however, since most requirements can be rephrased as prohibitions,
and even a rough sense of what the distinction entails is lost when the difficulty of
categorizing crimes such as failure to stop and assist at the scene of one's. automobile
accident is considered. On the other hand, these problems have not surfaced in non-
PL-280 states, where state criminal law may be enforced by the 2ederal government
under the, Assimilative Crimes Act (1$ U.S.C. ? 13 (1970)); but state law is inapplicable
of its own 'force.
1 See notes 88-90,& accompanying text .supra.
'The distinction between suits to enforce 5ublie rights and snits to enforce private
rights has been utilized in other areas of the law. Some courts, for example, have denied
the existence of a, constitutional right to trial by jury in certain suits to obtain mone-
tary relief on the. ground that the suits are Vindicating the public inerest. See
Mitchell v. Robert De Mario Jewelrryy 'Inc., 861 U.S. 288 (1960) ; Porter v. Warner
Holding Co. 328 U.S. 395 (1946) ; Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965) ; Cul-
pepper v. Reynolds Metals Co., 296 P. Sup. 1232 (N.D. Ga. 9969). See also Schwartz,
1'h.e Topic of Rome Rule and the Private Law Exception, 20 UCLA L. Ruv. 671 (1973).
a Until 1972, .for example, -only private individuals could. bring actions under Title
VII of the Civil Rights Act of 1964, if the suit did not involve a pattern or practice
of discrimfnation. In 1072, the EEOC was empowered to bring such suits as well. Equal
Emplovment Opportunity Act ? 4(a), 42 U.S.C. ? 2000e-5 (Supp? II11972), amending
42 U.S.C. ' l 20005e-5
? See text at note 93 aupra.
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on Indian reservations may not be offensive on other grounds-either because
the regulation is accomplished by local as opposed to statewide legislation, or
because PI-280 was not intended to confer particular kinds of regulatory
power (such as power to override Indian tax exemptions or to regulate the
use of trust land). But these are separate issues, to be discussed in greater
detail. below. The argument for denying such power on the ground that civil
jurisdiction under PL-280 is not regulatory in nature, while supported to some
extent by ambiguties in the language and legislative history of the Act, is
weakened by substantial difficulties of conceptualization and application.
.2. Does State PL-280 Jurisdiction Extend to Local Government?
Another focus for Indian attacks on the general scope of state PL-280 juris-
diction has been the language in section four extending only "those civil laws
of such State or Territory that are of general application to private persons
or private property"' to the reservation. The Indians' argue that only state
statutes, not county ormunicipal ordinances, satisfy the requirement of "gen-
eral applicability."' The "basis for a similar argument on the criminal side'
Is the language in section two that state criminal laws "shall have the same
force and effect within [the reservation] as they have elsewhere within the
State . .. " e At stake in these controversies is whether tribal governments
are to remain viable, and whether reservations in PL-281) states are to be any-
thing more than tax-free pieces of property, totally subject to regulation by
local governmental entities as well as the state. - -
The defeat of the Indians' position on these issues in several California
decisions since vacated by the Ninth Circuit on jurisdictional grounds' is.
attributable to. a judicial, misunderstanding of the underlying thrust of PL-280.
Starting from the premise that PL-280 was primarily an assimilationist
measure, these courts have concluded that laws of "general application" include
county and local laws passed pursuant to general state home rule authorization
or more specialized delegations, since that construction effectuates the purpose
of wholly integrating the Indians into the dominant society 1? The only expla-
nation they venture for the addition by Congress of the words "of general
application" is the existence of a legislative intent "to assure equal treatment
of the Indians with all other citizens .. .. a Presumably the statutory lan-
guage accomplishes this purpose by prohibiting enforcement of state laws
applying only to the reservation. Just as plausible, however, is a congressional
intent to avoid application of special laws which the state enacted for par-
ticular cities or counties to reservations. Given the absence of any strong
expression of intent to the contrary, and in view of the devastating impact it
would have on tribal institutions to deprive them of as much power as the
most diminutive of municipalities, an interpretation which renders reservations
of co-equal status with counties and municipalities may be preferable, par-
ticularly since the Indians, who do not own their lands in fee, often cannot
incorporate the reservations under state law and thereby acquire law-making
powers.'
Assuming, PL-280 was first and foremost a law and order measure designed
to control criminality onthe reservation at reduced federal expense, and that
any civil functions were afterthoughts, a construction that recognizes tribal
autonomy on a par with cities or counties does not undermine the purpose of
the Act. Congress may have taken into account that most important criminal
laws are state-wide. Alternatively, the design of PL-280 in the criminal area
and a larger sphere of action for tribal governments can be reconciled by
528 U.S.C. ? 1360(a) (1970).
13 Madrigal v. County of Riverside. Civil No. 70-1893-13C. (C.D. Cal. Feb. 16. 1971),
vacated, 495 F.2d 1 (9th Cir. 1974) (failure to satisfy amount in controversy re-
quirement).
7 Rincon Band of Mission Indians v. County of San Diego, 324 F. Supp. - 371 - (S.D.
Cal. 1971), vacated, 495 F.2d 1 (9th Cir. 1974) (lack of a case or controversy).
818 U.S.C. 1 1162(a) (1970).
O Refer to Note, The Extension of County Jurisdiction over Indian Reservations in
California: Public Law 280 and the Ninth Circuit, 25 BAST. L.J. 1451- (1974) for a
discussion of the decisions.
10 Rincon Band of Mission Indians, v. County of San Diego, 324 F. Supp. 371 (S.D.
Cal. 1971), vacated, 495 F.2d I (9th Cir. 1974) (lack of a case or controversy).
11Id. at 375.
12 CAT.. Gov'T ConE 1 34801 (West Supp. 1974).
This interpretation may seem more acceptable when considered in relation to self-
contained reservations such as the Rincon in California and less so when considered In
relation to reservations closely integrated into non-Indian ?bmmunities such as the
Agua Callente in Palm Springs. However, the state would always be free to assume
control where the existence of multiple rules within a relatively small geographical
area becomes dysfunctional, as In the case of coastal zoning in California.
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interpreting the criminal jurisdiction conferred by PL-280 to extend to local
ordinances while interpreting the civil provision to apply only to state laws.
While this construction creates on unfortunate discrepancy between the scope
of civil and criminal jurisdiction possessed by local governments, it derives
support from the language of PL-280; only the civil section contains the ref-
erence to state laws of general application."
There is, moreover, positive indication in the legislative history that a sig-
nificant legislative role was contemplated for tribal governments. Section four
directs state courts to apply tribal ordinances or customs in civil suits when
they are not inconsistent with "any applicable civil law of the state," 14 sug-
gesting that tribal governments were not necessarily expected to dissolve as
independent entities once PL-280 was enacted and accepted by a state. Although
tribal rules are to govern only when they are consistent with "applicable"
state law, the requirement that laws of the state be of general application
before they are deemed "applicable" would reconcile this provision with a role
for tribal governments equivalent to that of county and municipal governments.
No tribal ordinance or custom would be considered inconsistent with any
county or municipal ordinance ; therefore, it would govern in state judicial
proceedings against reservation Indians absent a statute to the contrary.16
Unless states responded by assuming many of the powers now exercised by
local entities-a development which may take place for other reasons such as
environmentalists' cries for more comprehensive land use planning-this in-
terpretation would largely alleviate Indians' complaints about the way PL-280
interferes with economic development and even survival on the reservation.
Making only state-wide laws applicable to the tribes is a sensible interpreta-
tion of PL-280 and one consistent both with the language of PL-280 and
current trends in federal Indian policy.
S. Exceptions to PL-280: How Broad Is Their Reach?
During the hearings on PL-280, Congressperson D'Ewart pf Montana asked
Harry A. Sellery, Jr., Chief Counsel for the B.I.A., whether the bill protected
Indian treaty rights and "the tribal estates." 18 Counsel reassured him by quot-
ing the following provision attached to both the civil and criminal sides of
PL-280:
"Nothing :in this section shall authorize the alienation, encumbrance, or tax-
ation 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 restriction against alienation imposed by the United Stales ;
or shall authorize regulation of the use of such property in a manner incon-
sistent with any Federal treaty agreement, or statute or with any regulation
made pursuant thereto ; or shall deprive any Indian or any Indian tribe, band,
or community of any right, privilege, or immunity afforded under Federal
treaty, agreement, or statute with respect to hunting, trapping, or fishing or
the control, licensing, or regulation thereof." 17
Indians have read this section expansively. The statutory exceptions concern
matters of utmost importance to the tribes-the extent to which they can
maintain their traditional livelihoods by hunting and fishing, as well as the
extent to which they can acquire new livelihoods by regulating and taxing
enterprises on the reservation. The states, on the other hand, have fought for
a narrow construction. Because of the growth of metropolitan areas near res:
ervations and tribal industrial and residential developments which have brought
increasing numbers of non-Indians onto the reservations, the states have be-
come increasingly disturbed at the presence of tribal enclaves within the
state free of state control, potentially prejudicing neighboring residents by
their poor land use planning, weak pollution control, or lower sales taxes.18
15Com.pare 28 U.S.C. ? 1360(a) (1970), with.l8 U.S.C. ? 1162(a) (1970).
14 28 U.S.C. ? 1360(c) (1970).
16 This is not the technique Congress chose in 1950 when it extended state civil, law
to reservations in New York while attempting to maintain some measure of tribal
autonomy. Congress authorized tribes to certify tribal laws and customs they wished
preserved to the Secretary of the Interior ; upon such certification, those rules would
govern I. courts of the state, whether or not they were consistent with state law. 25
U.S.C. ?? 232-33 (1970). In the past, state courts in New York had voluntarily applied
tribal law to appropriate cases.
