has been a denial of some constitutional right, the subcommittee continues to believe that the best way to serve the interests of justice would be to provide for a trial de novo in the Federal courts.

To

Under the present wording of S. 962, the de novo proceeding could be based on a charge different from that filed in the tribal court. rectify this defect, the subcommittee believes that S. 962 should be amended to provide for the use of the same elements of proof as in the original charge in the tribal court.

The subcommittee sees no reason for trying all cases de novo. A trial de novo should only be granted where there are reasonable grounds to believe that there has been such denial. Accordingly, the bill should be amended to give the Federal court which hears the appeal authority to review a case to determine whether there has been a denial of any of the rights granted in S. 961. Preliminary procedures should be provided by which the district court could hear the evidence of both parties to the trial in the Indian court.

Because of their relationship to each other, S. 961 and S. 962, as amended, should be combined into one bill.

In order to fully implement the recommended changes in S. 961 and S. 962 it is necessary to have a written tribal code for the Federal judge to follow. These bills should be amended to set a time limit within which all tribes have to adopt a written tribal code or accept the one in 25 C.F.R. The effect of S. 961 and S. 962, as combined, should be postponed for 1 year after its enactment, thus affording Indian tribes a period in which to prepare themselves for a new concept of law and order.

While the cost of an appeal under the present language of S. 962 might be prohibitive in some cases, it is felt, nevertheless, that the right to appeal where it does not now exist would be an important first step in according the Indian full due process of law and would certainly improve the quality of justice rendered by tribal judges.

Arguments that the Federal district courts are overcrowded and could not handle the additional caseload presented by S. 962 would not seem important enough to negate the very real need for providing the American Indian access to an appeal forum that is unbiased, already in operation, and staffed with trained personnel. The condition of the Federal courts' dockets is a matter for Congress to rectify, and should not concern this subcommittee's recommendations on the administration of Indian justice. Accordingly, the subcommittee recommends enactment of S. 961 and S. 962 with the suggested amendments.

In view of the strong opposition to S. 963 expressed by interested witnesses and the Department of the Interior, the subcommittee recommends that this bill not be reported.

With reference to S. 964, the subcommittee continues to feel that a model code would provide an invaluable aid to the numerous Indian tribes which testified that they were interested in preparing codes or in updating their present ones. But inasmuch as little attention was given this subject during the course of the hearings, the subcommittee recommends that the Department of the Interior make a study of the feasibility of preparing a model code and report its conclusions to the Congress.

Numerous objections were raised as to the wisdom and constitutionality of S. 965. Testimony revealed that cases involving non

Indians were being prosecuted satisfactorily in State courts. Furthermore, enactment of S. 965 might discourage State enforcement of laws on Indian reservations. Additionally, the Department of Justice indicated that there is no constitutional basis for this legislation. For these reasons, the subcommittee recommends that S. 965 not be reported.

S. 966, as was suggested by many witnesses, should be amended to provide for piecemeal assumption of jurisdiction by the States in both civil and criminal matters. Piecemeal retrocession should also be authorized by appropriate amendment of the bill. In addition, there should be a proviso in S. 966 concerning a method for securing tribal approval. In accordance with the suggestion of most witnesses, a referendum of all those enrolled members living on reservations is recommended. This referendum should be conducted by the tribal council.

It is recommended that S. 967 be reported as introduced but with the addition of a new definition of assault requiring the infliction of serious bodily injury.

Even though delays in approval of attorneys' contracts have become less significant since 1962, there is still no guarantee that the previous unfortunate situation won't recur. Accordingly, the subcommittee recommends enactment of S. 968. Mindful that the arbitrary time limit may result in a perfunctory disapproval of contracts, this legislation will nevertheless force the Department of Interior to take a position promptly on these contracts.

Senate Joint Resolution 40 should be amended to eliminate the general term "other matters" contained in section (a). That section should also be modified to provide that the "in force" date be the first July 1 next preceding the date of the adoption of the resolution. The resolution should be amended further to include in section (a) authorization for revision and republication of Federal Indian Law. Provisions should be included to allow some degree of flexibility in the determination of which of the Solicitor's opinions should be published since many are in the form of letters and memoranda.