Stay Connected with the Library All ways to connect »
Find us on
[Page: H8131]
Mr. MILLER of California submitted the following conference report and statement on the bill (H.R. 972) to make permanent the legislative reinstatement, following the decision of Duro against Reina (58 U.S.L.W. 4643, May 29, 1990), of the power of Indian tribes to exercise criminal jurisdiction over Indians:
The committee of conference on the disagreeing votes of the two Houses on the amendments of the Senate to the bill (H.R. 972), to make permanent the legislative reinstatement, following the decision of Duro against Reina (58 U.S.L.W. 4643, May 29, 1990), of the power of Indian tribes to exercise criminal jurisdiction over Indians, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows:
That the Senate recede from its amendment to the text of the bill.
That the Senate recede from its amendment to the title of the bill.
GEORGE MILLER,
BILL RICHARDSON,
JOHN J. RHODES III,
Managers on the Part of the House.
DANIEL K. INOUYE,
DENNIS DECONCINI,
QUENTIN N. BURDICK,
THOMAS A. DASCHLE,
KENT CONRAD,
HARRY REID,
PAUL SIMON,
DANIEL K. AKAKA,
PAUL WELLSTONE,
JOHN MCCAIN,
FRANK H. MURKOWSKI,
THAD COCHRAN,
PETE V. DOMENICI,
Managers on the Part of the Senate.
[Page: H8132]
The managers on the part of the House and the Senate at the conference on the disagreeing votes of the two Houses on the amendments of the Senate to the bill (H.R. 972) to make permanent the legislative reinstatement, following the decision of Duro against Reina (58 U.S.L.W. 4643, May 29, 1990), of the power of Indian tribes to exercise criminal jurisdiction over Indians, submit the following joint statement to the House and the Senate in explanation of the effect of the action agreed upon by the managers and recommended in the accompanying conference report:
The Senate amendment to the text of the bill struck out all of the House bill after the enacting clause and inserted a substitute text.
The Senate recedes from its amendment to the text and title of the bill.
The Committee of the Conference references the background sections contained in the Senate Report 102-153 and House Report 102-61 (as corrected in the June 12, 1991 Congressional Record) on H.R. 972, to make permanent the legislative reinstatement of the power of Indian tribal governments to exercise criminal jurisdiction over Indians.
This legislation clarifies and reaffirms the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians on their reservations. The Committee of Conference is clarifying an inherent right which tribal governments have always held and was never questioned until the recent Supreme Court decision of Duro v. Reina, 110 S.Ct. 2953 (1990). The Congressional power to correct the Court's misinterpretation is manifest as is its plenary power over Indian tribes which derives from the Constitution.
The Committee of the Conference asserts that the Congressional power over Indian tribes allows this recognition of the inherent right of tribal governments to retain this jurisdiction and notes that two fundamental maxims of Indian law come into play in this legislation. First, as Justice Kennedy stated in the Duro decision, Congress determines Indian policy. Second, Indian tribes retain all rights and powers not expressly divested by Congress. These principles go back to the decisions of Chief Justice John Marshall and are part of the foundation of the federal tribal relation. See Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832).
The Committee of the Conference notes that Congress has the power to acknowledge, recognize and affirm the inherent powers of Indian tribes. The Committee of the Conference notes that Indian tribal governments have retained the criminal jurisdictional over non-member Indians and this legislation is not a delegation of this jurisdiction but a clarification of the status of tribes as domestic dependent nations. Hence, the constitutional status of Indian tribes as it existed prior to the Duro decision remains intact.
In the Act of March 3, 1817, Congress adopted criminal laws applicable to Indian country and disclaimed jurisdiction over crimes committed by Indians against Indians:
`That nothing in this act shall be so construed to affect any treaty now in force between the United States and any Indian nation, or to extend to any offense committed by one Indian against another, within any Indian boundary.'
Similar language was in the Act of June 30, 1834. No distinction was made as to the membership of the Indian. The status of non-member Indians under the 1834 Act was clarified in United States v. Rogers where the Supreme Court held that the statute applied to Indians as a class, not as members of a tribe, but as part of the `family of Indians.' (45 U.S. at 573).