The distinct requirement of consistency between governing tribal laws and state law
in PL-280, however, does not necessarily negate the possibility that Congress intended
tribes in PL-280 states to exercise as much power as municipalities or counties. PL-
280, unlike the New York law, contains the reference to laws of general application."
16 Hearings Transcript I, Supra note 22, at 20.
37 Td. at 20-21, quoting from 28 U.S.C. ? 1360(b) (1970) ; 18 U.S.C. ? 1162(b)
1968 Ilearin a, supra note 54, at 76-91.
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a. Hunting and Fishing Rights. The PL-280 hunting and fishing rights ex-
ception has proven less controversial than the land use and taxation excep-
tion, perhaps because it involves preserving old ways rather than competing
with the states for control of new developments. The most troublesome issue
to confront the courts concerning hunting and fishing rights has been how to
delineate the class of rights protected by "treaty, agreement, or statute."
PL--280, unlike its legislative ancestors," does not protect,, hunting and fishing
rights grounded in "custom." Essentially the problem has been whether certain
traditionally exercised rights can be conected to some treaty, statute, or agree-
ment so as to come within the exception of PL-280. In general, courts have
been willing to stretch the language of PL-280 to include such traditionally
exercised rights ' This expansive reading demonstrates an appropriate concern
with balancing the assimilationist goals of PL-280 with Indians' desires to
maintain traditional ways of life.
b. Regulation of Land Use. The courts have not generally adopted the In-
dians' interpretation of the extent to which PL-280 authorizes states to regu-
late the use of reservation land. As Indian tribes have attempted to make their
land more profitable by engaging in enterprises of their own ' or by leasing
reservation lands to others, the impact of on-reservation activities has been
felt increasingly off the reservation. Arizona, for example, was so concerned
about the off-reservation effects of on-reservation pollution that in 1967 it
accepted PL-280 jurisdiction, but only with respect to its air and water pollu-
tion laws and without repealing its disclaimer-an acceptance of questionable
validity for both reasons:' As a result, the courts have in many instances
attempted to construe PL-280's exceptions to accommodate the states' desires
to gain. control over reservation activities which present potential health and
safey hazards off the reservation.
These court decisions resulted from litigation over the meaning of the lan-
guage in the exception of PL-280 which denies states the power to alienate
or encumber real or personal property held in trust by an Indian or tribe, and
which prohibits state regulation of that property "in a manner inconsistent
with a Federal treaty, agreement, or statute or with any regulation made
pursuant thereto." ' Indians in PL-280 states have asserted that state laws
such as those requiring firebreaks n prohibiting operation of card rooms,20 and
those regulating garbage disposal sites ' are rendered inapplicable to reserva-
tion Indians under this language.
'2H.R. 3624 82d Cong., 1st Sess. (1952) ; H.R. 3235, 82d Cong., 1st Sess. (1952).
The Supreme t'ourt has explicitly declined to provide a definitive interpretation of the
relevant language of the Act. Matti v. Arnett, 412 U.S. 481, 485 (1978).
20See Metlakatla Indian Community v. Egan, 369 U.S. 45 (1962) (interpreting
"statute" to include regulations made pursuant to statute) ; Donahue v. Justice Court,
15 Cal. App. 3d 557, 93 Cal. Rptr. 310 (1st Dist. 1971) (holding that protected rights
include the right to license non-Indians to fish on the reservation) ; Else]- v. Gill Net
Number One, 246 Cal. App. 2d 30, 54 Cal. Rptr. 568 (1st Dist. 1960) (suggesting that
a written treaty or agreement is not necessary to claim a PL-280 exception). See also
Quechan Tribe v. Rowe, 350 F. Supp. 106 (S.D. Cal. 1972) (indicating that an execu-
tive order creating a reservation "for Indian purposes" necessarily creates hunting and
fishing rights as well).
The Wisconsin Attorney General has adopted a similar broad reading of the excep-
tion. See 56 Or. Wis. Any GEN. 11 (1967) ; 53 OP. Wis. ATT'Y GEN. 222 (1964).
The California Attorney General, however, has tended to interpret the exception very
narrowly in one case requiring a written treaty or agreement to establish such rights
(35 Op. bAL.A?rT'Y GEN. 249 (1960)), and in another refusing to recognize that fishing
rights were created by a 1960 federal statute (1.8 U.S.C. ? 11$:5 (1970)). (42 Op. CAL.
ATT'Y GEN. 147 (1905)). The first California opinion has been superseded by the legis-
lature which enacted a law that preserves on-reservation hunting and fishing rights
as they were exercised prior to passage of PL-280. CAL. FisU & GAME CODE ? 12300
(West Supp. 1973).
n See y .,al. Band of Mission Indians v. County of San Diego, 324 F. Supp.
871 (S. b. Cal. 1971) (card rooms).
22 See, e.g., Snohomish County v. SeattleDisposal Co., 70 Wash, 2d 668, 425 P.2d 22
(1967), cert. denied 389 U.S. 1016 (1967). Such leasing has been encouraged by the
enactment of federal statutes authorizing longer-term leases. Sec, e+g., 25 U.S.C. ? 415
(1970).
M Aatz. REv. STAT. ANN. ?j 36-1801, -1865 (Stipp. 1973). Sec text at notes 99-106,
149-81, supra. Similarly, the New Mexico Attorney General affirmed that the state
could enforce its minimum statewide air pollution regulations against an installation
operated by non-Indians on reservation lands. He reasoned that the existence of an
effect outside the reservation created jurisdiction. notwithstanding the state's disclaimer
and its failure to enact legislation and amend the constitutioq, to accept ?L-280. 1965
N.M. ATT'Y GEN. REP. 44, reaffirmed, 1970 N.M. ATT'Y GEN. REP. b
"18 U.S.C. ? 1162(b) (1970) ; 28 U.S.C. ? 1360(b) (1970) (relevant language cited
in note v. Rhoades, oades, 12 Cal. App. 3d 720. 90 Cal. Rptr. 794 (3d Dist. 1970).
Ze Rincon Band of Mission Indians v. County of San Diego, 324 F. Supp. 371 (S.D.
Cal. 1971).
27 Snohomish County v. Seattle Disposal Co., 70 Wash. 2d 608, 425' P.2d 22 (1967),
cert. denied 389 U.S. 1016 (1967).
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The Secretary of the Interior claims PL-280 has not ousted the federal
government and the tribes from their exclusive authority to regulate trust
property.-" The longstanding federal position 2D is that reservation lands are
exempt from state and local zoning ordinances unless and until Congress de-
cides otherwise.90 On the strength of this policy the Secretary has issued regu-
lations which prohibit the states from enforcing laws which limit, zone, regu-
late, or control the use of real or personal trust property leased from an Indian
tribe.81 The Secretary's position may be supported by PL-280 itself. It may
be argued that a state regulation is an impermissible "encumbrance" on trust
property, or that it is a regulation of trust property which is inconsistent with
federal law.
Since there is no particular federal "treaty, agreement, or statute" announc-
ing exclusive federal power to regulate use of all trust property, most litiga-
tion has centered on the encumbrance concept. The first case to consider
whether state regulation of trust land constituted an encumbrance within the
meaning of PL-280 Snohoinish County v. Seattle Disposal Co."-struck down
a county zoning and licensing ordinance relating to garbage disposal as applied
to a non-Indian lessee of trust lands. The court construed the word "encum-
brance" to include any burden on the land which depreciates its value, even
though it does not conflict with conveyance of the land in fee. Subsequent
courts e? have agreed with the dissent, however, which took the position that
Indian immunities should not be available to non-Indian lessees ; that the
prohibition on encumbrances was designed to protect Indians from swindlers
or from their own folly, and hence encompasses only burdens on the land
which may impair alienability of the fee (such as a mortgage or lien) ; and
that the prohibition was not intended to interfere with the states' full police
power to prevent activities which "directly injure or endanger the surrounding
area and its inhabitants or the state's citizenry at large, or reasonably appear
to do so ...... . '
Courts which have followed the dissent's narrower definition of "encum-
brance" have viewed PL-280 as a strongly a ssimilationist measure, which
results in near-total extinction of tribal sovereignty and identity. The alterna-
tive view of PL-280 as primarily a law enforcement measure and a means
of servicing Indian communities suggests a more expansive definition of en-
cumbrance. However, the definition of encumbrance could be expanded to in-
clude every potentially profitable activity on trust property, thereby under-
mining PL-280's purpose of conferring jurisdiction on the states. A serious
conceptual difficulty which the courts have encountered with respect to the
Indians' rejection of state regulation of trust property is the possibility that
the claimed immunity would encompass every potentially profitable activity
on the property, largely undermining the purpose of PL-280 to confer juris-
diction on the states. Thus, while courts might consider striking a residential
zoning ordinance as constituting an encumbrance, even though it placed no re-
28 Unpublished Opinion of Solicitor of the Department of the Interior M-367, Feb. 7,
1969.
26 The L ect of County Zoning Ordinances on Land Aoruired by the U.S. in Trust for
Indians, 58Interior Dec. 52 (1942).
80 PL-280 has been considered in the context of established federal statutes, regula-
tions and Interior Department opinions. A. discussion of one of the statutes is illustra-
tive o this background. 25 U.S.C. ? 231 (1970) passed in 1920, provides that the
Secretary of the interior can prescribe rules and' regulations permitting state health
f
and safety laws to be enforced on reservations. The Secretary, however, has considered
this section to be insufficiently explicit to authorize him to permit the application of
state air and water pollution control laws on Indian reservations "if their enforce-
ment; directly or indirectly, would impact or involve the regulation of trust property in
any significant way." npublished Opinion of Solicitor of Department of Interior M-367,
Feb. 7, 1969.
81 25 C.F R. ? 1.4 (1974). The validity of the regulation is highly questionable, how-
ever, since there is no statute expressly authorizing it. In Organized Village of Kake v.
