INDIAN TRIBAL JUSTICE ACT 

HEARING 

BEFORE THE 

SUBCOMMITTEE ON 

NATIVE AMERICAN AFFAIRS 

OF THE 

COMMITTEE ON 

NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 

ON 

H.R. 1268 

TO ASSIST THE DEVELOPMENT OF TRIBAL JUDICIAL SYSTEMS, AND 

FOR OTHER PURPOSES 

69-S93 

HEARING HELD IN WASHINGTON, DC 

APRIL 21, 1993 

Serial No. 103-19 

Printed for the use of the Committee on Natural Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1993 

For sale by the U.S. Government Printing Office 

Superintendent of Documents. Congressional Sales Office, Washington. DC 20402 

ISBN 0-16- 041112-2 
COMMITI'EE ON NATURAL RESOURCES 

HOUSE OF REPRESENTATIVES 

GEORGE MILLER, California, Chairman 

PHILIP R. SHARP, Indiana 

EDWARD J. MARKEY, Massachusetts 

AUSTIN J . MURPHY, Pennsylvania 

NICK JOE RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

PAT WILLIAMS, Montana 

RON DE LUGO, Virgin Islands 

SAM GEJDENSON, Connecticut 

RICHARD H. LEHMAN, California 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

LARRY LAROCCO, Idaho 

NEIL ABERCROMBIE, Hawaii 

CALVIN M. DOOLEY, California 

CARLOS ROMERO-BARCELO, Puerto Rico 

KARAN ENGLISH, Arizona 

KAREN SHEPHERD, Utah 

NATHAN DEAL, Georgia 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

HOWARD BERMAN, California 

LANE EVANS, Illinois 

PATSY T. MINK, Hawaii 

THOMAS J . BARLOW III, Kentucky 

THOMAS M. BARRETT, Wisconsin 

DON YOUNG, Alaska 

Ranking Republican Member 

JAMES V. HANSEN, Utah 

BARBARA F. VUCANOVICH, Nevada 

ELTON GALLEGLY, California 

ROBERT F. SMITH, Oregon 

CRAIG THOMAS, Wyoming 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

RICHARD H. BAKER, Louisiana 

KEN CALVERT, California 

SCOTT MciNNIS, Colorado 

RICHARD W. POMBO, California 

JAY DICKEY, Arkansas 

JOHN LAWRENCE, Staff Director 

RICHARD MELTZER, General Counsel 

DANIEL VAL K!SH, Republican Staff Director 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

BILL RICHARDSON, New Mexico, Chairman 

PAT WILLIAMS, Montana CRAIG THOMAS, Wyoming, 

SAM GEJDENSON, Connecticut Ranking Republican Member 

ENI F.H. FALEOMAVAEGA, DON YOUNG, Alaska 

American Samoa RICHARD H. BAKER, Louisiana 

TIM JOHNSON, South Dakota KEN CALVERT, California 

NEIL ABERCROMBIE, Hawaii 

KARAN ENGLISH, Arizona 

TADD JOHNSON, Staff Director 

STEVEN J.W. HEELEY, Counsel 

MARIE HOWARD, Professional Staff Member 

BARBARA ROBLES, Clerk 

RICHARD H. HoUGHTON III, Republican Counsel on Native American Affairs 

(II) 
CONTENTS 

Hearing held: April 12, 1993 ................................ ........ ......................................... . 

H.R. 1268: 

1. Text of the bill ............................... ....... .... ........... ............ ............................ . 2. Background information ......................................... .............................. ...... . 3. Section-by-section summary analysis ........................................................ . Member statements: 

Bill Richardson ................................................. ................... ............................ . Craig Thomas ............... ..... .. ........................................ ......... .. ........ ..... ..... ..... ... . 

Witness statements: Panel consisting of: Hon. Mark Mercier, tribal council chairman, Confederated Tribes 

of the Grande Ronde Community of Oregon .......................... .... ........ . Hon. Delford Leslie, senior associate judge, Hopi Tribe, Kykotsmovi, AZ ................................. ... ........ ............................................................... . Hon. John Herrerra, chief justice, Leech Lake Reservation Tribal 

Court, Cass Lake, MN .. ............................. ........................................... . Kevin Gover, Esq., on behalf of the Shoshone Indian Tribe of the 

Wind River Reservation, Fort Washakie, WY ............... ..................... . Denise Homer, Chief, Division of Tribal Government, Bureau of Indian 

Affairs, Department of the Interior, accompanied by Betty Rushing, Chief, Branch of Judicial Services ..................................................... ......... . Panel consisting of: 

HD~l~e~W'M v~~~~~~~ .. ~~~~ ~ .. ~~i.~~ . ~~~~.' .. ~ ~~~~~~~~ .. ~:.~~~~ . ~~i~~ ~. ~~~~~: Hon. Robert Yazzie, chief justice, Navajo Nation Judicial Branch, 

Window Rock, AZ ............................ ............... .......................... ............. . 

H~~ib~f~~~~~ ~;s~~~~eEd~e:~~~~ \VA~ .. ~~~ .!.~~~~.' .. ~~~.~~~~.~.~ .. .~ ~~~ Additional material submitted for the record by witnesses: Hon. Delford Leslie: 1

. i~ilR~df26t~ ~~~ .. ~~:.~ ... ~~.~~~~~ .. ~~~~~~~ .. ~ ... ~:. ~~~~~ .. :.~~~ ~~~~ ~ 2. Prepared statement of Chairman Vernon Masayesva, Hopi Tribe .. . Hon. Carey Vicenti: Prepared joint statement of President Leonard Atole 

and Jud~e Vicenti .................................. ............. ........... .............................. . Hon. Elbr1dge Coochise: Document entitled, "BIA Budget Justification 

Estimates-Tribal Courts" ... .............................................. ....................... .. . 

APPENDIX 

WEDNESDAY, APRIL 21, 1993 

Additional material submitted for the hearing record from: 

Hon. Harry Early, governor, Pueblo of Laguna, NM: Prepared statement . John St. Clair, chief judge, Shoshone and Arapahoe Tribal Court, Wind 

River Indian Reservation, Wyoming: Prepared statement ...................... .. Ralph Goff, chairman, Campo Band of Mission Indians, California: Letter 

Ja:!~dllf!~;~·c~~rrm~~·,')ji'!~di~~··P~~hi~ ··c~~~~ii;··Aiil;q~~~q~~:··N~f Letter dated April 22, 1993 ........................ .................................. .............. .. Raymond Calica, Sr., chairman, Warm Springs Tribal Council, Oregon: Letter dated April 19, 1993 ........................................................................ .. Hon. Robert E. Lewis, governor, Pueblo of Zuni, NM: Letter dated April 26, 1993 ................... .... ........................ ................... ................. ...................... . Delbert Havatone, tribal chairman, Hualapai Tribal Council, Peach 

Springs, AZ: Letter dated April 30, 1993 .............................. .................... .. Catherine A. Aragon, chief judge, Fort Belknap Community Court, Harlem, MT: Letter dated May 6, 1993 ............................................ .... ............ . 

(Ill) 

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H.R. 1268-THE INDIAN TRIBAL JUSTICE ACT 

APRIL 21, 1993 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

COMMITTEE ON NATURAL RESOURCES, 

Washington, DC. 

The subcommittee met at 1 p.m., in room 1324, Longworth House 

Office Building, the Honorable Bill Richardson presiding. 

OPENING STATEMENT OF CHAIRMAN RICHARDSON 

Mr. RICHARDSON. The subcommittee will come to order. I would 

like to welcome everyone here today for the hearing on H.R. 1268, the Indian Tribal Justice Act. 

A fundamental maxim of Indian law is that Indian Tribes retain 

any and all sovereignty that is not specifically divested by the Congress. Fundamental to the exercise of this sovereignty is the ability of Indian Tribes to administer justice on tribal lands. Our committee and the Congress has affirmed the rights of Indian Tribes to 

exercise jurisdiction over all Indians through the passage of legisla- tion overturning Duro vs. Reina. 

