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Criminal jurisdiction in Indian country : hearing before the Subcommittee on Criminal Justice of the Committee on the Judiciary, House of Representatives, Ninety-fourth Congress, second session ... March 10, 1976 .. online

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CRIMINAL JURISDICTION IN INDIAN COUNTRY

R E C EiVE D

J'JL 1 2 1976
N. U. LW UBJ^W

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE

OP THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRE8ENTATIYE8

NINETY-FOURTH CONGEESS

SECOND SESSION

ON

CRIMINAL JURISDICTION IN INDIAN COUNTRY



MARCH 10, 1976



Serial No. 33



KW. y^^/]'. 9v-^




Printed for the use of the Committee on the Judiciary

HORTHEASTERN UNIVERSITY SCHOOL Of LAW LlBRfiRX



COMMITTEE ON THE JUDICIARY

PETER W. RODINO, Jr., New Jersey, Chairman



JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, CaUfornia
WILLIAM L. HUN GATE, Missouri
JOHN CONYERS, Jr., Michigan
JOSHUA EILBERG, Pennsylvania
WALTER FLOWERS, Alabama
JAMES R. MANN, South CaroUna
PAUL S. SARBANES, Maryland
JOHN F. SEIBERLING, Ohio
GEORGE E. DANIELSON, California
ROBERT F. DRINAN, Massachusetts
BARBARA JORDAN, Texas
ELIZABETH HOLTZMAN, New York
EDWARD MEZVINSKY, Iowa
HERMAN BADILLO, New York
ROMANO L. MAZZOLI, Kentucky
EDWARD W. PATTISON, New York
CHRISTOPHER J. DODD, Connecticut
WILLIAM J. HUGHES, New Jersey
MARTIN A. RUSSO, lUinois



EDWARD HUTCHINSON, Michigan
ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
CHARLES E. WIGGINS, California
HAMILTON FISH, Jr., New York
M. CALDWELL BUTLER, Virginia
WILLIAM S. COHEN, Maine
CARLOS J. MOORHEAD, California
JOHN M. ASHBROOK, Ohio
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio



Earl C. Dudley, Jr., General Counsel
Garner J. Cline, Staff Director

Herbert Fuchs, Counsel

William P. Shattuck, Counsel

Alan A. Parker, Counsel

James F. Falco, Counsel

Maurice A. Barboza, Counsel

Thomas W. Hutchison, Counsel

Arthur P. Endres, Jr., Counsel

Daniel L. Cohen, Counsel

Franklin G. Polk, Counsel

Thomas E. Mooney, Counsel

Alexander B. Cook, Counsel

CONSTANTiNE J. Gekas, Counsel

Alan F. Coffey, Jr., Counsel

Kenneth N. Klee, Counsel

Raymond V. Smietanka, Counsel



^



Subcommittee on Criminal Justice

WILLIAM L. HUN GATE, Missouri, Chairman
JAMES R. MANN, South Carolina CHARLES E. WIGGINS, CaUfornia

ELIZABETH HOLTZMAN, New York HENRY J. HYDE, Illinois

MARTIN A. RUSSO, Illinois
EDWARD MEZVINSKY, Iowa

Thomas W. Hutchison, Counsel

ToNi Lawson, Assistant Counsel

Robert A. Lembo, Assistant Counsel

Raymond V. Smietanka, Associate Counsel

(n)



Ymm WAJ io JD0K02 ni2?i3Viill



J til



CONTENTS



Text of — Page

H.R. 2470 2

H.R. 7592 4

S. 2129 6

Witness —

Pauley, Roger, Deputy Chief, Legislation and Special Projects Section,

Department of Justice 14

Prepared statement 11

Additional material —

Abdnor, Hon. James, a Representative in Congress from the State

of North Dakota, prepared statement 10

"Criminal Jurisdiction in Indian Country: Tribal Sovereignty and

Defendants' Rights in Conflict," from the Kansas Law Review

(1974) 29

Levi, Hon. Edward H., Attorney General of the United States, letter

dated May 20, 1975, to Hon. Carl Albert, Speaker of the House___ 26
Rhodes, Hon. John J., a Representative in Congress from the State

of Arizona, prepared statement 9

Steiger, Hon. Sam, a Representative in Congress from the State of

Arizona, prepared statement 10

Thompson, Morris, Commissioner of Indian Affairs, U.S. Department

of the Interior, letter dated February 12, 1976, to Hon. Peter W.