Egan; 369 U.S. 60 (1962), the Supreme, Court held that such regulations must derive
from specific authorizing statute. It can be said that 25 U.S.C. ? 231 (1970), which
enables the Secretary to apply state quarantine and sanitation measures to Indian
reservations, only authorizes such regulations if all zoning laws are construed as sani-
tation measures. The law establishing the Secretary's general power to regulate Indian
aJFairs, 25 U.S.C. ? 2 (1970), is not sufficiently specific to provide the requisite authori-
zation. A United States District Court in New Mexico, in fact, declarod the regulation
unconstitutional for lack of congressional authorization. Norvell v. Sangre de Cristo
Dcv, Co.; 372 F. Supp. 348 (D.N.M. 1974).
8270 Wash. 2d 668, 425 P.2d 22 (1967) cert. denied, 389 U.S. 1016 (1967).
28 Agira Caliente Band of InaIns Band bof Miss on Indians v. CoPalm untvso iSan
47 F. Sppp 42 (C.D. Cal. 1972) ; Ri
Diego, 324 F. Supp 371 (S.D. Cal. 1971) ; People v. Rhoades, 12 Cal. App. 3d 720, 90
Cy o, 794 (3d Dist. 1970).
81 Snohomish County v. Seattle Disposal Co., 70 Wash. 2d 668, 077, 425 P.2d 22, 29
(1967) (Hale, J., dissenting).
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strictions on alienability of the fee, they might feel profoundly uncomfortable
categorizing as an encumbrance a state criminal law punishing property own-
ers who permitted prostitution on their premises. It is difficult to construct
a definition of "encumbrance," however, which includes the zoning ordinance
but not the anti-prostitution law as well.
The Interior Department's efforts to provide a refined definition of the scope
of immunity from state laws relating to trust property are unfortunately
vague and open-ended, focusing on whether state laws affect the "use or enjoy-
ment [of such property] in any substantial way" or whether their enforcement
would directly or indirectly impact that property "in any significant way." 25
This definition seems to preclude California from applying a law such as the
one penalizing "[e]very person who keeps any disorderly house, or any house
for the purpose of assignation or prostitution . . "A It is questionable
whether the Secretary would approve this result. Also such a broad definition
of "encumbrance" would render redundant the language in PL-280 which pro-
hibits state "regulation" of trust property which is inconsistent with any
federal "treaty, agreement, or statute."
One could attempt to refine the Interior Department's definition further by
distinguishing between laws regulating what may be done with the land itself,
and laws regarding or designed to regulate what may be done inside struc-
tures on the land. Alternatively, one could attempt to balance the Indians' in-
terests in free use of their lands against the states' interests in exercising
police power, giving greater weight to state laws protecting vital interests of
citizens living off the reservations. Thus a state law protecting against brush
fires" might be, enforceable on the reservation while a state building code"
would not be unless the dwellings were advertised for sale to non-Indians. It is
impossible to know whether Congress intended such complex analyses of the
statutory language. However, either analysis (or a combination of the two)
may provide a satisfactory resolution of the tension between state jurisdiction
and tribal sovereignty with respect to land use under PL-280.
Further justification for the Indians' and Secretary's position can be found
by an expansive reading of federal statutes and treaties to determine whether
state regulation is contrary to any federal "treaty, agreement, or statute." The
legislative history indicates that during hearings on the 1952 predecessor bill
to PL-280, the Interior Department proposed amendments which would have
prohibited the states from adjudicating or regulating the use of trust lands."
The absence of a similar prohibition in PL--280 and the presence of a require-
ment that federal and state rules conflict suggest that Congress believed its
trust obligations could be fulfilled by retaining federal statutory control over
reservation land, and allowing state law to prevail only in the absence of con-
gressional enactments. It is also possible, however, that Congress believed that
most existing federal treaties and statutes already implicitly recognized exclu-
sive federal power to regulate trust lands. If this is true then a court need
only determine that the circumstances surrounding the creation of a particular
reservation by treaty, or statute indicate that it was understood that one con-
sequence of the reservation's creation was immunity of reservation land from
state regulation " All state land use regulations would then be inapplicable to
that particular reservation as inconsistent with federal law.
Using either a broad reading of the encumbrance concept or the notion of
implied federal immunity from state land use regulation, many of the Indians'
complaint about state interference with tribal control over reservation develop-
ment can be obviated '
unpublished Opinion of Solicitor of the Department of the Interior M-367, Feb. 7,
1969.
38 CAL. PENAL CODE $ 316 (West 1970).
81 People v. Rhoades, 12 Cal. App. 3d 720 90 Cal. R tr. 794 (3d Dist. 1970). The
case involved the application of CAL. PUB. l'tzs. CODE ? 4291 (West 1972), requiring
fire-breaks around buildings on or near forest-covered lands, held applicable to Indians
on trust land.
a5Ricci v. County of Riverside, Civil No. 71--1134-E.C. (C,I). Cal., Sept. 9, 1971)
(county building code held applicable to Indian-built home on reservation) (vacated).
89 1952 Hearings, supra note 29, at 29.
41 Such an individualized approach to jurisdict'onal disputes concerning Indians was
approved in McClanahan v. State Tax Comm'n, 411 U.S. 164, 172 (1073). Compare the
approach towards hunting and fishing rights. See note 20 supra.
41 An interesting question, assuming PI-280 outlaws some state regulation of trust
property, is whether it supersedes the state authority granted in section 231. If sec-
tion 231 Is interpreted to extend to enforcement of sanitation regulations affecting
trust property, Indians in PL-280 states may enjoy greater protection for their trust
lands than Indians in non-PL-280 states.
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c. Taming Power. Since federal funds have not been made available to states
assuming the burdens of PL-280 jurisdiction, the extent of state taxing power
under the Act has become a source of continuing controversy in the courts.
As Indians began to share in the advantages of state citizenship, including
the right to vote in state elections,' sit on state court juries,'3 and receive
state welfare benefits," and as more and more state citizens have undertaken
economic ventures on land leased from the Indians, state interest in taxing
Indian and non-Indian activities on the reservations has grown. At the same
time the Indians have become increasingly concerned about the scope of that
power because their economic development programs would naturally' benefit
from exemption from state taxes, and because exemption of non-Indian lessees
from state taxes would enable the tribes to derive tax income from the grow-
ing number of lessee industrial, commercial, and residential projects on the
reservation"
Long before the enactment of PL-280, Indian trust property and profit-
making activities by Indians were generally protected from state taxation'"
Underlying these immunities was the federal goal of preserving and maximiz-
ing the value of the Indians' land base until such time as the United States
determined that its trust responsibilities were fulfilled. The courts, even prior
to PL-280, were reluctant to extend these protections to non-Indian lessees of
reservation land."
The impact of PL-280 on these immunities is not clear. The exception clause
does prohibit states from taxing "any real or personal property, including
water rights belonging to any Indian or any Indian tribe, band, or community
that is held in trust or is subject. to a restriction against alienation 'imposed
by the United States . ." It is unclear, however, whether the exemption
applies narrowly to state property taxes levied directly on trust property, or
extends to state possessory interest taxes on non-Indian lessees, or to taxation
of any profit-making activity on reservation land. Even assuming the narrow
definition prevails, it is unclear whether all other kinds of taxes are author-
ized by implication despite conflict with longstanding policy favoring Indian
tax immunities.
The Supreme Court was presented with these questions during the 1972
Term in Tonasket v. Washington," a suit brought by an Indian to enjoin the
State of Washington from collecting.a tax on cigarettes sold in his store on
the Colville Reservation. Tonasket claimed that even if his reservation was
subject to PL-280 jurisdiction, the state could not lawfully impose the tax on
his business because it would interfere with his tribe's sovereignty, and be-
cause Congress did not make manifest in PL-280 any intention to override tra-
ditional Indian tax immunities. Perhaps perceiving the difficulty of this issue,
the Supreme Court of Washington for further consideration in light of another
opinion issued by the United States Supreme Court casting doubt on whether
states like Washington had PL-280 jurisdiction over the Colville Reservation
in the first place'"
'=This right has been recognized since the passage of PI-280 by states which have
not accepted its jurisdiction. Harrison y. Laveen, 67 Ariz. 337, 196 P.2d 456 (1948)
Montoya v. Bolack 70 N.M. 196, 372 P.26 387 (1962). Contra, Allen v. Merrell, 6 Utah
2d 32, 305 P.2d 460 (1956) cert. granted, 352 U.S. 889 (1956), vacated as moot, 353
U.S. 932 (1957). The Utah decision rested on the state's lack of jurisdiction over reser-
vations.
43 1959 Op. AeIz, ATT'Y GEN. 223.
"Acosta v. County of San Diego, -1.26 Cal. APT,. 2d 455, 272 P.2d 92 (4th Dist. 1-954)
County of Beltrami v. County of Hennepin, 4 Minn. 406, 119 N.W.2d 25 (1963).
With respect to non-PL-A80 states, refer to [1960-1962] UTAH ATT'Y GEN. BIENNIAL
REP. 210.
d5 The Navajo Generating Station and Mojave Power Plants on the Navajo Reserva-
tion are examples of recent industrial projects. The residential development of the,
Tesuque Pueblo in New Mexico is an example of use of long-term leases for construe
tion of non-Indian communities on the reservation. See Comment, The Pre-Emption
Doctrine and' Colonias de Santa Fe. 13 NAT: Rms. J. 535 (1973).
4" The General Allotment Act of 1877. 25 U.S.C. I 331 (1970 protected Indian
trust property from state taxation. See United States'v. Rickert, 1 U.S. 435 (1903).
Profit-making activities by Indians on trust property were exempt from state taxation
either. on grounds of interference with Indian sovereignty, by extension from the trust
property immunities, or on some federal instrumentality theory. See Comment, Indian
Tamation: Underlying Policies and Present Problems, 59 CALIF. L. REV. 1261, 1263-66
(1971)..
