[Senate Hearing 107-338]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 107-338


                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION




                           FEBRUARY 27, 2002
                             WASHINGTON, DC

78-250                       WASHINGTON : 2002
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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. INOUYE, Hawaii, Chairman

            BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

FRANK MURKOWSKI, Alaska              KENT CONRAD, North Dakota
JOHN McCAIN, Arizona,                HARRY REID, Nevada
PETE V. DOMENICI, New Mexico         DANIEL K. AKAKA, Hawaii
CRAIG THOMAS, Wyoming                PAUL WELLSTONE, Minnesota
ORRIN G. HATCH, Utah                 BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma            TIM JOHNSON, South Dakota
                                     MARIA CANTWELL, Washington

        Patricia M. Zell, Majority Staff Director/Chief Counsel
         Paul Moorehead, Minority Staff Director/Chief Counsel



                            C O N T E N T S

    Allen, W. Ron, chairman, Jamestown S'Klallam Tribe, Sequim, 
      WA.........................................................    30
    Anderson, Robert, University of Washington, School of Law, 
      Seattle, WA................................................    10
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs.................     2
    Canby, Jr., William C., senior judge, U.S. Court of Appeals 
      for the Ninth Circuit, Phonix, AZ..........................    19
    Getches, David, professor, University of Colorado at Boulder, 
      School, CO.................................................     4
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, 
      Committee on Indian Affairs................................     1
    St. Clair, John, chief justice, Supreme Court, Wind River 
      Reservation, Ft. Washakie, WY..............................    28
    Yazzie, Robert, chief justice, Navajo Nation Supreme Court, 
      Window Rock, AZ............................................    26


Prepared statements:
    Allen, W. Ron................................................    51
    Anderson, Robert.............................................    40
    Canby, Jr., William C........................................    44
    Cantwell, Hon. Maria, U.S. Senator from Washington...........    39
    Getches, David (with attachments)............................    55
    St. Clair, John..............................................    43
    Yazzie, Robert...............................................    86



                      WEDNESDAY, FEBRUARY 27, 2002

                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:02 p.m., Hon. 
Daniel K. Inouye (chairman of the committee) presiding.
    Present: Senators Inouye, Campbell, Cantwell, and Thomas.


    The Chairman. Well before this country was founded, Indian 
nations exercised dominion and control over approximately 550 
million acres of land. Their governments pre-existed the 
formation of the U.S. Government, and, indeed, were so 
sophisticated that the framers of the U.S. Constitution modeled 
what was to become America's governmental structure after the 
Government of the Iroquois Confederacy.
    The recognition of the Indian tribes as sovereign 
governments has its origins in the Constitution of the United 
States, which in Article III, Section 8, Clause 3, provides 
that, ``The Congress shall have the power to regulate commerce 
with foreign nations and among the several States and with the 
Indian tribes.''
    From that time forward, this status of Indian tribal 
governments as separate sovereigns has informed the laws 
enacted by the Congress and signed into law by the President 
for over 200 years, and until relatively recently, has served 
as the foundation for the rulings of the U.S. Supreme Court.
    In the early 1830's the U.S. Supreme Court's Chief Justice 
John Marshall articulated the fundamental principles upon which 
the body of Federal Indian law would be constructed in a series 
of cases that are now referred to as the Cherokee cases. 
Yesterday this committee received testimony from Professor Reid 
Chambers, who observed that at the time of Chief Justice 
Marshall's rulings, the Cherokee Nation had a written 
constitution, an elected bicameral legislature, a tribal 
judicial system, schools, an established military, a written 
language, and a much higher adult literacy rate than any State 
of the Union at that time.
    Today tribal governments have not only discarded the mantle 
of ``ward'' to the United States ``guardian'' of Chief Justice 
Marshall's day, but have assumed a wide range of government 
responsibilities that were formally the exclusive province of 
the National Government.
    Although Federal policies have vacillated and congressional 
acts have reflected those changes in policy, beginning in 1934 
with the enactment of the Indian Reorganization Act, and 
reinforced in 1970 with the establishment of the Federal Policy 
of Native Self-Determination and Tribal Self-Governance, two of 
the three branches of the U.S. Government have consistently 
acted in concert to reaffirm the legal status of Indian tribal 
governments as sovereign governments.
    We are here today because there is a third branch of the 
U.S. Government, the Judicial Branch, that appears to be headed 
in a decidedly different direction than the other two branches 
of the National Government. If there were a few aberrations 
from the Supreme Court precedent and Federal statutory law, one 
might not have cause for concern, but those that study the law 
and the rulings of the U.S. Supreme Court instruct us that the 
Court is on a steady march to divest native governments of 
their governmental powers and authorities.
    Principles long and well-established, such as the fact that 
tribal governments retain all of their inherent sovereign 
powers and authorities not relinquished by them in treaties or 
abrogated by an express act of the Congress, appear to have 
been cast aside. The fundamental principle that tribal 
governments have authority to exercise jurisdiction over their 
territory, just as other governments do, is being steadily 
eroded by the Court's rulings.
    Notwithstanding the provisions of the U.S. Constitution 
proscribing discrimination on the basis of race, the Court 
seems to be consistently imposing limitations on the exercise 
of tribal government jurisdiction based upon the race and 
ethnicity of those over whom jurisdiction is exercised.
    The historical foundations of the relationship between 
sovereign governments, the Federal, State, and tribal 
governments, appear to no longer have any legal import in the 
Court's rulings.
    Last, but certainly not least, from the perspective of the 
branch of the government that the U.S. Constitution charges 
with conducting relations with foreign governments, the several 
states, and Indian tribes, the Congress--one is hard-pressed to 
find reference in the Court's opinions to the context in which 
the rest of America is operating; namely, Federal laws and the 
policies they reflect.
    So today the committee has called upon a few of the many 
experts who have, through their writings and scholarly 
discourse, instructed us that there is cause for alarm, and 
have urged the Congress to act. With that, I am pleased to call 
upon the vice chairman for his remarks.


    Senator Campbell. Thank you, Mr. Chairman, for that very 
fine statement. I think it is important that statements like 
yours remind people that Native Americans' ability to govern 
themselves didn't start with the Movie ``Dances with Wolves.'' 
Indeed, I live about maybe 40 miles east of what's commonly 
called the ``cliff dwellings'' of Mesa Verde. People lived 
there about the time that Christ walked the Earth, and they had 
a form of government. They were there 400 years before Columbus 
landed on the shores of the Caribbean Islands. They had a form 
of government then, 400 years before Columbus got here.
    And they weren't the only ones. If you look at two other of 
the really ancient cultures that thrived about that time, 
Cahokia, which is in Missouri south of St. Louis, and 
Tenochtitlan, which the city of Mexico City was built on the 
ruin of Tenochtitlan, they were thriving communities as large 
as any community in Europe at the time. They had forms of 
    The tenets of all those ancient forms of government with 
Native Americans were really based on just three or four: The 
belief in the family, the relationship with their natural 
surroundings, and their belief in creative force. I guess I am 
just continually amazed that so much transpires in America that 
deals with Federal-tribal relationships when all those years 
and those centuries, eons and eons of time, are just discarded, 
like they weren't important in the scheme of things when we 
deal with tribal self-governance. So I thank you for that 
    At yesterday's hearing on Indian trust management reform, 
we heard from distinguished legal scholars about the legal and 
political foundation of the Federal-tribal relationship. We 
heard about Chief Justice John Marshall, who we credit with 
firmly establishing the role of the U.S. Supreme Court in the 
Federal system and the role he played in Indian jurisprudence, 
as you have mentioned.
    The pendulum of Federal Indian policy has been swinging 
back and forth right from the beginning of our Republic: 
Treaties, relocation, reservations, allotment, assimilation, 
termination, and to the current policy of self-determination. 
But Indian self-determination is more than a slogan to be 
carelessly thrown around. Chief Justice Marshall's decisions 
are grounded in it, and President Nixon knew what it meant in 
1970, when he issued his famous Special Message to Congress on 
Indian Affairs.
    Local decisionmaking is important. It is an important part 
of Federal Indian policy, but it's an important fact to many of 
us here in Congress, too, and that's why we believe in states' 
rights and local jurisdiction and the ability of people to make 
their own decisions at the local level. It is really the core 
of the principles of American freedoms to me and many of us 
that are here.
    It is also a key concept because it works. Local 
governments know best what works for their citizens, and Indian 
tribes are no different in this respect than any other local 
government. As important as the legal tenets of Federal Indian 
law and policy are, I'm just as concerned with the practical 
results that the recent decisions of the U.S. Supreme Court 
will have on that policy and on the future of Indian tribal 
governments in America.
    An Indian tribal government that can't legally defend its 
territory isn't a sovereign government at all. An Indian tribal 
government that is unable to levy a tax on a hotel or things of 
that nature that enjoy the benefits and the amenities of the 
tribe with the things that the tribe provides certainly cannot 
survive very long.
    In short, I feel, if left unchecked, the philosophy and 
reasoning of the Supreme Court cases will mean that in fairly 
short order Indian tribes will be left with very little, if 
any, powers at all. If this trend continues, the current vigor 
of Indian tribal governments will be a distant memory, and the 
tribes themselves will become little more than social clubs or 
mechanisms for funding Federal dollars to Indian people.
    The advances of rehabilitating tribal economies will be 
reversed if tribes lack fundamental authority over people and 
events that are located on their lands. Massive 
refederalization on Indian issues will take place, which is not 
healthy for the tribes, for tribal members, or local citizens, 
or the taxpayer. This result is not, in my view, what the U.S. 
Constitution sets out envisioned, and does not represent the 
views of, I believe, the majority on this committee or in 
Congress generally.
    With that, Mr. Chairman, I'd ask unanimous consent that my 
formal statement be included in the record, and I look forward 
to the hearing with our witnesses today.
    The Chairman. Without objection, so ordered.
    Today we are honored to have the greatest legal minds of 
this land on matters involved in Indian affairs. For the first 
panel I call upon Professor David Getches, of the University of 
Colorado at Boulder, School of Law, and Professor Robert 
Anderson, of the University of Washington School of Law, 


    Mr. Getches. Thank you very much, Mr. Chairman, Senator 
Campbell. It is a pleasure to be here, and I am pleased to have 
an opportunity to talk about an issue of extreme importance to 
those of us who have been involved in Indian law for many 
years, and certainly to all people of Indian country.
    The current U.S. Supreme Court has made an astounding shift 
in its Indian law jurisprudence. It has disregarded 170 years 
of Supreme Court precedent. It has undermined the congressional 
policy of political and economic self-determination for 
Indians, and these decisions affect the lives of every 
reservation Indian, making reservation life less secure and 
reservation futures less promising.
    Now the travesty of mismanaged Indian trust funds is well-
known, but the Supreme Court's assault on the foundations of 
Indian law and on congressionally-mandated Indian policy is 
virtually unknown outside Indian country, but the effects of 
the Supreme Court's actions promise to be deeper and longer 
    Now I've been a student and a teacher and a practitioner of 
Indian law for over 30 years now. In the nineties we have 
witnessed a sea change in Indian law. We have found that Indian 
law in the Supreme Court is heading in a radical new direction.
    I began researching why this was several years ago. I did 
this reading painstakingly all the opinions of the Court and 
then spending a summer here at the Library of Congress going 
through the files that had been made available by the late 
Justice Brennan and Justice Thurgood Marshall. The first 
revelation I had in looking at these records was that the 
internal memos showed that for some Justices on the Supreme 
Court Indian law was seen as a field with no anchors, with no 
guiding principles, or moorings. The memos, internal, private 
memos, showed an unabashed concern with setting things right in 
Indian country, with taking to task the decisions of the past, 
and applying the present values of these Justices, as if the 
opinions of the past had been grounded in no principles at all.
    As your statement, Mr. Chairman, and the statements of 
Senator Campbell indicated, those earlier opinions were, 
indeed, grounded in long tradition of Supreme Court precedent, 
going back to the early 1800s and the decisions in three major 
cases by Chief Justice John Marshall.
    Now it became clear to me as I proceeded in this research 
that majorities of the Court were deciding cases in order to 
reach outcomes that satisfied them without basing their 
decisions on the precedents and principles that had guided 
their predecessors for 170 years. But other than the fact that 
the whole exercise was subjective, as I indicated in a 1996 
article, I couldn't find any new philosophy or set of 
principles that gave coherence to the Court's decisions.
    Eventually, I turned my attention to the work of 
constitutional scholars and looked beyond my own expertise in 
Indian law and found in the full array of cases, the cases 
going well beyond Indian law, that there were three themes or 
trends that explained nearly every decision of the Court since 
the mid-1980's, not just in Indian law. They describe a set of 
values that the majorities favor, and these values are not 
specific to Indian law. The three value-based trends are, 
first, a commitment to the rights of states; second, a belief 
that the law must be colorblind, and, third, a desire to 
support mainstream values.
    Now each of these trends sweeps with them nearly every 
Indian case. As I am sure is obvious to the members of the 
committee, States are adverse to Indians in nearly every Indian 
case in the Supreme Court. Colorblind justice may stand for 
principles that are important to members of the Court in 
affirmative action settings, but Indian laws are not about 
affirmative action. That's about a government-to-government 
    Mainstream values, Indians may have lifestyles and 
religions that are different, but it's not the same as the 
perception of being ``out of step'' that the Court might see in 
other contexts. These trends are robust, accounting for the 
Court's outcomes in virtually every case. I would like to offer 
today this article that does the analysis. I expect that, in 
the interest of time, we ought not to go over all 80 pages of 
this very interesting article, but I will offer it for the 
committee and your record.
    The Chairman. It will be part of the record.
    Mr. Getches. Now when you look at the work of the Court 
since the mid-1980's, the most striking reality is that Indians 
lose. On the chart that I have put up here, you can see the 
blue lines stand for cases, or rather percentages of cases, in 
each term of the Court since 1958 to the term 2000-2001. The 
red lines stand for percentages of losses. As you can see, the 
red lines are much more prevalent at the more recent end of the 
chart. The black is a trend line showing the trend of 
decisions, a trend against Indians.
    Now if, for purposes of comparison, it is helpful to look 
at other courts, what I have done is compared the Rehnquist 
Court, which really began in 1986, with its predecessor, the 
Burger Court. This pie charts show that in the Burger Court, 
Indians were winning 58 percent of the cases. In the Rehnquist 
Court, almost equal number of terms of Court, Indian tribes are 
winning on 23 percent of the cases that come before the Court.
    Now the differences here are striking. In trying to 
understand what is going on here, I ask myself, is this 
extraordinary or are there other groups of litigants, other 
types of interests, or other subject matters of cases, where 
litigants have done as badly as Indians. I looked at 
possibilities ranging from immigration to criminal cases, and 
the worst record I found for any litigants other than Indians 
was convicted criminals seeking reversals of their convictions. 
I found that convicted criminals won 34 percent of the time 
while Indian tribes have won only 23 percent of the time. 
Nobody does worse in this Supreme Court than Indian tribes.
    These decisions are not only bad on a win/loss ratio. These 
decisions are major departures from Indian law as it was 
developed and articulated by the Court from the very foundings 
of this Nation until the 1980's. The basic rules were 
straightforward. You mentioned the foundational principles and 
cases in your statement, Mr. Chairman. The foundation 
principles are summarized here. Tribes are sovereigns. Tribes 
became subject to the legislative power of the United States 
and lost their external sovereignty by being incorporated into 
the United States, but retained tribal powers can only be 
qualified by congressional legislation or treaties. This is 
laid out in the Marshall trilogy, those three leading cases 
from the early 1800's.
    Now not all of these principles have always pleased Indian 
tribes. The Indian law scholars, Indian tribal leaders and 
their attorneys have not liked the idea that, just by virtue of 
planting an American flag on the shore of North America, the 
right to squelch and diminish tribal powers was gained by the 
Europeans. But, be that as it may, this doctrine of plenary 
congressional power has been reiterated by the courts, and 
tribes have learned to live with it.
    They have learned that it can be a barrier against the 
intrusion of State governments into their territories. Tribes 
have also suffered under this plenary power doctrine. Congress 
has not always been generous with Indian tribes.
    For instance, tribes suffered enormous losses when Congress 
embraced the allotment policy in the 1800's, the late 1800's, 
and the purpose there was to break up reservation lands, tribal 
lands, and distribute small parcels to every individual Indian, 
so that the remaining land could be distributed to 
homesteaders. This policy proved to be an abject disaster. 
Congress recognized that, but not for almost 50 years. 
Eventually, Congress reversed the policy with the Indian 
Reorganization Act policies that you mentioned, Mr. Chairman.
    Now the ensuing period was more benign, but then again in 
the 1950's Congress went astray, if I may say, and abruptly 
changed the course of Indian policy. Termination became the 
policy of that era. The idea was to end the Federal 
relationship with the tribes of the United States and divide up 
the property of the tribes, again assimilation.
    Now this took an enormous toll on 100 Indian tribes, but 
the courts didn't alter it. The courts didn't alter the 
allotment policy. The courts deferred to Congress. It was 
Congress that reversed again the termination policy after 15 
years of failure. It took 20 years to make things right and 
restore tribes to their original status; that Congress did, but 
without any encouragement from the courts.
    Now since then tribal governments have rebuilt. Some are 
strong, healthy governments. Others are struggling to overcome 
a myriad of disadvantages. Congress has decided to support 
tribes in their successes and allow them their occasional 
missteps. Tribes have begun to find their footing, and their 
cultures, bruised by ill-considered policies of the past, are 
gaining new strength.
    During the last 30 years of its self-determination polity, 
Congress has passed dozens of bills to support the ideal of 
self-determination, and those bills are enumerated, or many of 
them, in the footnotes to my written testimony that I submitted 
earlier. Bills, great pieces of legislation, like the Indian 
Self-Determination Act, the Indian Child Welfare Act, the 
Native American Graves Protection and Repatriation Act, the 
list is very long, and it's a tribute to the work of this 
committee and to the unflagging policy of Congress during this 
    Meanwhile, the Rehnquist Court has decided case after case 
against the very principles and policies that the Congress has 
sought to advance. Instead of recognizing the will of Congress, 
the Court has strained to give effect today to the policies of 
yesterday. The allotment policy, for instance, has been a 
dominant force in the decisions of the current Court.
    The Court has prevented tribes from trying non-Indians who 
commit crimes on the reservation. It's prevented tribes from 
regulating non-members hunting and fishing on the reservation. 
It's prevented tribes from zoning non-members' lands in parts 
of some reservations. It's prevented tribes from taxing guests 
in hotels on the reservation, and it's prevented tribal courts 
from hearing personal injury lawsuits by non-Indians who want 
to use the tribal courts, and from hearing suits by Indians who 
have tried to sue non-Indians in tribal court for torts 
committed against them in their homes on reservation lands 
owned by the tribe.
    Now just compare how the Rehnquist Court looks at these 
issues of tribal sovereignty and powers. I have put up here 
some quotes from the earlier Burger Court and the Rehnquist 
Court. On tribal powers, the modern era Burger Court said:

    Until Congress acts, the tribe retains existing powers of 
sovereignty. That's the law as it has always been.