Rodino, Jr 25

United States v. Analla, 490 F. 2d 1204 52

United States v. Big Crow, 523 F. 2d 955 64

United States v. Cleveland, 503 F. 2d 1067 58

(m)



CRIMINAL JURISDICTION IN INDIAN COUNTRY



WEDNESDAY, MARCH 10, 1976

House of Representatives,
Subcommittee on Criminal Justice
OF THE Committee on the Judiciary,

Washington, D.C.
The subcommittee met, pursuant to notice, at 10 a.m., in room
219 Cannon House Office Building, the Honorable William L. Hungate
[chairman of the subcommittee] presiding.
Present: Representatives Hungate and Hyde.
Also Present: Thomas W. Hutchison, counsel; Robert A. Lembo,
assistant counsel; and Raymond V. Smietanka, associate counsel.
Mr. Hungate. The subcommittee will be in order. Today we
will consider legislation dealing with criminal jurisdiction in Indian
country. There are three bills before the subcommittee: H.R. 2470,
sponsored by Representatives Rhodes and Steiger; H.R. 7592,
sponsored by Representatives Rodino and Hutchinson, at the request
of the Attorney General; and S. 2129, which passed the Senate early
last month, on February 4.

[Copies of H.R. 2470, H.R. 7592, and S. 2129 follow:]

(1)



94TI1 CONGRESS
1st Session



H. R. 2470



IN THE HOUSE OF REPRESENTATIVES

January 30,1975

Mr. Rhodes (for liimself and Mr. Steiger of Arizona) introduced the follow-
ing bill; which was referred to the Committee on the Judiciary



A BILL

To amend chapter 53 of title 18 of the United States Code to
provide the same penalties for certain crimes against In-
dians as are provided for those crimes when the victim is a
non-Indian.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 That the second paragraph of section 1152 (relating to cer-

4 tain offenses in Indian territory other than those committed

5 hy Indians against the person or property of other Indians)

6 of title 18 of the United States Code is amended by striking

I



2

1 out "to offenses committed by one Indian against the person

2 or property of another Indian, nor".

3 Seo. 2. Section 1153 (relating to certain offenses com-

4 mitted by Indians against the person or property of other

5 Indians) of title 18 of the lUnited States Code is repealed.



94x11 CONGRESS
1st Session



H. R. 7592



IN THE nOUSE OF EEPEE8ENTATIVES

June 4, 1975

Mr. RoDiNO (for himself and Mr. Hutchinson) introduced the following hill ;
which was referred to the Committee on the Judiciary



A BILL

To provide for tlic definition and punisliment of certain crimes
in accordance with the Federal laws in force within the
special maritime and territorial jurisdiction of the United
States when said crimes are committed by an Indian in order
to insure equal treatment for Indian and non-Indian
ofTenders.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 That section 1153 of title 18, United States Code, is amendied

4 to read as follows :

5 ^'Any Indian who connnits against the person or i)rop-

6 erty of another Indian or other person any of the followiiio-

7 offenses, namely, nuirder, manslaughter, rape, caruiil knowl-

I



2

1 edge of any fonialo, not his wife, wlio has not attained ihe

2 age of sixteen years, assault with intent to eomniit rape,

3 ineest, assault with intent to kill, assault with a dangerous

4 weapon, assault resulting In serious bodih" ii'jiiiy? arson,

5 burglary, robber}^, and larceny within the Indian country,

6 shall be subject to the same laws and penalties as all other

7 persons connnitting any of the above offenses, within the

8 exclusive jurisdiction of the United States.

