TO PRESCRIBE PENALTIES FOR CERTAIN ACTS OF VIOLENCE OR INTIMIDATION FRIDAY, MARCH 29, 1968 HOUSE OF REPRESENTATIVES, The committee met at 11 a.m., in room H313, the Capitol, the Honorable William M. Colmer (chairman) presiding. Present: Messrs. Colmer (chairman), Madden, Bolling, O'Neill, Young, Matsunaga, Smith, Anderson (Illinois), and Latta. Staff present: Laurie C. Battle, counsel; Mary Spencer Forrest, assistant counsel; and Robert D. Hynes, Jr., minority counsel. Mr. COLMER. The committee will hear from Mr. Rogers on House Resolution 1100. We are sorry we detained you here so long, but we have had a little difficulty of our own. Mr. Rogers. STATEMENT OF HON. BYRON G. ROGERS Mr. ROGERS. Mr. Chairman and members of the committee, I appear this morning before the Committee on Rules to urge prompt approval of House Resolution 1100 so that the Members of the House may work their will and approve H.R. 2516, as amended by the Senate. Yesterday, the chairman of the Committee on the Judiciary, Mr. Celler, outlined the salient features of each of the 10 titles contained in H.R. 2516, as amended. This morning, I should like to outline the main provisions of titles II, III, IV, V, VI, and VII which deal with Indian rights. I may state that the provisions of the titles were contained in a bill that was approved by the Senate on December 7, which is S. 1843. Mr. COLMER. Mr. Rogers, would you pardon an interruption right there, please? Mr. ROGERS. Yes, sir. Mr. COLMER. As one member of the committee I would hope you would go into detail and explain what this Indian bill is. I know the House has taken no action, but your able colleague from Colorado, as chairman of the Interior Committee, is now in the process of conducting hearings on that. If this committee has to take action before next Friday, it would be before his committee finishes. It would certainly be helpful if this could be covered so we could understand what is involved in that. Mr. ROGERS. I will be most happy to try to comply with the request. If you will bear with me, I will try to outline what the intentions are 92-367-68-pt. 1- -4 in connection with the six titles that are contained in the rights of the Indians which begins on page 12 of the bill and extends down through line 3 on page 23-about 10 pages as it deals with the Indian rights. Mr. COLMER. I understand that Mr. Aspinall will appear-rather, he has requested to appear in opposition to this provision. Mr. ROGERS. Yes, as I understand that, the subcommittee of the Interior and Insular Affairs Committee headed by the Honorable James Haley, of Florida, who incidentally is probably the most outspoken champion of Indians, is going to conduct hearings in connection with this legislation. It is my understanding that Senator Ervin, at the time that S. 1843 was put together, arrived at the conclusion that under his subcommittee dealing with constitutional rights of individuals, this was a good place to protect the civil rights of the Indians and hence, he brought about the passage of it in the Senate and it is pointed out to me that it passed without opposition. Title II gives the Indian the basic rights and privileges in his relationship with his tribal government that every other American citizen now has in relationship with his State, local and Federal Government. More specifically, title II makes the Bill of Rights applicable to an Indian when he is charged with a crime by a tribal court. Now, I may state that most tribes have a tribal council and that throughout the years, this tribal council had certain jurisdiction, especially as the white man moved him on west and they exercised probably the only authority of government among themselves and the story is, in Oklahoma, it is often told of when they moved the Cherokees and the Creeks from Alabama and Georgia, part of them from Mississippi, that the Creeks were not satisfied with the agreement that was made by their chief for their removal to Oklahoma and on the way to Oklahoma they had a tribal council and hanged the chief who made the agreement for them to be transported there. And, that shows the powers that the tribal council had in dealing with the Indian. Now, as I have pointed out, they have had their own form of government and certain rights to conduct tribes. What we are attempting to do here is to extend constitutional rights to the Indian, as all other citizens of the United States have, as it relates to his tribal council. The tribal governments have been considered by the courts as quasisovereign entities to whose actions the Bill of Rights along with other constitutional provisions, do not apply. In many instances tribal governments have deprived Indians of the right to be represented by counsel, the right to be free from illegal search and seizure, the right to freedom of religion-rights that others take for granted. Now, title II, prohibits Indian tribes from first, making or enforc ing any