The Major Crimes Act was recodified in 18 U.S.C. 1151-1153 but employs the 1834 Act's language with minor changes. The federal courts have held repeatedly that the term `Indian' includes any Indian in Indian Country, without regard to tribal membership. U.S. v. Kagama, 118 U.S. at 383; United States v. Dodge, 538 F.2d 770, 785-787 (8th Cir. 1976) (conviction of non-members under Major Crimes Act); United States v. Burland, 441 F.2d 1199 (9th Cir.), cert. denied, 404 U.S. 842 (1971) (conviction of non-member Indian under 18 U.S.C. 1152). Cf. States v. Allan, 100 Idaho 918, 607 P.2d 426, 429 (1980) (State lacks jurisdiction over bribery committed by Quinault Indian on Coeur d'Alene Reservation); Application of Monroe, 55 Wash. 2d 107, 346 P.2d 667 (1959) (federal jurisdiction is exclusive over crime of aiding and abetting grand larceny committed by Blackfeet Indian on Yakima Reservation). Congress has never changed its position as to the authority of Indian tribal governments to exercise criminal misdemeanor jurisdiction over non-member Indians and is now reaffirming this inherent authority.
In the case of United States v. Antelope, 430 U.S. 641 (1977), the Supreme Court held that the Major Crimes Act was `based neither in whole nor in part upon impermissible racial classifications' and did not simply apply to Indians as members of a `race' but followed Morton v. Mancari, 417 U.S. 535 (1974) and recognized their unique political status. (430 US at 646-647).
Tribes are `unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.' Santa Clara Pueblo v. Martinez, 436 US 49, 56 (1978); see Talton v. Mayes, 163 US 396. However, under the Indian Civil Rights Act of 1968, Congress enacted standards comparable to the Constitution to regulate tribal actions. Should an Indian in tribal court claim a lack of due process, equal protection or other Indian Civil Rights Act violation, he has a remedy for violations of basic fairness which Congress imposed on tribes in 25 U.S.C. 1302 through a writ of habeas corpus in federal court. The Indian Civil Rights Act does not distinguish between member and non-member Indians and the proposed legislation clarifies the fact that jurisdiction over all Indians by tribes is the intent of Congress under this Act.
Section 3 of the Indian Civil Rights Act (25 U.S.C. 1303) guarantees to any person subject to the jurisdiction of a tribal court the following:
`The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.'
Thus, if the prosecution cannot meet its burden of proof that the person over whom it is seeking to exercise criminal jurisdiction is an Indian for purposes of 18 U.S.C. 1153, the person has access to Federal court for a determination of whether the tribal government is authorized to exercise criminal jurisdiction over him.
As amended, section 1301 of title 25 of the United States Code [the Indian Civil Rights Act of 1968], contains the following definition of the term `Indian':
`(4) `Indian' means any person who would be subject to the jurisdiction of the United States as an Indian under section 1153, title 18, United States Code, if that person were to commit an offense listed in that section in Indian country to which that section applies.'
The definition of `Indian' for purposes of 18 U.S.C. 1153 was used in the 1990 amendments to the Indian Civil Rights Act so that there would be a consistent definition of `Indian' in the exercise of jurisdiction by either the Federal government or a tribal government. This consistency in definition assures that a person cannot assert that he is an Indian for purposes of avoiding tribal jurisdiction. The same would of course be true if a person sought to assert himself as an Indian for purposes of the exercise of tribal jurisdiction, and sought to deny his status as an Indian for purposes of a Federal prosecution.
Both the majority and dissenting opinions of the Supreme Court in Duro v. Reina, recognized the creation of a jurisdictional void. The Senate and the House received testimony of many Indian tribes, indicating that the Congress needs to act to resolve the jurisdictional void created in the Duro decision. Several states have enacted resolutions recommending a permanent return to tribal jurisdiction and the U.S. Department of Justice supports this approach.
The delegation of Federal authority to state governments under Public Law 83-280 is generally concurrent with tribal government jurisdiction unless an exception to this statutory framework has been enacted into law. In states where criminal misdemeanor jurisdiction has been assumed for all Indians on all reservation lands, a jurisdictional void arises only when a state refuses to exercise jurisdiction and the Supreme Court's ruling in Duro v. Reina would have applied to prevent a tribal government from exercising criminal jurisdiction over a non-tribal member Indian.
In states where criminal misdemeanor jurisdiction has been assumed only for fee or nontrust Indian lands, a state cannot exercise jurisdiction over crimes committed by non-tribal member Indians on trust lands and a tribal government would also be precluded from exercising jurisdiction as a result of the Court's ruling in Duro v. Reina.