    A 1997 case, Strate v. A-1 Contractors, our case law 
establishes that, absent express authorization by Federal 
statute or treaty, tribal jurisdiction exists only in limited 
circumstances, an exact shift in position.
    Tribal sovereignty, what did the Court say up until the 
mid-eighties? Indian sovereignty is not conditioned on the 
assent of non-members. Non-members' presence and conduct on 
Indian lands is conditioned by the limitations tribes choose to 
impose. That was the law until the mid-eighties. The 2001 case 
of Atkinson Trading Company said that Indian tribes can no 
longer be described as sovereigns in this sense.
    Look at the shift with respect to tribal courts. In 1987, 
Iowa Mutual, civil jurisdiction over non-member activities 
presumptively lies in tribal courts. 2001, Justice Souter 
concurring in the Hicks case says:

    A presumption against tribal court civil jurisdiction 
squares with one of the principal policy considerations 
underlying Oliphant:

    The earlier criminal jurisdiction case.
    What does the present Court say about congressional intent 
compared to its predecessors? How do they look on the policies 
of this Congress? In the modern era, the period up until the 
mid-1980's, the Court said things like this in Bryan v. Itasca 

    Courts are not obligated in ambiguous circumstances to 
strain to implement an assimilationist policy Congress has now 

    Look at what the Court now says. In the Brendale case, it 
said that:

    When an avowed purpose of the allotment policy was the 
ultimate destruction of tribal government, we can find no 
tribal jurisdiction.

    You see, the Court in the 1970's not ready to look back at 
repudiated policies of Congress, and you see the Court in 1989 
looking farther backward to the allotment policy as its 
touchstone for its decisions.
    Now let's look at a couple of these recent cases and what 
their impacts are. The Brendale case, which I just quoted, 
involved two non-Indian landowners on the reservations. Both of 
them wanted to build multi-unit housing developments on the 
Yakima Reservation. Now the tribe, the Yakima Nation, has for 
many years had its own zoning laws. Later on the county adopted 
its zoning laws. The county, under its zoning laws, would make 
possible these multi-unit developments on the Yakima 
Reservation. The Yakima zoning regulations would not.
    Now the U.S. Supreme Court decided that the applicable 
zoning for one of the two parcels was tribal because in this 
case the land of the non-Indian was located in a pristine 
wilderness-type area that the Court said ``retained its Indian 
character.'' In the case of the other parcel, the U.S. Supreme 
Court said that the county could zone the non-Indians' land 
because in this area there had been several non-Indians move 
into a small town on the reservation, and that area had lost 
its Indian character, having businesses in it and a small 
    In another case, the 1997 Strate case, which we quoted 
earlier, a non-Indian contractor was doing work on the Ft. 
Berthold Indian Reservation. The non-Indian contractor was 
driving down the road, and Jazella Fredericks came out of her 
driveway at her home. The truck hit her at a high rate of speed 
and did serious harm to her. She was in the hospital for many 
weeks, having been gravely injured.
    She and her several children, all members of the tribe, 
sued. Now Mrs. Fredericks was not a member of the tribe. She 
had lived on the reservation most of her life, having been a 
war bride of her husband, Mr. Fredericks, a tribal member. They 
met in Germany, and she came directly from her native Germany 
to the reservation, lived there, raised her children.
    When she found that she needed the help of the justice 
system, she went to the Ft. Berthold justice system, and she 
was turned back by the U.S. Supreme Court. The Court held that 
the tribe had no jurisdiction because the accident had taken 
place on non-Indian land. What was the non-Indian land? It was 
a road on tribal property over which a right-of-way had been 
granted to the State to construct the road, non-Indian land.
    Now the result would have been different, the Court said, 
if it was a Federal road or a tribal road, or if Mrs. 
Fredericks had been a tribal member. Now consider for 1 minute 
the plight of being a police officer or a zoning official or 
some other officer of the government for either the tribe or 
the county or the State in either of these situations. How do 
you apply the law handed down by this U.S. Supreme Court? It is 
absolutely impractical and unworkable, depending as it does on 
tribal membership, race of the parties, and the ownership of 
    Now consider also how all of this must look to a person 
thinking of putting a business on an Indian reservation or 
investing in a tribal business. The one thing that a business 
person wants in my experience is certainty. There is no 
certainty here, where the law depends on a complex mix of 
factors that the Court is continuing to articulate, such as 
race, tribal membership, landownership, and some unarticulated 
balancing of those factors.
    As tribal governments look forward to trying to enhance 
their economies and fulfill the congressional policy of Indian 
self-determination and economic growth, these cases are going 
to be, are today, a major barrier. They are going to drive away 
businesses. Congress' policy of self-determination for tribes 
and bolstering tribal governments is being seriously eroded by 
this course of decisionmaking.
    In the modern era, this period since 1958 until 1986, about 
when the Rehnquist Court began, the Supreme Court gave modern 
meaning to those old precedents from the Marshall trilogy, and 
it sustained tribal powers over tribal territory. During this 
same period, tribes enacted codes and laws. They strengthened 
tribal governments and built up agencies and entities to 
administer their laws over everything from water and the 
environment to business regulation.
    With the help of congressional policy and congressional 
funding, they strengthened their tribal courts and governments. 
With new business activity coming in, and it wasn't just bingo 
parlors and casinos that are known best to the public, the 
cycle of poverty started to lose its grip on many reservations.
    Tribally-controlled schools got new quality and 
accessibility to education. Now progress, admittedly, has been 
slow, but it has been steady, and it's been progress, to be 
sure, thanks to wise and determined tribal leaders, and thanks 
to the congressional policy of self-determination that's 
remained unchanged for 30 years. But all of this is now 
threatened by the devastating impact of these U.S. Supreme 
Court decisions that deny and reverse congressional policy.
    The decisions are filling every gap that Congress has left. 
If Congress has not addressed an issue, has not spoken, the 
Court will enter and curb tribal powers. The activism of the 
Court is resulting in a new and more confused Indian policy 
with no agenda and no vision beyond its distaste for difference 
and what it considers to be race-based institutions and a 
commitment to protecting the powers, prerogatives, and 
immunities of states. The Court is ruling against tribes in 
case after case.
    The trend in Indian law, indicated by our first chart, is 
explained by these broader trends that I have identified in the 
article, but the Court, whether purposefully or not, is 
advancing a kind of termination. But termination, even wrapped 
in a black robe, is still termination.
    What surely remains of Indian law is Congress' power to 
legislate in Indian affairs. Just as Congress has stepped in to 
correct the error in Duro v. Reina, the case denying tribal 
criminal jurisdiction over non-members, Congress can reaffirm 
and clarify tribal jurisdiction and set Indian law and Indian 
policy back on track.
    Indian rights and Indian sovereignty are essentials in a 
government-to-government relationship that goes all the way 
back to the founding of the Nation. If the Court understood 
this and appreciated this grounding in original intent, Indian 
law could be put back on track by the Court itself, but this 
seems unlikely. The Court's primary mission has little to do 
with Indian law. It will be up to Congress to reverse the 
trend. Thank you.
    [Prepared statement of Mr. Getches appears in appendix.]
    The Chairman. Thank you very much, Professor.
    May I now call upon Professor Anderson.