'7 See, e.g., Tax Comm'n v. Texas Co., 336,U.S. 342 (1949) ; Thomas v. Gay, 169 U.S.
204 (1898).
49.79 Wash. 26 607, 488 P.2d 281 (1971), vacated and remanded per curfam, 411
U.S. 451 (1973). On remand, the Supreme Court of Washington reiterated its previous
holding on the merits. Tonasket v. State, 525 P.2d 744 (Wash. 1974).
40411 U.S. 451 (1973). The case referred to is McClanahan v. Arizona State Tax
Comm'n. 411 U.S. 164 (1973). See discusions in text accompanying notes 50-82 supra.
supra.
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The questions raised by Tonasket are crucial and unavoidable. Yet the legis-
lative history only partially answers them. There is only one reference to the
scope of the taxing power in the debates over federal funding of state PL-280
jurisdiction. In an exchange between Congressperson Young and Chief Counsel
Sellery for the B.LA., during House hearings on PL-280, Young questioned
the logic of the B.LA.'s position that federal funding to PL-280 states was
unadoisable because it would set the Indian apart from other state citizens.
Young felt that the Indian already was set apart "[b]ecause for the most part
he does not pay any taxes." When Counsel acknowledged that the difference
existed, Young indicated his belief that this difference would persist under
PL-280.6? In the course of an extended dialogue on the existing tax immunity
of Indians a1 neither Congressperson Young nor the B.I.A. Counsel mentioned
the possibility that PIA-280 would in any way alter the pre-existing tax bur-
den on Indians. Here was a perfect opportunity to do so ; for if the exemption
for trust property was only an exemption from direct real and personal prop-
erty taxes, numerous new taxing possibilities would be made available to the
states under PL-280 to ease their financial burden.
It may be argued that the language of PL-280 itself suggests the extent of
Indian tax immunity under the Act, particularly when the portion making
state civil laws "of general application of private persons or property" en-
forceable against reservation Indians is read together with the language
exempting Indian trust property from state taxation, encumbrances, and regu-
lation inconsistent with federal laws. The former provision may be interpreted
to encompass state tax laws other than those imposing direct property taxes,
on the theory that an explicit exception far direct property taxes implies no
exemption from other kinds of taxes.'' Yet it may be possible to rely upon this
same language to reach the opposite conclusion, that is, that there was no in-
tention to repeal existing tax immunities designed to further precisely that
goal of preserving the value of Indian property.
One decision by the Ninth Circuit, invalidating California's attempt to impose
its inheritance tax on the succession to Indian trust property subsequent to
PL-280, indicated a preference for the second alternative when it announced
that PL-280 was designed to perpetuate existing Indian immunities from state
law, not to create new ones or to destroy old ones." A case which is more
illuminating, although less directly on point, is Squire V. Capoeman,64 in which
the United States Supreme Court interpreted the Internal Revenue Code as
not directing the taxation of proceeds from a sale of standing timber growing
on trust land. The proceeds fell within the general definition of "income," and
it was clear that Congress could tax the proceeds if it wanted to. Neverthe-
less, the Supreme Court implied an exemption, so that trust land could "serve
the purpose of bringing [the Indian] finally to a state of competency and in-
dependence 68 The Court agreed with the court below that "[t]o tax respondent
under these circumstances would ... he `at least, a sorry breach of faith with
these Indians.' "" While the significance of Squire might conceivably be limited
to taxes which are equivalent to taxes on trust property, the case also supports
the broader proposition that federal tax laws which may tend to undermine the
statutory and treaty-based federal policy of preserving the value of trust land
will not be interpreted to do so unless that is the clear intention of the law 67
Given that Indian tax immunities have in many instances been implied from
the federal trust undertaking. these immunities should not be abrogated except
by express federal legislation.EB
In the past Congress has been sufficiently explicit in-climinating Indian tax
immunities. Statutes terminating the reservations of the Klamath, Ute, West-
e? Hearings Transcript I, supra note 22, at 9-12.
ei Id.
52 Note, State Taxation on Indian Reservations, 1966 UTAH L. Rsv. 132, 146.
"Kirkwood T. Arenas, 243 F.2d 363 (9th Cir. 1957).
54 351 U.S. 1 (1956).
"Id. at 16.
5614., quoting in part the lower court's opinion, 220 P.2d 343, 350 (9th Cir. 1955).
67 The Supreme Court has said that Indian tax exemptions will not be established
by implication if they relate to off-reservation activities. Mescalero Apache Tribes v.
Jones, 411 U.S. 145 (1973). But states have jurisdiction over Indians' ,off-reservgt3on
activities absent congressional legislation to the contrary. The opposite presumption
applies to on-reservation activities.
This Article does not attempt to define the scope of these implied immunities. See
Israel & Smithson, Indian Taxation, Tribal Sovereignty, and Economic Development, 49
N.D.L. Itay. 267 (1973) ; Comment, Indian Taxation: Underlying Policies and Present
Proble,hs, 59 CALIF. L. Rsv. 1261'(1971).
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ern Oregon, Paiute, Wyandotte, Menominee, and Ponca Tribes, provide that
after termination of the reservation and distribution of property, "such prop-
erty and any income derived therefrom by the individual . . shall be subject
to the same taxes, State and Federal, as in the case of non-Indians . -..." 66
Similar explicitness does not characterize PL-280. There is only a general
statement aplying state laws to the reservation, just as there was only a gen-
eral definition of taxable income in Squire. Furthermore, the prohibition of
state encumbrances in PL-280 suggests a congressional intent not to impose
state tax laws which are generally enforced by liens against the taxpayer's
property "0 In the absence of a strong expression of congressional intent to
increase state taxing power, the Indians' claims of entitlement to their pre-
exihting tax immunities under PL-280 should prevail.
CONCLUSION
Judicial doctrines allocating jurisdiction over reservation Indians have long
suffered from complexity, contradiction, and ambiguity. In recent years, the
Supreme Court has been inclined to disregard these doctrines in favor of a
preemption analysis looking to federal statutes such as PL-280.?1 Not only does
this trend reflect dissatisfaction with the complexity of the doctrines, it also
reflects changes in federal Indian pilicy in the direction of increased respect
for tirbal sovereignty. It is significant that the trend followed the 1968 Act's
amendments requiring tribal consent and authorizing partial 'jurisdiction as
well as limited retrocession. Once Congress established safeguards for Indian
tribes over which states seek control, judicially-sanctioned state jurisdiction
without such safeguards was difficult to justify. This preemption analysis
should be utilized whenever reasonably applicable.62 -
Since recent United States Supreme Cocrt decisions have established that
PL-280 is the funnel through which all state - jurisdiction over reservation
Indians must flow, controversies over its procedures and scope have taken
on added significance. Social and economic development which have multiplied
the activities on reservations subject to regulation by tribes or states have
further enhanced the importance of PL--280. Thorough evaluation of the role
tribal governments can and should play in relation to the federal government
and states is needed, although beyond the scope of this Article. Nevertheless,
it is fair to say that given current federal policy encouraging stronger tribal
governments and increased federal efforts to mitigate the most offensive aspects
of tribal autonomy within state boundaries,63 PL-280 should be interpreted to
limit- state jurisdiction where that is consistent with the often ambiguous lan-
guage and legislative history.
Furthermore, Congress should provide for retrocession of PL-280 jurisdiction
at- the Indian's' instance. These two measures should ease much of the long-
stauding tension over PL-280, particularly if the federal government continues
to assist tribes in fulfilling their jurisdictional responsibilities.
'925 U.S.C. ?? 677p, 699, 749, 798, 898, 978 (1970) ; cf.id. 8 564.
60E.9., WASH. REV. CODE tit. 82 ?? 19.91.120, 82.32.0307, 82.24.050 (Supp. 1951), the
Washington cigarette tax provisions challenged in Tonasket V. Washington, 525 P.2d
744 (Wash. Sup. Ct. 1974).
61 See text accompanying notes 79-84 sepra.
62 When the Supreme Court of New Mexico recently asserted jurisdiction over reserva-
tion Indians served with process for causes of action arising off the reservation (State
Sec., Inc. v. Anderson 84 N.M. 029, 506 P,2d 786 (1973)-), the dissenting judges argued
that New Mexico's failure to assume jurisdiction under PL-280 precluded judicial
power under the circumstances. Id. at 631, 506 P.2d at 789 (Montoya & Martinez, 13.,
dissenting). Since PI-280 only grants state jurisdiction over civil actions arising on
Indian reservations, itcould be argued that the preemptive effects of PL-280 are irrele-
vant. Nevertheless, PL-280 also provides that state laws shall apply to Indian reserva-
tions as they apply elsewhere within the state. If state service of process laws are in-
cluded within the meaning of this clause, then PL-280 - may preempt the operation of
those laws even where the underlying cause of action arose off the reservation. But sec
Fournier v. Reed, 11 N.W,2d 458 (1968) which approved service of state warrants on
reservation Indians for crimes committed off the reservation despite failure to accept
jurisdiction under i't-280.
On the other hand, the Supreme Court's new preemption approach does not require
disavowal of the rules concerning civil and criminal jurisdiction of states over non-
Indians on the reservation, since PL-280 does not purport to regulate assertion of
.jurisdiction over non-Indians. Taxation and'regulationof non-Indian leasehold interests
in trust lend'lnfiy'.be some of the few exceptions to,this rule, given that Indian Interests
are so deeply affected by this jurisdiction. -
63 See note 85 & accompanying text supra.
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COHN & MARKS,
"Washington, D.C., May 9, 1975.
Hon. Joun L. MCCLELL.^.N,
Chairman, Subcommittee on Criminal Law and Procedures, Committee on the
Judiciary, Dirksen Senate Office Bldg., Washington, D.C.