The Maine Indian Claims Settlement Act (P.L. 96-420; 25 U.S.C. 1721 et seq.) and the Maine Implementing Act, an Act of the State Maine settling the claims of the Maine tribes, address the jurisdictional status of the tribes in Maine in numerous areas including the extent of tribal jurisdiction over non-member Indians. While these Acts make it clear that the Passamaquoddy Tribe has exclusive jurisdiction over Penobscot Indians violating Passamaquoddy law and ensure that the Penobscot Nation has similar jurisdiction over Passamaquoddy Indians, the Acts are not clear on the extent of jurisdiction each tribe has over Indians from other tribes.
At the time the Maine Indian Settlement Act was enacted in 1980, it was believed and assumed that the inherent authority of all tribes to prosecute crimes in Indian country extended to all Indians within a tribal government's jurisdiction. The holding in the Duro case conflicts with that understanding. It is therefore the intent of the Committee of the Conference that the provisions of H.R. 972 shall be applicable to tribes in the State of Maine.
The Committee of the Conference finds that the merits of this bill are clear both as a matter of public safety and as a matter of tribal sovereignty. The Committee of the Conference fully recognizes that the tribal court is the best forum to handle misdemeanor cases over non-member Indians and chaos would result were tribes to lose this long held jurisdictional authority. The Committee of the Conference reaffirms the inherent authority of tribal governments to exercise criminal jurisdiction over all Indians on their reservations.
[Page: H8133]
For practical reasons, legislation to resolve the issue of tribal government criminal authority over non-member Indians needs to be adopted without delay. Legislation extending temporary jurisdiction to tribes in these cases expired on September 30, and there is a jurisdictional void on many reservations. That situation is unacceptable.
However, I have serious concerns about this issue and about tribal jurisdiction issues in general. Specifically, I am concerned that non-member Indians and all U.S. citizens subject to tribal court decisions should be guaranteed full protection under the U.S. Constitution, including the Bill of Rights. Furthermore, I am troubled by the fact that non-member Indians are precluded from participation in the tribal governments to which they are subject. Finally, I am concerned that tribal governments do not currently have the resources necessary to carry out their responsibilities in the way the law requires.
Understandably, these broader concerns that I and other senators have expressed cannot be addressed in the context of this legislation. However, it is important that the Congress take a long and hard look at all issues surrounding tribal jurisdiction. My understanding from the Chairman of the Select Committee on Indian Affairs is that these matters will be fully explored during the next two or three years. In fact, hearings have already begun on the issue of the resources needs of tribal courts and on the issue of Federal court review of tribal court decisions.
It is likely that legislation will be needed to address some of the findings of the Committee. For example, we may need legislation to address Federal court review of civil cases that concern rights guaranteed under the U.S. Constitution that do not now apply to tribal governments, or even rights guaranteed under the Indian Civil Rights Act that tribal courts may not be adequately addressing. While there is Federal court review of criminal cases through writ of habeas corpus, it may be that other access to Federal courts is required. It is with these reservations, with the understanding that these reservations will be addressed, and with recognition of the urgency of this situation, that I sign the Conference Report of the Managers on H.R. 972.
GEORGE MILLER,
BILL RICHARDSON,
JOHN J. RHODES III,
Managers on the Part of the House.
DANIEL K. INOUYE,
DENNIS DECONCINI,
QUENTIN N. BURDICK,
THOMAS A. DASCHLE,
KENT CONRAD,
HARRY REID,
PAUL SIMON,
DANIEL K. AKAKA,
PAUL WELLSTONE,
JOHN MCCAIN,
FRANK H. MURKOWSKI,
THAD COCHRAN,
PETE V. DOMENICI,
Managers on the Part of the Senate.
Mr. MILLER of California. Mr. Speaker, I ask unanimous consent that it be in order today, or any day thereafter, to consider the conference report on H.R. 972, and that the conference report be considered as read when called up.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from California?
There was no objection.
Mr. MILLER of California. Mr. Speaker, under the previous order of the House, I call up the conference report on the bill (H.R. 972), to make permanent the legisaltive reinstatement, following the decision of Duro against Reina (58 U.S.L.W. 4643, May 29, 1990), of the power of Indian tribes to exercise criminal jurisdiction over Indians.
The Clerk read the title of the bill.
(For conference report and statement, see immediately preceding portions of the Record.)
The SPEAKER pro tempore. Under the previous order of the House, the conference report is considered as read.
The gentleman from California [Mr. Miller] will be recognized for 30 minutes, and the gentleman from Arizona [Mr. Rhodes] will be recognized for 30 minutes.
