If the pride, and inherent sense of fair play of the individual Indian, and the tribal leaders did not bring about material improvement in the situation within 5 years, then the possibility of passing legislation such as Senate bill 961 could once again be considered.45

In a similar vein, Mr. Leo T. Connor, vice president of the Indian Rights Association, Philadelphia, Pa., stated:

We believe that because the Indian system and our system are so antithetically opposed to each other that it is with the utmost caution that one system be wiped out and the other precipitately imposed.

We believe that for the time being, Indian forms of justice, courts, procedures and systems should be allowed to remain substantially as they presently exist. We believe, further, though, that initial steps in the way of educating children and youths in the substance and form of American government and legal systems should be promptly introduced with a view toward the gradual introduction to the mechanics and benefits of our American court system.46

A third, and it should be noted recurrent, alternative to S. 961 involved the model code proposed in S. 964. Numerous witnesses suggested that the code might enumerate the rights to be guaranteed to the individual in much the same terms as set forth by the Interior Department in its substitute for S. 961. Generally accompanying this suggestion was a corollary proposal that the Indian tribes be permitted to adjust the code to their individual situations. Mr. Arthur Lazarus' comments are illustrative:

Development of a comprehensive model code will, I believe, encourage and assist tribes voluntarily to seek and achieve the basic goal of both bills-the protection of individuals from arbitrary, unreasonable or discriminatory governmental action. Moreover, if the code drafted by the Secretary (presumably upon the advice of Indians and their legal representatives) becomes a true model, with variations allowed from the norm, each tribe would be able to adopt rules tailored to fit its own particular circumstances, including, where desirable, conformity to the laws of the State.47

SENATE BILL 962

Many of the issues raised in the discussion of S. 961 were also pertinent to S. 962. As in the case of S. 961, the basic issue seems to have been one of preventing injustices perpetrated by tribal governments, on the one hand, and, on the other, avoiding undue or precipitous interference in the affairs of the Indian people. The text of S. 962 follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) in any criminal action hereafter commenced in an Indian court against any individual wherein an individual is convicted by the court and deprived of a constitutional right, he shall have a right of appeal to the United States district court for the district and division embracing the place wherein such individual was prosecuted.

(b) Upon the filing of the notice of appeal with the clerk of the United States district court, the appeal shall be placed on the trial docket for trial de novo in the United States district court, which trial de novo shall take place in the same manner and under the same rules that would apply if the criminal action had been initially commenced in the United States district court: Provided, however, That if the appeal is unsuccessful the accused may be taxed not only with the court costs of the trial in the district court, but also with any court costs taxed in the Indian court.

(c) The trial de novo shall be by a judge and a jury. But a waiver of jury trial shall be permitted in accordance with the Federal Rules of Criminal Procedure applicable to trials of criminal cases in the district courts.

45 Id., statement following p. 341. 4 Id., statement following p. 218. 47 Id., statement following p. 65.

70-650-66- -3

(d) In any case, appeal by the accused from an Indian court to a United States district court wherein the accused has not been served with proceedings or wherein the process has not been perfected prior to appeal, or in which the process server proves to be defective, such proceedings or service may be completed or new process issued in the same manner as in criminal actions originally instituted in such district court.

(e) Where the criminal action being appealed concerns a criminal offense which corresponds to offenses punishable under the United States Criminal Code, the elements of proof of the offense shall correspond to those utilized in the trial of the corresponding offense recognized by the Criminal Code; with respect to offenses which do not correspond to offenses punished under the United States Criminal Code, the elements of the offense charged shall be defined and established in the same manner in which elements of a defense are defined and established in the prosecution of offenses punishable under title 18, United States Code, section 13. (f) An accused convicted by a United States district court in an action appealed to that court under this Act, shall be subject to the same maximum punishment that could lawfully be imposed by the Indian court, provided that with respect to offenses corresponding to offenses punishable under the United States Criminal Code, including title 18, United States Code, section 13, the maximum punishment imposable shall in no instance be greater than would be permissible for the corresponding offense punishable under the provisions of the Criminal Code.

(g) In an action appealed to the district court, the court shall have the authority to order that the sentences be executed in the same manner and in the same place of confinement that would be applicable if the sentence had been imposed by the Indian court and had not been appealed. In the event that a fine is imposed, such fine, if paid, shall be paid in to the clerk of the district court for transmittal to the appropriate officers of the Indian court.

(h) Rules governing the procedure for the perfection and time of appeals under this Act shall be prescribed by the district court.

SEC. 2. As used in this Act, the term "Indian court" means any Indian tribal court and any court of Indian offenses.

No one appearing before the subcommittee or submitting testimony for the subcommittee's consideration opposed the provision of some type of appeal from the decisions of tribal courts. Criticism of S. 962, however, was directed at the bill's use of a trial de novo in a U.S. district court as the appropriate means of securing appellate review. In general, it was suggested that such a procedure would have any of several undesirable results: a burdening of already overworked district courts, a displacement of tribal courts (and a consequent loss of the contribution to self-government such courts may make), and the imposition of an inordinate expense on Indian defendants and Indian tribes, both already financially disadvantaged.