law prohibiting the free exercise of religion or abridging the freedom of speech, press or assembly, or the right of the people peaceably to assemble and to petition governmental units for a redress of grievances. Second, violating or abusing individual Indians in their person, home, or possession and securing protection to individual Indians against abuses in the search and seizure of their persons, homes, and possessions. Third, subjecting any person for the same offense to be twice put in jeopardy. Fourth, compelling any person in any criminal case to be a witness against himself. Fifth, taking any private property for a public use without just compensation. Sixth, denying to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense at his own expense. Seventh, requiring excessive bail or fines and inflicting cruel and unusual punishment. The penalty of a $500 fine or imprisonment for a term of 6 months or both would remain the maximum limitation as to the punishment for any one offense. Eighth, denying to any individual Indian within its jurisdiction equal protection of the laws or deprive any person of liberty or property without due process of law. Ninth, passing any bill of attainder or ex post facto law. Tenth, denying to any person accused of an offense punishable by imprisonment the right upon request, to a trial by jury of not less than six persons. Title II also provides that any Indian detained by order of a tribal court is entitled to the right of the writ of habeas corpus in a court of the United States to test the legality of detention by the tribal court. In order to give the Indian tribles an opportunity to adjust to this new system of jurisprudence, the provisions of title II will become effective 1 year after the date of enactment. Now, I may say that this is an inhibition against the tribal courts from violating the various sections of the Federal Constitution. I am sure that each of you recognize that these are the first, fourth, and fifth amendments together with the sixth, and eighth amendments and article 1, section 9 and article 3 of section 2 to the Constitution. Now, this is a limitation upon the tribal courts. In order to facilitate this matter, title III of this bill, which begins on page 15, is designed to compliment the provisions of title II; that is, it directs the Secretary of the Interior to recommend to Congress a model code governing the administration of justice by courts of Indian offenses on Indian reservations. The present code found in title 25 of the Code of Federal Regulations, part II, is outmoded, impractical, and fails to provide for adequate administration of justice. For example, under the existing code, the total number of challenges in selecting a jury, challenges for cause and preemptory challenges is three, and the fee for jury duty remains 50 cents a day. In carrying out the provisions of title III, the Secretary of the Interior is directed to consult with the Indians, Indian tribes and interested agencies of the United States. Title IV, repeals Public Law 83-280 which permits States to assume criminal and civil jurisdiction over Indian tribes regardless of the wishes of the tribe. In 1953, Public Law 83-280, 67 Stat. 588, conferred to certain States civil and criminal jurisdiction over Indian tribes. Now, those States, I think were enumerated yesterday by the chairman in his statement and among those States were California, Minnesota, Nebraska, Oregon, and Wisconsin. Tribes have been critical of Public Law 83-280 because it authorizes the unilateral application of State law to all tribes without their consent and regardless of their needs or special circumstances. Moreover, it appears that tribal laws were unnecessarily preempted and as a consequence, tribal communities could not be governed effectively. The Senate Subcommittee on Constitutional Rights in its summary report of the hearing and investigation of the constitutional rights of the American Indian arrived at the following conclusion to remedy Public Law 83–280: "Indian governments do not, of course, bear full responsibility for those denials of rights which have occurred or which in the future may occur. It appears, paradoxically, that the States have also erred, both by failing to prosecute offenses and by assuming civil and criminal jurisdiction when the assumption was clearly against the wishes of the Indian people affected. "Concurrent jurisdiction by the United States in the first instance and a repeal of Public Law 280 or at least the modification to include tribal consent as a precondition to the State's assumption of jurisdiction, would seem to provide a suitable remedy." Under this title, any State desiring to assume civil and criminal jurisdiction over an Indian tribe must obtain the consent of the affected tribe. The repeal of Public Law 280 has been a major goal of the Indian tribes since the enactment of this legislation-legislation which