Anglo-Saxon judicial system. It does not fit into our form of law enforcement in the traditional sense. I feel it is a basic problem of allowing, and I think it is unique to the Pueblos, because 280 in the past has not touched us in that area and the Pueblos have taken care of the foster home care of children within its own society. Recently for the first time I have seen a family, now removed from the reservation, put into a home away from their home. This is it. It is a complete deprivation of their native cultural way of life. This brings the right of the Government to come into the reservation, pick up these children, and put them out here. It comes into their environment and it has severed a very important part of their life, their total way of growing up as Indians. Certainly if our people are to survive, we should be allowed, I think, to establish within those guidelines the judicial precepts set down by this country and allowed to establish our own child care system which we feel would be the system that would best serve our people. This is the situation as I see it at San Felipe. Senator ABOUREZK. Thank you very much. I would like to thank all of you once again. This has been an excellent set of hearings. It has spread a lot of information on the record and I appreciate your help. The hearings are adjourned subject to the call of the Chair. [Whereupon, at 12 noon, the hearing was adjourned, subject to the call of the Chair.] POSITION PAPER OF THE NATIONAL CONVENTION FOR THE AMENDMENT OF PUBLIC LAW 83-280, DENVER, COLO., FEBRUARY 26, 1975 Introduction In the 1950's Congress adhered to a brief and misguided national policy of termination of American Indian Tribes. The policy was grounded in the optimistic but ill founded notion that Indians could achieve greater independence and achieve the status of first class citizenship under state jurisdiction. Thus, the policy was actually the last gasp of the assimilation policy which began with the General Allotment Act of 1877, and which completely ignored the trust responsibility of the federal government. Aside from actual termination acts for specific tribes, PL 83-280, enacted in 1953, was the single act enacted by Congress in the 1950's, which has had the most significant effect on Indians and Indian governments. The actual effect of PL 83-280 has been the severe erosion of tribal government in all its aspects and the corresponding encroachment by state governments. Its end result has been to create more problems than it solved. PL 83-280 was enacted by Congress for the narrow purpose of providing a state forum for settling criminal and civil disputes arising on Indian reservations. But states have interpreted its language as a general grant of jurisdiction and have used it to expand state jurisdiction, for example, broadly including such areas as child welfare, zoning, building codes and general taxation on Indian reservations. To support their positions states frequently bring lawsuits in state courts which generally rule against tribal positions, and states employ every procedural device and legal technicality to win regardless of the facts. Tribes have been severely hampered by a lack of vigorous advocacy of tribal rights by the Justice Department. Before PL 83-280 and especially afterward states have been eager to extend their power to its utmost limit, and have resented and bitterly fought against islands of jurisdiction existing within their borders. They have readily taken jurisdiction over Indian reservations but for many reasons have failed to exercise that jurisdiction responsibly. PL 83-280 provided no funding and states with inadequate resources and police forces have been unable to deal with the additional Indian territory. State legislatures and local governments refuse to provide funds for adequate police protection to Indian communities, whom they recognize as having little political power. This lack of political power results in unequal treatment in state courts. State jurisdiction over Indians is a one-edged sword that cuts in the direction of punishing Indian offenders, but does not cut in the direction of protection of Indian lives and property. Non-Indian judges have little sympathy for Indian offenders. Sentences are either light and ineffective because only Indian victims are involved, or else unduly harsh and unjust because non-Indian victims are involved. As a result Indian people view non-Indian law enforcement officials with fear, suspicion and hostility. In the end reservations are left with ineffective police protection. One of the most infuriating and graphic examples of injustice that Indians suffer is the sudden increase in Indian arrests at the time they receive tribal per capita payments and the amazing correspondence of fines to per capita payment amounts. The failure of state jurisdiction over Indians is dramatically apparent in the area of juvenile delinquency. Juvenile delinquency on Indian reservations has reached an intolerable level because juveniles are well aware of the inadequate funding of state systems and the absence of facilities and jurisdiction on their reservations. Such situations contribute to the overall loss of morale on reservations and undermine the tribal government efforts to provide law and order protection for all reservation residents-both Indian and non-Indian. A primary sociological concept in PL 83-280 states, is that dependent Indian children should be placed in non-Indian foster homes. A startingly high percentage of Indian children are being removed from reservations each year. For example, in Wisconsin, state agencies rarely, if ever, find that Indian families meet the state's criteria for foster homes. Local courts naturally refuse to respond to arguments that Indian children should remain in Indian homes where they learn their own culture. Typical state foster home criteria are based upon income, station in life, and physical structure of the house criteria inherently discriminatory against traditional Indian homes. In addition, States have used PL 83-280 to usurp tribal control over reservations in a manner never intended by Congress. States are attempting to regulate zoning, land use, housing and natural resources, and are attempting to tax commerce on reservations, all in direct violation of tribal powers even in instances in which tribes have themselves legislated. As a result of PL 83-280, conditions on Indian reservations are so bad that they could hardly get worse. Tribal governments are uniformly seeking positive remedies, and at its 1974 Convention, the National Congress of American Indians established as a top priority solution of the PL 83-280 problem. True, self-determination requires that each tribe determine for itself whether to repeal PL 83-280 totally or partially on its own reservation. In recognition of the intolerable problems created by PL 83-280 and the mandate given by the Indian community, this Convention submits the following recommendations: I. AMENDMMENT OF PUBLIC LAW 83-280 The difficult task of amending Public Law 83-280 must be accomplished as soon as possible. It will not be easy; the Indian community is painfully aware of the immense problem of mobilizing the sufficient support of Indian people and of Congress. To gain wide support, and yet provide a solution to the existing jurisdictional dilemmas, the proposed Amendment must be flexible enough to encompass widely varying individual fact situations. a. Substantive enclaves The Amendment should provide that tribes may select subject areas of jurisdiction to be reacquired by the tribes and by the federal government. No tribe need select any jurisdictional subject area it does not wish to reacquire. For example, a tribe may reject criminal jurisdiction, but may decide to reacquire all civil jurisdiction. Alternatively, the Amendment might provide that tribes may choose merely to reacquire concurrent jurisdiction in a given jurisdictional subject area. The Amendment must provide maximum flexibility to fit individual tribal situations. b. Geographical enclaves Tribes find themselves in many different demographic situations. Some reservations have large non-Indian populations located within the original reservation boundaries. Some reservations contain state-incorporated municipalities with majority non-Indian populations. In a few cases large metropolitan areas are located partially on reservations. Since large non-Indian populations are extremely reluctant to be under the jurisdiction of tribal government, these facts pose very sensitive political problems. Accordingly, the Amendment must provide the flexibility to fashion compromises if they become politically necessary. c. Reacquisition procedure The Amendment must provide a satisfactory procedure for the reacquisition of jurisdiction which is not susceptible to a switching back and forth between state and federal jurisdiction. One possible procedure which would prevent fickle changes of jurisdiction would be a provision making any jurisdictional change conditional upon a referendum of the tribe. Another suggestion would be a requirement that changes of jurisdiction could not be reversed within a given period, say 5 years. Whatever method is chosen, a jurisdictional stability must clearly be estab lished if wide support of Indians, non-Indians and the Congress is to be achieved. d. Feasibility studies Funding must be obtained to provide for comprehensive studies of the feasibility of federal and tribal reacquisitions of jurisdiction. Tribes must be adequately informed of the consequences of their reacquiring jurisdiction if they are to make prudent choices. Resource people must be hired to aid tribes in decision |