                      OF LAW, SEATTLE, WA

    Mr. Anderson. Thank you, Mr. Chairman and members of the 
committee. It is an honor to be here today.
    I want to state for the record that I agree with everything 
that Professor Getches has so eloquently laid out. He's done 
such a good job that he doesn't leave much for his colleagues 
to discuss here.
    But I have spent about 1 dozen years working for the 
American Native Rights Fund, 5 years with Secretary Babbitt at 
the Interior Department, and I'm now at the University of 
Washington, where I teach Indian law and run the Native 
American Law Center, which does a lot of day-to-day work with 
Indian tribes in the Northwest, Alaska, and around the country. 
I am also a member of the Bois Forte Band of the Minnesota 
Chippewa Tribe.
    I want to talk to you a little bit about some of the 
particular instances where the Supreme Court's jurisprudence of 
late has caused real harm to Indian tribes on the ground and 
also created the significant potential for mischief within the 
executive branch.
    First and foremost is the fact that for years the executive 
branch, States, and tribes have understood that they operate in 
a legal world in which Congress has the final say. The 
foundational principles of Indian law, that tribes have all 
powers except those expressly taken away, provided a baseline 
against which tribal leaders, their lawyers, States, and non-
Indians could operate. If adjustments needed to be made or 
experiments were to be undertaken in the Indian law arena, that 
sort of an experiment or approach could be authorized by 
Congress, hopefully after dialog with the affected tribal 
leaders and others.
    The Indian Reorganization Act is a great example. Adopted 
in 1934 to reverse the trends of the allotment assimilation 
era, the terrible loss of land, the IRA stands as a bulwark 
against termination of tribes. Even though a termination era 
was undertaken in the 1950's, the IRA stood as a backstop. Many 
tribes are organized under the IRA.
    But, more importantly than the particular provisions of the 
IRA, I think, is the philosophy that it sets out, and that 
philosophy is that in the United States there are three 
sovereigns, the United States, the States, and Indian tribes, 
and that Congress firmly supports the continued recognition of 
Indian tribes and the broad exercise of tribal powers through 
tribal courts and tribal institutions as tribes see fit.
    Now when Public Law 280 was based by the termination era 
Congress in the 1950's, it provided states with jurisdiction 
over Indian reservations. Congress, mistakenly in my view, did 
not require tribal consent to such state jurisdiction. Congress 
was dealing with what was perceived as a state of some 
lawlessness within Indian reservations and acted in Public Law 
280 to give States authority.
    It was only 14 years later, in 1968, when the Indian Civil 
Rights Act was passed, in which Congress amended Public Law 280 
to require that States who would assert jurisdiction over 
Indian reservations receive the consent of the tribe, receive 
the consent of the body with governmental authority over a 
particular reservation. Since 1968, no State has assumed 
jurisdiction over an Indian reservation.
    In fact, in the State where I live, Washington State, the 
Tulalip Tribes recently worked with the State legislator, with 
the Governor of Washington State, to have the State of 
Washington surrender its jurisdiction over the Tulalip 
Reservation in favor of tribal jurisdiction. The tribe worked 
with Secretary Babbitt, with the county police officials, with 
Congress, in order to obtain funding to ensure that the tribal 
government could administer police protection and provide a 
forum for judicial dispute resolution on the reservation.
    The Tulalip Tribes have a tribal court with a couple of 
judges, a public defender's office, a prosecutor's office, a 
jurisdictional arrangement with the counties and with the State 
that works well for all parties.
    Now the Supreme Court decisions in the Hicks case and the 
Atkinson case severely undermine the certainty that we have, or 
had, that the tribe could provide justice to all parties on the 
reservation, at least in the civil context. The Court has 
indicated that tribal courts may not have authority to hear 
cases that involve only non-Indian parties, of which there are 
a significant number on the Tulalip Reservation, who may wish 
to use the tribal court for dispute resolution.
    Now also part of the Indian Civil Rights Act were 
provisions of the U.S. Constitution which were placed on Indian 
tribes. As Professor Getches pointed out, the tribes are 
recognized in the Constitution as one of three sovereigns. The 
provisions of the Bill of Rights are applicable to the Federal 
Government and to the States through the 14th Amendment. The 
Congress, in 1968, chose, over the objection of many tribes, I 
might add, to make many of the provisions of the Bill of Rights 
applicable to Indian tribes. That was Congress' prerogative to 
do so.
    The Supreme Court, in 1978, when it heard a case involving 
the application of the Indian Civil Rights Act, a Federal law, 
correctly, in my view, determined that Congress had not 
intended to allow Federal courts to intrude on the operation of 
Indian tribes. Instead, the Court said, well, Congress has put 
in place the provisions of the Bill of Rights to some extent 
and made them applicable to tribes. However, Congress did not 
clearly authorize Federal court to hear these cases, and 
therefore, we're going to make these rights enforceable only in 
tribal court.
    If Congress wishes to allow Federal courts to hear these 
actions, it can state so explicitly. That is as it should be. 
Unless Congress speaks clearly to an issue, the Court should 
rule that the tribal autonomy is not interfered with. We've 
seen a dramatic departure in just the opposite presumption 
taking place with the current Court, as Professor Getches has 
pointed out.
    Third, Congress has acted in several areas to delegate 
Federal authority to Indian tribes. Most notably, in the Clean 
Air Act, Congress explicitly provides tribes with the ability 
to obtain treatment as a state and to set air quality standards 
within reservations, after going through a bureaucratic 
exercise with the EPA. Similarly, the Indian liquor laws are 
administered in tandem by the Department of Justice, the 
Secretary of the Interior, and Indian tribes with tribes acting 
to exercise delegated Federal authority under the Indian liquor 
    The Clean Water Act provides an interesting example. It 
seems to me to provide for the exercise of delegated Federal 
authority. It has also been interpreted by the EPA to allow 
tribes to exercise their inherent authority over reservation 
lands, and EPA has taken its cue from Congress and interpreted 
the Clean Water Act quite liberally. It has provided tribes 
with treatment as a state in a number of cases, recognizing 
tribal inherent authority over their reservations.
    The Hicks and the Atkinson cases make it appear that the 
EPA may have to cabin its authority and recognition of tribal 
inherent authority. I think that would be a tragedy if it were 
to do so, but many state that that may be the case.
    Again, uncertainty caused by the radical shift in the 
Supreme Court's approach to these cases is causing many to 
reconsider what the baseline is anymore. I submit that this 
body is the appropriate one to act to correct that baseline, to 
reconfirm tribal authority over all land within the 
reservations and all people present within reservation 
boundaries. do, that this body has adopted a great deal of laws 
in the 1980's and 1990's that support and enhance tribal 
governmental jurisdiction: the Indian Child Welfare Act, the 
Indian Child Protection and Family Violence Act, the Indian 
Tribal Justice Act. The Department of Justice COPS Program is a 
tremendous success. The funding that's been provided by 
Congress has put police officers, tribal police officers, on 
the beat on reservations. It is another example of tribes 
receiving that which is their due treatment under the U.S. 
    The executive branch has taken notice. Now the executive 
branch, as I can well attest, sometimes drags its feet at 
implementing Federal policy. President Clinton issued executive 
orders on consultation with tribes as governments. President 
Nixon announced the self-determination policy in 1970. 
Memoranda on government-to-government relations and other 
secretarial orders that confirm and recognize the status of 
tribes as government sometimes seem to me as sort of a paper 
chase. These are exercises that are not really worthwhile.
    But having been in the administration, I can tell you that 
the fact that the President of the United States cites the 
Self-Determination Act and other acts of Congress and directs 
career employees to consult with Indian tribes because they are 
governments has an important effect on the way the Government 
does business.
    Now the Supreme Court in these cases has undermined that 
policy by limiting the authority of tribes over their 
reservations. I fear that it is possible that the executive 
branch will get cold feet unless this Congress steps in and 
reaffirms the authority of tribes in a strong baseline against 
which tribes, states, and Federal bureaucrats may operate.
    I can't say enough about Congress' work with the Indian 
Self-Determination Act and the Self-Governance Act. I was 
looking at some statistics the other day. In Alaska, 97 percent 
of BIA programs are carried out by tribes; 75 percent of Indian 
Health Services programs are carried out by tribes. That's the 
case in many regions of the country.
    Notwithstanding the terrible loss that Alaska Natives 
suffered in the Vinatie case, they remain governments with 
members and important jurisdiction. The Alaska Supreme Court, 
never known for its friendly disposition to Indian tribes, 
recently recognized the authority of tribes in Alaska to 
adjudicate domestic relations matters among members and non-
members who consent to tribal jurisdiction, this 
notwithstanding the loss in the U.S. Supreme Court in the 
Vinatie case.
    I tell you, it is a strange day when we look to State 
Supreme Courts for protection, and they look better than the 
U.S. Supreme Court. Yet, that is the case that we find 
ourselves in as a result of the Rehnquist Court's recent 
    Similarly, when the Rehnquist Court handed down the 
Seminole Indian Gaming Case, which, in essence, made part, 
important parts, of the Indian Gaming Regulatory Act 
unenforceable, the Secretary of the Interior was able to step 
in with gap-filling regulations. The cases in litigation, the 
administration was able to respond to the Court's ruling in the 
best way that it could, but, again, I fear with these recent 
blows that have been dealt with Hicks and Atkinson, it is only 
Congress that can make the situation right. I urge Congress to 
do so. Thank you very much.
    [Prepared statement of Mr. Anderson appears in appendix.]
    The Chairman. Thank you very much, Professor.
    If I may proceed now with questions, Professor Getches, you 
have suggested the Rehnquist Court is not pursuing its own 
Indian policy, but advancing its agenda of states' rights, 
colorblind justice, and mainstream values. Now if this is 
accurate, how can you explain why the Court applies 
considerations of race and ethnicity in determining the scope 
of tribal jurisdiction?
    Mr. Getches. Yes; there certainly is a paradox there, Mr. 
Chairman, in announcing a policy of colorblind justice and then 
bringing race into consideration as a major factor in its 
Indian decisionmaking, but I would see this as part of an 
overall effort to limit the scope of what the Court views as 
special rights for one minority for Indian tribes and to make 
sure that that realm of special rights, as they see it, doesn't 
include or affect any non-Indians, non-members of that tribe.
    As they do that, it runs the risk of becoming, as Senator 
Campbell warned in his statement, tantamount to the treatment 
of a social club. The Elks Club or a college fraternity has the 
same level of ``sovereignty'' over its place and its members as 
an Indian tribe would under that kind of formulation. So, in a 
sense, they're making it colorblind by factoring out any 
residual governance that a tribe might have over people or 
territory that is not owned by it and members who are not 
participants in that tribal government.
    The Chairman. Sovereignty, as related to Indian country, 
has been defined in many different ways. How does the Supreme 
Court, the Rehnquist Court, define sovereignty?
    Mr. Getches. It seems to define it as what a tribe has, the 
powers that a tribe has specifically over its members. It has 
taken away the territorial version of that sovereignty. In 
quotes that we looked at earlier, the earlier courts have 
recognized the territorial reach of tribal powers. In fact, 
Justice Rehnquist himself said in the Mazzare case years ago, 
before he became Chief Justice in this earlier period I've 
characterized as the modern era, a term I borrowed from my 
colleague Charles Wilkinson, he said that a tribe has power 
over its members and territory, and that is language that 
incorporates the notions going back all the way to Chief 
Justice Marshall's time.
    But there's been a turn of events since then. The current 
Court has said that kind of sovereignty, territorial 
sovereignty, no longer exists. That's the shift. It's just 
sovereignty over members and owned land, again the social club 
    The Chairman. Both of you have suggested that the Congress 
should do something about the present trend of the Rehnquist 
Court. What type of statute are you talking about, case-by-case 
or a statute of general application?
    Mr. Getches. Mr. Chairman, I think that the legislation 
will have to address cases, or at least the outcomes in cases, 
that now have become generalized to all tribes. Of course, a 
case comes up on one reservation concerning a couple of people, 
and then the law becomes generalized. Congress has a great 
advantage in being able to step back and look at the big 
picture and decide what the impact on Indian country as a whole 
and society as a whole will be, to have hearings and 
    I think that looking case-by-case at what's been done and 
seeing whether Congress is happy with those results at a 
generalized level is the first step. Then legislation to undue 
the effects of unacceptable results is necessary. This means, 
would man under the approach that I would recommend taking, a 
restoration of tribal powers in many of these instances where 
they have stripped away by the Court decisions.
    Second, a clarification of the jurisdictional situation on 
reservations. Third, a reaffirmation in a more general way of 
the foundational principles that were the formulation of the 
Supreme Court itself in the past. Give them back their own 
rules of decision and let them know that gap-filling will be 
done by the Congress and not by the Court.
    The Chairman. And you believe that will suffice?
    Mr. Getches. I beg your pardon?
    The Chairman. That will suffice? That would overcome these 
    Mr. Getches. Well, I think you need to start by being very 
specific about the principles in those decisions that need to 
be reversed. If, for instance, civil jurisdiction over non-
members in tribal courts is to be restored, that will have to 
be explicit.
    The Chairman. So then the law should specifically address, 
say, the Hicks case or the Atkinson case?
    Mr. Getches. Well, I think the approach of Congress should 
address those cases. The statement of the principle should be 
more than a reversal of the case by citation, which in a few 
rare cases Congress has done. I think this is like the approach 
to Duro v. Reina, where the case wasn't specifically overruled, 
but the principle was embodied in legislation after Congress 
determined that it was unacceptable. So, yes, it is case-by-
case, but probably without citation to or limitation to a court 
    I know Congress did that once in the case of United States 
v. Midwest Oil in the public lands area, just said the case is 
overruled. I think more amplified and thorough treatment is 
needed for these cases.
    The Chairman. If I may now ask Professor Anderson, do you 
have any personal theory as to why the Supreme Court in recent 
rulings seemed to ignore the stated Federal policy of self-
determination and tribal self-governance?
    Mr. Anderson. I think that there are a few reasons, a 
couple of which were stated by Professor Getches here. No. 1, I 
think that this whole notion that tribes have jurisdiction over 
non-members is something--and non-members who can't vote in 
tribal elections or run for tribal office in some cases, 
although a tribe can do what it wishes in terms of determining 
its officers might be, I think there's a fundamental problem.
    Justice Souter, in his concurring opinion to the Hicks 
case, outlined that reason as one of the particular problems 
that he personally sees in analyzing whether or not to affirm 
tribal jurisdiction over non-members.
    Second, my personal thought is that we don't have anybody 
on the Court who takes a great personal interest in these cases 
anymore. When Justice Brennan and Justice Marshall and Justice 
Blackmun were on the Court, they took it upon themselves to 
become scholars in this area. They cared about Indian law. They 
cared about Indian people and understood what was happening on 
the ground. I just don't think that we have anybody on the 
Court right now that takes that sort of an interest.
    When I look at the opinions, I see them as quite 
superficial in their analysis. I see them letting themselves 
off the hook by saying, well, if we make any mistakes, Congress 
can just remedy them. It used to be, under the Burger Court and 
prior Courts, that the law would run in favor of tribes. 
Ambiguities, as we all know, would be interpreted in favor of 
Indian tribal governments, and if a Court erred in terms of 
recognizing too much tribal governmental powers, the Court 
said, well, Congress can remedy that, as it did with the Indian 
Civil Rights Act. So we've seen a complete reversal in the 
modern era.
    I think it really comes down to a lack of interest and this 
notion that, oh, we're not going to recognize any special 
rights for groups, and because of the lack of interest, the 
Court fails to understand the governmental status, the 
political status of Indian tribes and treats them as a racial 
minority instead of as governments that they are that pre-
existed the establishment of the United States.
    The Chairman. Both of you have suggested that we should act 
on this trend. Can we impose upon both of you and call upon you 
for assistance in drafting appropriate legislation? We are not 
in the practice of overturning the Supreme Court. We have done 
that in some cases, like the Duro v. Reina case, but it is not 
common practice here. May we call upon both of you?
    Mr. Getches. Well, in my case, certainly. I would be eager 
and honored, and I wouldn't consider it reversing the Supreme 
Court, but merely providing guidance. [Laughter.]
    The Chairman. I do not think as a Member of Congress I 
should say that. [Laughter.]
    Mr. Vice Chairman.
    Senator Campbell. Thank you, Mr. Chairman.
    Dave, it is nice to see you again. I remember two decades 
ago when we worked on issues of mutual interest in Colorado, 
and I had great admiration for you then and still do. You have 
really a good heart when it comes to dealing with Indian people 
and Indian issues. I am glad to see you've done so well. I 
guess the jury's still out whether I've done well because it 
seems like all I do when I show up at these hearings is get 
mad. [Laughter.]
    But, I'll tell you, when I hear comments like yours and Mr. 
Anderson's, I do get mad, not at you, but at the process, the 
way we have treated Indians in the history of this country.
    It seems to me that they should have two sets of rights: 
that of being Native Americans as given in the treaties and 
that they inherit being an American, like any other American. 
Yet, we see a constant erosion of their rights on both sides of 
that equation.
    Some of those, it seems to me, ought to be protected in the 
Constitution like anybody else. And, yet, if they were 
protected in the Constitution, they probably would have had the 
right to vote at least as early as women did in this Nation. If 
they were protected, truly protected, by the Constitution, I 
mean the basic human rights that they ought to have like 
anybody else, we wouldn't have the remains of 16,000 Indians 
warehoused in the basement of the Smithsonian, although many of 
them are not there now because of the work of Senator Inouye 
and me. As you know, under the Museum of the American Indian 
Act 12 years, we required the Museum to start giving those 
remains back to the tribes and the families of the people they 
had collected.
    But I point that out because I think it's clearly different 
than any other, if I can use the word, minority is treated in 
this country. Indians have made some small gains sometimes in 
the state courts, as Mr. Anderson suggested, and years ago a 
few of them in the Supreme Court. They've made a few gains 
here, but it seems like every time they make a gain, they lose 
    You spoke at length about termination. Both of you did. 
I'll tell you, of all the misguided, dumb things that Congress 
could have done, I guess that was the classic worst. I often 
think that the Termination Act, the equivalent would have been 
for the Federal Government to tell African Americans that we 
passed a law saying you're no longer black. I mean, how stupid 
can you get? That was a stupid act.
    But we rectified that. We changed that, as you know. It's a 
good thing we did. It should have been done sooner. It did a 
lot of damage to Indian people.
    But now we seem to have, for lack of a better phrase, 
termination by Court decree, rather than what we have done 
here. Maybe we're getting a little more enlightened, but we 
have a long way to go. I know you're aware of that, too.
    But let me ask you just a couple of questions. That's our 
role, Congress' role. Maybe either one can answer, but let me 
just address it to maybe you, Dave, first of all.
    How much is our fault? How much are we to blame for 
allowing the Court to encroach in the field of Indian affairs, 
a field where the Constitution, and you pointed out a number of 
former decisions made by the Court that I think supported the 
fact that the Constitution delegates affairs with Indians to 
Congress. Have we made big mistakes by not taking this on 
    Senator Inouye mentioned that we don't often get involved 
in this, and I agree we don't. Maybe we should have a long time 
    Mr. Getches. Well, Senator Campbell, I would say, no, it 
hasn't been something that you look back at with regret or 
guilt for not wading in sooner, because who could have seen 
this coming? The jurisprudence of the Supreme Court has always 
been that, unless Congress speaks, we're going to read tribal 
powers as undiminished.
    Now implicit in that is there might be situations where it 
is intolerable for tribal powers or tribal rights to exist, and 
that Congress will take care of that.
    Senator Campbell. Now it seems that if we don't speak, they 
do diminish them.
    Mr. Getches. It's just the opposite now. I think that while 
you can't say that Congress has dropped the ball in the past, 
it would be a serious mistake not to wade in at this point. 
We're all on notice. This thing has gone on for at least 15 
years, and it doesn't appear to be getting any better. In fact, 
every decision that comes down, as those trends indicate, show 
that things are getting much, much worse, and it's time for 
Congress to act.
    Senator Campbell. Well, we're doing things little by 
little. I'm just not sure that the courts are getting the 
message. During the 106th I sponsored a bill that repealed 
parts of the Dawes Act. That message was really to thoroughly 
repudiate the allotment policy. Will things like that have an 
effect on future decisions, do you think?
    Mr. Getches. Yes; they certainly should, but then one would 
think that the legislation that is the legacy of this committee 
over the past many years, and of its members and their work, 
and of Congress itself, one would think that that would send a 
clear enough message to the Court. I think that you need to 
stay the course on dealing with these vital issues, but be much 
more directive in terms of the rules of decision. There isn't 
another area in constitutional law that I think of where 
Congress' power is more clear-cut and more sweeping than in 
Indian affairs, and it's time to act on that.
    Senator Campbell. In 2000 also enacted a bill I introduced 
called, ``The Indian Tribal Legal Systems Enhancement Act,'' 
which would help, strengthen the tribal courts. Yesterday 
Justice Breyer spoke at the National Congress of American 
Indians and noted the need for solid Indian courts. Do you 
think that if we continue the strengthening of tribal courts, 
that the Supreme Court would recognize the tribes have the 
ability to deal with their own problems?
    Mr. Getches. I think it's absolutely essential that those 
efforts move forward. Without them, there is going to be 
backsliding, maybe even in a more understanding Court, one 
which, as Professor Anderson indicated, has a member or two who 
really is engaged on Indian law. Even in those Courts, if you 
don't have a strong tribal court system itself, the support 
from the Federal judiciary is not likely to be sustainable. 
However, it is still not enough. It is not going to be enough 
when you have members of this present Court talking about 
tribal courts as strange institutions, as institutions that 
have come a long way, but are still alien to many people and 
have their own customs and their own rules of decision that are 
not all written down.
    Senator Campbell. Has that been language that's been 
included in the Supreme Court's decisions?
    Mr. Getches. Yes; it is. I could read you worse language. 
I've collected it all, and it's frightening. It borders on 
    Senator Campbell. When we speak of sovereignty, do you 
believe the Federal Government has the trust obligation to 
protect tribal sovereignty?
    Mr. Getches. Does the Court have it?
    Senator Campbell. Do we have it?
    Mr. Getches. Oh, definitely, the Congress is the lead 
trustee, if you will. I like to look at this like a bank. 
Congress is the bank----
    Senator Campbell. I believe so, too, but I think the 
problem we face now is the tribes in some cases feel they have 
no place to go. Is there anything the tribes can do if we fail 
in our obligation to uphold that obligation?
    Mr. Getches. The buck stops here.
    Senator Campbell. It seems like I've heard that somewhere 
before. [Laughter.]
    Professor Anderson, how can Congress--this is kind of 
rhetorical; you might not even answer that--but how do we get 
the Supreme Court to return to their former approach, assuming 
that tribal authority exists until it is clearly extinguished 
by an act of Congress?
    Mr. Anderson. Well, I just think that you've got to act. 
You know, we can wait around 30 or 40 years and hope for a 
better Court and try to get them to discard this approach as 
wrong-headed. That's always possible. But unless this body 
acts, I just think that we're going to continue this downward 
spiral. I mean, it reached a crescendo last year with Hicks and 
Atkinson. It's been getting worse every year for the last 15, 
and it's time to stem the tide here.
    Senator Campbell. Thank you. I appreciate the appearance of 
both of you.
    Thank you, Mr. Chairman.
    The Chairman. I just have one more, but I would like to 
submit several other questions, if I may.
    It appears, as you have pointed out, both of you, that more 
and more the Court seems to be applying a principle that tribal 
exercise of criminal, civil, judicial, or regulatory 
jurisdiction over non-members would be inconsistent with the 
domestic status of tribal governments. Statutorily, do you 
believe we can prevent the Court from applying this principle?
    Mr. Getches. The powers of Congress to legislate in this 
area may be limited if there is a constitutionally-based 
decision of the Supreme Court. One such decision apparently was 
the Court's decision in Smith, which the Congress tried to 
rectify--that's the Peyote case--with an act that re-
established the strict scrutiny test for establishment of 
religion cases. That was struck down by the Court itself. You 
tried to remedy the situation. The Court said, no, this is a 
constitutional matter.
    But I think strictly within the realm of Indian affairs, 
the power is much greater. That dealt with the First Amendment 
and defining the constitutional powers under the Bill of 
Rights. But commerce clause powers belong to Congress. Even if 
the Court finds that constitutionally tribes never had a power, 
you can do it. You can restore those powers. Certainly even if 
a power didn't exist before, you could delegate it to an Indian 
    The Chairman. May I thank both of you on behalf of the 
committee, and we will be calling upon you for assistance, if 
we may.
    Mr. Getches. Thank you, Mr. Chairman.
    Mr. Anderson. Thank you.
    The Chairman. Thank you very much.
    And now we are most privileged to have as a witness the 
Senior Judge of the United States Court of Appeals for the 
Ninth Circuit, William C. Canby, Jr.
    Judge it is a great pleasure and honor to have you here, 