DEAR SENATOR MCCLELLAN : The American Society of Newspaper Editors and
the American Newspaper Publishers Association wish to supplement their pre-
vious comments filed with your Committee relative to S. 1, codifying and revis-
ing the United States Criminal Code. The undersigned is counsel for ASNE,
which is a nationwide professional organization of more than 800 persons hold-
ing positions as directing editors of daily newspapers throughout the United
States. The purposes of the Society, which was founded more than 50 years ago,
includes the maintenance of "the dignity and rights of the profession," and
the on-going responsibility to improve the manner is which the journalism pro-
fession carries out its responsibility in providing an unfettered and effective press
in the service of the American people.
The American Newspaper Publishers Association, through its General Coun-
sel, Arthur B. Hanson, concurs in these comments. AN PA is a non-profit corpo-
ration whose membership consists of more than 1,000 daily newspapers, repre-
senting over 90% of the total daily and Sunday newspaper circulation in the
United States.
We oppose the adoption of Sections 1121-1.125 of S. 1, which constitute in
effect an "Official States Secrets Act." The inhibiting effect that these provisions
would have on the activities of the press to report on National Defense activ-
ities causes us great concern.
For example, the broad language in Section 1121, which eliminates a specific
intent as an element of the crime of espionage utilizes the language "to the
prejudice of the safety or interest of the United States," makes us ask if it
would be a violation of the law for a newspaper to report the story of the failure
of a weapons system developed by the Pentagon? Would this be a use adverse to
the interest of the United States?
Sections 1122, 1123, 1124 and 1125 are so broad and vague in description and
definition as to raise a serious question of constitutionality for the violence
that they do to due process of law and free speech and press.
For example, Section 1122 does not even require that there be a showing
that the information was communicated to a foreign power so that both under
Sections 1121 and 1122, if a newspaper printed a story which could easily be
read by a foreign power and, under the wildest stretch of the imagination, a
prosecutor deems such material to be prejudicial to the safety or interest of
the United States, or to the advantage of a foreign power, the newspaper would
stand guilty of a felony. These provisions must be read in light of the broad
definition of "National Defense Information" that appears in Section 1128(f).
We submit that under the language of this Act, prosecutions could be insti-
tuted at will against the press in this country and the preservation of the
First Amendment requires the deletion of or substantive amendment of Sec-
tions 1121 through 1125 and the definitions contained in Section 1128.
Section 1.301 opens the door for possible press harassment by creating an
offense by one -intentionally obstructs, embarrasses or perverts a. government
function by defrauding the government in any manner. Neither "government
function" nor "defrauding" are defined.
Sections 1331, 1332 and 1333 raise a very serious question as to the right of
a reporter to refuse to testify as to information given to him in confidence or
as to the source of his information even where he is protected by a state shield
statute.
Sections 1344, 1523, 1524, 1731 and 1733 would operate to impose government
secrecy with the prospect of criminal prosecution that could work to destroy
investigative reporting.
Section 1523, for example, makes it a felony for a person to read private
correspondence "without the prior consent of the sender or the intended recip-
ient." A reporter who is Shown a letter by a party who is neither the sender
nor the intended recipient is guilty of a felony.
We would join with those who have requested that Section 1744 be narrowed
in its language so as to reach commercial offenses only.
Section 1358 provides that a person is guilty of an offense ifhe "improperly
subjects another person to economic loss or injury to his business or profes-
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sion ; because of official action taken or a legal duty performed by a public
servant or because of the status of a person as a public servant." We do not
find a definition of the term "improperly," but it does raise the question as to
whether or not the press could be prosecuted for writing a story or editorial
criticizing a present or former public official who contends that it caused him
economic loss or injury to his business or profession.
Again, we urge the Committee's careful consideration not only of the com-
ments heretofore filed by ANPA and ASNE, but of those comments filed with
the Committee by the National Newspaper Association, the Radio and Television
News Directors Association, the Association of American Publishers and the
Reporters Committee for Freedom of the Press. The serious First Amendment
problems created by the existing language in S. 1 rquires the utmost and thor-
ough considration of your Committee before steps are taken to adopt it into
law.
NATIONAL ASSOCIATION OF MANUFACTURERS,
Washington, D.C., February 6, 1975.
Hon. JOHN L. MCCLELLAN,
Chairman, Subcommittee on Criminal Laws and Procedures, Senate Committee
on the Judiciary, Dirksen Senate Office Building, Washington, D.C.
DEAR SENATOR MCCLELLAN : Thank you for sending me the revised Committee
Print of S. 1. As you know, NAM submitted a statement to your subcommit-
tee expressing our thoughts regarding certain "business-related" portions of the
previous S. 1 and S. 1400, and we are pleased that a couple of the problems
which we foresaw at that tme appear to have been resolved. Certain key sec-
tions of the revised legislation still present some difficulties, however, and
NAM, as representative of a large percentage of our country's industrial com-
munity, would like at this time to clarify our position with regard to these con-
troversial sections.
First, I would like to state at this time that NAM understands the enormous
task at which the subcommittee has been laboring, and we greatly appreciate
these worthy efforts. NAM realizes the need for effective criminal sanctions for
acts in violation of federal law committed by organizations as well as Indivi-
duals. We also recognize the equally important need for adequate enforcement
of federal violations. Thus, we agree totally with your overall aims and ob-
jectives. Our arguments here, then, are directed only to those sections of the
Revised Code which we feel treat the business public inequitably.
Under 402, the "Corporate Liability" Section, an organization can be
held criminally liable for the acts of an agent, despite the fact that said organi-
zation has in good faith sought to prevent unlawful conduct on the part of its
agents, and apart from the fact that it may have followed all reasonabe proce-
dures to comply with the law, and disavowed the illegal conduct. We feel that
imposing criminal liability upon organizations under such circumstances is
clearly unjust, particularly in crimes requiring "intent" (or "scienter"). It is
our beliefe that an organization's sincere efforts to comply with the law should
be recognized as a legitimate defense to criminal liability, except, of course, in
those cases arising under "strict liability" statutes, where no intent is required
to impose responsibility on either the organization or the individual.
Furthermore, we cannot agree with the committee's decision in section 404 (b)
to preclude as a defense for the organization that : "the person for whose conduct
the defendant is criminally liable has been acquitted, has not been prosecuted
or convicted, has been convicted for a different offense, was incompetent or
responsible, or is immune from or otherwise not subject t prosecution." Such
a rule would encourage juries to split their verdicts when they are sympathetic
toward indviduals, preferring instead to find the large, "inanimate corporation
criminally liable.
Section 2004, the "Sanction through Publicity" Section is a retrogressive rule.
We do not need to employ humiliation as a punishment device-this method
was discarded along with the "stocks" in the town square, and "tar-and-
feathering". It is clear that we do not have to create new (in this case old)
and different sanctions, but we need more prompt, energetic, and effective
enforcement of present sanctions. Another fault with this proposed sanction is
that it would apply unevenhandedly, i.e., those organizations relying heavily
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on public relations will suffer the most, while others not so dependent on
"goodwill" would be hurt only minimally. Finally, such a sanction is vague
and fails to place limits on the length of time in which notice must be given,
or the number of advertisements required et:c. In sum, we are in favor of a pub-
lic notice sanction only in very limited situations where a clear need is estab-
lished, i.e., notifying purchasers of defective or unsafe products, and then
careful consideration must be given to the most efficacious manner of accom-
plishing this.
Section 2103 gves the court discretion to require as a further condition of
a sentence to probation, that the defendant, which could be a corporation, "re-
frain from engaging in a specified occupation, business, or profession for a
period which does not exceed the terns of imprisonment which could be
imposed * * *" This is quite a severe sanction, and it is manifestly unjust to
apply it to business offenses. Such a provision could not only effectively deprive
a person of a means of livelihood, but it would also raise a serious constitu-
tional question of intrusion of the Federal Government into a state's profes-
sional licensing powers.
As a general observation, we wonder whether the technique employed in the
drafting of legislation known as "incorporation by reference" is an effective
one. If other statutes are to be included in a criminal code, we suggest laying
them out in detail in the code itself, by specifying the exact language of the
conduct which is declared criminal. The appropriate sections of the other laws
may then be repealed.
We trust that our observations wil be of some help to you, and we sincerely
hope you will consider these points. We find S. 1 has treated the business com-
munity inequitably because organizations will be found criminally liable and
forced to pay much higher fines despite all the honest efforts they may under-
take to prevent wrongdoing ; they will be told, in an overly broad variety of
instances, to refrain from doing business ; they will be forced to embarrass
themselves by public notice requirements which are vague, archaic, and humil-
iating.
Thank you for considering our views.
Very truly yours, -
WISCONSIN CIVIL LIBERTIES UNION,
lion. JOHN L. MCCLELLAN, Wis., July 14, 1975.
,
U.S. Senate, Committee on the Judiciary, Subcommittee on Criminal Laws and
Procedures, Washington, D.C.
DEAR SENATOR MCCLELLAN : Thank you very much for your letter of July 10
to Senator Proxmire, with the copy to me.
I was indeed mindful of the obligation to comment on the revision of Section
1103, the text of which you so kindly sent me. I have been engaged in some re-
search on a matter close to Senator Proxmire's heart, however-the question of
abolishing the Fairness Doctrine for radio and television broadcasters-and only
now, having just sent off a 62-page paper to Senator Proxmire, am I free to
prepare a short statement on Section 1103 as revised.
I send you only a three-page statement (enclosed.) I hope it is not too late for
inclusion in the last volume of hearings.
Thank you very much for your efforts to ensure that my views are communi-
cated to your colleagues.
Sincerely,
DAVID RANDALL LUCE,
Congressional Liaison.