The United States clearly has a trust responsibility to ensure 

that tribal justice systems are properly funded and provided with 

the proper technical assistance. Tribes have shown for years that 

they are capable of operating successful justice systems on shoestring budgets. Tribal justice systems must receive funding levels 

equal to the tremendous task with which they are charged-the dispensation of fair and equal justice in Indian country. I am aware that last year, prior to the existence of this subcommittee, this legislation was a matter of controversy. The House 

and Senate committees had differing views on how to improve tribal courts. Indian Tribes were divided as to whether they wanted a 

national judicial conference or no judicial conference. H.R. 1268 

strikes a compromise. It provides that if a Tribe chooses to join a 

conference, be it local, regional, or national, they are free to do so. 

If Tribes choose not to be part of any tribal judicial conference, they are free to do that. I believe that the House and Senate bills are very similar and 

they allow Tribes to exercise their sovereign right to choose their 

own destinies in the area of tribal courts. 

H.R. 1268, the Indian Tribal Justice Act, will provide badly needed resources to Indian Tribes to ensure that there is adequate funding for the administration of justice on tribal lands. At this 

time, I request the bill, background and section-by-section analysis be made part of the record. 

(1) 
2 

[The bill, H.R. 1268, and background information follow:] 
3 

103D CONGRESS 

1ST SESSIO~ H.R.l268 

To assist the development of tribal judicial systems, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 9, 1993 

Mr. RICHARDSOK (for himself and Ms. EKGLISH of Ariwna) introduced the 

following bill; which was referred to the Committee on Natural Resources 

A BILL 

To assist the development of tribal judicial systems, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 fives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "Indian Tribal Justice 

5 Act". 

6 SEC. 2. FINDINGS. 

7 The Congress finds and declares that-·-

8 (1) there is a government-to-government rela9 tionship between the United States and each Indian 

10 tribe; 
4 

2 

1 (2) Congress, through statutes, treaties, and 

2 the exercise of administrative authorities, has recog3 nized the self-determination, self-reliance, and inher4 ent sovereignty of Indian tribes; 

5 (3) Indian tribes possess the inherent authority 

6 to establish their own form of government, including 

7 tribal justice systems; 

8 ( 4) tribal justice systems are essential to self9 government and integral to the fulfillment of the 

10 Federal Government's policy of self-determination; 

11 (5) tribal justice systems are inadequately fund12 ed and the lack of adequate funding impairs their 

13 ability to administer justice effectively; and 

14 (6) tribal government involvement in and com15 mitment to improving tribal justice systems is essen16 tial to the accomplishment of the goals of this Act. 

17 SEC. 3. DEFINITIONS. 

18 For purposes of this Act: 

19 ( 1) The term "Bureau" means the Bureau of 

20 Indian Mfairs of the Department of the Interior. 

21 (2) The term "Courts of Indian Offenses" 

22 means the courts established pursuant to part 11 of 

23 title 25, Code of Federal Regulations. 

24 (3) The term "Indian tribe" means any Indian 

25 tribe, band, nation, pueblo, or other organized group 

•IIR 11188 lll 
5 

3 

1 or community, including any Alaska Native entity, 

2 which administers justice under its inherent author3 ity or the authority of the United States and which 

4 is recognized as eligible for the special programs and 

5 services provided by the United States to Indian 

6 tribes because of their status as Indians. 

7 (4) The term "judicial personnel" means any 

8 judge, magistrate, court counselor, court clerk, court 

9 administrator, bailiff, probation officer, officer of the 

10 court, dispute resolution facilitator, or other official, 

11 employee, or volunteer within the tribal justice sys12 tern. 

13 (5) The term "Office" means the Office of 

14 Tribal Justice Support within the Bureau of Indian 

15 Affairs. 

16 (6) The term "Secretary" means the Secretary 

17 of the Interior. 

18 (7) The term "tribal organization" means any 

19 organization defined in section 4(1) of the Indian 

20 Self-Determination and Education Assistance Act. 

21 (8) The term "tribal justice system" means the 

22 entire judicial branch, and employees thereof, of an 

23 Indian tribe, including but not limited to traditional 

24 methods and forums for dispute resolution, lower 

25 courts, appellate courts, alternative dispute resolu-

•HR 1288 m 
6 

4 

1 tion systems, and circuit rider systems, established 

2 by inherent tribal authority whether or not they con3 stitute a court of record. 

4 TITLE I-TRIBAL JUSTICE 

5 SYSTEMS 

6 SEC. 101. OFFICE OF TRIBAL JUSTICE SUPPORT. 

7 (a) ESTABLISHMENT.-There is hereby established 

8 within the Bureau the Office of Tribal Justice Support. 

9 The purpose of the Office shall be to further the develop-

! 0 ment, operation, and enhancement of tribal justice sys11 terns and Courts of Indian Offenses. 

12 (b) TRANSFER OF EXISTING FUNCTIONS AND PER13 SONNEL.-All functions performed before the date of the 

14 enactment of this Act by the Branch of Judicial Services 

15 of the Bureau and all personnel assigned to such Branch 

16 as of the date of the enactment of this Act are hereby 

17 transferred to the Office of Tribal Justice Support. Any 

18 reference in any law, regulation, executive order, reorga19 nization plan, or delegation of authority to the Branch of 

20 Judicial Services is deemed to be a reference to the Office 

21 of Tribal Justice Support. 

22 (c) FUNCTIONS.-Except as otherwise provided in 

23 title II, in addition to the functions transferred to the Of24 fice pursuant to subsection (b), the Office shall perform 

25 the following functions: 

•IIR 1288 IH 
7 

5 

1 (1) Develop and conduct programs of continu2 ing education and training for personnel of tribal ju3 dicial systems and Courts of Indian Offenses. 

4 (2) Provide funds to Indian tribes and tribal or5 ganizations for the development, enhancerr.ent, and 

6 continuing operation of tribal justice systems. 

7 (3) Provide technical assistance and training to 

8 Indian tribes and tribal organizations upon request. 

9 ( 4) Study and conduct research concerning the 

10 operation of tribal justice systems. 

11 ( 5) Promote cooperation and coordination be12 tween tribal justice systems, the Federal judiciary, 

13 and State judiciary systems. 

14 (6) Oversee the continuing operations of the 

15 Courts of Indian Offenses. 

16 (d) No IMPOSITION OF STANDARDS.-Nothing in 

17 this section shall be deemed or construed to authorize the 

18 Office to impose justice standards on Indian tribes. 

19 (e) AsSISTANCE TO TRIBES.-(1) The Office shall 

20 provide training and technical assistance to any Indian 

21 tribe or tribal organization upon request. Technical assist22 ance and training which may be provided by the Office 

23 shall include, but is not limited to, assistance for the devel24 opment of25 (A) tribal codes and rules of procedure; 

•Hit 1288 m 
8 

6 

1 (B) tribal court administrative procedures and 

2 court records management systems; 

3 (C) methods of reducing case delays; 

4 (D) methods of alternative dispute resolution; 

5 (E) tribal standards for judicial administration 

6 and conduct; and 

7 (F) long-range plans for the enhancement of 

8 tribal justice systems. 

9 (2) Technical assistance and training provided pursu10 ant to paragraph (1) may be provided through direct serv11 ices, by contract with independent entities, or through 

12 grants to Indian tribes or tribal organizations. 

13 (f) INFORMATION CLEARINGHOUSE ON TRIBAL JUS14 TICE SYSTEMS.-The Office shall establish an information 

15 clearinghouse (which shall include an electronic data base) 

16 on tribal justice systems and Courts of Indian Offenses 

17 including, but not limited to, information on tribal judicial 

18 personnel, funding, model tribal codes, tribal justice activi19 ties, and tribal judicial decisions. 

20 SEC. 102. SURVEY OF TRIBAL JUDICIAL SYSTEMS. 

21 (a) IN GENERAL.-Not later than one year after the 

22 date of the enactment of this Act, the Office shall conduct 

23 a survey of conditions of tribal justice systems and Courts 

24 of Indian Offenses to determine the resources and funding 

25 needed to provide for expeditious and effective administra-

•HR 1188 m 
9 

7 

1 tion of justice. The Office shall annually update the infor2 mation and findings contained in the survey required 

3 under this section. 

4 (b) LOCAL CoNDITIONS.-In the course of any an5 nual survey, the Office shall document local conditions on 

6 each reservation, including, but not limited to--

7 ( 1) the reservation size and population to be 

8 served; 

9 (2) the levels of functioning and capacity of the 

10 tribal justice system; 

11 (3) the volume and complexity of the case loads; 

12 ( 4) the facilities, including detention facilities, 

13 and program resources available; 

14 ( 5) funding levels and personnel staffing re15 quirements for the tribal justice system; 

16 (6) the experience and qualifications of judicial 

17 personnel of the tribal justice system; and 

18 ( 7) the training and technical assistance needs 

19 of the tribal justice system. 