9 ''As used in this section, the offenses of burglary and

10 incest shall be defined and punished in accordance with the

11 laws of the State in which such offense was committed as

12 are in force at the time of such offense.

13 "In addition to the offenses of burglary and incest, any
1 ^ other of the above offenses which are not defined and pun-
15 ished by Federal law in force within the exclusive jurisdic-
1^ tiou of the United States shall be defined and punished in
^"^ accordance with the laws of the State in whicli such offense
19 was committed as are in force at the time of such offense.".

19 Sec. 2. Section 113 of title 18, United States Code, is

20 amended by adding the following new subsection:

21 "(f) Assault resulting in serious bodily injury, by fine

22 of not more than $10,000 or imprisonment for ten years, or

23 both.".



94Tn CONGRESS
2d Session



S. 2129



IN THE HOUSE OF REPRESENTATIVES

February 5, 1976
Referred to the Committee on the Judiciary



AN ACT

To provide for the definition and punishment of certain crimes
in accordance with the Federal laws in force within the
special maritime and territorial jurisdiction of the United
States when said crimes are committed by an Indian in
order to insure equal treatment for Indian and non-Indian
offenders.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 That this Act may be cited as the "Indian Crimes Act of

4 1976".

5 Sec. 2. Section 1153, title 18, United States Code, is

6 amended to read as follows :

7 "§ 1153. Offenses committed within Indian country

8 "Any Indian who commits against the person or prop-



2

1 erty of another Indian or other person any of the following

2 offenses, namely, murder, manslaughter, kidnaping, rape,

3 carnal knowledge of any female, not his wife, who has not

4 attained the age of sixteen years, assault with intent to

5 commit rape, incest, assault with intent to commit murder,

6 assault with a dangerous weapon, assault resulting in serious

7 bodily injury, arson, burglary, robbery, and larceny within

8 the Indian country, shall be subject to the same laws and

9 penalties as all other persons committing any of the above

10 offenses, within the exclusive jurisdiction of the United

11 States.

12 "As used in this section, the offenses of burglary and

13 incest shall be defined and punished in accordance with the

14 laws of the State in which such offense was committed as are

15 in force at the time of such offense.

16 "In addition to the offenses of burglary and incest, any

17 other of the above offenses which are not defined and pun-

18 ished by Federal law in force within the exclusive jurisdiction

19 of the United States shall be defined and punished in ac-

20 cordance with the laws of the State in which such offense

21 was committed as are in force at the time of such offense.".

22 Sbc. 3. Section 113 of title 18, United States Code, is

23 amended by adding at the end thereof the following new
?4 subsection :



3

1 "(f) Assault resulting in serious bodily injury, by fine

2 of not more than $10,000 or imprisonment for not more thaii

3 ten years, or both.".

Passed the Senate February 4, 1976.

Attest: EEANCIS E. VALEO,

Secretary.



9

Mr. HuNGATE. The distinguished minority leader, Mr. Rhodes, is
concerned -with this legislation. He has prepared a statement that is to
be filed with the subcommittee, and without objection, it will be made a
part of the record immediately at the conclusion of the opening
statements.

Mr. Rhodes had planned to be with us, but he had a conflict in
his schedule. Also Congressmen Abdnor and Steiger, I am advised,
wish to file prepared statements and without objection theirs will be
inserted in the record following that of Mr. Rhodes.

We will call as a witness Roger Pauley, Deputy Chief of the
Legislation and Special Projects Section of the Criminal Division of
the Department of Justice. Mr. Pauley is welcome here. He's no
stranger to us. He served as minority counsel for some 2 years and
was quite active in the work on the Federal Rules of Evidence, as
well as other areas.