STATEMENT ON SEDITION STATUTE, SEc. 1103 OF SENATE BILL S. 1,
As REVISED
(By David Randall Luce, Associate Professor of Philosophy, The University of
Wisconsin-Milwaukee Congressional Liaison, Wisconsin Civil Liberties Union,
Vice Chairperson, National Committee Against Repressive Legislation, 2914
N. Downer Avenue, Milwaukee, Wis., July 14, 1975)
I would like very much to up-date my earlier statement, "Comments on the
Sedition Statue in the McClellan-Hruska Bill, S. 1," transmitted to the members
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of the Senate Committee on the Judiciary in January of this year and appearing
in the Congressional Record on March 12, 1975, at page E 1059.
The subject of that statement-Section 1103, "Instigating Overthrow or De-
struction of Government," Senate bill S. 1-has now been revised in the following
way:
(i) The phrase "as speedily as circumstances permit" is stricken from the de-
scription of the intent required as a part of the offense, in paragraph (a).
(ii) The addition of the phrase "imminent lawless" is added to paragraph
(a) (1), so that the behavior constituting the offense is defined to be inciting
others to engage in imminent lawless conduct that fits a certain description.
(iii) The phrase "then or at some future time" is stricken from the language
of paragraph (a) (1), so that the offense is : inciting others to engage in imminent
lawless conduct that would facilitate the forcible overthrow or destruction of
the government.
(iv) A phrase is deleted from paragrph (a) (2), and a third paragraph (a) (3)
is added to the definition of the offense, so that membership in an organization
knowing it has a certain purpose-as opposed to membership in and of itself-
constitutes the offense.
(v) The grading of the offense is changed, in paragraph (b), to allow that
"knowing membership" is a Class D felony.
I submit that the indicated changes do very little to safeguard the political
rights of American citizens ; or-to say the same thing in different words-raise
no difficulty for the government's ability to "get" the radical opposition.
The deletion of the phrase "as speedily as circumstances permit" makes it that
much easier to pin the required revolution intent upon a person. A person now
becomes liable if he dreams of some revolutionary project to be carried out by
future generations many centuries hence.
The concept of "imminent lawless conduct" is beautiful. The authors of this
change did not want to confine the offense to incitement of illegal conduct, or
violent conduct, or conduct violative of one or more provisions of the criminal
code-or they would have said so. Instead, they fastened onto the phrase "im-
minent lawless conduct"-meaning presumably (for the phrase is quite obscure)
conduct that verges on the illegal, conduct that perhaps might be construed as
illegal, conduct that is almost but not quite illegal. Or perhaps the reference is to
conduct that is not yet illegal but is about to become illegal.
It might seem that the ordinary citizen receives some protection by the elimi-
nation of the phrase "then or at some future time." But note that the subjunctive
mood of the verb is retained : it is conduct that would facilitate, etc., and not
conduct that actually does facilitate. And there is no reference to the persons
or the group for whom the conduct "would facilitate" violent overthrow. There
is no requirement that such persons exist at all-no requirement that someone
be actually engaged in overthrowing the government by violent means, or even
planning to overthrow the government by violent means.
And the verb is still "to facilitate"-not "to cause," or "to bring about," or "to
enhance the likelihood of," verbs which are much to specific to be helpful in a
sedition statute. It remains as true of the revised Section 1103 as of the original,
that incitement to conduct as diverse as opposing gun-control legislation or call-
ing for an end to political surveillance renders one liable to fifteen years in
prison and a $100,000 fine. The changes in paragraph (a) (1) do not tie the
government's hands at all.
Neither do the changes in paragraph (a) (2) and the addition of (a) (3) offer
any significant protection to the ordinary citizen. It is required, as a part of the
offense, that the group have the proscribed incitement as a purpose ; but it is not
required that it be the group's sole purpose, or even a major purpose, or an
important purpose. The requirement of "knowing" membership is only it slight
impairment of the government's power to "get" its political enemies under the
sedition statute ; we know from recent history that a person can be put in jail
for belonging to a group "knowing" that its purpose is X, even though he denies
that its purpose is X, and all the members deny that its purpose is X, and the
actual conduct of the group indicates opposition to X. All that is required is a
certain repressive atmosphere.
I observe that nothing in Section 1103 prevents indicting and prosecuting a
person for "conspiring" to commit the offense defined therein, or for "soliciting"
someone else to commit the offense. It remains easy enough to get a person for
his words.,
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Taking the standpoint of the ordinary citizen, as I must, I can perceive Section
1103 only as a monstrous engine of destruction aimed directly at the concept of
the sovereignty of the people. S. 1 should never be allowed to pass the Committee
on the Judiciary, let alone the Senate, containing such language. Strike Section
and 1103 with the language of the Brown Commission's recommendation-the
1103 entirely ; it serves no useful purpose. Alternatively, replace Sections 1102
Brown Commission's Section 1103, "Armed Insurrection."
Chairman, Subcommittee on Criminal Laws and Procedures, Senate Committee
on the Judiciary, Dirksen Of ice Building, Washington, D.C.
DEAR SENATOR MCCLELLAN : I am writing to you in my capacity as Chairman of
the Committee on Federal Legislation of the National District Attorneys Asso-
ciation. The Association, through its Board of Directors, has followed with keen
and active interest the legislative development of the proposed codification of
federal criminal laws as now embodied in S. 1, 94th Congress, "The Criminal
Justice Reform Act of 1975".
Our Interest and study began with the Brown Commission draft in 1971. The
Association, representing some 6,000-state and local prosecutors throughout the
United States, was primarily and deeply concerned with provisions defining juris-
diction in early drafts of the legislation which in our judgment constituted un-
reasonable and excessive expansion of federal enforcement powers. Traditionally
and constitutionally enforcement of criminal statutes has been the function and
primary responsibility of state and local governments. Federal enforcement juris-
diction was limited to those areas where federal authority to act was clear, either
from a constitutional or territorial basis. Nevertheless, the "Brown Commission"
draft containedprovisions for such jurisdictional encroachments as discretionary
constraint in exercise of concurrent jurisdiction, "piggy-back" jurisdiction and
prohibition of multiple prosecutions.
In response to objections raised by state and local authorities these provisions
were modified. The National District Attorneys Association was among those
interested groups which submitted opinions and testimony in this regard. Ancil-
lary jurisdiction has been limited substantially in S. 1 of 1975. We find the juris-
dictional provisions generally to be reasonable, support Chapter 2, S. 1 in principle
and oppose any further revisions which would incorporate the objectionable
jurisdictional provisions of the "Brown Commission" Bill or otherwise expand
federal jurisdiction. We point out here our objection to preemptive jurisdiction
in the case of election law violations where both state and federal interests are
involved [See. 205 (b) ]. Provision should he made for concurrent jurisdiction with
preemptive federal jurisdiction only on order of the Attorney General of the
United States along the lines of Sec. 205 (c).
In addition to definitions of jurisdiction state and local prosecutors were also
concerned with substantive law definitions which, because of federal impact,
might trigger and eventually bring about undesirable amendments to state penal
statutes. Here again we note with satisfaction that modifications were made to
tighten up and render more precise certain provisions which were cause for
concern. This is true, for example, with Chapter 3, Sections 301-303 of S. 1
relating to culpable states of mind.
The defense of insanity was another area of some concern. We note with par-
ticular approval the present language of Section 522 of S. 1 dealing with the
insanity defense. It is hoped that this new approach will have beneficial impact
on insanity defense statutes in all the states. Abolition of insanity as a separate
defense, except to the extent that a defendant's mental disease or defect pre-
cludes a finding of culpable state of mind is an Important conceptual break-
through in this always troublesome area of the law.
A Sub-Committee memorandum accurately observed that the approach of Sec-
tion 522 is to place under criminal sanction persons who would have been found
not guilty by reason of insanity under the previously endorsed American Law
Institute test. In an era when the concept of civil commitment Is crumbling in
the face of constitutional attacks and its efficacy is seriously questioned, the
Section 522 approach insures that a sentencing judge has the option of imposing
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jail sentences in appropriate cases. The National District Attorneys Association
strongly supports this measure and recommends against any action to restore
the "right or wrong" test of the ALI which was adopted in the Brown Commission
draft.
The majority of prosecutors note with approval the adoption in S. 1 of author-
ization for imposition of the death sentence in the Class A felonies of murder,
treason, sabotage and espionage. A clear statement of support for these provisions
by the Congress of the United States will profoundly influence state legislatures
and the courts in restoration of the death penalty as an appropriate constitu-
tional punishment and a deterrent to violent crime. We support this provision
as a national statement of public policy on the death sentence.
In summary, the National District Attorneys Association, with comments noted,
supports in principle S. 1, 94th Congress and recommends its enactment. This
draft, a product of years of legislative effort and study, in our judgment repre-
sents, on the whole, a sound basis for codification of federal penal statutes. Its
jurisdictional provisions now appear to define reasonable and workable stand-
ards under which both federal and local prosecutors can carry out their respective
functions effectively and without significant conflict. The enactment of this
legislation will have great beneficial impact on those states which penal law
require review, revision and codification and on law enforcement generally.
In making this recommendation for adoption of the measure the National
District Attorneys Association congratulates the Chairman, members of the Sub-
Committee and staff who contributed to this great legislative undertaking.
The Association also wishes to express its appreciation for the generous readiness
on the part of all concerned to hear and fully and fairly consider opinions and
recommendations from all responsible sources.
Sincerely yours,
CARL A. VERGART,
District Attorney of Westchester County,
Chairman, Committee on Federal Legislation,
National District Attorneys Association.