20 (c) CONSULTATION WITH INDIAN TRIBES.-The Of21 fice shall actively consult with Indian tribes and tribal or22 ganizations in the development and conduct of the surveys 

23 under this section. Indian tribes and tribal organizations 

24 shall have the opportunity to review and make rec25 ommendations regarding the findings of the survey prior 

•BR 1J68 m 
10 

8 

1 to final publication of the survey. After Indian tribes and 

2 tribal organizations have reviewed and commented on the 

3 results of the survey, the Office shall report its findings, 

4 together with the comments and recommendations of the 

5 Indian tribes and tribal organizations, to the Secretary, 

6 the Select Committee on Indian Affairs of the Senate, and 

7 the Subcommittee on Native American Affairs of the Com8 mittee on Natural Resources of the House of Representa9 tives. 

10 SEC. lOS. BASE SUPPORT FUNDING FOR TRIBAL JUSTICE 

11 SYSTEMS. 

12 (a) IN GENERAL.-Pursuant to the Indian Self-De13 termination and Education Assistance Act, the Secretary 

14 is authorized (to the extent provided in advance in approIS priations Acts) to enter into contracts, grants, or agree16 ments with Indian tribes and tribal organizations for the 

17 development, enhancement, and continuing operation of 

18 tribal justice systems on Indian reservations. 

19 (b) PuRPOSES FOR WHICH FINANCIAL AsSISTANCE 

20 MAY BE USED.-Financial assistance provided through 

21 contracts, grants, or agreements entered into pursuant to 

22 this section may be used for23 ( 1) planning for the development, enhancement, 

24 and operation of tribal justice systems; 

25 (2) the employment of judicial personnel; 
11 

9 

1 (3) training programs and continuing education 

2 for tribal judicial personnel; 

3 ( 4) the acquisition, development, and mainte4 nance of a law library or computer assisted legal re5 search capacities; 

6 ( 5) the development, revision, and publication 

7 of tribal codes, rules of practice, rules of procedure, 

8 and standards of judicial performance and conduct; 

9 (6) the development and operation of records 

10 management systems; 

11 (7) the construction or renovation of facilities 

12 for tribal justice systems; 

13 ( 8) membership and related expenses for par14 ticipation in national and regional organizations of 

15 tribal justice systems and other professional organi16 zations; and 

17 (9) the development and operation of other in18 novative and culturally relevant programs and 

19 projects, including programs and projects for20 (A) alternative dispute resolution; 

21 (B) tribal victims assistance or victims 

22 services; 

23 (C) tribal probation services or diversion 

24 programs; 

•BR 1188 1H 
12 

10 

1 (D) multidisciplinary investigations of child 

2 abuse; and 

3 (E) tribal traditional justice systems or 

4 traditional methods of dispute resolution. 

5 (c) FORMULA.-( I) Not later than 180 days after the 

6 date of the enactment of this Act, the Secretary, with the 

7 full participation of Indian tribes, shall establish and proS mulgate by regulation, a formula which establishes base 

9 support funding for tribal justice systems in carrying out 

10 this section and tribal judicial conferences carrying out 

11 section 201(a)(2) on behalf of members of such con12 ferences. Such formula shall assure that in any case in 

13 which two or more Indian tribes form a tribal judicial con14 ference under title II, the base support for such conf~rence 

15 shall be an amount equal to the aggregate of that which 

16 each tribal member of such conference would have received 

17 if such tribe had not elected to be a member of the con18 ference. 

19 (2) The Secretary shall develop appropriate case load 

20 standards and staffing requirements for tribal justice sys21 terns that take into account unique reservation conditions. 

22 In the development of these standards, the Secretary shall 

23 work cooperatively with Indian tribes and tribal organiza24 tions and shall refer to comparable relevant standards de25 veloped by the Judicial Conference of the United States, 

•HR 1288 m 
13 

11 

1 the National Center for State Courts, and the American 

2 Bar Association. 

3 (3) Factors to be considered in the development of 

4 the base support funding formula shall include, but are 

5 not limited to6 (A) the case load standards and staffing re7 quirements developed under paragraph (2); 

8 (B) the reservation size and population to be 

9 served; 

10 (C) the volume and complexity of the case 

11 loads; 

12 (D) the projected number of cases per month; 

13 (E) the projected number of persons receiving 

14 probation services or participating in diversion pro15 grams; and 

16 (F) any special circumstances warranting addi17 tiona) financial assistance. 

18 (4) In developing the formula for base support fund19 ing for the tribal judicial systems and tribal judicial con20 ferences under this section, the Secretary shall ensure eq21 uitable distribution of funds. 

•HR 1:168 m 
14 

12 

1 TITLE II-TRIBAL JUDICIAL 

2 CONFERENCES 

3 SEC. 201. ESTABLISHMENT; FUNDING. 

4 (a) ESTABLISHMENT.-In any case in which two or 

5 more governing bodies of Indian tribes establish a judicial 

6 conference, such conference shall be considered a tribal or7 ganization and eligible to contract for funds pursuant to 

8 this title if each member tribe served by the conference 

9 has adopted a tribal resolution which authorizes the tribal 

10 judicial conference to receive and administer funds under 

11 this title. At the written request of any tribal judicial con12 ference, a contract entered into pursuant to this title 

13 shall14 (1) authorize the conference to receive funds 

15 and only perform some or all of the duties of the 

16 Bureau and the Office under sections 101 and 102 

17 on behalf of the members of such conference; and 

18 (2) authorize the conference to receive funds 

19 and only perform some or all of the duties of the 

20 Bureau and the Office under section 103 on behalf 

21 of members of the conference. 

22 (b) CONTRACT AUTHORITY.-Pursuant to the Indian 

23 Self-Determination and Education Assistance Act, the 

24 Secretary is authorized to enter into contracts, grants, or 

25 agreements with a tribal judicial conference for the devel-

•HR lW m 
15 

13 

1 opment, enhancement, and continuing operation of tribal 

2 justice systems of Indian tribes which are members of 

3 such conference. 

4 (c) FUNDING.-The Secretary is authorized to pro5 vide funding to tribal judicial conferences pursuant to con6 tracts entered into under the authority of the Indian Self7 Determination and Education Assistance Act for adminis8 trative expenses incurred by such conferences. 

9 SEC. 202. LIMITATION. 

10 In any case in which an Indian tribe receives financial 

11 assistance through a tribal judicial conference for the op12 eration of a tribal justice system for any fiscal year, the 

13 tribal justice system of that tribe shall not be eligible for 

14 assistance under title I for that fiscal year. 

15 TITLE III-AUTHORIZATIONS 

16 SEC. 301. TRIBAL JUSTICE SYSTEMS. 

17 (a) 0FFICE.-There are authorized to be appro18 priated to carry out the provisions of sections 101, 102, 

19 and 201(a)(1) of this Act, $7,000,000 for each of the fis20 cal years 1994, 1995, 1996, 1997, 1998, 1999, and 2000. 

21 None of the funds provided under this subsection may be 

22 used for the administrative expenses of the Office or any 

23 tribal judicial conference. 

24 (b) BASE SUPPORT FUNDING FOR TRIBAL JUSTICE 

25 SYSTEMS AND JUDICIAL CONFERENCES.-There are au-

•HR 1288 m 
16 

14 

thorized to be appropriated to carry out the provisions of 

2 sections 103 and 201(a)(2) of this Act, $50,000,000 for 

3 each of the fiscal years 1994, 1995, 1996, 1997, 1998, 

4 1999, and 2000. 

5 (c) ADMINISTRATIVE EXPENSES FOR OFFICE.-

6 There are authorized to be appropriated, for the adminis7 trative expenses of the Office, $500,000 for each of the 

8 fiscal years 1994, 1995, 1996, 1997, 1998, 1999, and 

9 2000. 

10 (d) ADMINISTRATIVE EXPENSES FOR TRIBAL JUDI11 CIAL CONFERENCES.-There are authorized to be appro12 priated, for the administrative expenses of tribal judicial 

13 conferences, $500,000 for each of the fiscal years 1994, 

14 1995, 1996, 1997, 1998, 1999, and 2000. 