    Mr. Canby. Mr. Chairman, members of the committee, I used 
to teach Indian law, and in the last 20-some years I have been 
on the Court occasionally deciding cases of Indian law, but I 
have to begin my remarks by saying that I speak as a former 
teacher and a present student of Indian law, and I hope a 
scholar of Indian law, but I can't speak for my Court or the 
Federal Judiciary in general.
    I have been asked to elaborate on some trends in the Court, 
and I'll try not to go over ground that has already been 
covered so well by Professors Getches and Anderson. But there 
are two or three doctrines that the Supreme Court has evolved, 
and even within those doctrines, has changed over time. The 
present trend in use of all of those doctrines is to the 
detriment of tribal power.
    We've already seen in the analysis of Professor Getches 
that there's been a reversal of the original presumption. I 
date it from what was a friendly decision of McClanahan back in 
the 1970's, where since the days of John Marshall, it had 
always been assumed that the States had no power in Indian 
country unless it had been affirmatively granted by Congress or 
by a treaty or something like that.
    The presumption has been switched, as some of the language 
shown by Professor Getches indicates. So now they say, well, 
the state power extends into Indian country unless there's some 
positive law excluding it. That is a function of the last 20 or 
so years. Once you switch the presumption, then when you get to 
any particular case, the tribe tends to suffer.
    I would like to emphasize most, though, the business of the 
Supreme Court in deciding that various powers are inconsistent 
with the status of the tribes as domestic dependent nations. 
The Court is going against the historical background that I 
think has already been set out for you. When John Marshall 
decided that the tribes were separate nations governing their 
own territories, territories in which the laws of Georgia could 
have no force, Chief Justice Marshall was acting perfectly in 
accord with the dominating congressional legislation of the 
time, the Trade and Intercourse Acts. The first one was passed 
by the very first Congress.
    Those acts, for instance, provided that tribes could not 
alienate their land to others without the consent of the United 
States. They could only alienate to the United States. So the 
Judiciary and Congress were pretty much in synchronization at 
that time.
    Then we went through the period of assimilation, and that 
was ended in 1934. The time of allotment ended in 1934. The 
time of termination came in the fifties, and that was ended, 
and we've already had reference to that. So by 1968, with the 
effective repeal of Public Law 280 by the Indian Civil Rights 
Act, and in 1970 by the Executive pronouncement of President 
Nixon, we had Congress and the Executive once again back on a 
historical track of protecting Indian self-determination. It's 
been buttressed by things like the Indian Self-Determination 
and Education Assistance Act.
    At that time the Supreme Court was on board, too. The 
dominating case of that time in 1959 was Williams v. Lee, which 
held that, if a non-Indian wanted to sue an Indian over a 
transaction that occurred on the reservation, that non-Indian 
would have to go to tribal court. The reason that non-Indian 
would have to go to tribal court was that to sue an individual 
Indian in State court would interfere with the self-government 
of the tribe.
    Now we have to think of what kind of an interference that 
is when we look at what the Court is doing today. Justice Black 
in Williams v. Lee said, if you take an individual Indian and 
sue over a private transaction, and sue that Indian in State 
court, that's an interference with self-government of the 
tribes, and it can't be done. The State court has no 
    So the Court and the Executive and Congress were really 
quite in agreement as of, say, 1970, and then it began to 
deteriorate with Oliphant in 1978, when it was held that tribes 
had no criminal jurisdiction. Why? Well, Oliphant went through 
some Federal statutes and made an argument that was perhaps at 
least arguable that they seem to assume that the tribes 
wouldn't be exercising jurisdiction over non-Indians.
    But the Court didn't really base its decision on those 
statutes at all. It says, well, exercise of criminal 
jurisdiction over non-Indians would be inconsistent with the 
status of the tribes as domestic dependent nations.
    Now Chief Justice Marshall had announced two disabilities 
of dependent status. The tribes could not alienate their lands 
to others than the Federal Government or with the consent of 
the Federal Government, and this was in line with the 
congressional policy of protecting the Indian land base from 
erosion by aggressive States and State citizens.
    And the other, which seemed to be almost necessary once the 
tribes were engulfed within the United States, was that the 
tribe lost control of external relations. And what did they 
mean by that? They meant the tribe, an Indian tribe, could not 
make a treaty with Germany or France. They lost their power 
over external relations in the international foreign relations 
    Justice Marshall said, well, if a foreign power tried to 
make a treaty with an Indian tribe, we might well consider that 
an act of war as a nation. Well, we still hear the phrase from 
the Supreme Court today that the tribes lost power over 
external relations, but what they now mean is that the tribe 
can only deal with its own members on its own land. It means 
that they can't deal with a non-Indian who's in Indian 
territory doing things there and is brought into tribal court. 
That is not an external relation within John Marshall's view of 
domestic dependent status.
    Well, once this line was broken and Oliphant invented a new 
limitation on tribal status because of domestic dependent 
status, it's an unbounded category. Any time the Court is 
suspicious of a tribal power and decides to strike it down, it 
can simply say it's inconsistent with domestic dependent 
    The list is long. Rice v. Rehner, the tribes lack status to 
adopt a preemptive liquor licensing law, of all things. Strate, 
they lost the power to adjudicate accidents that occur on a 
public right-of-way within the reservation that's on tribal 
land when non-Indians were the parties.
    Then we have Atkinson, the taxation of non-Indians on fee 
land, and Hicks v. Nevada just last term, where State officers 
enforcing a search warrant were held not to be subject to 
regulation by the tribe, even when they're executing a warrant 
against an Indian on Indian land, on Indian-owned land.
    Well, the key case that the Supreme Court is using when 
they invoke these doctrines now is Montana against United 
States, which was decided in 1981. The Court now considers that 
the fountainhead of its jurisprudence.
    When Montana came down, most of us didn't get too excited. 
It seemed to create a small exception to what we all assumed 
was the power of the tribe to exercise regulatory jurisdiction 
over its whole reservation, fee and non-fee, Indian and non-
indian. The exception? Well, when a rancher owned his own 
ranch, he could go out and hunt birds or deer on that ranch, 
and the tribe wouldn't be able to regulate it.
    Well, that seemed like a small exception, and even that 
exception had exceptions. If it affected the welfare of the 
tribe, they talked about the internal relations, the self-
government, but also the health or welfare of the tribe. If the 
non-Indian conduct, even on fee land, affected the welfare of 
the tribe, then the tribe would be able to regulate. That's the 
way Montana was read by most of us.
    It also had language, however, which talked about the 
tribal power really is over Indians and isn't really aimed at 
non-Indians. But the holding was rather narrow. But as has 
happened in almost every case since Montana, the most 
pernicious language in the opinion becomes the deciding point 
in the next case. Montana was an exception. We all saw it as an 
    Well, what happens is Montana becomes not the exception, 
but the rule. The rule is that tribes are presumed not to have 
regulatory power over non-Indians.
    Well, that wasn't the holding, but it has become the rule 
that people talk about. So when we get to Strate, we have 
Justice Ginsburg saying, well, we've got to interpret very 
narrowly the exceptions to Montana because, if you interpret 
the effect on welfare broadly, it would swallow the rule. Well, 
this ignores the fact that Montana was supposed to be an 
exception to a rule.
    What happened now, by interpreting the Montana exceptions, 
the exceptions to Montana narrowly, Montana has become the 
exception that is swallowing the rule, the rule being that 
tribes have power over their own territories and the people 
within it.
    Well, Strate, for instance, admitted that those who drive 
carelessly on a public highway running through the reservation 
endanger all in the vicinity, and surely jeopardize the safety 
of tribal members. But if Montana's second exception requires 
no more, the exception would severely shrink the rule, and so 
on. Well, of course, there is an effect on the tribe when 
people race down the highway right through the reservation on 
tribal land.
    The last two cases, Atkinson and Nevada, make me wonder, as 
I do in my written testimony, whether the Court fully 
understands the impact of its decisions in Indian country. In 
Atkinson the Navajo tribe, which provides services to the 
trading post on fee land that is surrounded by an within the 
reservation can't impose a hotel tax. Well, there are small 
tribes, for instance, whose primary income, or a very 
substantial part of it, comes from taxing railroad property 
that goes through a right-of-way over Indian land. Has it lost 
its primary tax base? Remember, Strate now says right-of-way is 
just like fee land, and Atkinson says, well, you can't tax non-
Indian things on fee land.
    Well, this is a very, very disruptive decision. It is a 
judicial construct. It comes from nothing Congress has said. It 
isn't consonant with Congress' view that tribes are self-
governing bodies with control over their territories.
    The same with Nevada against Hicks, I wondered if the 
Supreme Court, when it decided Nevada against Hicks, wondered 
why when State officers went to a State court in Nevada and 
asked for a search warrant to be executed against an Indian on 
Indian land within a reservation, the State judge said, well, I 
can give you a search warrant, but it's no good there; you will 
have to go to tribal court. That State judge did what, to my 
knowledge, every State judge that I know in the West would have 
done, was to say, sure, I can give you a writ if you want, but 
it doesn't run on the reservation against an Indian.
    So the State officers did what is not at all unknown. They 
went to the tribal court and they got a search warrant, which 
isn't hard to do and it wasn't hard to do in Hicks. They then 
went to execute it. Unfortunately, they allegedly exceeded the 
scope of it and caused some damage to property, and so on.
    But all of this, if you take the rationale of the Supreme 
Court in deciding Hicks, that State judge was just engaged in a 
nicety. There was no necessity for that. The tribal officers 
could have walked right onto tribal land. They didn't have to 
notify anybody. They could exercise their search warrant just 
banging on the door, as they would off reservation, without 
saying ``boo'' to anybody. That's the rationale of Hicks. 
That's the law of Hicks.
    Well, they even drop a footnote dealing with, in either 
Atkinson or Hicks, I believe it was actually Atkinson, where 
they drop a footnote saying that, well, we wouldn't want the 
reservation to become a haven for criminals, and they refer to 
an old 1970's case from the Ninth Circuit which deal with 
extradition from the Navajo Reservation, and it didn't permit 
extradition because the Navajos did not have an extradition 
treaty with Oklahoma, as they did with Arizona, an extradition 
    Well, several of the tribes, many of the tribes have 
extradition agreements, either informal or formal, in my part 
of the country. Those were worked out over a long period of 
time. Under Hicks, it's so much waste paper and waste effort. 
If the State of Arizona wants an Indian who has committed a 
crime off reservation, under Hicks it can just go in and arrest 
him, get an arrest warrant from a State court. They don't have 
to ask a tribal court. They don't have to ask a tribal 
government. They don't have to ask anybody. They can just go in 
and make the arrest, if you follow Hicks.
    Well, this has upset settled expectations in Indian country 
in a way that I suspect even the members of the Supreme Court 
may not fully understand; I don't know. But if you look at 
Hicks and Atkinson, Atkinson particularly, which says that 
certainly the Cameron Trading Post has an impact on the tribe--
I mean, it costs some fire and police protection, and so on--
but it doesn't threaten the very viability of the tribe. So it 
doesn't interfere with tribal self-governance.
    In Hicks, Justice Scalia has said, well, this doesn't fall 
within the second Montana exception because, with the exception 
that says that if it affects the health and welfare of the 
tribe, then the tribe can regulate it, it doesn't fall within 
that exception because the state's interest in enforcing the 
law is very strong. Well, they're supposed to discuss the 
tribal interests when you decide whether something affects the 
health and welfare of the tribe, not just the state interest, 
but the Supreme Court did not do that.
    Indeed, if you look back at Williams v. Lee, suing an 
individual Indian on a private contract in State court was 
considered an impermissible interference with self-government. 
Now we've moved to where you can have an impact on the fire 
services, the police services, you can endanger the tribal 
members on the highways, and none of that has an effect on the 
tribe because it doesn't threaten the very existence of the 
tribal government. That's just much too strong a test, and it's 
an evolution of a test that the Supreme Court has used. It is 
certainly not in--it does not come from anything Congress or 
the Executive has ever done.
    I know that we are getting pressed for time, and I will 
only refer briefly to the rest of my testimony. That had to do 
with when this committee and Congress corrected the result of 
Duro v. Reina and referred to the inherent authority of tribes 
to exercise criminal jurisdiction over non-member Indians.
    The effect of that came to an en banc decision of my court 
to consider just how that worked out. All 11 members of the 
court said that, well, this was really an adjustment of the 
Supreme Court's view of history or it was not necessary to 
adjust it. Either way, the tribe was exercising its sovereign 
power after this act, and so there was no double jeopardy 
    The important point for the purposes of today, however, is 
that all 11 judges--there was no dispute--all 11 judges had no 
difficulty with the idea that this body has the ultimate power 
to decide what jurisdiction the tribes have, and the fact that 
there's been a Supreme Court decision which was overruled by 
this body is simply business as usual, because in non-
constitutional matters the Supreme Court is simply operating 
until Congress speaks, and Congress had spoken. There's no 
question now that the tribal courts have that power, and the 
Supreme Court denied review of that 11-judge decision.
    So I believe that my view is much in accord with that of 
the first two witnesses. The trend of Indian decisions in the 
last 15, possibly to 20, years has been seriously out of 
synchronization with that of the Congress and the executive 
    I thank the committee for permitting me to address them.
    [Prepared statement of Judge Canby appears in appendix.]
    The Chairman. I thank you very much for your learned and 
scholarly explanation.
    If I may, I would like to ask the same question I asked of 
Professor Getches. You spoke of the principle that the Court, 
the Rehnquist Court, has been applying, that tribal governments 
have lost governmental powers because the exercise of these 
powers would be ``inconsistent with their status as domestic 
dependent sovereigns.''
    Can Congress statutorily prevent the Court from applying 
this principle in future cases?
    Mr. Canby. Yes; I think it could. It is hard, I suppose, to 
have legislation which simply says that there's some sort of a 
principle that cannot be applied, but you can have legislation 
that's clearly inconsistent with the principle and the Court 
would be forced to follow it.
    For instance, there could be legislation stating 
specifically in some of the same areas that the Court has been 
making decisions in, that the inherent power of the tribes 
include, and then name things that the Court has said were 
inconsistent. Congress can announce that they are, indeed, 
consistent. That is much in the manner of what Congress did 
after Duro v. Reina.
    I don't see this, incidentally, as a battle between 
Congress and the Court at all. The Court has never purported in 
any of these decisions except the Smith religious decision to 
be announcing constitutional policy. There are several points 
in these decisions where they say, in the absence of acts of 
Congress, and what they mean is a specific act of Congress on 
this very point. In the absence of an act of Congress, then we 
decide this. In the absence of an act of Congress, the tribes 
cannot exercise jurisdiction, criminal jurisdiction over non-
member Indians. Well, then there was an act of Congress, and 
the Court has yielded to it.
    I think that if this body chooses to overrule decisions of 
the Court, it's not something that the Court would view as an 
interference with its business because it recognizes the 
plenary power of Congress in this area.
    The Chairman. Does the Constitution of the United States 
explicitly grant or vest the Supreme Court with authority to 
change the legal status of Indian tribes?
    Mr. Canby. Well, no, it certainly doesn't explicitly vest 
that authority in the Supreme Court. There has been a long 
tradition, however, from Marshall of the Court's deciding what 
the status of the tribe is when a decision requires it. In 
other words, when there is a dispute before the Court that 
turns on the capacity of the tribe, then the Court might have 
to decide its view of the status or the capacity of the tribe, 
but it would certainly be subject to any directions Congress 
    The Chairman. Judge, I thank you very much.
    Mr. Vice Chairman.
    Senator Campbell. Thank you, Mr. Chairman. Thank you.
    Judge Canby, do you think your colleagues on the Federal 
Bench would be opposed to legislation that expanded tribal 
court jurisdiction over non-Indians if it allowed some form or 
review or appeal in the Federal courts?
    Mr. Canby. No; I don't think they would be opposed. They 
might well go take the position that it's really up to Congress 
to decide and we will exercise jurisdiction and we will 
recognize tribal jurisdiction whenever the Congress pleases.
    Senator Campbell. Second, it is my understanding that 
Federal law requires Federal courts to implement arbitration 
decisions even if the Federal courts disagree with the result 
reached by the arbiters and even if they think the arbiter 
applied the law incorrectly. Could Congress require the Federal 
courts to implement tribal court rulings in a similar manner?
    Mr. Canby. I don't see why they couldn't. I haven't thought 
about that, but we certainly would have, I would think in 
reviewing a tribal court decision, as we now do in habeas 
corpus under the Indian Civil Rights Act, we give the same kind 
of deference, I believe, to a tribal court decision that we 
would have to give to a State court decision, if we were 
exercising habeas jurisdiction, which is a very deferential 
standard of review. Findings of fact by that Court, for 
instance, normally don't get re-examined.
    Senator Campbell. Thank you, Mr. Chairman. No further 
    The Chairman. Thank you very much, Your Honor.
    Mr. Canby. Thank you, Mr. Chairman. Thank you, members of 
the committee.
    The Chairman. Now may I call the chief justice of the 
Navajo Nation Supreme Court, Robert Yazzie; the chief justice 
of the Supreme Court of the Wind River Reservation of Wyoming, 
John St. Clair, and the chairman of the Jamestown S'Klallam 
Tribe of Washington, W. Ron Allen.
    Now it's my great honor to call upon the chief justice of 
the Navajo Nation Supreme Court.


    Mr. Yazzie. Chairman Inouye and Vice Chairman Campbell, and 
the working staff of this committee, I appreciate the 
opportunity to speak to this committee on the effect of recent 
U.S. Supreme Court rulings on the Navajo Nation and its legal 
system. A copy of my entire comments has already been submitted 
for the record. So I will quickly give a summary of the Navajo 
Nation's concern.
    The rulings have caused many problems. Neither Indians or 
non-Indians have a clear understanding of what happens when 
someone commits an act or causes harm in Indian country, and 
victims of crime are helpless because of the failure of Federal 
prosecutors to prosecute. One of the problems from the rulings 
is that the docket of the Navajo Nation Supreme Court is 
crowded with jurisdictional challenges.
    Another, businesses with right-of-ways or leases of Navajo 
Nation land, such as utilities and pipeline, are now claiming 
that the Navajo Nation has no authority to regulate or sue 
them. Navajos are being denied the right to access to our 
courts when they are involved in motor vehicle accidents or 
incidents on highway rights-of-way across Navajo Nation land.
    Even though Congress dealt with the issue of criminal 
jurisdiction over non-member Indians, Russell Means continues 
to challenge this congressional action and our authority to 
deal with family violence by non-Navajos.
    A non-Navajo sued the State of New Mexico and the Navajo 
Nation over a civil traffic ticket for speeding and resisting 
arrest by a Navajo Nation police officer cross-deputized as a 
State law enforcement officer. Now even the BIA's putting 
forward cross-Commission agreements with state law enforcement 
agencies without our input.
    Last November a member of the Hopi Nation was arrested for 
possession of unlawful weapons and the possession and 
distribution of liquor, but we have no jurisdiction because the 
arrest was done on a highway right-of-way within the Navajo 
Nation. The defendant is currently challenging Navajo 
    State police officers are entering the Navajo Nation and 
engaging in misconduct or violations of the Treaty of 1868. One 
situation involved a high-speed chase that resulted in a death. 
County deputies are entering the Navajo Nation to siege license 
plates without a hearing, and they are attempting to arrest 
Navajos for crimes committed outside the Navajo Nation without 
following Navajo extradition laws.
    Navajo trial courts are being sidetracked from the nuts-
and-bolts of deciding cases because of the large number of 
jurisdictional challenges. Creditors are now saying, ``We do 
not need to follow Navajo Nation consumer protection laws.''
    In sum, recent U.S. Supreme Court decisions have made it 
impossible to maintain a functioning civil government in the 
Navajo Nation to safeguard the public.
    We are all concerned of the way things have changed after 
September 11, 2001, but you may not be aware of the consequence 
for Indian country. The U.S. Department of Justice has released 
reports on the fact that crimes in Indian country are far 
higher than other parts of the United States, and domestic 
violence in Indian country is out of control.
    Given decisions of the Federal Bureau of Investigations and 
the U.S. Department of Justice to make the war on terrorism and 
homeland defense priorities, I am concerned about our power to 
punish and our power to prevent crime. The ability of Indian 
nations to effectively exercise jurisdiction and to address 
crime and social problems must be maintained.
    There are also fears expressed by the U.S. Supreme Court 
about whether tribal courts can and will protect individual 
civil rights. Mr. Chairman, Mr. Vice Chairman, I give you my 
assurance that the courts of the Navajo Nation can and do 
provide individuals these protections.
    One controversial issue is that tribal courts do not 
appoint counsel for indigents. This is not true. We have a law 
for appointing counsel that fully complies with the Federal 
constitutional standard that an indigent must have counsel if 
there is a likelihood of a jail sentence.
    Non-Indians challenge the fairness of Indian customary law. 
Non-Indians assume that traditional Indian law is some kind of 
mystery, something to be feared. In our legal system decisions 
are written in English, in plain words, the commonsense nature 
of Navajo commonlaw. The Navajo Nation Bar Association has 400 
members. They are required to learn Navajo common law. Many 
nonIndian lawyers appear before the Navajo Nation courts and 
administrative hearing officers, making arguments in Navajo, 
using Navajo commonlaw.
    The lack of jurisdiction to regulate activities and to hear 
a case because one or both of the parties are non-Navajo or the 
activity or event took place on lands that may or may not be 
Indian country is a nightmare. The Navajo Nation legal system 
is open, visible, and easy to understand. Under the Navajo 
Nation Bill of Rights that predates the Indian Civil Rights 
Act, all protections of the U.S. Constitution are available.
    Recent rulings of the Supreme Court are not grounded in the 
Constitution. In fact, the U.S. Supreme Court has openly 
invited Congress to clarify these jurisdiction complexities. It 
is time for Congress to act.
    The Navajo Nation asks this committee today to commit 
itself and the Congress to work with Indian nations to resolve 
these jurisdictional problems by legislatively recognizing and 
affirming the inherent authority of Indian nations to regulate 
the activities of all individuals within their territorial 
jurisdiction. The Navajo Nation is committed to do just that. 
Thank you.
    [Prepared statement of Justice Yazzie appears in appendix.]
    The Chairman. I thank you very much, Mr. Chief Justice. I 
can assure you that the chairman and the vice chairman of this 
committee will do everything possible to address the problems 
that you have cited. However, I cannot speak for the Congress 
of the United States, but we will do our best to convince them.
    Now it is my privilege to call upon the chief justice of 
the Supreme Court of the Wind River Reservation, Chief Justice 
John St. Clair.