The Department of Justice is interested in this legislation because
it affects the Department's ability to prosecute certain offenses when
Indians are involved. We welcome you, Roger.

And Mr. Hyde, do you have an opening statement at this time?

Mr. Hyde. No, I do not.

[The statements of Hon. John J. Rhodes, Hon. James Abdnor, and
Hon Sam Steiger follow :]

Statement of Representative John J. Rhodes

Mr. Chairman and members of the Subcommittee, I am pleased to have the
opportunity to speak before you today about the urgent need to amend Title 18
U.S.C. Sections 1152 and/or 1153, so as to provide for the punishment of certain
major crimes when they are committed by an Indian. You have before you my
bill, H.R. 2470, Mr. Rodino's bill, H.R.'7592, and Senate bill, S. 2129, which
passed the Senate February 5, 1976. Quite frankly, I would defer to the wording
or H.R. 7592 over my bill, since I feel that either bill adequately handles the
problem at hand. My purpose before you today is to stress how urgently this
legislation is needed to restore the ability of the Federal government to prosecute
certain major offenses by Indians.

The problem that has arisen was the result of amendments to Title 18 U.S.C.
Section 1153, which carved out exceptions to Federal enclave law for several
crimes which were defined and punished according to State law. These crimes
included rape, assault with intent to commit rape, burglarly, assault with a
dangerous weapon, assault resulting in serious bodily injury, and incest.

However, the uniqueness of the State laws has created a situation where State
definition and punishment for aggravated assaults may differ from the Federal
statute [18 U.S.C. 113(c)], and District Courts in the 8th, 9th and 10th Circuits
have recently held that these differences in treatment for Indians — as opposed to
non-Indian defendants who are punished under Federal law — constitute a denial
of equal protection and due process under the Fifth Amendment.

The effect of such decisions dismissing Federal indictments for aggravated
assaults has been to invalidate the authority of the Federal government under
Section 1153 to prosecute Indians who commit either the crime of assault with a
dangerous weapon, or assault resulting in serious bodily injury on Indian reserva-
tions such as in Arizona, where the local law is more severe than Federal law.
Furthermore, in addition to the offenses of aggravated assault, a similar constitu-
tional problem is potentially present within the provisions of Section 1153 for
rape, and assault with intent to commit rape.

In Arizona, this has resulted in much uncertainty. The U.S. Attorney's Office
is proceeding as though only the later amendments to Section 1153 t.re unconsti-
tutional and are trying cases under Title 18 U.S.C. Section 113, hoping their
judgment is correct. Obviously, this situation does not make for the efficient
administration of justice in our Federal courts, nor is it carrying out the Congres-
sional intent behind the later amendments to Section 1153.



10

In view of this unsettling situation created by the confusion over the uncon-
stitutionality of the later amendments to Section 1153, and the possibility of gross
cases of injustice that could result therefrom, I urge this Committee to take
immediate and positive action to amend Title 18 U.S.C. Sections 1152 and/or
1153, to correct the language of Section 1153 thereby making it once more con-
stitutionally viable.



Statement of Hon. James Abdnor of South Dakota

Thank you, Mr. Chairman for permitting me to present to your Subcommittee
this statement concerning the proposed amendments to the Indian Major Crimes
Act.

Recent court decisions have found flaws in the amendments applied to the
Major Crimes Act in 1966 and 1968. I feel that the void which allows certain
extremely serious offenses from being federally prosecuted must be remedied.
It is essential that the security and tranquility of reservation areas must be
restored.

The crime problems that have arisen on Indian reservation lands have reached
a deplorably high rate, and this crime rate continues to increase. In my state of
South Dakota, the problem has reached a staggeringly high level; and as a result.
South Dakota has on the reservation areas one of the highest violent crime rates
in the country. This situation must be remedied.

The continued violence has caused the residents of the reservations to live in
constant fear for their safety. Violence has become a way of life — a way of life
that most certainly should not be allowed to continue, for we now have a climate
of de'^p^ir replacing what should be productive and useful activities.