15 (e) INDIAN PRIORITY SYSTEM.-Funds appropriated 

16 pursuant to the authorizations provided by this section 

17 and available to a tribal judicial conference shall not be 

18 subject to the Indian priority system. 

19 (f) ALLOCATION OF FUNDS.-In allocating funds ap20 propriated pursuant to the authorization contained in sub21 section (a) among the Bureau, Office, and tribal judicial 

22 conferences, the Secretary shall take such actions as may 

23 be necessary to ensure that such allocation is carried out 

24 in a manner that is fair and equitable to tribal justice sys25 terns and judicial conferences. 

•BRtlllll m 
17 

BACKGROUND FOR APRIL 21ST H&\RING ON 

H.R. 1268. mE INDIAN TRIBAL JUSTICE Acr 

Over the last three Congresses, the House Committee on Natural Resources has 

considered legislation to enhance the administration of justice in Indian country and provide 

resources to tribal justice systems. In the lOOth Congress, the U.S. Commission on Civil 

Rights conducted several hearings on tnbal justice systems. In the lOlst Congress, several 

issues involving tnbal courts emerged during the debate on ovenuming the case of~ 

&llm. Tnbal coun legislation was introduced on both the Senate and House sides in the 

102nd Congress, but a disagreement on several fundamental issues resulted in gridlock. 

The Senate bill would have established a tnbally chanered entity, Tribal Judicial 

Conference, outside the Bureau of Indian Affairs that would mandate funding formulas to 

the Bureau of Indian Affairs. the Justice Depanment stated that this was unconstitutional 

under the Appointments Clause since the Tribal Judicial Conference would be making 

significant decisions for the Executive Branch but the Conference was not appointed by the 

President or his designee. Second, the Senate bill proposed to amend the floor procedures 

of the House of Representatives for the Congressional ratification of the Tribal Judicial 

Conference. this provision would have caused a referral to the House Rules Committee. 

Third, the Senate bill mandated that the appropriation authority for tribal courts was to be 

transferred from the Appropriations Subcommittee on Interior and Related Agencies to the 

Subcommittee on Commerce, State and Judiciary. This provision would have created more 

jurisdictional problems on the House side. 

Although there has been a great deal of attention placed on tribal justice systems, 

there has not been a corresponding increase in the level of funding. Funding for tribal 

justice systems is designed to suppon the personnel and administrative costs for the 

operation of 133 tribal couns and 22 Courts of Indian Offenses. The operation of a tribal 

justice system includes the need for probation services, child counselors, and the 

development of legal research capacities. In addition, the Branch of Judicial Services in the 

Bureau of Indian Affairs provides suppon, training and technical assistance to tribal couns. 

These reductions are made in the face of increasing numbers of tribal court cases as well as 

the increasing numbers of Indian tribes establishing tribal couns. Finally, the funding made 

available to Indian tribes for their judicial systems is not based on need but rather the funds 

are made available based on historic funding levels. 

mE INDIAN TRIBAL JUSTICE Acr 

The Indian Tribal Justice Act builds upan the previous drafts of tribal court 

legislation to reflect the concerns and views of tribal coun judges and tribal leaders. This 

bill will allow tnbally created judicial conferences to enter into Indian Self· Determination 

contracts for BIA functions regarding tribal justice systems. It will allow several judicial 

conferences to form and to work within the existing system. It also allows Indian tribes who 

choose not to join a judicial conference to remain independent. The Committee included 

this provision based on the testimony provided to the Committee in the last Congress which 
18 

indicated a strong preference for having a tribally chartered and organized judicial 

conference. The bill establishes an Office of Tribal Justice Support within the Bureau of 

Indian Affairs to further the development and enhancement of tnbal justice systems. The 

Office will assume the functions and personnel of the Branch of Judicial Services within the 

Bureau of Indian Affairs. The Office of Tribal Justice Support shaU be responsible for 

providing funds for the development, enhancement, and continuing operation of tnbal justice 

systems, for providing training and technical assistance to tnbal justice systems and to 

conduct research and study the operation of tribal justice systems. In addition, the bill would 

require the Office to provide training and technical assistance to any Indian tribe upon 

request. The Office will establish an information clearinghouse on tnbal justice systems 

which shall include information on tribal court personnel, funding, tnbal codes, and court 

decisions. 

The Office is authorized to make a survey of the conditions of tribal justice systems 

to determine resources needed to provide for expeditious and effective administration of 

justice. The Office shall consult with Indian tribes in the development of the survey and 

Indian tribes shall review and make recommendations regarding the findings of the survey 

prior to final publication of the survey. The Office shall report its findings to the Secretary 

and the Senate Select Committee on Indian Affairs and the House Subcommittee on Native 

American Affairs. 

The Indian Tribal Justice Act provides for base support funding to tribal judicial 

systems which would be based on objective criteria. The bill requires the Secretary to ensure 

equitable distribution of the funds. It would also require the Secretary with the full 

participation of Indian tribes to develop a funding formula which considers funding needs 

based on objective criteria. 

Finally, the Indian Tribal Justice Act authorizes $7,000,000 to be appropriated for 

fiscal years 1994 through 2000 for the operations of the Office of Tribal Justice Support. It 

authorizes $50,000,000 for fiscal years 1994 through 2000 to provide base support funding 

to tribal justice systems. Finally, it provides $500,000 for fiscal years 1994 through 2000 for 

the administrative expenses of tribal judicial conferences. 

2 
March 1, 1993 

SECI'ION 1 

19 

SECI'ION BY SECI'ION SUMMARY ANALYSIS OF 

mE INDIAN TRIBAL JUSTICE ACf 

Section 1 cites the shon title of the Act as the "Indian Tnbal Justice Act." 

SECI'ION 2 

Section 2 sets out the findings of the Congress. 

SECI'ION 3 

Section 3 of this bill sets out the definitions used in the Act. 

TITLE I - TRIBAL JUSTICE SYSTEMS 

SECI'ION 101 

Section 101 establishes an Office of Tribal Justice Suppon within the Bureau of 

Indian Affairs to further the development and enhancement of tnbal justice systems. The 

Office of Tribal Justice Support shall be responsible for providing funds for the 

development, enhancement, and continuing operation of tnbal judicial systems, for providing 

training and technical assistance to tribal justice systems and to conduct research and study 

the operation of tribal justice systems. In addition, this section requires the Office to provide 

staff, research, and planning assistance to Indian tnbes. It would further require the Office 

to provide training and technical assistance to any Indian tnbe upon request. It further 

requires the Office to establish an information clearinghouse on tribal justice systems which 

shall include information on tribal court personnel, funding, tnbal codes, and coun decisions. 

SECI'ION 102 

Section 102 provides that the Office shall make a survey of the conditions of tribal 

justice systems to determine resources needed to provide for expeditious and effective 

administration of justice. The Office shall consult with Indian tnbes in the development of 

the survey and Indian tnbes shall review and make recommendations regarding the findings 

of the survey prior to final publication of the survey. In the course of any annual survey the 

Office shall document local conditions on each reservation including reservation size and 

service population, volume and complexity of caseloads, available facilities and program 

resources, and the training and technical assistance needs of the tnbal justice system. The 

Office shall report its findings to the Secretary, the Senate Committee on Indian Affairs and 
20 

the House Subcommittee on Native American Affairs of the Committee on Natural 

Resources. 

SECfiON 103 

Section 103 provides that the Secretary is authorized to enter into agreements or 

contracts to provide financial assistance to any Indian tn'be for the development, 

enhancement, or continuing operation of a tnbal justice system pursuant to the Indian SelfDetermination Act. 1bis section provides that funds may be used for employment of justice 

personnel, training programs, development of law hbraries, development of rules of practice 

and court procedure and other innovative and culturally relevant projects. 

Finally, this section provides that the Secretary, with the participation of Indian tribes, 

shall promulgate regulations a base support funding formula for tnbal justice systems. In 

developing the formula the Secretary shall consult with and receive the recommendations 

of Indian tn'bes. It further provides that the Secretary shall develop appropriate caseload 

standards and staffing requirements for tnbal justice systems. In developing these standards 

the Secretary shall work cooperatively with the Indian tn'bes. Factors to be considered in 

the development of the formula shall include the reservation size, service population, and 

the volume and complexity of the caseload. 