    Mr. St. Clair. Good afternoon, Chairman Inouye, Vice 
Chairman Campbell, and distinguished members of the Senate 
Committee on Indian Affairs.
    Thank you for the invitation to come before you today to 
talk about a topic that has a major impact upon Indian tribal 
governments. My name is John St. Clair. I'm the chief judge and 
chief justice of the Shoshone and Arapahoe Tribal Court located 
in west central Wyoming. I'm an enrolled member of the Eastern 
Shoshone Tribe. I'm also a licensed attorney. I have been in 
that position since 1983. I'm also on the board of directors 
for the National American Indian Court Judges Association.
    The Wind River Indian Reservation is approximately 3,500 
square miles in area, and it's inhabited by approximately 
12,000 members of both tribes, plus other Indians living within 
the exterior boundaries. In addition, there are about 25,000 
    The Shoshone and Arapahoe Tribal Court, through a 
comprehensive law and order code, extends jurisdiction over all 
persons who have significant contacts with the reservation and 
over all Indians who commit offenses that are prohibited in the 
law and order code. It consists of a chief Judge who must be a 
professional attorney and three Associate Judges. There is an 
appeals court that consists of remaining judges who did not sit 
as trial judge.
    Jurisdiction is limited by applicable Federal law. Total 
caseload for 2001 was approximately 3,500 cases.
    The recent U.S. Supreme Court decisions have become a major 
concern for the tribes due to their intensified passion to 
limit the sovereignty of tribal governments. As stated before 
by the other witnesses, tribes have lost, between 1990 and 
2000, 23 out of 28 cases argued by the U.S. Supreme Court.
    Beginning with Oliphant v. Suquamish Tribe in 1978, the 
tribes held by implication for the first time, the Court held 
that tribes are without inherent jurisdiction to try non-
Indians for crimes. From this case, a new doctrine has emerged 
that tribes lack certain powers that are inconsistent with 
their dependent status, even when Congress has not acted to 
terminate those powers.
    This new doctrine has been extended to the civil area, the 
regulatory area in Montana v. United States and the 
adjudicatory area in Strate v. A-1 Contractors; recently, in 
Atkinson Trading Post v. Shirley to a hotel occupancy tax 
imposed by the Navajo Nation. The most recent extension was 
mentioned before, United States v. Hicks, where was held that 
tribes lacked jurisdiction over civil suits against State 
officials for violating the rights of Indians on Indian land 
within a reservation.
    The impact of Oliphant and its progeny on the powers and 
authorities of Indian tribal governments is that it severely 
restricts the ability to exercise basic regulatory and 
adjudicatory functions when dealing with everyday activities on 
reservations. When both Indians and non-Indians are involved in 
domestic violence, alcohol and/or drug-related disturbances, or 
other criminal activity, the tribes can only adjudicate the 
Indians while non-Indians, even when detained and turned over 
to State officials, go unpunished. This double standard of 
justice creates resentment and projects the image that non-
Indians are above the law in the area where they choose to live 
or choose to enter into.
    The effect on tribes of not being able to regulate taxing, 
hunting and fishing, the environment, zoning, and even traffic 
places limitations on economic development and self-
sufficiency. Without the ability to generate revenues to fund 
basic governmental functions, tribes become more and more 
dependent upon Federal grants, contracts, and compacts as a 
sole source of funding. This results in increased economic 
burden that ultimately falls on the Federal Government.
    Now tribal courts constitute one of the front-line 
institutions that are involved in issues involving sovereignty. 
While charged with providing reliable and equitable 
adjudication of increased numbers of criminal cases by both 
Indians and non-Indians and complex civil litigation, tribes 
are increasingly underfunded.
    Tribes and their courts also agonize over the same issues 
that Federal and State courts do, such as violence against 
women, sexual abuse of children, alcohol and substance abuse, 
gang violence, child neglect, pollution of the air, the water, 
and the earth. These are just some of the common, yet 
complicated, problems that arise on Indian reservations.
    These vast panorama of cases handled by the 500-plus 
courts, Indian courts, would significantly increase the 
caseloads of Federal district courts and also state courts, if 
they chose to exercise this jurisdiction. This would not only 
increase the caseloads, but increase the cost to Federal and 
state courts and result in major budget shortfalls.
    This recent trend of the U.S. Supreme Court toward judicial 
termination poses the greatest threat to tribes since the 
allotment era of the 19th century and congressional termination 
of the mid-20th century, and it runs counter to the proclaimed 
Federal policy of self-determination that has repudiated the 
allotment and the termination policies.
    The third sovereign, America's third sovereign, the Indian 
tribes occupying Indian country, have come before you today to 
ask that you utilize the plenary power of Congress found in the 
Indian commerce clause, Article I, Section 8, Clause 3, of the 
U.S. Constitution and request that you restore and reaffirm the 
inherent and regulatory adjudicatory authority of tribes over 
all persons and all land within Indian country as defined in 18 
U.S.C. section 1151. This approach would place the exercise of 
jurisdiction in the hands of the tribes and the extent of it 
within their organic and case law, making it a question of 
tribal law.
    I want to also add that recent Supreme Court Justices have 
invited Congress to rectify these decisions that diminish 
tribal sovereignty through legislation. Just the other day, 
Justice Breyer in a speech invited Congress to act.
    A recent Supreme Court case that was requested to go to the 
Supreme Court was denied certiorari, United States v. Enas. 
This case affirmed the Duro fix legislation and let stand that 
legislation. So today we ask that Congress go forward with this 
legislation and take the same or similar approach that was done 
in the Duro, the so-called Duro fix.
    Again, I want to thank you for this opportunity that you 
provided to my tribes and to all Indian tribes today together. 
Thank you.
    [Prepared statement of Mr. St. Clair appears in appendix.]
    The Chairman. I thank you very much, Mr. Chief Justice.
    May I now call upon Chairman Allen. It is always good to 
have you here, sir.

                           SEQUIM, WA

    Mr. Allen. Thank you, Mr. Chairman. It's always an honor to 
be before this committee. It's disappointing that we have to be 
here with regard to a matter that makes our hearts heavy.
    For the record, I am Ron Allen, chairman for the Jamestown 
S'Klallam Tribe, a signatory to the No-Point Treaty in 
Washington State. I'm here as a former president and first vice 
president of the National Congress of American Indians. In that 
capacity, I am cochairing, along with the president of the 
Navajo Nation, a National Tribal Task Force to propose some 
options and approaches to deal with what we believe are clear 
attacks of the Federal court and Supreme Court system on tribal 
sovereignty and tribal jurisdiction.
    Because of the Hicks and Atkinson case, the tribes 
definitely came together to start deliberating on what is it we 
can do. As a former NCA officer, I joined in this effort to 
crisscross Indian country, because of the profound concerns of 
the tribal leaders, our lawyers, our counsels, and our people 
regarding the future of our governments, our reservations, and 
the welfare of our communities.
    The speakers before me have provided you a great deal of 
details and examples of Indian law, the background of the 
tendencies of the Supreme Court and Federal court system with 
regard to Indian law. Suffice it to say that I and my 
colleagues clearly believe that, as a basic principle, the 
treaties, the Constitution, Federal Indian law has made it 
quite clear: Indian governments are supposed to be provided the 
authority, based on our sovereignty, to govern ourselves, to 
provide for the needs of our people, and to protect our 
cultures, our unique ways of life that are very unique to our 
    There's over 560 American Indian and Alaska Native nations 
across the United States, and our ways of life are very unique. 
We believe that the fundamental rule of Indian law is that we 
retain our inherent sovereignty and that we have that 
    So as we're moving forward and engaging in discussions with 
this committee and the Congress, the question becomes: Where 
are we going and what are the problems that we have to face? As 
a tribal politician, I'm not a lawyer nor am I a justice. 
That's not our duty. Our duty is to provide leadership for our 
community. Our duty is to establish the laws for our 
communities, so that we can have order over how our communities 
are going to advance. Our duties are to be able to advance the 
goals of our communities and to utilize the opportunities that 
the Congress is making to help the tribes become more self-
sufficient and self-reliant, based on our own laws and our own 
rules and our own value systems.
    There are a lot of laws that have been passed over the last 
number of years, and many of them have been constructive, but 
many of them have been counterproductive with regard to 
advancing those goals. When Public Law 280 was passed, many 
people would argue that it had pluses and minuses with respect 
to the various Indian communities.
    But there's been a basic concept with regard to these laws 
and the principles of the Congress, and that is that they 
respected tribal sovereignty, that they respected the 
responsibilities of the tribal governments, and that the tribes 
have jurisdiction over our lands, unless Congress is attempting 
to revise that authjority or modify that in any way.
    The string of court cases that has emerged from the Supreme 
Court, from back in the Oliphant case to the Montana case, 
Atkinson case, and so on, certainly is providing us some great 
concerns. The Atkinson case with regard to, can we tax? And 
it's saying absolutely not, you cannot tax non-Indian 
businesses on Indian lands. Where historically you looked at 
what Congress has established through treaties with Indian 
nations, provided a preservation of certain lands that the 
tribes have reserved, and then the Congress created some 
complications, the Dawes Act. Subsequently, the Dawes Act 
created all kinds of new problems with the checkerboard 
reservations, and so forth, and the slow erosion of those 
reservations, but we believe that it didn't change our 
authority over the activities within those reservations or the 
right that we preserved in our treaties.
    But these cases now are redefining that matter, and it is 
also redefining the current objective of the Congress to 
preserve the self-determination and self-sufficiency goals of 
the tribes. If the Congress says, you need to become self-
sufficient but we can't tax, where does Congress think that 
we're going to start getting revenues? If the Congress doesn't 
believe that--or if the Court starts saying that we can't 
provide order within our reservation borders, how are we going 
to invite investors to come into our reservations and invest, 
if they feel that they have no due recourse or they have no 
confidence over the order that is supposed to be maintained 
within the reservation borders?
    Based on the way the Supreme Court decisions are heading, 
we are supposed to govern our reservations, but we can't 
prevent non-Indians from committing crimes; we can't regulate 
matters that affect our communities, including zones. We can't 
tax Indian businesses, and yet we're still providing road 
maintenance and water services, law enforcement, that provide 
some sort of order and other fundamental domestic services that 
are made available to all members, Indian and non-Indian alike. 
Yet we have no revenues for those fundamental services that we 
are providing.
    Now some attorneys might say that, well, these cases aren't 
as bad as you think, that we still are preserving our 
governmental authority. We believe that these cases are 
creating a great deal of uncertainty. We believe that it is 
clearly eroding the tribe's authority, and that it is 
absolutely contrary to the treaty commitments and the current 
modern laws and commitments of Indian nations to empower our 
tribes to take care of our communities and move our agenda 
    We believe it is not taking into consideration the problems 
that we have that this Congress and past administrations have 
recognized that we have many problems. So if we have domestic 
problems, as provided by the Supreme Justices, we have a 
domestic violence problem with a non-Indian beating up an 
Indian woman, which we know is a common problem that we have 
throughout our communities, but we can't do anything about it. 
So what are we to do? The courts come to us, our courts come to 
us as politicians and say, ``What are we going to do about 
this?'' So we have some serious problems.
    Are the county governments or State governments going to 
help out? No, they're not. They have other priorities. They 
have no interest in spending their resources to deal with the 
problems on Indian reservations, and the attitude has not been 
very encouraging over the years, even though in some areas you 
will see some constructive success that is going on.
    The Hicks case makes it even worse. You know, obviously, 
that creates even a greater concern to us over what the Hicks 
case does. In our opinion, it creates a lot of chaos and a lot 
of disorder in our communities.
    We can give you example after example of where there are 
State and county enforcement officers who would just love to 
come on and just not even respect the tribal courts and 
enforcement systems with regard to matters that they believe 
that they have to enforce their laws on tribal lands.
    So our concern is, what are we going to do? How are we 
going to fix this? Now, you know, based on our simple little 
knowledge of civics, understanding how this Government works, 
our understanding is that Congress makes the laws, the 
administration enforces, carries out the laws, and the courts 
interpret whether or not anybody is complying with those laws 
and those commitments, including the treaties, which we 
understand is the supreme law of the land in this country with 
regard to Indian affairs.
    So if the Court is now interpreting these laws and they're 
now interpreting in a way that is eroding the fundamental 
historical, legal, and moral commitment to Indian nations, then 
where do we go? We believe that it is the responsibility and 
duty of the Congress as the ultimate trustee to assist the 
tribes in reaffirming our sovereign authority. The lands that 
we preserved is for our people and our cultures, and the laws 
that we have been establishing, the ordinances for order in our 
communities are for the purposes of the welfare of our future 
children. We need to have order. We need to have respect for 
those laws.
    So we're asking this Congress to move forward. Our tribal 
leaders are gathering to organize methodically and 
deliberately, crisscrossing the Indian country, for a solution 
that we would like to offer to this committee and to this 
Congress to help correct this problem. We look forward to your 
help. We have appreciated your support, and we hope that we can 
come back to propose a piece of legislation that will correct 
the errors and misunderstandings of the Supreme Court. Thank 
you, Mr. Chairman.
    [Prepared statement of Mr. Allen appears in appendix.]
    The Chairman. Thank you very much, Mr. Chairman.
    Chief Justice Yazzie, you have testified that, as a result 
of the Supreme Court's decision in the Strate case, utility 
companies are now challenging the Navajo Nation's jurisdiction 
over the rights-of-way. Am I correct to assume that these 
rights-of-way were granted to these utility companies by the 
Navajo Nation?
    Mr. Yazzie. Yes.
    The Chairman. That you could have turned them down?
    Mr. Yazzie. Well, at the time the Navajo Nation did not 
foresee any problem as a result of granting these rights-of-
ways as they do today.
    The Chairman. But if an application is made today by a 
utility company, you can deny that application, can't you?
    Mr. Yazzie. If that's the position the Navajo Nation wishes 
to take, that is correct. There's a big concern about 
jurisdictional challenges granting States rights-of-way, 
affects the economic stability of the Navajo Nation. The 
challenge jeopardizes the Nation's ability to tax, and taxing 
is very crucial to providing essential governmental services.
    The Chairman. Now you have indicated that the Navajo Nation 
provides services to these utility companies, such as fire 
protection, police protection, et cetera?
    Mr. Yazzie. Yes; the Navajo Nation does provide emergency 
services in case of accidents, services such as medical, fire 
protection, and police services to both Indians and non-
    The Chairman. And they are refusing to pay for those 
services through taxation?
    Mr. Yazzie. To our knowledge, that's the case today.
    The Chairman. Now you have also stated that county police 
officers are now entering the Navajo Nation and confiscating 
State license plates from vehicles owned by Navajos. Do county 
police officers provide Navajo Nation with any notice before 
they enter Navajo Nation or do they just drive in?
    Mr. Yazzie. To my knowledge, if there is a notice to 
confiscate a license plate, the notice would go to the 
individual. As far as I know, if the license plate is taken 
away, Navjos may not have the ability to challenge or even 
appear in attempting to get their license plates back. Today we 
have unemployment rate of 60 percent. Most Navajos have no 
steady income. It takes money to hire an advocate to handle 
these kinds of matters. An individual would have to go before 
the State, and it takes money to do that. Most people do not 
have the job and most people cannot afford legal services to do 
just that.
    The Chairman. So no notice is provided to you?
    Mr. Yazzie. To my knowledge, I have not seen any cases, but 
if there's ever to be one, that challenge will probably go to 
the courts. More then likely, State courts.
    The Chairman. Navajo Nation law enforcement officers, 
police officers, are they subject to civil suits if they detain 
a non-Indian or non-member in a domestic violence case or 
alcohol or drug-related disturbance?
    Mr. Yazzie. In the Navajo Nation, if officers cause an 
injury, while acting under Navajo law, they would be subject to 
the Navajo Nation jurisdiction; therefore, subject to suit. But 
if the Navajo Nation police officer were acting under State 
law, then the State would have to determine whether the Navajo 
police officers acted under the color of State law.
    There was such a case in 1998. A non-Indian was arrested 
for civil traffic violation, and the non-Indian told the Navajo 
police officer, ``You don't have jurisdiction over me,'' and he 
resisted arrest. He was arrested and taken to State facilities. 
The non-Indian challenged the jurisdiction of the Navajo 
Nation, and the New Mexico court of appeals dismissed the 
action, saying that there was no State action pursued by the 
Navajo police officer, and also the Navajo Nation is also 
immune from suit.
    The Chairman. Thank you very much. If I may ask Chief 
Justice St. Clair, we speak of tribal sovereignty at every 
hearing, every meeting. Does the tribal judiciary or the system 
of courts play an important role in sovereignty?
    Mr. St. Clair. I believe it's one of the most important 
roles of tribal government because it deals with the day-to-day 
activities that occur within the reservation. The tribal court 
interprets the tribal law and the tribal custom of the tribes. 
The judiciary provides a forum for establishment of membership. 
Paternities are brought into our court system, so that the 
process of enrollment is enhanced or carried forward.
    Should the court not exist, I believe it would be a case 
where there would not be equal protection of the laws because, 
if an incident occurred between an Indian and a non-Indian, an 
accident or whatever, the Indian would have to sue in state 
court. The State courts in Wyoming today, just the past month 
or so, they're still trying to get more Indians for their 
juries, and there's an issue of whether they have enough 
Indians on the juries even for the cases that occur off the 
reservation. So they're struggling with trying to provide equal 
protection in their courts, and it would be even worse if they 
had to hear the cases from the reservation or if they had to go 
into the Federal courts.
    But I believe the tribal courts are a front-line 
institution that deals with these conflicts that occur between 
individuals and between individuals and society, that arise on 
a day-to-day basis, especially domestic violence, drug- and 
alcohol-related incidents, which are on the rise. The recent 
statistics indicate that Indian reservations are the one area 
where crime has arisen within the past few years as compared to 
the state and Federal areas.
    The Chairman. In other words, you are stating that if your 
governmental powers were taken away from you, self-
determination and self-governance would be just a sham and 
worthless and meaningless?
    Mr. St. Clair. Correct. Government without a judiciary 
really wouldn't be a government at all. If you can't adjudicate 
matters that occur within the area you live, you can't regulate 
those, commercial dealings would be--there wouldn't be any 
place for contracts that are made by the tribe and with 
businesses that come on the reservation to be heard. They would 
have to be taken into State court. Many times the tribes in the 
State courts, they're reluctant to take their cases in there. 
For the court to interpret these, I believe that the tribe and 
the business, if the court was fully funded and a stable 
institution, it would provide a forum and a stable forum for 
those business contracts or incidents that occur as a result of 
business activity to be heard right there on the reservation.
    The Chairman. You have indicated in your testimony that 
non-Indians on your reservation consider themselves to be above 
the law. Are you suggesting that, as a result of these Supreme 
Court decisions, the level of criminal activities among non-
Indians has gone up?
    Mr. St. Clair. Yes; I think just crime in general, whether 
it's Indians or non-Indians, has arisen on reservations. When 
an incident does occur, even if there is an extradition 
procedure or agreement or a law enforcement assistance 
agreement between the tribes and the county or the State 
government, that just deals with how to handle the incident on 
the scene. It doesn't deal with adjudication. Most of the time, 
once that is completed, the non-Indian is not prosecuted. So 
the result is that only the Indian people are prosecuted.
    In the civil area, without having jurisdiction over or 
being limited to the Montana test, to exert jurisdiction as it 
now is, the non-Indian is at an advantage because he could take 
the Indian into either the tribal court or the State court, 
whereas the Indian can only take the non-Indian into the State 
court, but not into the tribal court. So there's two choices 
for him or her.
    The Chairman. Thank you very much, Chief Justice.
    Chairman Allen, you have been long involved in the matter 
of Indian affairs. You have served as president of the National 
Congress of American Indians and have been involved in not just 
governing your Nation, but in representing this Nation's 
tribes, 566 of them. Would you suggest or consider that the 
Supreme Court decisions are at times violating treaties or 
amending treaties that were entered into by Indian nations and 
our Nation?
    Mr. Allen. Yes, Mr. Chairman; I believe they are. I believe 
that the Supreme Court is taking great liberty in their 
discretion on the judicial review, and in that process, through 
these decisions, are reinterpreting the commitment that this 
Nation made to the Indian nations through those treaty 
    The Chairman. All three of you have testified that, as a 
result of the Nevada v. Hicks case, more and more State and 
local police departments are coming into reservations. Are you 
documenting these instances, so we can use it as evidence in 
our reports?
    Yes, Chief Justice?
    Mr. Yazzie. Mr. Chairman, it would be nice to document, 
give you numbers, but we do not have the ability to do that. We 
just don't have the resources to maintain, to get statistics. 
It takes money to buy computers and to develop the data 
necessary to tell us something.
    The Chairman. But would you say that these incidents are 
    Mr. Yazzie. Yes.
    The Chairman. I have been on this committee now for over 25 
years. Somehow I get the feeling, and this is a very ugly 
feeling, that, right or wrong, these decisions of the Supreme 
Court have been rendered because Indians are considered 
inferior people. Is that a fair statement, that this is racism?
    Mr. Yazzie. We had two U.S. Supreme Court Justices visit 
the Navajo Nation in July 2001. The visit was very beneficial. 
This is the first time that the U.S. Supreme Court was exposed 
to how tribal courts work. They were very clear as to the 
attitude of non-Indians, toward tribal justice that no matter 
how well we're educated in the law, how experienced we are in 
the law, how well we run the system, it's still not good 
enough. There's constant challenges about our ability to 
exercise jurisdiction over non-Indians. We are forever telling 
the American public, our court system is very competent--I can 
show you the flowchart there.
    Justice Breyer looked at it and said, ``This is a very 
complex and sophisticated system,'' and Justice O'Connor said, 
``This is a demonstration to show that the Navajo Nation has a 
competent system.'' You can tell that to the non-Indian they 
still will not believe it.
    Non-Indians do not understand how our legal systems work. 
Today we are making the effort to let the world know. The 
Navajo Nation courts, we go to law schools; we hold our oral 
argument, to let the American public know, the lawyers, the 
legal community, to say this is how we work; this is our law, 
and it's a fair system.
    I think there is an effort now to develop polls among the 
American public. I think if the American public were educated 
to know something about tribal courts, they would know that the 
Indian courts are very human, that they care about getting to 
the bottom of the problem, and that's exactly what we do as a 
Navajo legal system.
    We don't believe in win/lose-type adjudication. It doesn't 
work. It takes a lot of money to win a lawsuit. Better yet, get 
the people who are involved in the lawsuit, get them to solve 
the problem, and that's exactly what we're doing with 
peacemaking. We let the people, the people who are related, 
solve their own problem, and it means more to them when they do 
that. They are more satisfied with the outcome than they are 
with the outcome of court orders.
    We have to prove to the American public that our court 
system is just as good as State and Federal courts, and we have 
shown that, and we have gone beyond that. We have shown that 
the Navajo Nation has traditional justice methods that work, 
and we have been traveling to other countries, Norway, 
Australia, Canada, they know about our system. We go over 
there; they come to us.
    Now the State courts are looking at us and ask: How do you 
Navajos work your justice system? We tell them this is how we 
work it. Our system is very simple. Rather than treating 
somebody impersonal, you treat the parties with respect. You 
treat the parties like human beings. I'll tell you, we have 
done a lot in solving disputes using the Navajo mind as to how 
disputes are solved.
    The Chairman. Chairman Allen, what do you think?
    Mr. Allen. Mr. Chairman, my answer is yes. I think that one 
of the root problems that we have with this society and its 
political and judicial system is it still cannot cope with the 
sophistication and the ability to administer quality justice in 
tribal systems. I think Chief Justice Yazzie is talking about 
the educational campaign that we have to engage in. There's no 
question that we have to do that here in Congress as well as in 
the general public, but, yes, that is clearly a huge hurdle 
that we have to overcome.
    The Chairman. After two centuries, Americans are not 
convinced you're equal?
    Mr. Allen. That's correct.
    The Chairman. Justice St. Clair?
    Mr. St. Clair. Chairman Inouye, I do believe there's a 
feeling that Indians are inferior within these Supreme Court 
decisions. Like Justice Yazzie says, they've shown time and 
time again that their system is probably the most sophisticated 
of all the Indian tribes; yet, it still doesn't seem to be 
    I believe there is a fear of Indian people in general in 
the Supreme Court, so that they want to do away with Indian 
tribes. This judicial termination that's coming about is just 
another attempt to get rid of Indian people, which has been 
attempted in various ways and various methods, beginning with 
extermination originally and change in vacillating between 
extermination, self-determination, and allotment, assimilation, 
and the policies have gone back and forth, and we're just in an 
era here that happens to be within the Supreme Court another 
era of termination.
    However, I believe that the American public itself, and 
especially when I see non-Indians come into our court system to 
use the system, are very satisfied with the speed of the cases 
that are processed, the fairness exhibited by the judges, the 
efficiency of the clerks, and all this being done on a very, 
very limited budget.
    One of the questions I think that was posed to me was, what 
would be the average cost of one of the cases, of our cases 
that we have? It looks like the cost is somewhere around $1,200 
a year. That's ideally, if we were funded fully. We're doing 
that on about a third of what we asked for in our budget. So we 
have to cut costs here and there. We don't have a prosecutor, 
although we apply for--I mean a defender, sorry. We apply for a 
defender every year. The only defense counsel that we have 
available is Legal Services, which the party must be indigent 
to qualify. So that leaves a vast area of people who are not 
represented in tribal court. It's sort of an imbalance.
    So we have some deficiencies, but I believe that overall 
this sense of feeling that tribal governments and tribal people 
are inferior is still there within the Supreme Court of the 
United States, but the American public itself I don't believe 
feels that way. I think if there was more education and more 
contact and tribal courts were funded better, we could 
demonstrate that we have a fair system; we have judges that 
care; we have people in our system who are willing to put forth 
extra effort, work long hours, to deal with our increased 
caseloads, even though our taxing ability and regulatory 
ability is being diminished. We have less ways to obtain 
resources. Funding is tight, and we're still trying to face 
these increased caseloads that we have.
    The Chairman. On behalf of the committee, I would like to 
thank all of the witnesses for sharing their wisdom and their 
expertise with the committee.
    I must apologize to all of you that the attendance has been 
poor, but hope you will understand that at this moment there 
are about 12 committees meeting, and this is just one of them. 
So in every committee you will have situations such as this. 
But I can assure you that the staff people who are sitting here 
represent the members of this committee, and they will advise 
their Senators as to what transpired. I will also recommend 
that they read the transcript.
    This has been a good day, and I can assure you that this 
committee will act on this matter.
    With that, the hearing is adjourned.
    [Whereupon, at 4:40 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]