48

Several appellate procedures were suggested as alternatives to the trial de novo provision of S. 962. Solicitor Barry ventured the proposition that the Secretary of the Interior might review the findings and decisions of tribal courts.49 None of the subsequent witnesses who discussed this suggestion, however, viewed it favorably. As Senator Ervin observed, such a procedure poses rather weighty implications for the constitutional doctrine of separation of powers.

Also proposed as an alternative to the trial de novo was the use or, where not presently available, the development of Indian appellate tribunals. One such tribunal, it was said, might serve several reservations. In the same connection, it was also suggested that two trial judges might hear each other's appeals.50

As a third alternative, it was suggested to the subcommittee by several witnesses that U.S. commissioners could hear appeals from tribal courts. This suggestion seemed to imply that the commissioners

48 See, e.g., testimony of Solicitor Barry, id., pp. 22-23 and pp. 35-36 and William Day, pp. 157 and 162; and statement of Marvin J. Sonosky following p. 131.

4 Id., p. 19.

50 See, e.g., testimony of Arthur Lazarus, id., p. 85, and William Day, id., pp. 157-158.

would not serve in a final appellate capacity but would act instead to screen appeals that might eventually be taken to the district court for disposition.51

There was considerable support for the suggestion that the district court, instead of reviewing tribal court decisions on a de novo basis, be authorized only to decide whether the accused was deprived of a constitutional right. If no deprivation were found, the tribal court decision would stand. If, on the other hand, the district court determined that an accused had suffered a denial of his rights at the hands of the tribal court, the case would be remanded with instructions for dismissal or retrial, as the district court might decide.52 A logical combination of these alternatives would be to allow the district court to review the decision of the tribal court to determine whether there had been a denial of the accused's constitutional rights and upon such finding grant a trial de novo. If there were no evidence of a denial of rights, the tribal court decision would stand. Certain other witnesses conjectured that in the light of a recent Circuit Court of Appeals decision the necessity for congressional provision of appellate procedures of any kind might be obviated. In the case of Colliflower v. Garland, the Court of Appeals for the Ninth Circuit held that a district court may entertain a habeas corpus petition from a conviction by a tribal court.53 Arthur Lazarus commented to the subcommittee:

I think it would be useful to stay the hand of Congress and see how the courts continue to operate in that field because we may then get the kind of review you are talking about without any legislation.54

Pertinent to this position, however, are Lawrence Speiser's observations:

It has been suggested that the trial de novo is unnecessary in light of the Ninth Circuit Court's decision in the Colliflower case holding that a writ of habeas corpus is always available. However, this right of habeas corpus would not apply if only a fine and no sentence were imposed."

Finally, in reference to S. 962, it should be noted that many witnesses linked their discussion of this measure with their comments pertaining to S. 961 and S. 964. The general thrust of their arguments was to the effect that the model code, as proposed in S. 964, might serve not only to enumerate the rights of the individual Indian but might also provide in some detail for the operation of tribal courts. A comprehensive code, in other words, might work to realize the objectives of both S. 961 and S. 962.

Despite the alternatives presented to S. 962, witnesses generally agreed to the substance of the bill. A colloquy between Senator Ervin and Mr. Lawrence Speiser is illustrative:

Mr. SPEISER. There is nothing strange in having a trial de novo in appealing a decision of a magistrate's court in many States, or a justice of the peace court to a higher court. This would also seem to be desirable here.

In fact, it seems to be the only possible way to effect a real appeal. There is no provision in the bills for keeping records and transcripts and I don't believe the system that is utilized of a settled statement of fact is a fair one.

51 See, e.g., statement of Marvin J. Sonosky at p. 131; statement of Moody Brickett at p. 327; and testimony of William Day, id., p. 158.

32 See, e.g., statement of Arthur Lazarus following, id., p. 66; and Mescalero Apache Tribal Council following id., p. 341.

342 F. 2d. 369 (1965).

44 Hearings (1965), p. 95.

Id., p. 227.

Senator ERVIN. In North Carolina, we have had a system of magistrate's courts with very limited jurisdiction. They try offenses punishable by not more than 30 days' imprisonment, or fines not in excess of $50. They try criminal cases without a jury, though provision is made for a jury in civil cases. That system has worked for many, many years, ever since the creation of North Carolina and has worked very satisfactorily. A person in a trial before a justice of the peace, if convicted, may give notice of appeal orally or within 10 days he may give notice in writing. As you point out, these courts do not have provision for taking testimony and making a record. It seems to me that this puts a minimum emphasis upon technicalities and provides a maximum way for complete administration of justice in the district court. At least, it gives an opportunity to get close enough to justice to touch the "hem of its garment." I think it is a very workable thing, myself.