TITLE D - TRIBAL JUDICIAL CONFERENCES 

SECfiON 201 

Section 201 authorizes the Secretary enter into contracts with tribal judicial 

conferences pursuant to the Indian Self-Determination Act. Member tribes shall adopt tribal 

resolutions authorizing tribal judicial conferences to receive and administer funds provided 

under section 103 of this Act for the operation and maintenance of tnbal justice systems. 

A tnbal judicial conference may be authorized to perform any or all of the duties of the 

Office of Tnbal Justice and the Bureau of Indian Affairs under sections 101, 102, and 103 

of this Act on behalf of the members of the Conference. 

SECfiON 202 

Section 202 provides that where an Indian tn'be receives financial assistance through 

a tnbal judicial conference for the operation of a tnbal justice system for any fiscal year, the 

tnbal justice system of that tn'be shall not be elig~ble for assistance under title I of this Act 

for that fiscal year. 

2 
21 

TITLE III- AUTHORIZATIONS 

SECfiON 301 

Section 301 provides that $7,000,000 shall be authorized for each of the fiscal years 

1994 through 2000 to carry out the provisions of sections 101, 102 and 201(a)(1) of this Act. 

None of the funds provided under subsection (a) may be used for the administrative 

expenses of the Office or any tribal judicial conference. Subsection (b) provides that 

$50,000,000 shall be authorized for each of the fiscal years 1994 through 2000 to carry out 

the provisions of sections 103 and 201(a)(2) of this Act. Subsection (c) provides that 

$500,000 shall be authorized for each of the fiscal years 1994 through 2000 for the 

administrative expenses of the Office. Subsection (d) provides that $500,000 shall be 

authorized for each of the fiscal years 1994 through 2000 for the administrative expenses of 

tnbal judicial conferences. Subsection (e) provides that funds appropriated for tnbal judicial 

conference s under this section shall not be subject to the Indian priority system. Subsection 

(f) requires the Secretary to take such actions as may be necessary to ensure that the 

allocation of funds is carried out in a manner that is fair and equitable to tnbal justice 

systems and judicial conferences. 

3 
22 

Mr. RICHARDSON. Again, I appreciate all of your thoughtful testimony and look forward to working with you on these important issues. 

Let me again remind each witness that their full statements will 

be made part of the record, and I would ask them to please summarize their statements within five minutes. Before we call the witnesses, I would like to recognize the distinguished ranking member, Mr. Thomas. 

STATEMENT OF HON. CRAIG THOMAS 

Mr. THOMAS. Thank you, Mr. Chairman. I will summarize as 

well and submit my statement for the record. 

First let me recognize Mr. Gover, representing the Shoshone 

Business Council. Glad to have you here today. It is clear that, of course, there is a need for an increase in both 

financial and technical support afforded to the tribal justice system. Many of these systems are woefully underfunded, and as a result, understaffed, and then as a result of that, of course, severely limited in their ability to meet the needs of justice for the Tribes. 

The bill also seeks to address the concerns raised by many Tribes 

that a federally created tribal judicial conference, as envisioned in 

the Senate bill as introduced in the last Congress, would intrude 

on tribal sovereignty. 

I am in support of the bill, but I am concerned about some of the 

funding levels that it provides. I feel strongly that any substantial 

funding should await the outcome of the survey of the tribal judi- cial systems provided in section 102. Only armed with the detailed 

information about the true level of tribal needs provided by such 

a survey can we make a reasoned and accurate assessment of the 

kind and the amount of funding necessary. I am also troubled by the amount authorized to be appropriated in section 301[d] of the bill. Since the vast majority of the Tribes 

prefer to deal with the issue of whether to create a tribal judicial conference themselves, without any interference from the Federal 

Government, it seems logical that we should remove ourselves from 

the process entirely, including the monetary component. So, I look forward to hearing the witnesses, and it would be help- ful if, as you comment on it, you might address these points in your testimony. 

Thank you, Mr. Chairman, for holding this hearing. [Prepared statement of Mr. Thomas follows:] 

OPENING STATEMENT OF HON. CRAIG THOMAS OF WYOMING 

Thank you, Mr. Chairman. It is clear that there is a real need for an increase 

in both the financial and technical support afforded to Indian tribal justice systems. Most tribal justice systems are woefully underfunded and as a result, understaffed. 

As a result, their ability to adequately serve the needs of the tribes and to uphold justice is undermined. Caseloads increase, backlogs develop, and enforcement of 

tribal laws and regulations lags. As an example, the 1991 report of the United States Commission on Civil Rights noted that inadequate funding seriously compromises the tribes' ability to comply with the Indian Civil Rights Act-the law guaranteeing to Indian residents of the 

reservations the same vital rights guaranteed to us by the Constitution. This bill 

increases both funding and support for tribal justice systems to alleviate these prob- lems. The bill also seeks to address the concerns raised by many tribes that a federally- created tribal judicial conference, as envisioned in the Senate bill as introduced last 
23 

Congress, could intrude upon tribal sovereignty by imposing non-Indian concepts of 

justice on the tribes. The authority of each tribal court comes directly from the inherent sovereign power of each individual Indian tribe. While tribal justice systems are essential to the proper execution and enforcement of tribal laws, each tribe must 

determine for itself the structure and authority of its system. In eliminating a feder- ally-created tribal judicial conference and its attendant offices included in last year's le¢.slation, the bill avoids possible encroachment on the tribes' rights. Instead, the 

tr1bes are free, if they wish, to form their own conference or similar entity. In addition, it is important to note that the bill this Congress is more sensitive 

to those tribes with traditional, non-Anglo-American justice systems. Many tribessuch as the Pueblos of New Mexico and the Navajo-have justice systems based on traditional formats of dispute resolution. The language of the bill reflects the Subcommittee's desire that these historic forms retain equal footing with the newer, non-traditional systems. However, while I support the overall objectives of the bill, I do have some serious concerns with the amount of funding levels it provides. I feel very strongly that any substantial funding should await the outcome of the survey of tribal judicial systems provided for by Section 102. Only armed with the detailed information about the 

true level of tribal needs provided by such a survey can we make a reasoned and 

accurate assessment of the kind and amount of funding necessary. I am also troubled by the amount authorized to be appropriated in section 301(d) of the bill. Since the vast majority of the tribes prefer to deal with the issue of 

whether to create a tribal judicial conference themselves, without any interference 

from the federal jl"OVernment, it seems logical that we remove ourselves from the 

process entirely, mcluding any monetary component. Should the tribes choose to 

form a conference, then it should also fall to them to finance its operations. Consequently, I believe that these funds, if appropriated at all, would be better spent 

at the grassroots level to improve the day-to-day functioning of tribal courts, rather 

than on the support of yet another bureaucracy. It would be helpful to me if the witnesses could address these points in their testimony. Thank you. 

Mr. RICHARDSON. I thank my colleague. 

The Chair recognizes the gentleman from American Samoa. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. I don't have an 

opening statement, but I certainly want to commend you and our 

ranking minority member of the subcommittee for holding this 

hearing and considering this bill that is now pending before our 

committee. 

I appreciate your initiative and the leadership that you have displayed on bringing Indian issues to the forefront, and hopefully, we 

will resolve some of these fundamental problems that Indian Tribes 

across America have had over the years. I appreciate the opportunity of being here. 

PANEL CONSISTING OF HON. MARK MERCIER, TRIBAL COUNCIL CHAIRMAN, CONFEDERATED TRIBES OF THE GRANDE 

RONDE COMMUNITY OF OREGON: HON. DELFORD LESLIE, 

SENIOR ASSOCIATE JUDGE, HOPI TRIBE, KYKOTSMOVI, AZ: 

HON. JOHN HERRERA, CHIEF JUSTICE, LEECH LAKE RESERVATION TRIBAL COURT, CASS LAKE, MN: AND KEVIN 

GOVER, ESQ., ON BEHALF OF THE SHOSHONE INDIAN TRIBE 

OF THE WIND RIVER INDIAN RESERVATION, FORT 

WASHAKIE, WY 

Mr. RICHARDSON. I thank the gentleman. 