Thes9 bills will help alleviate a serious legal obstacle to federal efforts to reduce
the major crime rate on reservations. The uniformity in definition and punish-
ment provided would be extremely helpful in deterring continued problems.
The prime result would be in making law enforcement on Indian reservations
easier and more equitable.

The most beneficial aspect of the legislation would be to restore the sorely
missed law and order that would lead to returning reservation areas to a state of
peace rather than remaining in the state of flux existing today which has made
life even more precarious for reservation residents.

Thank you again for allowing me to express my support for this legislation.



Statement of Representative Sam Steiger

Mr. Chairman, I would like to make a brief statement in support of H.R. 2470,
of which I am a co-sponsor.

In 1974, the Ninth Circuit Court of Appeals found 18 USC 1153 to be un-
constitutional in that prosecutions discriminated against Indian defendants "in
that ladians are subjected to harsher punishment than non-Indians for the same
offenses . . . and the Government is given a lighter burden of proof in prosecut-
ing Indians than is required in prosecuting non-Indians".

The United States Attorney is the local prosecutor for major offenses which
occur on Indian reservations. The result of this decision is to leave the United
States Attorney's oflSce without an effective statute for enforcement purposes.

H.R. 2470 would simply repeal section 1153 and amend section 1152, the effect
of which would be the removal of the unconstitutional defects found by the
Ninth Circuit Court.

The crime situation being what it is today, I urge swift passage of this bill in
order to provide to the United States Attorneys a means to vigorously prosecute
offenders.

Mr. HuNGATE. All right. Mr. Pauley, you may proceed as you see
fit. You have a prepared statement, do you?

Mr. Pauley. Yes. I do, Mr. Chairman.

Mr. HuNGATE. Without objection, it will be made a part of the
record at this point and you may proceed as you choose.

[The statement of Mr. Pauley follows :]



11

Statement of Roger Pauley, Deputy Chief, Legislation and Special
Projects Section Criminal Division

Mr. Chairman and members of the Subcommittee: I am pleased to be here
today to present the views of the Department of Justice on S. 2129 and related
bills to amend the federal statutes pertaining to the prosecution of crimes com-
mitted in Indian country so as to assure equal treatment for Indian and non-
Indian offenders.

The Department of Justice supports the prompt enactment of S. 2129, vi^hich
passed the Senate on February 4, 1976. This bill, with two minor changes, is
identical to H.R. 7592, introduced on behalf of the Administration by Congress-
men Rodino and Hutchinson. In the view of the Department, S. 2129 represents
a sound solution to a perplexing and urgent problem, the upshot of which, as a
result of recent federal appellate court holdings, is that prosecution is currently
precluded for certain serious offenses involving Indian victims on Indian reserva-
tions, contrary to the intent of Congress when it enacted 18 U.S.C. 1152 and 1153.

Let me briefly review for the Subcommittee the applicable statutes and court
decisions which have given rise to the difficulty. 18 U.S.C. 1153, the so-called
Major Crimes Act, extends federal jurisdiction to thirteen major felonies com-
mitted by Indians in Indian country. The original act was passed in 1885 to
remedy the loophole contained in 18 U.S.C. 1152, which exempted "offenses
committed by one Indian against the person or property of another Indian" from
the general rule that the criminal laws of the United States applicable in any
place within the exclusive jurisdiction of the United States, except the District of
Columbia, apply within Indian country. As enacted initially, the act was limited
to seven offenses.