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338
The American Economic Review, Vol. 65, No. 3, June 1975
The Deterrent Effect of Capital Punish-
ment: A Question of Life and Death
Debate over the justness and efficacy of
capital punishment may be almost as old
as the death penalty itself. Not surpris-
ingly, and as is generally recognized by
contemporary writers on this topic, the
philosophical and moral arguments for
and against the death penalty have re-
mained remarkably unchanged over time
(see Thorsten Sellin (1959, p. 17), and
(H. A. Bedau, pp. 120-214). Due in part
to its essentially objective nature, one
outstanding issue has, however, become
the subject of increased attention in re-
cent y 'ars and has played a central role in
shaping the case against the death penalty.
That issue is the deterrent effect of capital
punishment, a reexamination of which, in
both theory and practice, is the object
of this paper.
The multifaceted opposition to capital
punishment relies partly upon ethical and
aesthetic considerations. It arises 'also
from recognition of the risks of errors of
justice inherent in a legal system, errors
occasionally aggravated by political, cul-
tural, and personal corruption under cer-
tain social regimes. Such errors, of course,
are irreversible upon application of this
' University of Chicago and National Bureau of
Economic Research. I have benefitted from comments
and suggeati ins from Gary Becker, Harold 7)emsetz,
Lawrence Fisher, John Gould, Richard Posner, George
Stigler, and Arnold Zellner. I am particularly indebted
to Randall Mark for useful assistance and suggestions
and to Walter Vandacle and Dan Galai for helpful
computational assistance and suggestions. This paper
is a reduced version of a more complete and retailed
draft (see the author 1973b). Financial support for this
study was provided by a grant to the NBER from the
National Science Foundution,,but the paper is rot an
official NB ER publication since it has not been reviewed'
by the board of directors.
form of punishment. But the question of
deterrence is separable from subjective
preferences among alternative penal modes
and can be studied independently of any
such preferences. Of course, the verifica-
tion or estimation of the magnitude of the
deterrent effect of the death penalty--the
determination of the expected tradeoff be-
tween the execution of a murderer and the
lives of potential victims it may help save
-can, in turn, influence evaluation of its
overall desirability as a social instrument
even if that evaluation is largely sub-
jective.
Recent applications of'economic theory
have presented some analytical considera-
tions and empirical evidence that support
the notion that offenders respond to incen-
tives and, in particular, that punishment
and law enforcement deter the commission
of specific crimes. Curiously, two of the
most effective opponents of capital punish-
ment, Beccaria in the 18th century and
Sellin in recent years, have never to my
knowledge questioned analytically the
validity of the deterrent effect of punish-
ment in general. Beccaria even recognizes
explicitly the probable existence of such a
general effect. What has been questioned
by these scholars is the existence of a
differential deterrent effect of the death
penalty over and above its most common
practical alternative, life imprisonment
(see Beccaria, pp. 115-17). Sellin has pre-
sented extensive statistical data that he
and others have interpreted to imply, by
and large, the absence of such an effect
(see Sellin (1959, 1967)).
Whether, in fact, the death penalty
constitutes a more severe punishment than
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life imprisonment for the average potential
offender cannot be settled on purely logical
grounds, although crime control legisla-
tion, ancient and modern, clearly answers
this question affirmatively. Observation
that convicted offenders almost universal-
ly seek and welcome the commutation of a
death sentence to life imprisonment is
consistent with the intuitive ranking of the
death penalty as the harshest of all punish-
ments. Still, one may argue that the differ-
ential deterrent effect of capital punish-
ment on the incentive to commit murder
may be offset by the added incentive it
may create for those who actually com-
mit this crime to eliminate policemen and
witnesses who can bring about their ap-
prehension and subsequent conviction and
execution.
The existence of the differential deter-
rent effect of capital punishment is ulti-
mately an empirical matter. It cannot,
however, be studied effectively without
thorough consideration of related theoreti-
cal issues. The crucial empirical question
concerns the kind of statistical test to
devise in order to accept or reject the
relevant null hypothesis. Since the in-
quiry concerns a hypothetical deterrent
effect, the null hypothesis should be con-
structed in a form that permits testing of
the relevant set of behavioral relations
implied by a general theory of deterrence.
That includes the deterrent effects of
law enforcement activities in general.
Moreover, even if a negative effect of
capital punishment on the rate of murder
is established through systematic empirical
research, there still remains the question
of the existence of a pure deterrent effect
distinct from a potential preventive or in-
capacitating effect associated with this
form of punishment. An effect of the sec-
ond type might he expected since execution
eliminates categorically the possibility of
recidivism.
Contrary to previous observations, this
investigation, although by no means
definitive, does indicate the existence of a
pure deterrent effect of capital punish-
ment. In fact, the empirical analysis sug
gests that on the average the tradeoff be
tween the execution of an offender and the'
lives of potential victims it might have
saved was of the order of magnitude of 1
for 8 for the period 1933-67 in the United
States. Two related arguments are offered
in this context of which only the second
will be elaborated in this paper. First, it
may be argued that the statistical methods
used by Sellin and others to infer the non-
existence of the deterrent effect of capital
punishment do not provide an acceptable
test of such an effect and consequently do
not warrant such inferences. Second, it is
argued that the application of the eco-
nomic approach to criminality and the
identification of relevant determinants of
murder and their empirical counterparts
permit a more systematic test of the exis-
tence of a differential deterrent effect of
capital punishment. The theoretical ap-
proach, emphasizing the interaction be-
tween offense and defense-the supply of
and the (negative) social demand for
murder-is developed in Section I. Sec-
tion II is devoted to the empirical imple-
mentation of the model. Some implications
of the empirical evidence are then pre-
sented and discussed in Section III.
1. An Economic Approach to Murder
and Defense Against Murder
A. Factors Influencing Acts of Murder
and Other Crimes Against Persons
The basic propositions underlying the
approach to murder and other crimes
against the person are 1) that these crimes
are committed largely as a result of hate,
jealousy, and other interpersonal conflicts
involving pecuniary and nonpecuniary
motives or as a by-product of crimes
against property; and 2) that the pro-
pensity to perpetrate such crimes is in-
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fluenced by the prospective gains and
losses associated with their commission.
The abhorrent, cruel, and occasionally
pathological nature of murder notwith-
standing, available evidence is at least not
inconsistent with these basic propositions.
Victimization data reveal that most mur-
ders, as well as other crimes against the
person, occur within the family or among
relatives, friends, and other persons pre-
viously known to one another, and are not
committed as a rule by strangers on the
street (see President's Commission on Law
Enforcement and Administration of Jus-
tice (PCL), pp. 14, 15, 81, and 82). Indeed,
hate and other interdependencies in utility
across persons as well as malevolent and
benevolent exchanges would seem more
likely to develop among groups that exer-
cise relatively close and frequent social
contact than among groups that exercise
little or no contact. There is no reason a
priori to expect that persons who hate or
love others are less responsive to changes
in. costs and gains associated with activi-
ties they may wish to pursue than persons
indifferent toward the well-being of others.
More formally, assume that person o's
utility from a consumption prospect Co,
depends upon his own consumption co, and
consumption activities involving other per-
sons ci, j=1, ... n, or
(1) Uo(C0) = U,(ca, ci)
where the sign of aUa/aci indicates the
direction in which o's utility is affected by
consumption activities pursued by others.
The key feature of this consumption model
involving interdependent preferences' is
that it provides a framework for analyzing
positive or negative transfers of resources
by one person (here identified with person
o) that modify the levels of consumption
enjoyed by others while simultaneously
i For a more complete discussion of this model, see
Harold Hochman and James Rodgers, and Gary Becker
(1974).
determining his own consumption level.
Such modifications are constrained gener-
ally by the pertinent transfer production
functions, by the endowments of resources
possessed by person o and other relevant
persons, and by potential awards and
penalties that are conditional upon o's
benevolent or malevolent actions with
varying degrees of uncertainty.2
This framework can be applied to
analysis of the incentive to commit murder
and other crimes against the person by
explicitly incorporating into the model the
uncertainties associated with the prospec-
tive punishments for crime. Specifically,
murder can be considered a deliberate ac-
tion intended by an offender o to inflict
severe harm on a victim v by setting cro
equal to, say, zero. The offender undergoes
some direct costs of planning and execut-
ing the crime, and bears the risk of incur-
ring detrimental losses in states of the
world involving apprehension, conviction,
and punishment .3 Assuming the offender
2 It might be argued that although the wish to harm
other persons cannot be rejected on economic grounds,
nonetheless the execution of such desires (as opposed to
benevolent actions) must be considered irrational in
the sense of violation of Pareto optimality conditions.
If there were no bargaining, transfer, or enforcement
costs associated with mutually acceptableand enforce-
able contracts between a potential offender o and his
potential victim v, and if v's wealth constraint were not
binding, then it would always be optimal for v to offer
compensation to o for not committing a crime against
him and for o to seek such compensation or extortion.
The reason is that a reduction in v's consumption level
is thus achieved by o without incurring the direct costs
of committing a crime and the prospective cost of legal
sanctions. Indeed, there exists some range of compensa-
tions that would increase both o's and v's utilities rela-
tive to their expected utilities if crime is committed by
o against v. Many crimes against persons, and some
cases of property crimes as well, may occasionally be
avoided by such arrangements; successful extortions
involving kidnapping or hijacking constitute obvious
examples. Yet in many situations compensations may
be too costly to pursue or to enforce, just as fully ef-
fective private or public protection against murder may
be too costly to provide. The incidence of murder must
then be expected on purely economic grounds.