The Chair would like to ask the first panel, the Honorable Mark 

Mercier, Chairman, Confederated Tribe of the Grande Ronde Tribal 

Council, Grande Ronde, Oregon, to step up to the microphone; the 

Honorable Chief Judge of the Hopi Tribe, Delford Leslie; the Honorable John Herrera, chief justice, Leech Lake Tribal Court from 
24 

Cass Lake, Minnesota; and Kevin Gover on behalf of the Shoshone 

Business Council, Fort Washakie, Wyoming. I know my good friend 

from Wyoming welcomed Mr. Gover, who represents one of his constituencies, and I would like to mention that Mr. Gover is my constituent from New Mexico. So a double welcome to Mr. Gover. 

I would like to again stress we are operating under the fiveminute rule, and I would ask the Honorable Mark Mercier to 

please proceed. Thank you very much, Mr. Chairman. 

STATEMENT OF HON. MARK MERCIER 

Mr. MERCIER. Mr. Chairman, my name is Mark Mercier. I am 

the tribal council chairman for the Confederated Tribes of the 

Grande Ronde community in Oregon. It is an honor to testify to 

this subcommittee supporting H.R. 1268, the Indian Tribal Justice 

Act. For our Tribe, this bill comes at an appropriate time. We were 

terminated in 1954 and restored to Federal recognition in 1983. 

Today we are in the process of establishing a residential homeland, 

accumulating acreage in our community, and have already started 

the phased construction of a administrative building, much needed 

housing, and sites for economic development where we reside. 

As a restored Tribe, we are very aware of our sovereignty and 

our Government-to-Government relationship with the United 

States. We seek to preserve and strengthen them. A duly authorized, functioning tribal court is an essential element to sovereignty. 

We have established our court because we are a Government and 

are actively fulfilling all of its duties associated with it. Currently, 

our tribal court isn't big. We have a judge who also serves other 

Reservations, who presides over our tribal court two days a month. 

But we are making our court as professionally and fully function- ing as possible. No doubt our court's responsibilities will expand as 

our homelands develop and our members take up residency there. 

Yet even today our tribal court is struggling against limited resources. That is why this bill is so vital to us. 

Mr. Chairman, this bill provides technical assistance to tribal 

courts while honoring the individual rights of each tribe and upholding the Government-to-Government relationship we all enjoy. 

We believe it is a marked improvement over the Senate tribal 

courts legislation of last Congress. We also support the establishment of an office of tribal justice 

systems within the Bureau of Indian Affairs. The BIA is the lead 

Federal agency charged with and experienced in carrying out Federal trust and treaty obligations to all Tribes. It principally represents the Federal side of the Government-to-Government relationship we all enjoy. Its structure and functions are generally 

known to the Tribes, and its programs are subject to 638 contracting. The BIA and Interior Department have formal, established appeals procedures, if disputes arise. And as a Federal agency it has 

enforceable impartiality standards. 

The new, untested, and unfamiliar national tribal judicial conference proposed during last Congress had none of these advantages or safeguards. Having experienced termination, we are not so 

cavalier in shifting our programs and responsibilities away from 

the BIA. 
25 

Our Tribe realizes that the BIA has problems with administering 

some of its programs. However, we feel that working with them, 

and with the guidance of this legislation, these problems can be resolved. To us, the piecemeal dismantling of the trustee appears to 

be piecemeal termination bit by bit. It is our feeling that taking a 

particular program and labeling it as a problem away from the Bureau and establishing a totally separate entity produces no guarantee whatsoever that this program will be better off or better administered. We strongly support title II because it allows Tribes to volun- tarily establish, join, and be served by tribal judicial conferences of 

their own choice. Under last Congress's Senate bill, our Tribes 

would have been forced to participate in a national tribal judicial 

conference if we wanted our interests represented for training and 

technical assistance and the development of the base formula. But 

we feel that our legal relationship is with the Federal Government 

and not some unknown organization. Why should they be given 

control over the Federal Government's obligations to our Tribe? 

Under Congress last Senate bill, the national tribal judicial conference would have automatically been established on a first-come, 

first-served basis. It would have been granted a permanent monopoly over the distribution over all tribal courts' funding, and its pro- visions to challenge the recognition of such a conference were questionable and incredibly complicated. 

This bill is vastly superior to those provisions. It has our longstanding support. We do, however, have a few relatively minor suggestions for amendments, which are included in our written statement. So, our thanks to you on behalf of our Tribe for introducing H.R. 

1268, and we think it is a very good and necessary bill and urge 

you to stick by its basic provisions. I appreciate the opportunity to 

testify today. Thank you. [Prepared statement of Mr. Mercier follows:] 
26 

THE CONFEDERATED TRIBES 

OF THE G RANO RONDE COMMUNITY 

OF OR EGON 

TR IHAI. COl '\Til. 

TESTIMONY OF 

MARK MERCIER, TRIBAL COUNCIL CHAIRMAN, 

THE CONFEDERATED TRIBES OF THE GRAND RONDE 

COMMUNITY OF OREGON, 

to 

THE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

COMMITTEE ON NATURAL RESOURCES, 

U.S. HOUSE OF REPRESENTATIVES, 

regarding 

H.R. 1268, THE INDIAN TRIBAL JUSTICE ACT 

APRIL 21, 1993 

Mr. Chairman, my name is Mark Mercier. I am the Tribal 

Council Chairman, of the Confederated Tribes of the Grand Ronde 

Community of Oregon. It is an honor and pleasure to testify to 

this Subcommittee today in support of H.R. 1268, the Indian Tribal 

Justice Act. · 

GRAND RONDE BACKGROUND 

For our tribe, this legislation comes at a very appropriate 

time. The Confederated Tribes of Grand Ronde were terminated in 

1954 and restored to Federal Recognition in 1983. We have received a new reservation, but it is all commercial timberland, unsuitable 

for habitation. However, the revenues generated from timber sales 

off our reservation enables the Tribe to purchase lands for a residential homeland. We are accumulating acreage in our local 

community and have already started the phased construction of 

community and administrative buildings. 

As a restored tribe, we are keenly aware of our sovereignty 

and our government-to-government relationship with the u.s .. Having been stripped of recognition and federal relations for many 

years, we now guard and seek to foster their permanency. A duly authorized and functioning tribal court is an essential element of 

our sovereignty. We have established our court because we are a 

government, and are actively trying to fulfill all the proper roles 

and duties of a government. 

l \1 1'()1 A 

\101. ·\1 l \ 

KO( i l "l IU\'llt 

K " ' A l

1

l "Y'\ 

tit,\ :-. lA 

%15 GRA'D R0'\:1>1'. RD 

(iRA'\:1> O~ UI . OH.EGO' •P l~'? 

IVI1 1'i1l) <~l~ 
Pq. 2 

27 

TH E CONFEDERATED TRIBES 

OF THE GRAND RONDE COMMUNITY 

OF OREGON 

our tribal court is not big. Our judge, who also serves other 

reservations, presides over the Grand Ronde Tribal Court two days 

a month, during which hears 5 cases, mostly dealing with child 

welfare, constitutional and civil rights. Yet even a with such a 

modest agenda, we're trying to make our court as professional and 

fully functioning as possible. We have invested as much formal 

authority as we can in our court. We have a clerk, rules of 

procedure, rules of evidence, and plainly written forms for use by 

parties in court. This is an active and essential branch of our tribal government. Our court's responsibilities will expand as our 

homelands develop and our members take up residency on tribal 

lands. In not too many years, we anticipate out court handling a 

broad range of cases. involving divorce, land use, small claims and 

personnel issues. Yet even today, the Grand Ronde tribal court is 

struggling against limited resources. And that is why this 

legislation is so necessary. 

REVIEW OF H.R. 1268 

Mr. Chairman, the Confederated Tribes of the Grand Ronde 

Community of Oregon strongly support H. R. 1268. It provides 

support for tribal courts while honoring the individual rights of 

tribes and upholding the government-to-government relationship. 

Overall, H.R.l268 is a flexible bill that is a marked improvement .over the Senate tribal courts legislation considered last Congress. 

I should now like to review H.R. 1268 on a title-by-title 

basis. 

We generally support sections 1(Short Title), 2 (Findings), 

and 3 (Definitions). We suggest that, in Section 3 "tribal 

judicial conference" be defined. We are uncertain just what such 

a conference is and what functions it can perform. Is it just and 

information sharing body, or can it actively provide training and 

technical support functions? Can it actually adjudicate cases, 

such as intertribal court systems? For instance , Sections 103 (a) 

and 202 (b) mention conferences as charged with "continuing 

operations" of tribal justice systems, suggesting that such 

conferences can have adjudicative powers. A definition would help 

clarify what tribal judicial conferences are. We also urge that a 

definition for such conferences exclude intertribal appellate 

courts. Intertribal appeals systems should be separate entities of 

the tribes that crea te them. 