The Chair recognizes the gentleman from California [Mr. Miller].
Mr. MILLER of California. Mr. Speaker, I ask unanimous consent that all Members may have five legislative days to extend their remarks on H.R. 972.
The SPEAKER pro tempore. Is there objection to the request of the gentleman from California?
There was no objection.
Mr. MILLER of California. I yield myself such time as I may consume.
Mr. Speaker, H.R. 972 makes permanent the reinstatement of tribal criminal misdemeanor jurisdiction over nonmember Indians. The Senate amended H.R. 972 to provide for a 2-year fix to this jurisdictional problem. In the conference on H.R. 972 the Senate has agreed to recede to the House language and make this reinstatement permanent.
This legislation has the strong support of every Indian tribe in the United States. The legislation has the support of the Department of the Interior, the Department of Justice, the U.S. Commission on Civil Rights, the International Chiefs of Police, the States of Arizona, South Dakota, Nevada, New Mexico, North Dakota, Montana, and Oregon.
The Congress has never acted to take this jurisdiction away from Indian tribes. This legislation clarifies and reaffirms the inherent authority of tribal governments to exercise jurisdiction over all Indians on their reservations.
Mr. Speaker, I reserve the balance of my time.
[TIME: 1300]
Mr. RHODES. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of the conference report just described by the gentleman from California [Mr. Miller]. The purpose of this legislation is to fill in a void that was judicially created in a Supreme Court case known in Indian country as the Duro case. I strongly support the conference report.
I am very pleased that our conferees on the House side were able to prevail upon the conferees from the Senate to accept the House position to permanently reinstate this jurisdiction.
Mr. Speaker, I reserve the balance of my time.
Mr. MILLER of California. Mr. Speaker, I yield such time as he may consume to the gentleman from New Mexico [Mr. Richardson].
(Mr. RICHARDSON asked and was given permission to revise and extend his remarks.)
Mr. RICHARDSON. Mr. Speaker, as a Member of Congress with the largest number of native Americans in my congressional district, let me say that I echo what the gentleman from California, Chairman Miller, just said, that there is no more important decision to Indian nations around this country than making permanent the repeal of the Duro decision.
In this connection, I want to take special mention to say that the gentleman from California [Mr. Miller] and the gentleman from Arizona [Mr. Rhodes] stood very firm with the House position which was to make this decision permanent. This was the bill that I had offered in the Committee on Interior and Insular Affairs, passed unanimously in committee, passed on the floor of the House, and we went to conference.
Regrettably, some in the other body only wanted a short solution, a 2-year solution, then maybe compromising it to 4 years instead of making it permanent.
I think if it had not been for the efforts of the chairman of this committee, who very strongly insisted on maintaining the House position and the principle on this issue, and that is that each tribe should have jurisdiction over crimes of nonmember Indians on their reservation.
Two weeks ago, Mr. Speaker, I attended one of the largest events in the Indian nation; 150,000 native Americans at the Shiprock Fair in Shiprock, NM, the Navajo Tribe is the largest of all of our tribes. Consider what might have happened if there had been, given 20,000 native Americans from other tribes among the Navajos, a crime committed by any of those 20,000 on the reservation. The Navajo nation would not have had jurisdiction over any of those nonmember Indians.
What this bill does is simply say that we respect Indian sovereignty. We are taking care of proper law enforcement, and we are reversing a bad decision made by the Supreme Court.
I want to once again commend the chairman of the committee and the gentleman from Arizona [Mr. Rhodes] for outstanding work on behalf of the Congress and the native American people of this country.
[Page: H8134]
Mr. MILLER of California. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I wanted to also commend the gentleman from New Mexico and the gentleman from Arizona for their support not only in the conference committee but in getting this legislation through the House of Representatives. They both worked very tirelessly on an issue that had the potential to become somewhat explosive and rather emotional. But because of their hard work and because of the bipartisan agreement that we reached, we were able to deal with this issue on the merits, based on the rights and sovereignty of the Indian nations.
I want to thank them for their help.
Mr. MILLER of California. Mr. Chairman, I yield back the balance of my time.
Mr. RHODES. Mr. Speaker, I urge adoption of the conference report, and I yield back the balance of my time.
Mr. MILLER of California. Mr. Speaker, I move the previous question on the conference report.
The previous question was ordered.
The conference report was agreed to.
A motion to reconsider was laid on the table.
END