' The case in which crime is committed in pursuit of
material gains has been analyzed explicitly by the
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Probabilities Consumption
,r, Prospect C.
conviction execution (Pa) (Pc a)(PeI c) CC:(c,=0; c,=0)
of murder _imprisonmentfor (Pa) (Pc a)(1-Peic) C,:(c,=c; c?=0)
murder
Apprehension conviction of a+- other punishment Pa(1-Pcia) Cb:(c,=b; c,=0)
lesser offense
or acquittal
no punishment 1-Pa Ca: (c. =a; c,=0)
behaves as if to maximize expected utility,
a necessary and sufficient condition for
murder to occur is that o's expected utility
from crime exceeds his expected utility
from an alternative (second best) action:
S
(2) Ua,,, (Co c, = 0) ar,U,(C?)
a-a
> U i (Ca C c, = c.),
where s= a, ... , S denote a set of mutual-
ly exclusive and jointly exhaustive states
of the world including all the possible out-
comes of murder; c,, denote the offender's
consumption levels, net of potential pun-
ishments and other losses, that are con-
tingent upon these states; a, denote his
subjective evaluation of the probabilities
of these states; and Co and Co denote,
respectively, his consumption prospect in
the event he commits murder or takes an
alternative action.
To illustrate the behavioral implica-
tions of the model via a simple yet suffi-
ciently general example, assume the exis-
tence of just four states of the world as-
sociated with the prospect of murder as
summarized in Table 1. In Table 1, Pa
denotes the probability of the event of
apprehension and 1-Pa denotes its com-
plement-the probability of escaping ap-
author (1973a). Note that the victim's level of con-
sumption need not directly enter the offender's utility.
function in this case.
THE AMERICAN ECONOMIC REVIEW JUNE 1975
prehension; PcI a denotes the conditional
probability of conviction of murder given
apprehension, and 1-Pc) a denotes its
complement-the probability of convic-
tion of a lesser offense (including acquit-
tal); finally, Peic and 1-Pet c denote,
respectively, the conditional probabilities
of execution and of other punishments
given conviction of murder. The (subjec-
tive) probabilities of the set of states intro-
duced in Table 1 are equal by definition to
the relevant products of conditional prob-
abilities of sequential events that lead to
this more final set of states. The last
column in Table 1 lists the consumption
levels that are contingent upon the occur-
rence of these states. Economic intuition
suggests that the relevant consumption
levels can be ranked according to the sever-
ity of punishment imposed on the offender;
that is, Ca>Cb>C,>Cd?
In the preceding discussion the inci-
dence of murder has been viewed to be
motivated by hate. As hinted earlier in the
discussion, however, murder could also be
a by-product, or more generally, a comple-
ment of other crimes against persons and
property. Since the set of states of the
world underlying the outcomes of these
other crimes also includes punishment for
murder, the decision to commit these
would also be influenced by factors deter-
mining the probability distribution of
outcomes considered in Table 1. In turn,
the incidence of murder would be influ-
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342
enced by factors directly responsible for
related crimes. In general, behavioral im-
plications concerning the effect of various
opportunities on the incidence of murder
ought to be analyzed within a framework
that includes related crimes as well. For
methodological simplicity and because
data exigencies rule out a comprehensive
empirical implementation of such a frame-
work, the following discussion empha-
sizes the effect of factors directly related
to murder and the direct effect on murder
of general economic factors like income
and unemployment. In practice, however,
the effect of these latter factors on murder
may be due largely to their systematic
effects on particular crimes against prop-
erty.
Punislonent
An immediate implication of the model
that is independent of the specific motives
and circumstances leading to an act of
murder is that an increase in the probabil-
ity or severity of various punishments for
murder decreases, relative to the expected
utility from an alternative independent ac-
tivity, the expected utility from murder or
from activities that may result in murder.
These implications have been discussed at
length elsewhere (see the author (1970,
1973a)) but the somewhat more detailed
formulation of the model adopted in this
paper makes it possible to derive more spe-
cific predictions concerning the' relative
magnitudes of the deterrent effects of ap-
prehension, conviction, and execution that
expose the theory to a sharper empirical
test. Specifically, given the ranking of the
consumption levels in states of the world
involving execution, imprisonment, other
punishment, and no punishment for mur-
der, as assumed in the preceding illustra-
tion, and given the level of the probabili-
ties of apprehension and the conditional
probabilities of conviction and execution, Clearly, Era>Epda>EI'cic>o.
it can be shown that the partial elasticities
of the expected utility from crime with
respect to these probabilities can be ranked
in a descending order as follows:
(3) Epa. > 5rd > Ep'elc
where Ep=-a In U*/a In P for P=Pa,
Pc ia, Peic.' The interesting implication
of condition (3) is that the more general
the event leading to the undesirable con-
sequences of crime, the greater the deter-
rent effect associated with its probability:
a 1 percent increase in the (subjective)
probability of apprehension Pa, given the
values of the conditional probabilities
Pcia and Peic, reduces the expected
utility from murder more than a 1 percent
increase in the conditional (subjective)
probability of conviction of murder PcJ a
(as long as PcI a< 1), essentially because
an increase in Pa increases the overall, i.e.,
unconditional, probabilities of three un-
desirable states of the world: execution,
other punishment for murder, and punish-
ment for a lesser offense, whereas an in-
crease in Pcl a. raises the unconditional
probability of the former two states only.
A fortiori, a 1 percent increase in PcJ a is
expected to have a greater deterrent effect
' Differentiating equation (2) with respect to Pa,
Pcla, and PeIc, using the contingent outcomes of
murder as illustrated in Table 1, it can easily be demon-
strated that:
aUo Pa _ 1
Era = - JPa U; U. { Pa(1 - Pc I a)
[U(Cc) - U(C,)] -h PaPc I a(t - Pe c)
? [U(Ca) - U(C,) I+ Pape I ape C
[U(Co) - U(Ca)II > 0
a {PaPc a(l-Pe I c)
Er~la = ape II a PUoa = UI
[U(C,) - U(C,)]+PaPcI apeI c
[U(C,) - U(C,)II > 0
Er~h = - JPe Imc Pe C a U o { PaPc ape I c
? [U(Cc) - U(Ca) I > 0
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than a 1 percent increase in PeI c as long
as PeI c is less than unity. If there exists a
positive monotonic. relation between an
average person's subjective evaluations of
Pa, Pcia, and Pelc and the objective
values of these variables, and between an
average person's expected utility from
crime and the actual crime rate in the
population, equation (3) would then
amount to a testable theorem regarding
the partial elasticities of the murder rate
in a given period with respect to objective
measures of Pa, PcI a, and PeI c. On the
basis of this analysis, it can be predicted
that while the execution of guilty mur-
derers deters acts of murder, ceteris paribus,
the apprehension and conviction of guilty
murderers is likely to have an even larger
deterrent effect.
Analogous to the effects of the proba-
bilities of various punishments for murder,
an increase in the severity of these punish-
ments, their probabilities held constant,
is generally expected to decrease the ex-
pected utility from murder and so to dis-
courage its commission. Due to lack of
space, other implications concerning the
effect of severity as well as probability of
punishment on the elasticities spa, Ep,,
and Ep,I~ are omitted here. For a more com-
plete analysis, see the author (1973b).
2. Effects of Employment Opportunities,
Income, and Demographic Variables
The model developed in this' section
suggests that the incentive to commit mur-
der or other crimes that may result in
murder in general would depend on per-
manent income (or wealth), the relevant
opportunities to extract related material
gains as well as on direct opportunities for
malevolent actions, including the direct
costs involved in effecting the production
of malevolent transfers. The means for a
direct implementation of the effect of
these latter opportunities are not readily
available (see, however, the discussion in
fn. 14). In contrast, variations in legitimate
and illegitimate earning and income op-
portunities may be approximated by
movements in the rate of unemployment
and of labor force participation, U and L,
respectively, and in the level and distribu-
tion of permanent income Yp in the popu-
lation.
The relevance of the latter set of vari-
ables has been discussed in detail elsewhere
(see the author (1973a)), particularly in
connection with crimes against property,
some of which involve murder. However,
the level and distribution of income within
a community may also exert a direct in-
fluence on the incentive to commit. murder
because of their impact on the individual
demand for malevolent actions. In addi-
tion, although the decision to.commit mur-
der is presumably derived from considera-
tions related to lifetime utility maximiza-
tion, the timing of murder may be affected
by variations in the opportunity cost of
time throughout the life cycle, because the
typical punishment for murder involves a
finite imprisonment term. Thus, to the
extent that earning opportunities are
imperfectly controlled in an empirical
investigation, it may be important to
investigate the independent effects of
variations in demographic variables, such
as the age and racial composition. of the
population, A and NW, respectively. Con-
trolling for variations in age composition
may also be important because of the
differential treatment of young offenders
under the law.
B.' Defense Against Murder
1. Factors Determining Optimal Law En-
forcement Activity
Following the approach used by Becker
(1968), I shall attempt to derive impli-
cations concerning law enforcement activ-
ity against murder on the assumption that
law enforcement agencies behave as if
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they seek to maximize a social welfare
function by minimization of the per capita
loss from murder. Losses accrue from
three main elements: harm to victims net
of gains to offenders; the direct costs of
law enforcement by police and courts;
and the net social costs associated with
penalties. The behavior of enforcement
agencies is assumed to be in accordance
with the general implications of the deter-
rent theory of law enforcement.
The main elements of the social loss
function can be summarized by:
(4) L = D(q) + C(q, Pc) + -y1Pc Pc I c qd
+ 'Y2Pc(1 - Pe I c)qm
The term D(q) represents the net social
damage resulting from the death of victims
and other related losses, where q=Q/N
denotes the rate of murder in the popula-
tion. The term C(q, Pc) represents the
total cost of apprehending, indicting,
prosecuting, and convicting offenders.
The aggregate output of these law enforce-
ment activities can be summarized by the
fraction of all murders that are "cleared"
by the conviction of their alleged perpetra-
tors (assuming a fixed proportional relation
between the number of murders and their
perpetrators). This fraction 0 may be
viewed as an objective indicator of the
probability that a perpetrator of murder
will be convicted of his crime, Pc=
Pa(PcI a) with one qualification: since the
overall probability of error of' justice,
rr-that of apprehending and convicting
an innocent person-is greater than nil,
the true probability of conviction 0 < Pc