Mr. SPEISER. Senator Ervin, I think that may very well be a middle position. I believe that there is a value for the Indians in having jury trials. I think that it develops a sense of participation in government, and I think this would be very desirable.56

However, some question was raised about the possibility of the de novo proceeding being based on a charge different from that filed in the tribal court. Mr. Emory Sekaquaptewa, Sr., chief judge of the Hopi Reservation, Keams Canyon, Ariz., apprised the subcommittee of his belief that

*** [T]he elements of proof should be based upon the original charge and law as the original complaint was filed in the originating trial court. The implication of elements of proof in accordance with a charge found in U.S. courts similar to the original charges in tribal or courts of Indian offenses will in effect cause a trial de novo upon a new charge instead of upon the original charge as we look at it.57

The same point was made in a later colloquy between Senator Ervin and Mr. Lawrence Speiser:

Senator ERVIN. If I may interject, certainly the essential element of the offense on appeal in the district court should be identical with all offenses in the tribal court.

Mr. SPEISER. I quite agree, and certainly no one should feel that if he is going to get a trial de novo he is going to be treated in any different way than would be possible in the tribal court itself. Otherwise, I think it would defeat the purpose of having a trial de novo.58

Compounding the problem raised by Mr. Sekaquaptewa and Mr. Speiser was the point that there would have to be a de novo trial on a charge made pursuant to a written tribal code. In some cases, it was brought out that a few tribes do not have written codes, and that legislation would be necessary to alter this situation in order to fully implement S. 962.59

SENATE BILL 963

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Attorney General is authorized and directed to receive and investigate any written complaint filed with him by any Indian or by any person or agency acting in behalf of any Indian alleging that such Indian has been deprived of a right conferred upon citizens of the United States by the laws and Constitution of the United States. If, on the basis of such investigation, he determines that such Indian has been deprived of any such constitutional right, the Attorney General shall bring such criminal or other action as he deems appropriate to vindicate and secure such right to such Indian. SEC. 2. The Attorney General shall, on or before March 1 of each year, file a written report with the Congress and the Secretary of the Interior containing

se Id., p. 226.

$ Id., p. 105. $8 Id., p. 229.

Id., pp. 228-229.

the number of complaints received by the Attorney General under this Act during the preceding calendar year, and the action taken by him on each such complaint. Senate Bill 963 did not elicit as much commentary as did other measures before the subcommittee though strong opposition to the bill was voiced from several sources.

Mr. Edison Real Bird, representing the Crow Tribal delegation, expressed opposition to S. 963 as follows:

This [bill] would in effect subject the tribal sovereignty of self-government to the Federal Government ***. This bill, by its broad terms, would allow the Attorney General to bring any kind of action as he deems appropriate. By this bill, any time a member of the tribe would not be satisfied with an action by the Council, it would allow them to file a complaint with the Attorney General and subject the tribe to a multitude of investigations and threat of court action.60 Also opposed was the Mescalero Apache Tribal Council:

We are diametrically opposed to the provisions of Senate bill 963 for the reason that we feel that it would be used to undermine and harass existing tribal governments.

Every segment of society in the United States has a few perpetually dissatisfied members. If the perpetually dissatisfied individual Indian were to be armed with legislation such as proposed in Senate bill 963 he could disrupt the whole of a tribal government.

Naturally, such legislation would be a potent weapon in hands of a political opponent, on an Indian reservation.61

Solicitor Barry also recommended against enactment of S. 963. He contended that the Department's proposed substitute would provide better protection of Indian rights than would S. 963. The Solicitor also pointed out that the Commissioner of Indian Affairs already receives complaints from Indians alleging that their rights have been denied and, as a matter of routine, regularly transmits these complaints to the Department of Justice.62 Mr. Philleo Nash, Commissioner of the Bureau of Indian Affairs, provided the subcommittee with an elaboration:

We have standing rules that superintendents, special officers, and others who are close to the situation are required to report to the FBI, to the nearest U.S. Attorney, and to the Department any instances which, in their opinion, represent a violation of civil rights, whether such violation takes place within their immediate jurisdiction or not.

Now, the primary responsibility for investigation lies with the Department of Justice, although our special investigators are available for assistance at all times, and frequently are made use of.

By way of volume, let me say that since July 1962, our records reflect a total of 79 alleged violations of Indian civil and constitutional rights reported by our field personnel to the Department of Justice with information reports to the Department. There have been no convictions to our knowledge under these reports.63

In general, witnesses favoring passage of the bill simply stated their approval without elaboration. Several others, however, suggested that, though the Attorney General already has the authority contemplated in S. 963, the bill would have a salutary effect in conveying to the Attorney General the emphasis placed by Congress on the protection of Indians' rights and specifying channels for this protection.

60 Id., p. 235.

1 Id., p. 343. €2 Id., p. 20. 63 Id., p. 27.