TITLE I 

We wholeheartedly support the establishment of an Office of 

Tribal Justice Systems within the Bureau of Indian Affairs. A 

separate office will emphasize the courts program and consolidate 

its functions in a single location. 
Pg. 3 

28 

THE CONFEDERATED TRIBES 

OF THE GRANO RONDE COMMUNITY 

OF OREGON 

We particularly endorse establishing an Office of Tribal Justice systems within the Bureau of Indian Affairs, the lead federal agency charged with, and experienced in, carrying out federal trust and treaty obligations to tribes. The Bureau 

represents the federal side of the government-to-government 

relationship between each individual tribe and the United States. Its structure and functions are generally known to the tribes and its programs are subject to 638 contracting. The B.I.A. and the Interior Department have formal, established appeals procedures if disputes arise, and as a federal agency, it has enforceable 

impartiality standards. 

The new, untested and unfamiliar national tribal judicial conference proposed during last Congress had none of these advantages and safeguards. Further, given that a B. I.A Office of Tribal Justice systems could easily be accommodated within existing Bureau support mechanisms, and a new, independent national tribal judicial conference would have to be created out of whole cloth, and Office of Tribal Justice Systems would probably be a more efficient arrangement. BIA would have to maintain responsibility and administrative capability over Federal Courts of Indian Offenses any event. 

Additionally, the appropriations path for an Office of Tribal Justice Systems is w.ill established, and the appropriators are familiar with Indian programs. Obtaining funding from a different subcommittee, as proposed by the Senate last year, poses some 

concerns. In a subcommittee unfamiliar with Indian issues, funds for tribal courts could require reductions in some other established programs, generating resistance. Also in a subcommittee unfamiliar with indian issues, members might decide to attach some restrictions to the funding. 

Finally, having come through termination, we are not so caviller about shifting programs and responsibilities away from the B.I.A. and Department of the Interior. In the government-to- government relationship, both parties must be kept strong. The piecemeal dismantling of the trustee smacks of piecemeal termination. 

We do have a comment regarding Section 101 (e). That provision authorizing the Office to provide training and technical assistance to tribes should authorize a broader range of Section 101 (c) functions to be eligible for provision through contracts or 

grants. Emphasis should be on keeping the Office modestly sized and efficient by at least enabling more functions to be performed by outside parties. 
P. 4 

29 

THE CONFEDERATED TRIBES 

OF THE GRAND RONDE COMMUNITY 

OF OREGON 

We support Section 102 authorizing surveys of tribal judicial 

systems, noting especially the provision for tribal consultation, 

review and comment. However, we suggest that the initial survey be 

given two years from enactment to be completed, and that updates be 

every two years, rather than annual. Two years gives a more 

realistic amount of time for the new Office to be established, 

develop, conduct and report on a survey. Also, annual updates of 

a comprehensive survey could lead to almost constant paper 

churning. 

We support section 103, authorizing base support funding for 

tribal court systems. Again, we reemphasize here the need that 

such a program be administered through the B.I.A., which must be 

impartial and has a formal appeals procedure. Last Congress's 

Senate bill had a very restrictive appeals procedure, requiring that any complaints first be considered by the national tribal 

judicial conference, and them appeals were only permitted on question of law and not equity. 

We suggest the bill specify state when the distribution 

formula is to be periodically re-applied to tribes, say every two 

or three years, so that the formula distribution can reflect 

changes in tribal situations. We also suggest that, in Section 103 

(c) (1), tribes participating in tribal judicial conferences be 

able to dedicate some portion, rather than all., of their · base 

funding t .o the conference. This would give tribes and conferences 

greater flexibility, and would be in keeping with our suggestion 

along this line for Section 202. We also suggest in Section 103 

(c) (4) that the Secretary assure equity in not only developing 

the base formula, but in administering it as well. 

TITLE II 

We support Title i i because it allows tribes to voluntarily 

establish, join and be served by tribal judicial conferences of 

their own choosing. Under last Congress's Senate bill, our tribe, which enjoys a direct relationship with the federal government, 

would have been forced to participate in a national tribal judicial 

conference if we wanted our interests represented in the award of 

training and technical assistance money and the development of the 

base formula. H.R. 1268 is a significant improvement. 

our only question is whether membership in a tribal judicial conference should require that all of a member tribes's base 

funding be distributed through the conference, as now provided by Sections 103 (c) and 202. What if a tribe is a member of two 

conferences, say a regional and a national conference? Which would 

administer the funds? Or what if a tribe wanted to be a member of 

a conference, but only wanted a limited role and desired to still 

receive most of its base support directly from the B.I.A.? 

Uncertainties such as these could impede the development of tribal 

judicial conferences. 

69-593 0 - 93 - 2 
Pg. 5 

30 

THE CONFEDERATED TRIBES 

OF TI-4E GRAND RONDE COMMUNITY 

OF OREGON 

One possible means of correction could be that, in their 

resolution required to join conferences, tribes could indicate what 

portion of their base funding they want to pass through the 

conference. 

As mentioned in our comments on H.R. 1268's definitions, we 

believe intertribal appeals courts should be separately distinguished from tribal judicial conferences. With the bill's 

current requirements that a tribe's base funding pass through the 

conference, if intertribal appeals courts are considered tribal 

judicial conferences, funding for tribal trial courts would be 

handed down through its appellate courts, which we believe is 

inappropriate. 

The voluntary participation in tribal judicial conferences is 

among H.R. 1268's most important provisions. Contrary to the 

Senate legislation of last Congress, this bill does not subject 

tribal courts to a national tribal judicial conference that they 

may not want to participate in, but which would be making funding 

formula decisions that will affect the tribe. It does not confer 

quasi-automatic Federal recognition as the sole national tribal 

judicial conference upon the first group to file a letter claiming 

to be such a roup with the United States Congress. It does not 

involve an extremely complex and questionable Congressional 

procedure to challenge a group making that claim. And it does not 

almost irrevocably vest in that one national tribal judicial 

conference all the funds and funds distribution authority for 

technical assistance services to tribal courts. We applaud H.R. 

1268's recognition of tribal decision making, diversity, and the 

right and the ability to choose. 

TITLE III 

We support the levels of funding authorized in Title III. We 

also support the separation of base courts funding from the Indian 

Priority Systems, stabilizing court operations. Finally, we like 

the secretarial assurance of equitable allocation. 

Mr. Chairman, we believe H.R. 1268 establishes a very flexible 

program of Tribal courts support while recognizing each individual 

Tribes's sovereignty. It maintains the integrity of the 

government-to-government relationship by establishing the tribal 

courts assistance program in the Bureau of Indian Affairs, but also 

provides of the development of tribal judicial conferences and 

their assumption of the Bureau's functions. We strongly support 

H.R. 1268, and while we recognize that some adjustments may be made 

to it, we urge that its basic features be retained. 

Thank You. 
31 

Mr. RICHARDSON. Mr. Chief Justice Leslie, welcome. Please proceed. 

STATEMENT OF HON. DELFORD LESLIE 

Mr. LESLIE. Thank you very much. I apologize in behalf of the 

chairman of the Hopi Tribe for not being here today. He unexpectedly got tied up and will not be here this afternoon. 

Mr. Chairman, my name is Delford Leslie. I am the senior associate judge for the Hopi Indian Tribe of Arizona. The following presentation is a prepared statement that we will submit to the committee. We appreciate very much the opportunity to appear before 

the subcommittee today to discuss the matter that is of great concern not only to the Hopi Tribe but to other Tribes throughout the 

United States. 

The Hopi Tribe commends you, Chairman Richardson, and Representative Karan English from Arizona for taking the lead in seeing that the 103d Congress will develop legislation to provide 

much-needed additional funding for tribal courts. 

In submitting written comments to H.R. 1268, we are also submitting specific recommendations with this testimony as Appendix 

No. A. We request that this be made part of the record of this hearing. 

Mr. RICHARDSON. Without objection. [Appendix No. A follows:] 
32 

APPENDIX A 

The Hopi Tribe's comments to specific provisions in the proposed bill are 

highlighted in bold type below. The Hopi Tribe hopes that these comments will prove 

useful to the Committee as it considers the bill. 