                            A P P E N D I X


              Additional Material Submitted for the Record


Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington

    Thank you, Mr. Chairman, for the opportunity to learn from the 
testimony of legal scholars regarding recent Supreme Court rulings that 
have worked to curtail tribal sovereignty. I would also like to thank 
Professor Robert Anderson and the Honorable Ron Allen for making the 
trip from Washington State to be with us today.
    The testimony from these experts, and others here today, is 
critical to our ability to help clarify the authority of tribal 
    United States policy toward Native Americans has certainly been 
marked with inconsistencies, dramatic shifts, and reversals. In the 
19th century, Native Americans were pushed onto reservations, and then 
saw the reservations broken up to force assimilation. The 20th century 
saw a repeat of this cycle, with the Government recreating reservations 
and then later trying to terminate the Federal relationship with 
    But in 1970, President Nixon announced a commitment to a new 
Federal policy of tribal self-governance and self-determination. Since 
then, Presidential administrations and Congress have affirmed self-
governance and self-determination in their policymaking.
    At the same time, Supreme Court decisions have been moving in the 
opposite direction, finding that tribal sovereignty, particularly over 
non-Indians in tribal communities, is inconsistent with tribes' 
``dependent status.'' These recent rulings are inconsistent not only 
with the legislative and executive trends toward self-governance, but 
also with Supreme Court precedent itself Indeed, the fundamental 
principle of Indian law, which was set by Worcester v. Georgia in 1832, 
is that Indian tribes maintain their sovereign rights except when 
explicitly limited by treaty or Federal law.
    I am concerned that these Court rulings undermining tribal 
sovereignty are making for, once again, an inconsistent Federal 
relationship with tribes.
    Tribal governments are responsible for providing the same services 
to their communities as local, county, and State governments. It is 
imperative that tribal governments be empowered with the authority and 
resources to serve the people in their jurisdiction. Tribal governments 
need the power to tax and to enforce laws, and Supreme Court rulings 
have negatively affected their power to do both.
    Reservation boundaries often include a mix of tribal and non-tribal 
members and a mix of trust and fee simple land. If the courts rule that 
tribal jurisdiction depends on qualities like status of the land within 
the reservation boundary, tribal membership, or race, then we must 
seriously consider the implications of these limits on jurisdictional 
authority. This is obviously a very complex issue, but we must ensure 
that tribal governments can provide critical services to the people in 
their jurisdictions, such as law enforcement.
    Again, I am pleased that the committee is hearing from the scholars 
and experts appearing today, and thank you all for sharing your 
insights with us.

 Prepared Statement of Robert T. Anderson, Assistant Professor of Law, 
 Director, Native American Law Center, University of Washington School 
                          of Law, Seattle, WA

    Good afternoon Mr. Chairman and members of the committee. Thank you 
for the opportunity to present my views on the U.S. Supreme Court's 
recent Indian law decisions. I teach Indian law at the University of 
Washington School of Law in Seattle and I also am the director of the 
Law School's Native American Law Center. Prior to joining the faculty, 
I was counselor to Secretary of the Interior, Bruce Babbitt and held 
the position of Associate Solicitor for Indian Affairs within the 
Interior Department. I also worked as a senior staff attorney for 12 
years with the Native American Rights Fund.
    I was asked to address the effect of the Supreme Court's recent 
decisions on the exercise of tribal authority over their territory. 
Professor Getches' testimony illustrated the dramatic break the Supreme 
Court has made from tradition in recent cases such as Nevada v. Hicks, 
533 U.S. 353 (2001) and Atkinson Trading Company v. Shirley, 121 S.Ct. 
1825 (2001). In contrast to prevailing rules, Hicks and Atkinson permit 
State authority and limit tribal authority in an unprecedented fashion.
    It is difficult to overstate the change in the law that has 
occurred regarding tribal jurisdiction over non-Indians during the past 
25 years. The Court's ruling in Oliphant v. Suquamish Tribe, 435 U.S. 
191 (1978) stripped tribes of criminal jurisdiction over non-Indians 
and signaled the rise of the Court as the lawmaking body with regard to 
tribal authority over non-Indians. The Court's recent presumption 
against tribal authority over non-Indians on fee lands stands in stark 
opposition to foundational principles of Indian law, and the actions of 
Congress and the executive branch in the modern era. I begin with some 
general observations on the development of Indian law and then contrast 
recent trends in the Supreme Court with the actions of Congress and the 
executive branch.
I. The Court's Traditional Respect for Tribal Self-Government and the 
    Role of Congress.
    Many have questioned the moral basis for the very notion that 
``discovering'' European nations were entitled to usurp the rights of 
Indian tribes to deal with their own property or engage in foreign 
relations.\1\ The law recognized by the Marshall Court, Cherokee Nation 
v. Georgia, 30 U.S. (5 Pet.) 1 (1831); and Worcester v. Georgia, 31 
U.S. (6 Pet.) 515 (1832), nevertheless provided a sound basis for legal 
insulation of Indian tribes from the authority of the States. The Court 
soundly rejected Georgia's attempt to assert jurisdiction over Indian 
country and recognized tribes as domestic dependent Nations. In tandem 
with the Indian Commerce Clause of the U.S. Constitution, the basic 
principle set out in these cases is that Indian tribes are free to 
govern themselves and others who enter their territory to the exclusion 
of State power.
    \1\For criticism of the foundations of Indian law in the United 
States, see Williams, The Algebra of Federal Indian Law: The Hard Trail 
of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 
1986 Wisc. L. Rev. 219.
    The independence of tribes was even recognized to some degree in 
relation to the Federal Government. In Ex Parte Crow Dog, 109 U.S. 556 
(1883) the Court followed the basic principles of the Marshall Court 
and ruled that the murder of one Indian by another within Indian 
country was not a criminal offense punishable by the United States. 
This was not because the United States lacked power over Indian 
country, but because Congress had not expressly legislated in the area. 
In short, Indian tribes and their territory were free of regulations by 
other sovereigns absent explicit direction from Congress.
    Cases that followed, such as United States v. Kagama, 118 U.S. 375 
(1886) (upholding the power of Congress to adopt the Major Crimes Act) 
and the infamous case of Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), 
cemented the central role of Congress in Indian affairs as provided in 
the Indian Commerce Clause. In Delaware Tribal Business Committee v. 
Weeks, 430 U.S. 73 (1977) and United States v. Sioux Nation, 448 U.S. 
371 (1980) the Court made clear that there were some limits to 
Congress' plenary power over Indian affairs. Congressional action had 
to be tied rationally to fulfillment of Congress' unique obligation 
toward the Indians\2\ and congressional acts allegedly taking Indian 
property would be thoroughly reviewed for consistency with the United 
States' role as trustee.
    \2\ Morton v. Mancari, 417 U.S. 535 (1974).
    The development of the Court's general doctrine up to the Oliphant 
decision in 1978 reveals considerable deference to congressional action 
and continuation of rules that insulated Indian tribes from state 
authority. In the case Williams v. Lee, 358 U.S. 217 (1959) the Court 
ruled that disputes over debts incurred on an Indian reservation must 
be heard in tribal court because allowing State court jurisdiction 
infringed on the right of tribal self-government. Similarly, in Fisher 
v. District Court, 424 U.S. 382 (1976) state court jurisdiction was 
denied over an adoption proceeding involving tribal members. The Court 
reasoned that denying State court access furthered the congressional 
policy of tribal self-government. Important to the Supreme Court in all 
of these cases was the bedrock presumption that Indian country is 
beyond the reach of State courts and state jurisdiction, unless and 
until Congress provides otherwise.
    The Court's approach, however, took note of the fact that Congress 
regularly legislated in the area of Indian affairs and made adjustments 
to the doctrine rooted in the decisions of the Marshall Court. For 
example, in response to the ruling in Ex Parte Crow Dog, Congress 
adopted the Major Crimes Act, 18 U.S.C. Sec. 1153, and thus provided 
for Federal jurisdiction over certain criminal acts. Likewise, in 
Public Law 280, Congress provided for State court jurisdiction to hear 
civil causes of action and enforce State criminal law within Indian 
country. See Bryan v. Itasca County, 426 U.S. 373 (1976). The Court 
thus adhered to the general rule that State regulatory or judicial 
jurisdiction within tribal authority is prohibited unless Congress sees 
fit to alter the status quo.
    The same rule applied to Federal court incursions on tribal 
authority and thus buttressed the notion of tribal independence. In 
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) the Court refused to 
allow Federal courts to hear alleged violations of the Indian Civil 
Rights Act (ICRA). The Court rested on the bedrock principles that 
tribes are autonomous, absent governing acts of Congress. The Court 
also took notice of the fact that Congress had expressly provided for 
Federal court review in habeas corpus actions. It was accordingly 
appropriate for the Court to leave it to, Congress to determine whether 
to further intrude on tribal self-government by providing for Federal 
court review of alleged violations of ICRA.
    While the Court's decision in Santa Clara Pueblo remains 
controversial, Congress has not chosen to alter the law. There have, 
however, been several oversight hearings dealing with the issue of 
enforcement of the Indian Civil Rights Act over the past several years. 
As an Administration witness in two of those hearings, I can attest to 
the value of direct dialog between Congress, Indian leaders and the 
executive branch on the important policy issues. Through such a process 
adjustments that are found to be necessary may be made Congress, not 
the courts and only after a dialog with the tribes.
    It is thus evident that the course followed by the Supreme Court 
from the Marshall Court up to the Oliphant decision was marked by 
judicial restraint with respect to tribal powers. Through the varying 
policy eras employed by Congress and through the beginning of the self-
determination era, on thing remained clear--it was Congress not the 
Supreme Court that decided policy in the Indian law area. Congress thus 
legislated against a static judicial backdrop that recognized tribal 
autonomy unless clearly altered by Congress. The current Supreme Court 
has turned this principle on its head, thus prompting the need for 
congressional action. As detailed below, the Court's current approach 
is completely at odds with modern congressional and executive branch 
II. Modern Congressional Acts Support the Role of Tribes as Governments 
    with Comprehensive Authori1y Over Their Territory.
    The vacillation in congressional policy with respect to the role of 
Indian tribes in the United States is well-known. The formative years 
of Indian policy saw the development of the guardian-ward relationship 
as evidenced in the Trade and Intercourse Acts beginning in 1790. This 
protective assertion of a monopoly over land transactions with Indian 
tribes soon gave way to the removal statutes and the forced relocation 
of Indian tribes from the East to the Oklahoma Territory and other 
parts of the West. Soon thereafter, in the treaty era, the President's 
agents negotiated treaties with western tribes to obtain peace and 
cessions of vast areas of land. In exchange, the United States promised 
permanent homelands, obtained peace and often guaranteed certain off-
reservation rights. See Washington v. Passenger Fishing Vessel Ass'n., 
443 U.S. 658 (1979). The treaty era was supplanted by the allotment 
policy and the attempt to assimilate Indians into mainstream American 
society in the fashion of yeoman farmers.
    The failure of that policy demonstrated the need for major change. 
The Indian land base had been reduced by nearly two-thirds and it was 
clear that assimilation of Indian people was not going to occur. All of 
this prompted passage of the Indian Reorganization Act of 1934 [IRA], 
which provided substantial support for tribal governments and was 
geared toward protecting the remaining Indian land base.
    Not long after passage of the IRA, Congress again shifted its 
approach and called for the termination of a number of tribes in the 
United States. This ``termination'' of the Federal-tribal relationship 
for some Indian tribes was accompanied by the adoption of Public Law 
280, which authorized (and in some instances required) States to extend 
their jurisdictional reach into Indian country. This termination period 
galvanized Indian tribes to fight for their political existence and 
prompted the congressional termination experiment to fizzle out by the 
early 1960's. See Stephen Cornell, The Return of the Native 123-124 
    The Indian Civil Rights Act of 1968 marked another turning point 
for congressional policy. While the act's application of certain 
provisions of the Bill of Rights to Indian tribes can be seen as a 
further diminishment of tribal autonomy, it is equally plain that the 
act contemplated the continued existence of Indian tribes as vibrant 
governments exercising governmental power over their territory and the 
people present therein. President Nixon's message to Congress in 1970 
announced the policy of ``self-determination without termination.'' 
H.R. Doc. No. 91-363, 91st Cong., 2d Sess. (July 8, 1970). That marked 
the course that Congress and the Executive have followed to this day 
and stands in stark contrast to decisions such as Strate, Atkinson and 
    There is likely no statute that surpasses the Indian Self-
Determination and Education Assistance Act of 1975, 25 U.S.C. Sec.  
450, et seq., in importance and effectiveness. The act allows tribes to 
operate dozens, if not hundreds, of programs previously carried out by 
Federal agencies like the Bureau of Indian Affairs and the Indian 
Health Service. Congress has amended the statute on a number of 
occasions to spur the executive branch to contract more and more 
programs out for tribal administration and with increased flexibility 
for the tribes. See 25 U.S.C. Sec. Sec.  458aa, et seq. The Self-
Determination Act and Self-Governance Act have assisted in building 
tribal governmental infrastructure, while maintaining the Federal-
tribal trust relationship. Other statutes provide directly for the 
exercise of tribal or delegated Federal authority of tribal territory 
and all those within it. Examples include the Indian liquor laws, 18 
U.S.C. Sec.  1152,\3\ and a number of environmental statutes. The Clean 
Air Act, 42 U.S.C. Sec. Sec.  7401-7642 directs the Administrator of 
the EPA to treat Indian tribes as States under the act. Tribes exercise 
delegated Federal authority over members and non-members within Indian 
country. Similarly, the Clean Water Act, 33 U.S.C. Sec. Sec.  1251-
1377, provides that tribes may be treated as States and exercise either 
inherent, or delegated authority over members and non-members within 
Indian country. See city of Albuquerque v. Browner, 97 F.3d 4l5 (10th 
Cir. 1996); and Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998). See 
also, Safe Drinking Water Act, 42 U.S.C. Sec.  300j-f; Comprehensive 
Environmental Response, Compensation and Liability Act, 42 U.S.C. 
Sec. Sec.  9601-9657; Surface Mining Reclamation Act, 30 U.S.C. 
Sec. Sec.  1201-1328; and Federal Insecticide, Fungicide, and 
Rodenticide Act, 7 U.S.C. Sec. Sec.  136-136y (all providing for some 
measure of tribal authority over land for both members and non-
    \3\ See United States v. Mazurie, 419 U.S. 544 (1975).
    \4\ Compare Backcountry Against Dumps v. Environmental Protection 
Agency, 100 F.3d 147 (D.C. Cir. 1996) (setting aside EPA's treatment of 
tribe as a State under the Resource Conservation and Recovery Act, 42 
U.S.C. Sec. Sec.  6901, et seq. as not authorized by statute).
    Even a cursory review of the United States Code reveals the broad 
scope and support of Congress for the welfare of tribes and their 
members, as well as their ability to govern their reservations. See, 
e.g., 25 U.S.C. Sec.  4301, et seq. (Native American Business 
Development Act of 2000); 25 U.S.C. Sec.  4101, et seq. (Native 
American Housing Assistance Act of 1996); 25 U.S.C. Sec.  3601, et seq. 
(Indian Tribal Justice Act of 1993); 25 U.S.C. Sec.  3201, et seq. 
(Indian Child Protection and Family Violence Act of 1990); 25 U.S.C. 
Sec.  2701, et seq. (Indian Gaming Regulatory Act of 1988); and 25 
U.S.C. Sec.  1901, et seq., (Indian Child Welfare Act of 1978). The 
point here is that Congress has unequivocally acted to support Indian 
tribes and has even delegated Federal authority to tribes in many 
    By way of contrast, since the passage of the Self-Determination 
Act, the Supreme Court has gone out of its way to implement long-
abandoned policies that increase state authority and reduce the power 
of tribes. For example, in County of Yakima v. Yakima Indian Nation, 
502 U.S. 251 (1992), the Court stretched to implement policies embodied 
in an obscure proviso the repealed allotment act in order to uphold 
county real estate taxes on tribal property. The Court appears 
oblivious to the past 35 years of congressional policy even as it 
abandons the previous 140 years of Supreme Court doctrine.\5\ It bears 
emphasizing that even as Congress implemented failed policies such as 
allotment, assimilation and termination, the Supreme Court during that 
time adhered to the basic policy enunciated by the Marshall Court. 
Thus, in 1883 which was the heart of the assimilation era, the Court 
secured tribal Indians from Federal prosecutions in recognition of 
their status as separate sovereigns. Likewise, during the termination 
era of the 1950's the Court upheld the right of ``Indians to make their 
own laws and be ruled by them.'' The Court thus adhered to the Marshall 
Court's rule that Indian tribal powers and immunities continue until 
Congress acts clearly to diminish those powers, or authorizes state 
incursions into Indian country.
    \5\ The Honorable Judge Canby's testimony eloquently reveals the 
Supreme Court's doctrinal evolution.
    The Court's recent course has not just been a reversal of the 
fundamental rules of Indian law, it has also usurped the role of 
Congress as the policymaking body in the area of Indians affairs. What 
is truly remarkable is that the Court has taken this course in the 
midst of an era of unprecedented support for Indian tribes and their 
III. Executive Branch Policies Similarly Support Indian Tribe 
    Although Congress has paramount authority in the field of Indian 
affairs, the actions of the executive branch are also worthy of 
consideration. Beginning with President Nixon's announcement of the 
self-determination policy, every Administration has supported the role 
of tribes as sovereign governments within the United States. Most 
recently, President Clinton issued an Executive order calling on all 
Federal agencies to engage in ``Consultation and Coordination with 
Indian Tribal Government.'' E.O. No. 13175, 65 Fed. Reg. 67249 (Nov. 6, 
2000); see also, Memoranda of the President, 59 Fed. Reg. 22951 (April 
29, 1994), Government to Government Relations with Native American 
Tribal Governments. Similarly, the Secretaries of the Interior and 
Commerce have issued orders calling on their subordinate agencies to 
consult with Indian tribes in the implementation of the Endangered 
Species Act. Secretarial Order Nos. 3206 and 3225 (Orders applicable to 
Indian tribes in the lower 48 States and Alaska respectively).
    The executive branch, through the Justice Department, has supported 
Indian tribes in the recent cases before the Court (Strate, Atkinson 
and Hicks) and has actively supported Indian treaty rights in cases 
such as United States v. Washington and United States v. Michigan. The 
Justice Department also supported the tribes in the Indian gaming 
case--Florida v. Seminole Tribe of Indians. When the Supreme Court 
ruled in favor of the State by upholding Florida's sovereign immunity, 
the Department of the Interior exercised its authority to fill the gap 
caused by the ruling and promulgated a rule in support of Indian 
gaming. Administrative agencies, however, are limited in terms of their 
authority and only Congress can right the wrongs committed by the 
Supreme Court.
    Congress has always led the way in setting Federal Indian policy as 
provided in the Constitution. I respectfully suggest that Congress 
should act to correct the Supreme Court's mistaken notions of what is 
best for governance in Indian country. This should be done with 
deliberation and full consultation with Indian tribes. I commend the 
Chairman and members of the committee for holding this hearing.
    Thank you very much. I would be pleased to answer any questions.