Section 1153, in its first paragraph, sets forth the basic principle that any
Indian who commits any of the enumerated felonies therein "shall be subject to
the same laws and penalties as all other persons committing any of the above
offenses, within the exclusive jurisdiction of the United States." The reference to
statutes that apply within the exclusive jurisdiction of the United States includes
such crimes, listed in 18 U.S.C. 1153, as murder (18 U.S.C. 1111), manslaughter
(18 U.S.C. 1112), rape (18 U.S.C. 2031), carnal knowledge of a female under the
age of sixteen (18 U.S.C. 2032), various kinds of assault (18 U.S.C. 113), robbery
(18 U.S.C. 2111), and larceny (18 U.S.C. 661). In addition, the Assimilative
Crimes Act, 18 U.S.C. 13, applicable within the exclusive jurisdiction of the
United States, provides for the incorporation of State crimes, not specifically
defined by federal statutes, that are committed on federal lands or enclaves within
a particular State. This would include such offenses as arson, incest, and burglary,
all proscribed by Section 1153.

The problem in enforcing the Major Crimes Act results principally from
amendments to the statute made in 1966 and 1968. The 1966 amendment added
the offenses of carnal knowledge and assault with intent to commit rape; it
further provided that the offenses of rape and assault with intent to commit
rape "shall be defined in accordance with the laws of the State in which the
offense was committed." Moreover, the same amendment required assault with
a dangerous weapon and incest to be defined and punished in accordance with
the laws of the State in which the offense occurred.

The 1968 amendment added the offense of assault resulting in serious bodily
injury and provided that it too be defined and punished in accordance with the
law? of the State where it was committed.

The difficulty with these provisions lies in the fact that, as to some of the
offenses — rape and various forms of assault — there exist, as noted above, federal
statutes applicable within the special maritime and territorial jurisdiction of the
United States that provide for their definition and punishment (i.e. 18 U.S.C.
2031 and 113). Thus, by operation of 18 U.S.C. 1152, which renders those statutes
applicable to offenses committed by non-Indians against Indians,' a non-Indian
committing rape or an assault with intent to commit rape or with a dangerous
weapon, upon an Indian victim, may be tried under a different definition of the
offense, and be subjected to a different penalty, from that applicable to an Indian
offender committing an identical crime, depending on whether the State law
defining and punishing the offense (which is incorporated under 18 U.S.C. 1153)
differs from the federal law applicable through 18 U.S.C. 1152.



1 Although on Its face 18 U.S.C. 1152 applies also to offenses by Indians against non-
Indians. It has been held that, as to the 13 offenses listed in W U.S.C. 1153, which also
covers such conduct, the latter statute controls and must be used as the prosecutive
vehicle, thus limiting 18 U.S.C. 1152 to non-Indian-committed offenses. Henry v. United
States, 432 F. 2d 114 (9th Clr. 1970), cert, denied, 400 U.S. 1011 (1971).



12

Recently, federal courts of appeals have recognized that this statutory system
has the potential for invidious discrimination and have held 18 U.S.C. 1153
invalid as applied to Indian defendants where the State law's definition or punish-
ment of the offenses (which in the cases decided thus far have all involved assaults
of various types) was more onerous than that which would have applied to a non-
Indian charged with the same crime under 18 U.S.C. 1152. See United States v.
Cleveland, 503 F. 2d 1067 (9th Cir. 1974) ; United States v. Big Crow, 523 F. 2d 955
(8th Cir. 1975); see also United States v. Analla, 490 F. 2d 1204 (10th Cir.),
vacated and remanded on other grounds, 419 U.S. 813 (1974). The result of these
decisions is to create a gap within which certain extremely serious offenses by
Indians cannot be federallj'^ prosecuted, notwithstanding the clear intention of
Congress in enacting 18 U.S.C. 1153 and its various amendments. This is a serious
and pressing problem, for, aside from the fact that as a consequence lawbreakers
are now enabled to go unpunished, these statutory defects place in jepoardy the
tranquillity of life in those Indian reservations affected, particularly with respect to
Indian residents therein who as potential victims of criminal conduct have had the
protection of the law removed from them. As observed by Senator Fannin upon the
introduction of S. 2129:

"The most important result of this legislation and the principal reason for its
introduction, would be the beneficial effect it would have on the Indians them-


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