prevented the Indians from having any voice in how or by whom they were to be governed. In other words, what this does, it says to the Indian tribe, if you want to be under the jurisdiction of State law, then the consent of the Indian tribe, itself, must be had before the State can assume that jurisdiction. So, the objective to have the Indians, themselves, determine whether or not they want to come under the State law, and unless they make that determination and unless the State accepts it, then the State law is not imposed. There is a method in this bill which provides Indian consent should be by an election of those who are on the rolls of the tribe at the time. The purpose of title V is to add to the Major Crimes Act the offense of assault, resulting in serious bodily injury. This new crime would amend section 1153 of title 18 of the United States Code. In 1885, Congress enacted the Major Crimes Act, which presently provides Federal courts with jurisdiction over the crimes of murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, assault with intent to commit rape, carnal knowledge, arson, burglary, robbery, embezzlement, and larceny committed by an Indian against another Indian or other person. The Federal courts have jurisdiction over these crimes where the States have not assumed criminal jurisdiction over Indian offenses. This title adds assault resulting in serious bodily injury to the Major Crimes Act. Since Indian courts cannot impose more than a 6month sentence, the crime of aggravated assault should be prosecuted in a Federal court where the punishment would be in proportion to the gravity of the offense. The purpose of Article VI is to expedite the approval of contracts between Indian tribes or other groups of Indians and their legal counsel when such approval by the Secretary of the Interior, or the Commissioner of Indian Affairs is required by law. As a result of his guardianship powers, the Secretary of the Interior has been provided authority to approve contracts between Indians and their attorneys. Despite efforts of the Department of the Interior in 1960 and 1962 to expedite approvals of tribal attorney contracts, administrative delays in approving such contracts is a continuing problem. Frequently these delays extend for over a year and consequently impose so severe a hardship upon the tribes in need of counsel that they constitute a denial of due process of law. Incidentally, I think the record will show that recently there was a case of an Indian tribe that made a contract with counsel downtown. The Secretary did not approve it, and about a year and a half later he went into the Federal court and he was compelled to approve it. Now, what we provide in this legislation is that the application relating to the employment of legal counsel made by Indians and other Indian groups to the Secretary of Interior or the Commissioner of Indian Affairs is deemed approved if neither approve nor deny within 90 days from the date of filing. In other words, if the tribe makes a contract for certain services-legal services and submits it to the Secretary as he is required to do, and the Secretary fails to act within 90 days, then it is approved. No, title VII authorizes and directs the Secretary of the Interior to revise and republish Senate Document 319 of the 58th Congress, and the treatise entitled "Federal Indian Law." This section directs that an accurate compilation of the official opinions of the Solicitor of the Department of the Interior be compiled and maintained on an annual basis, and that Senate Document 319, containing treaties, laws, executive orders, and regulations relating to Indian affairs be kept current on an annual basis. The need for adequate and up-to-date research tools in the area of Indian affairs is pronounced. If our Indian citizens are to receive benefits in full measure from their own efforts, as well as from the activities of their attorneys and of scholars working on heir behalf, full and easy access must be had to relevant documentary sources. Instances of out-of-print, out-of-date, and out-of-circulation materials must be corrected. The passage of this bill into law will not provide the final solution to the legal dilemma in which the American Indian finds himself. But, it is a long step toward granting him his share in the American dream. The Congress and the States have long neglected the rights of an American who has not been able to amass powerful lobby groups, large sums of money, and vast numbers of political crusaders. For most of us, the basic constitutional protections are taken for granted. However, for the American Indian, the words we prize so highly had a hollow ring. He needs action, not silent sympathy or lengthy pronouncements of good intentions or pompous promises of assistance. This legislation has been endorsed by the National Congress of American Indians, the American Civil Liberties Union, the American |