    Prepared Statement of John St. Clair, Chief Judge, Shoshone and 
     Arapahoe Tribal Court, Wind River Indian Reservation, Wyoming

    Good afternoon Chairman Inouye and distinguished members of the 
Senate Committee on Indian Affairs. Thank you for the invitation to 
come before you today to testify about a topic that has had a major 
impact upon the powers and authorities of Indian tribal governments.
    My name is John St. Clair. I am an enrolled member of the Eastern 
Shoshone Tribe of the Wind River Indian Reservation located in west 
central Wyoming. I am an attorney licensed in Wyoming and have been 
sitting as chief Judge of the Shoshone and Arapahoe Tribal Court since 
1983. I am president of Wyoming Legal Services, president of Montana-
Wyoming Tribal Judges Association and a member of the board of 
directors of the National American Indian Court Judges Association 
    The Wind River Indian Reservation is jointly owned by the Eastern 
Shoshone and Northern Arapahoe Tribes [the tribes]. It is approximately 
3,500 square miles in area inhabited by about 12,000 members of both 
tribes and other tribes, along with about 25,000 non-Indians.
    The Shoshone and Arapahoe Tribal Court through a comprehensive Law 
and Order Code extends jurisdiction over all Indians who commit 
offenses prohibited in the Code and over all persons who have 
significant contacts with the reservation. The Court consists of a 
chief judge who must be a professional attorney and three associate 
judges. There is a Court of Appeals comprised of the remaining three 
judges who did not hear the case. Jurisdiction is limited by applicable 
Federal law. Total case load for 2001 was approximately 3,500.


    Recent U.S. Supreme Court decisions have become a major concern to 
the tribes due to their intensified passion to limit the sovereignty of 
Indian tribes. In particular, within the past 10 years tribes have lost 
23 of 28 cases argued before the Court. Since the case of Oliphant v. 
Suquamish Tribe, 435 U.S. 191 (1978), where the Court held by 
implication that tribes are without inherent jurisdiction to try non-
Indians for crimes, a new doctrine has emerged that tribes lack certain 
powers that are inconsistent with their dependent status even, when 
Congress has not acted to curtail those powers. This new doctrine has 
been extended to the civil regulatory area by Montana v. United States 
450 U.S. 544 (1981), the adjudicatory area by States v. A-1 
Contractors, 520 U.S. 438 (1997) and in 2001, in Atkinson Trading Post 
v. Shirley, 531 U.S. 1009 (2001) to a hotel occupancy tax imposed by 
the Navajo Nation. The most recent extension of the doctrine is Nevada 
v. Hicks, 121 S. Ct. 2304 (2001) where it was held that tribes lack 
jurisdiction over civil suits against State officials for violating the 
rights of Indians on Indian land within a reservation.
    The impact of Oliphant and its progeny on the powers and 
authorities of Indian tribal governments is that it severely restricts 
the ability to exercise basic regulatory and adjudicatory functions 
when dealing with everyday activities on reservations. When both 
Indians and non-Indians are involved in domestic violence, alcohol and/
or drug related disturbances or a other criminal activity, tribes can 
adjudicate only Indians while non-Indians, even when detained and 
turned over to State authorities, go unpunished. This double standard 
of justice creates resentment and projects an image that non-Indians 
are above the law in the area where they choose to reside or enter 
    The affect on tribes of not being able to regulate taxing, hunting 
and fishing, the environment, zoning, traffic, et cetera placed 
limitations on economic development and self-sufficiency. Without the 
ability to generate revenues to fund basic governmental functions, 
tribes become more and more dependent on Federal grants, contracts and 
compacts, as a sole source of funding, This results in an increased 
economic burden that ultimately falls on the Federal Government.
    Tribal courts constitute one of the frontline institutions 
confronted with the issues involving sovereignty, while charged with 
providing reliable and equitable adjudication of increased numbers of 
criminal matters and complex civil litigation. Tribes and their court 
agonize over the same issues State and Federal courts confront. Child 
sexual abuse, alcohol and substance abuse, gang Violence, violence 
against women, child neglect, pollution of the air, water, and earth, 
are just some of these common yet complicated problems that arise on 
Indian reservations. The vast panorama of cases handled by the 500 plus 
tribes in their courts would significantly increase the caseloads of 
Federal District Courts and also local State courts, if tribal courts 
no longer existed. The increased cost to Federal and State courts would 
also result in major budget short falls.


    The recent trend of the U.S. Supreme Court toward judicial 
termination poses the greatest threat to tribes since the allotment era 
of the 19th Century and Congressional termination of the mid-20th 
Century. This trend runs counter to the proclaimed Federal policy of 
self-determination that has repudiated the allotment and termination 
    America's Third Sovereign, the Indian tribes, occupying Indian 
country come before this distinguished body to ask that you utilize the 
plenary power of Congress in Indian affairs conferred upon you by the 
Indian Commence Clause, article 1, section 8, clause 3, of the U.S. 
Constitution. We request that you restore and reaffirm the inherent 
regulatory and adjudicatory authority of tribes over all persons and 
all land within Indian country as defined in 18 U.S.C. Sec. 1151. This 
approach would place the exercise of jurisdiction in the hands of the 
tribes and the extent of it within their organic documents and case law 
making it a question of tribal law.
    Again I want to thank you for this unique opportunity that you have 
provided on behalf of my tribes and all the Indian tribes.

   Prepared Statement of William C. Canby, Jr. Judge, U.S. Court of 
                     Appeals for the Ninth Circuit

    Good morning Mr. Chairman and members, of the committee. I appear 
here as a former professor of Indian Law who has worked on technical 
assistance programs with tribal courts over the years. For the past 21 
years I have been a judge of the U.S. Court of Appeals for the Ninth 
Circuit, and am chair of the Ninth Circuit Council Committee on Tribal 
Courts. I preface all of my remarks with the disclaimer that the views 
I express are my own; I cannot and do not speak for my court or the 
Federal judiciary in general.
    I have been asked to elaborate on recent trends in the Indian Law 
decisions of the Supreme Court during the past several years 
particularly with reference to a divergence between the trend of those 
decisions and the Indian Law policies of Congress and the executive 
    Others will describe for the committee the general historical 
overview of Indian Law, in terms of judicial decisions, legislation, 
and actions of the executive branch. I wish to focus on a few recurring 
themes in the line of Supreme Court decisions in the past 30 years, to 
emphasize the development of certain doctrines that have, in my view, 
led to decisional law that has significantly changed the legal status 
of Indian tribes in ways that differ from earlier decisional law and 
from the patterns set by Congress and the executive branch. The 
doctrines of the Supreme Court that I will discuss involve: (1) 
preemption analysis when State interests conflict with tribal 
interests; (2) the discovery of new limitations on tribal power because 
of the tribes' status as domestic dependent nations; and (3) the 
diminishing role of territoriality in the concept of tribal power. I 
will then discuss one example of congressional overruling of a Supreme 
Court decision and some of the questions that arose in its aftermath.
    The basic judicial concepts of Indian Law were, of course, 
established by Chief Justice John Marshall in the Cherokee cases. He 
recognized tribes as self-governing bodies that he termed ``domestic 
dependent nations'' in Cherokee Nation v. Georgia, 30 U.S. 1 (1831), 
and then held that the Cherokee Nation governed a distinct territory 
``in which the laws of Georgia can have no force.'' Worcester v. 
Georgia, 31 U.S. 515 (1832). In holding that the tribes enjoyed a 
special relationship with the United States, and that the States did 
not exercise power over the tribes or their territories, Marshall was 
acting entirely consistently with the series of Trade and Intercourse 
Acts that had been passed by Congress, beginning with the first 
Congress in 1790. 1 Stat. 137 (1790).
    Over the ensuing years there were major movements in Indian law 
initiated by Congress or the executive branch, including the removal of 
tribes to the west and, in the 1880's, a policy of allotment designed 
to break up the tribal landholdings into small individual farms. Many 
years later, Congress acknowledged that the allotment policy had been a 
disaster and enacted the Indian Reorganization Act of 1934, which was 
based on the proposition that the tribes were here to stay as self-
governing bodies with power over their territories. There was an 
interruption in this view during the 1950's, when congressional acts 
were passed to terminate the special relationship between specified 
tribes and the Federal Government. At the same time, Public Law 280 
extended the civil and criminal jurisdiction of certain named States 
into Indian country, and permitted other States to elect to do the same 
without tribal consent. This period of ``termination'' came to an end 
with the passage of the Indian Civil Rights Act of 1968 and the 
President's statement on Indian affairs in 1970. Since that time, such 
measures as the Indian Self-Determination and Education Assistance Act 
of 1975 and the Indian Tribal Government Tax Status Act of 1982, have 
clearly signaled a congressional policy of encouraging tribal self-
    Tribal self-government was also supported by the Supreme Court in 
the 1959 case of Williams v. Lee, 358 U.S. 217. In holding that a non-
Indian was required to go to tribal court to sue an Indian over a debt 
incurred in a transaction on the reservation, the Supreme Court stated 
that its ruling was necessary to preserve ``the right of reservation 
Indians to make, their own laws and be ruled by them.'' Id. at 220. 
Notably, this right of self-government was protected by requiring a 
non-Indian to come to tribal court. Williams v. Lee was an important 
modern foundation of decisional Indian law, and under its regime all 
three branches of the Federal Government by 1970 were united in a 
strong view of tribal self-government over tribal territories.
    The 1970's marked the beginning of a shift in the Supreme Court 
away from a view of the tribes as entities with full governmental power 
over their territories. The first doctrinal step occurred in a case 
generally regarded as a victory for the tribes--McClanahan v. Arizona 
Tax Commission, 411 U.S. 164 (1973). That case held that Arizona could 
not tax the income of an Indian earned on a reservation, but the 
analysis contained the seeds of a diminution of tribal power. 
McClanahan considered tribal sovereignty to be a mere ``backdrop'' for 
the determination of whether States could exercise their power over 
subjects in Indian country. If Federal laws and treaties, read against 
the backdrop of sovereignty, preempted State power, then the State was 
excluded. This analysis reversed a previous presumption: that States 
had no power in Indian country unless some positive reason (or 
legislation) existed to extend it there. Under the McClanahan approach, 
State power extended into Indian country unless a positive Federal law 
or policy excluded it. Thus preemption doctrine, as it has been 
formulated since McClanahan favors the extension of State power into 
Indian country. An example is Cotton Petroleum Corp. v. New Mexico, 490 
U.S. 163 (1989), which permitted a State to impose a severance tax on 
non-Indian oil and gas lessees on a reservation, even though the tribe 
also imposed a tax.
    A far greater doctrinal limitation on Indian tribal power was 
employed in Oliphant v. Suquamish Indian Tribe, 435 U.S. 1911 (1978), 
which held that tribes had no criminal jurisdiction over non-Indians 
who committed crimes on their reservations. The Court held that 
exercise of criminal jurisdiction over non-Indians would be 
inconsistent with the status of the tribes as domestic dependent 
nations. Chief Justice Marshall, who had characterized tribes as 
domestic delineated only two limitations dependent nations in Cherokee 
Nation v. Georgia, delineated only two limitations on full sovereignty 
that attended the tribes' status as domestic dependent nations: (1) 
they could not alienate their land other than to, or with the consent 
of, the Federal Government, and (2) they could not enter treaties or 
other agreements with foreign nations. For 150 years these limitations 
we're generally assumed to be the only two that flowed from the tribes' 
status. Oliphant came up with a new limitation, and since that time, 
other Supreme Court decisions have proliferated the limitations that 
are deemed to arise from the tribes' domestic dependent status. Thus, 
in Montana v. United States, 450 U.S. 544 (1981), a tribe's regulation 
of non-Indian hunting on non-Indian land within the reservation was 
held to be inconsistent with the tribe's domestic dependent status. One 
case went so far as to state that a tribe's domestic dependent status 
prevented it from adopting preemptive regulation of liquor sales on its 
reservation. Rice v. Rehner, 463 U.S. 713, 726 (1983). Tribes were held 
to lack criminal jurisdiction over non-member Indians because of their 
domestic dependent status. Duro v. Reina, 495 U.S. 676 (1990). And, 
under the refinement introduced by Montana v. United States, which I 
will discuss in a moment, tribes have been held to lack inherent 
authority to adjudicate civil disputes between non-members arising out 
of activities on a highway right-of-way within the reservation. Strate 
v. A-I Contractors, 520 U.S. 438 (1997). Most recently, tribes have 
been held to be precluded by their domestic dependent status from 
collecting a hotel room rental tax from a non-Indian hotel on non-
Indian fee land within a reservation. Atkinson Trading Co. v. Shirley, 
532 U.S. 645 (2001), and from regulating the activities of State law 
enforcement officers executing a search warrant of an Indian dwelling 
on Indian land within the reservation, when the investigation concerns 
a crime allegedly committed off-reservation. Hicks v. Nevada 121 S.Ct. 
2304 (2001).
    These recently announced additional limitations on the powers of 
tribes because of the tribes' domestic dependent status create numbers 
of questions for lower courts. It is easy for historical reasons to 
understand why tribes could not alienate their land except to, or with 
the consent of the Federal Government, and it is easy for reasons of 
international law to understand why tribes are not allowed to enter 
treaties with foreign nations. Both of these limitations are 
explainable as inherent in the status of the tribes as internal nations 
owed a duty of protection by the Federal Government. But the new 
limitations On tribal sovereignty do not seem to have such compelling 
necessity behind them. Tribes could exercise criminal and civil 
jurisdiction over persons within their territory without torturing 
their status as domestic dependent nations. So it is difficult to 
predict when a challenged exercise of tribal power is to be upheld on 
the ground that the power is inconsistent with the tribe's domestic 
dependent status. One way of drawing a bright line, and that indeed 
seems the direction in which things are going, is to say that a tribe 
has no power over non-members at all. Such a rule provides certainty, 
but leaves the tribe with almost no governmental power at all, greatly 
reducing tribal authority below the level it enjoyed under Williams v. 
Lee and below the level that is contemplated by existing legislation 
Congress and policies of the executive branch. Short of that drastic 
formulation, it is difficult under the current trend of Supreme Court 
decisions to draw a predictable line defining what tribes may do or not 
do as domestic dependent nations.
    Perhaps the watershed case of recent times, although did not appear 
to foreshadow such immense changes when it was announced, is Montana v. 
United States, 450 U.S. 544 (1981). That decision held that a tribe, as 
a domestic dependent nation, had no power to regulate hunting and 
fishing by non-Indians on non-Indian fee land within a reservation. At 
the time this ruling did not appear to be a large exception to the 
general proposition that tribes could regulate non-Indian activity 
within their reservation; Montana freely acknowledged that tribes could 
regulate or prohibit hunting or fishing on Indian lands within the 
reservation. Moreover, there were two acknowledged exceptions that 
permitted tribes to regulate non-Indian activity even on non-Indian fee 
land: (1) the tribe could regulate activities of non-members who 
entered consensual relationships with the tribe or its members, such as 
leases or licenses; and (2) the tribe could regulate activities of non-
members on fee land that, ``threatens or has some direct effect on the 
political integrity, the economic security, or the health or welfare of 
the tribe.'' Id. at 566. This latter exception, with its language 
reflecting the traditional view of a State's police power, suggested 
that a tribe could regulate non-Indians whenever its reasonable 
interests supported such regulation.
    Montana contained some expansive language, however, describing 
tribal sovereignty in terms of power over members, implying the absence 
of power over others. In later years, the Supreme Court has emphasized 
this aspect of the Montana opinion. The fact that Montana was an 
exception to the general rule that tribes could regulate non-member 
activity, within their borders seems to have disappeared from sight. In 
later cases, the Montana exception has become the Montana ``rule'' that 
tribes have no power over nonmembers. In Strate v. A-1 Contractors, 520 
U.S. 438 (1997), for example, the Supreme Court held that a tribe had 
no regulatory authority over nonmember activities on a State highway 
right-of-way through the reservation; even though the highway was on 
tribal land, not fee land, the tribe had given up the right to exclude 
and therefore the Court treated it as if it were fee land. The Court 
also concluded that a tribe's adjudicatory jurisdiction (by civil suit 
in tribal court) could not exceed its regulatory jurisdiction. It is 
difficult to see where this limitation came from. Most courts, of 
course, are not so restricted; an Arizona court can entertain a case 
arising from an automobile accident in New York even though Arizona 
would have no authority to regulate the conduct of the parties in New 
    Most egregiously, Strate held that a highway accident within the 
reservation did not affect the welfare of the tribe, so as to fall 
within the second exception prescribed by Montana. Strate stated:
    ``Undoubtedly, those who drive carelessly on a public highway 
running through the reservation endanger all in the vicinity, and 
surely jeopardize the safety of tribal members. But if Montana's second 
exception requires no more, the exception would severely shrink the 
    520 U.S. at 457-58. But this formulation ignores the fact that the 
Montana rule was itself an exception. If, as a general proposition, it 
is improper to permit exceptions to swallow rules, then Montana itself 
should be narrowly construed, so that it does not erode the general 
rule that tribes have regulatory jurisdiction over activities on their 
reservations. Accordingly, Montana's exceptions, being exceptions to an 
exception, must be construed broadly.
    The Montana rule continued to be broadened, and its exceptions 
narrowed, to the detriment of tribal power in two decisions of last 
term, Atkinson Trading Co. v. Shirley 532 U.S. 645 (2001), and Nevada 
v. Hicks, 121 S.Ct. 2304 (2001).
    Atkinson held that the Navajo Nation could not tax room rentals in 
a trading post hotel on fee land within the reservation, even though 
the trading post benefited from various tribal services. The Supreme 
Court applied Montana and, again, read the exceptions narrowly. License 
as a trading post was not closely enough related to operation of a 
hotel to fall within the ``consensual'' exception, and the second 
exception to Montana did not apply because ``[w]hatever effect 
petitioner's operation of the Cameron Trading Post might have upon 
surrounding Navajo land, it does not endanger the Navajo Nation's 
political integrity.'' 532 U.S. at 659. Perhaps most interesting of 
all, Justice Souter (joined by Justices Kennedy and Thomas) entered a 
concurring opinion stating that ``[i]f we are to see coherence in the 
various manifestations of the general law of tribal Jurisdiction over 
non-Indians, the source of doctrine must be Montana v. United States.'' 
And, he continued, Montana's principle that tribal authority does not 
extend to non-members should apply ``whether the land at issue is fee 
land, or land owned by or held in trust for an Indian tribe.'' Id. at 
659-60. Under this apparently developing view, tribes lose the power to 
regulate non-members on trust land, a power that was accepted as a 
given in Montana.
    Hicks took the last step, in holding that tribes had no power to 
regulate the activities of State law enforcement officers executing a 
search warrant against an Indian on tribal land within a reservation. 
The Supreme Court's opinion states that the Montana ``rule'' that 
tribes have no inherent power to regulate nonmember activity applies on 
tribal as well as fee lands! Once that proposition is established, then 
under Strate a tribal court could not entertain civil suit against the 
officers for exceeding the scope of the warrant because a tribe's 
adjudicatory jurisdiction cannot exceed its regulatory jurisdiction.
    The expansive rationale of Hicks represents an astonishing 
diminution in the control that tribes may exercise over their own 
reservations. Montana assumed that tribes could control non-Indians, 
but carved out an exception for non-Indian hunting and fishing on 
Indian land if it was not consensual with the tribe and did not affect 
the welfare of the tribe. In Hicks, Montana is invoked as support for 
the proposition that the tribe cannot regulate non-members even on 
tribal land, unless the activity falls within two exceptions that are 
being ever-more-narrowly construed. It is clear that, between the dates 
of Montana and Hicks, a major shift has occurred in the Supreme Court's 
view of tribal authority.
    One characteristic of the considerable shift in the Supreme Court's 
recent Indian Law cases is the movement away from a territorial view of 
tribal power. To John Marshall in the Cherokee cases, tribal power was 
clearly territorial; the 12 tribes exercised power over their 
reservations and the laws of Georgia could not, intrude. Later in the 
19th century, State law was permitted to govern the activities of non-
Indians on reservations, so long as the activity did not involve 
Indians or have an effect on Indians. There was no reason to doubt, 
however, that enough of John Marshall's original concept remained so 
that tribes could govern their territories largely in the way that any 
other sovereign did. If the tribes' power over non-Indians was rarely 
exercised, it had not been negated. And as tribal governments were 
buttressed by the Indian Reorganization Act of 1934, it was natural to 
assume and expect an increasing exercise of tribal powers over the 
    The Oliphant decision put a stop to this trend by holding that 
tribes had no criminal jurisdiction over non-Indians. At about the same 
time, the Supreme Court decided United States v. Wheeler, 435 U.S. 313 
(1978), which for the first time made the jurisdictional distinction 
not between Indians and non-Indians, but between tribal members and 
non-members. Thus began a shift in emphasis from tribal power as 
governmental power over a territory to tribal power as a function of 
membership. Without a territorial concept, any analysis of challenged 
governmental power is likely to be very restrictive. It is very 
difficult to conceive of a government that wields power other than over 
a territory; we do not regard governments-in-exile, for example, as 
real governments--they are potential governments that presume to become 
governments over a territory. When tribal power is viewed only through 
a membership lens, then tribal power is automatically restricted to 
power over members, leaving tribes with no more governmental power than 
a club or a union or a church may exercise over its members.
    Until recently, the courts in deciding jurisdictional questions in 
Indian law looked to Congress's definition of Indian country for 
criminal-law purposes, which included all land within the exterior 
boundaries of a reservation whether owned in fee by non-Indians or not. 
See 18 U.S.C. Sec.  1151. Montana, however, introduced a new 
distinction between tribally owned land and fee land within a 
reservation. Later another wholly new, but less frequently used, 
distinction was introduced between ``open'' and ``closed'' portions of 
a reservation for purposes of tribal zoning. Brendale v. Confederated 
Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989). The 
tribe was permitted to exercise zoning authority over all lands in the 
closed portion.
    Almost every move away from a purely geographical delineation of 
tribal power has resulted in a diminution of that power. In 1982, when 
a more expansive view of tribal power still obtained in some fields, 
the Supreme Court upheld a tribal tax on non-Indian mineral lessees of 
tribal property and in doing so the Court was careful to assert that 
the power to tax did not depend only on the tribe's power to exclude 
persons from its reservation: ``it derives from the tribe's general 
authority, as sovereign, to control economic activity within its 
jurisdiction.'' Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). 
By the time of Atkinson last year, however, Montana controlled and a 
tribe could not tax non-Indian activity on fee land (with three 
justices asserting that it made no difference whether fee land or 
tribal land was involved).
    Another facet of a non-geographical approach to tribal power is 
illustrated by Strate v. A-1 Contractors, which held that tribes could 
not regulate non-Indian activity on a highway located on Indian land 
within a reservation because the right-of-way deprived the tribe of the 
power to exclude. Under Merrion's more expansive view of tribal power, 
jurisdiction to regulate would not have depended on a right to exclude.
    The trend, therefore, away from a territorial-geographical view of 
tribal governmental power is one more facet of the general shift in 
Supreme Court jurisprudence toward a highly restrictive view of tribal 
    All of these doctrinal trends of the Supreme Court cases, which 
have led to a far more restrictive view of tribal power than existed in 
the 1960's, were judicial constructs. The Supreme Court did not take 
its lead in these matters from congressional or executive policies. 
Indeed, as I observed earlier, Congress in 1934, and again consistently 
since 1968, has placed its emphasis on the strengthening of tribal 
self-government. The executive branch has done the same since 1970. It 
is hard to see where the new direction in restricting power comes from, 
other than from the Supreme Court.
    In fairness, the Supreme Court has acknowledged that its actions 
dealing with tribal authority were taken in the absence of controlling 
statutes, and have recognized the appropriateness of Congress 
delineating the extent of tribal authority. See, e.g. Oliphant, 435 
U.S. at 212. It is also possible that at least some of the Justices 
have not understood what an enormous change their recent jurisprudence 
represents in Indian country. In Hicks for example, the State judge had 
done what virtually any State judge in the West would have done in the 
last 50 years; he told the State officers that his writ was of no 
effect against an Indian on the reservation and that any search warrant 
he issued would have to be approved by the tribal court before it could 
be executed on the reservation. Under the rationale of the Supreme 
Court in Hicks, however, the State judge was just engaging in an 
unnecessary nicety; the tribe had no authority at all over the State 
officers on the reservation. Similarly, the extradition arrangements 
that many tribes have worked out with the States over the past decades 
are just so much waste paper; no extradition is necessary under the 
rationale of Hicks. Hicks thus upsets settled expectations in Indian 
country to a degree that may not have been apparent to all of the 
Justices (or many others). Just how disruptive Hicks will be may depend 
on the local relationship between particular tribes and the State and 
local governments; some may continue to function cooperatively as 
before. As a matter of doctrine, however, Hicks does not encourage such 
cooperation, and removes its necessity.
    There was an instance about a decade ago when Congress promptly 
overruled a decision of the Supreme Court dealing with tribal power. In 
Duro, v. Reina, 495 U.S. 676 (1990), the Supreme Court ruled that it 
was inconsistent with the domestic dependent status of tribes to 
exercise criminal jurisdiction over non-member Indians who commit 
crimes in Indian country. Congress, first temporarily and then 
permanently, overruled this decision by enacting the following 
    (1) ``Indian tribe'' means any tribe, band, or other group of 
Indians subject to the jurisdiction of the United States and recognized 
as possessing powers of self-government.
    (2) ``Powers of self-government'' means and includes all 
governmental powers possessed by an Indian tribe, executive, 
legislative, and judicial,..; and means the inherent power of Indian 
tribes, hereby recognized and affirmed, to exercise criminal 
jurisdiction over all Indians.
    25 U.S.C. Sec.  1301(2) (emphasis added to new language).
    The effect of this provision was recently the subject of an en banc 
decision of my court (I was not a member of the en banc panel) in 
United States v. Enas, 255 F.3d 662 (9th Cir. 2001) (en banc), cert. 
denied, 122 S.Ct. 925 (2002). The question was whether, after the above 
amendment was enacted, a non-member Indian could be tried both by a 
tribal court and a Federal court for the same offense without violating 
the double jeopardy clause of the Constitution. In the ordinary case, 
there is no problem with such double prosecutions because each 
sovereign, the tribe and the Federal Government, acts on its own 
authority. United States v. Wheeler, 435 U.S. 313 (1978). The question 
posed by Enas was whether the tribal authority recognized by the 
statutory amendment of 25 U.S.C. Sec.  1301(2) was a form of inherent 
tribal authority or was a grant of delegated Federal authority. If it 
was delegated, then the tribe in prosecuting was exercising a form of 
Federal authority and the Federal Government could not then conduct a 
second prosecution. The en banc court in Enas unanimously held that the 
tribe was exercising its own sovereign authority in prosecution Enas, 
so the double jeopardy clause was not violated by a later Federal 
prosecution. Six judges I ruled that Congress was correcting the 
history discussed by the Supreme Court when it decided Duro.
    Because this history was a matter of Federal commonlaw, not 
constitutional law, Congress had the power to revise it. With the 
history corrected, it was clear to the six-judge majority that the 
tribal power was historical and inherent.
    A five-judge concurring opinion took a more direct view stating 
that when Congress authorized a tribe to prosecute, it was simply 
enabling the tribe to exercise an independent sovereign power which did 
not necessarily depend on history.
    Under both views expressed in Enas, there is no question of 
Congress' power to modify the boundaries of tribal power as? delineated 
by the Supreme Court. Under the six-judge majority view, the 
recognition by Congress of a new, non-historical tribal power would be 
a Federal delegation of power, the exercise of which by the tribe would 
be subject to the double jeopardy clause and many additional 
constitutional restraints. By the five-judge concurring view, any 
congressional recognition of governmental power by tribes would result 
in the tribes' exercising their own sovereign power, subject of course 
to the restraints of the Indian Civil Rights Act but not the Federal 
Constitution. I must say that I am a partisan of the five-judge 
concurring view. The most important point, however, is that the entire 
en banc panel saw no difficulty in recognizing the effectiveness of the 
congressional overruling of Duro; the only discussion was over the 
collateral effects of such overruling.
    In summary, the recent decades have seen a significant change in 
the Supreme Court's view of the inherent power of Indian tribes. Many 
decisions, culminating in last term's Atkinson and Hicks, have 
substantially changed what has long been assumed to be the boundaries 
of tribal and State power in Indian country. The new restrictions on 
tribal power represent a judicial trend only; they have not been 
paralleled by any changes in congressional or executive policies 
concerning Indian affairs. None of the changes in the boundaries of 
tribal and State power effected by Supreme Court decisions are based on 
the Constitution; they accordingly are subject to modification at the 
will of Congress in the exercise of its power over Indian affairs.
    That concludes my testimony. Mr. Chairman and members of the 
committee, I thank you for giving me this opportunity to express my 
views to you.
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