H.R. 1268 

SEC. 1 SHORT TITLE. 

SEC. 2 FINDINGS. 

The Congress finds and declares that --

(4) tribal justice systems are essential to self-government and integral to the 

fulfillment of the Federal Government's policy of self-determination; 

COMMENT: Tribal justice systems are an essential element of sellgovernment, and Tribes should be the ones determining 

what role they play in sell-government and selldetermination. As written, the language implies that the 

justice systems are these, not to fulfill the needs of the 

Tribes, but rather to fulfill some Federal Government 

policy need. Currently that policy is "self-determination" 

but if that policy were to change, the tribal justice systems 

would still be needed by the tribes because they are an 

important part of the inherent sovereignty of the tribes. 

Therefore, would suggest the following changes in the 

language: 

(4)tribal justice systems are an essential part 

of tribal self-government; and 

(5) tribal justice systems are inadequately funded and the lack of adequate 

funding impairs their ability to administer justice effectively; and 

COMMENT: This language implies that tribal justice systems are 

currently ineffective in administering justice. However, in 

spite of inadequate funding may tribal justice systems are 

effectively "administering justice". Adequate funding will 

only assist in that role. Rather than focusing on the 

"administration of justice" there should be a focus on the 
33 

fact that there is a certain level of funding needed to 

operate any system. The language of the finding should 

be changed to address the operational funding needs as 

opposed to the findings as to the adequacy of the 

"justice" ·administered by the tribal justice systems. 

Therefore, the following change In language is suggested: 

(5) tribal justice systems are inadequately 

funded and the lack of adequate funding 

impairs their operation; and 

SEC. 3 DEFINITIONS. 

TITLE 1 - TRIBAL JUSTICE SYSTEMS 

SEC. 101 OFFICE OF TRIBAL JUSTICE SUPPORT. 

(a) ESTABLISHMENT -There is hereby established within the bureau the office of 

Tribal Justice Support. The purpose of the Office shall be the further the development. 

operation, and enhancement of tribal justice systems and Courts of Indian offenses. 

COMMENT: As now written, this section implies that the "Office", by 

itself, is being directed by Congress to "further the 

development, operation, and enhancement of tribal justice 

systems". In light of the clear federal policy of tribal selfdetermination and self-government, the purpose of the 

Office should be redefined to make it clear that it is not 

the Office, an agency of the Federal Government, who is 

to directly "further" tribal justice systems. Rather, the 

purpose of the Office should be to "assist" tribal 

governments address the development, operation and 

enhancement of their justice systems. Therefore, the 

following language is proposed for the section: 

... The purpose of the Office shall be to assist Tribal 

governments in the development, operation, and 

enhancement of tribal justice systems and Courts of 

Indian Offenses. 

(b) TRANSFER OF EXISTING FUNCTIONS AND PERSONNEL - All functions 

performed before the date of the enactment of this Act by the Branch of Judicial Services 

of the date of the enactment of this Act are hereby transferred to the Office of Tribal 

Justice Support. Any reference in any law, regulation, executive order, reorganization 

plan, or delegation of authority to the Branch of Judicial Services is deemed to be a 

reference to the Office of Tribal Justice Support. 

2 
34 

COMMENT: This section transfers the BIA's existing Judicial Services staff 

to the new "Office". This could result In the Judicial Services merely 

changing their title to "Office" and continuing to do "business as 

usual" since there would be no new staff and as a unit they would be 

comfortable in continuing the procedures and policies that are already 

in place. It seems that one of the major points of this legislation would 

be lost, since many Tribes have expressed dissatisfaction with the way 

the existing Judicial Services Branch Is dealing with the Tribal 

Governments and Courts. 

Additionally, there is no mention of a corresponding 

transfer of existing Judicial Services operating funding to 

continue to pay for and support the staff. Under the language of 

the Act, the renamed Judicial Services would be operating under 

the appropriations set forth In this act. However, it is possible 

that they could lose their existing BIA funding yet they would be 

responsible for their old duties as well as the new duties spelled 

out In this legislation. This could doom the new Office before it 

even starts. One of the major reasons for Tribal interest in this 

legislation Is the need to "enhance" Tribal Court Systems. It is 

difficult to see how this would be accomplished by merely 

renaming the old BIA office, giving it additional duties and not 

proving that its old funding would be retained and additional 

funding provided to hire staff and preform the additional duties. 

Therefore, it is suggested that this section be rewritten to 

make it clear that not only will the existing Judicial Services staff 

be transferred to the Office, but that their existing budgets will 

also be transferred, Additionally, it should be made clear that 

the appropriations provided for in this Act will be in addition to 

the funds currently available for he Judicial Services 

responsibilities through the normal BIA budgeting process, i.e., 

the Judicial Services budget will not be offset by appropriations 

under this Act but will be transferred intact and continue to be 

available In the future to the Office. 

(c) FUNCTIONS · Except as otherwise provided in title II, in addition to the 

functions transferred to the Office pursuant to subsection (b), the Office shall perform the 

following functions: 

(1) Develop and conduct programs of continuing education and training for 

personnel of tribal judicial systems and Courts of Indian Offenses. 

COMMENT: This language seems to direct the Office to develop and conduct 

such continuing education and making it clear that such programs 

should be developed and conducted with Tribal input. The Office (BIA) 

3 
35 

would continue to be in the drivers seat, directing the types and 

character of any continuing education and training. Given the Federal 

policy of Indian self-determination, it is important that this legislation 

make is clear that the Office will only develop and conduct such 

programs as are requested by the Tribes and that the programs reflect 

that policies and character of the Tribes. NOTE: Section 102 contains 

such a requirement but is expressly limited to Section 102 activities. 

(3) Provide technical assistance and training to Indian tribes and tribal 

organizations upon request. 

COMMENT: This provision is superfluous as section (e) mandated the same 

thing. Recommend that this provision be deleted. 

(4) Study and conduct research concerning the operation of tribal justice systems. 

COMMENT: Again this provision directs the Office to perform an action 

di.rected at tribal justice systems without providing for input from the 

Tribal governments. The concept of the federal government performing 

studies and doing research on Indian Tribes and Governments is 

inconsistent with the existing government-to-government relation of 

Tribes and the Federal government. Any studies of research of Tribal 

justice systems should only be done upon consultation with and 

agreement by the affected Tribal government. Given the results of 

some past studies of Indian Tribes, Tribal Governments have a real 

interest in knowing the ultimate purpose of any study, the entity doing 

the studying, and what the results of the study will be used for. 

Therefore, at the very least, this provision should provide for Tribal 

government concurrence in the study and the right to review the 

results prior to publication. 

(6) Oversee the continuing operations of the Courts of Indian Offenses. 

(d) NO IMPOSITION OF STANDARDS- Nothing in this section shall be deemed 

or construed to authorize the Office to impose justice standards on Indian tribes. 

COMMENT: This disclaimer is very narrow and only prohibits the imposition 

of "justice standards". However, there are other things that the Office 

could indirectly impose of forcefully encourage. Such as, influencing 

structure of tribal justice systems. Therefore, the legislation should 

have a broader disclaimer that addresses all of the issues, not just 

imposition of justice standards. 

(f) INFORMATION CLEARING HOUSE ON TRIBALJUSTICE SYSTEMS- The Office 

4 
36 

shall establish an information clearinghouse (which shall include an electronic data base) 

on tribal justice systems and Courts of Indian Offenses including, but not limited to, 

information of tribal judicial personnel, funding, model tribal codes, tribal justice activities, 

and tribal judicial decisions. 

COMMENT: It Is unclear from this provision whether of not participation in 

this "Clearing House" Is mandatory for all Tribal justice systems. 

Additionally, this provision provides for the collecting of a broad range 

of information. Some of that Information, such personnel information, 

could be assuring Tribes that such information will be kept confidential 

if the Tribe wishes. Therefore, the issues of participation should be 

made clear and the provision should provide that Tribes can request 

that information gathered by kept confidential. 

SEC. 102 SURVEY OF TRIBAL JUDICIAL SYSTEMS 

COMMENT: What is the purpose of the survey? It is not used or referred to 

anyplace in the Act. If it is to be used in developing the base level 

funding formula then that should be made clear. 

In 1976the American Indian Policy Review Commission reviewed 

tribal courts and recommended that adequate funding be provided to 

tribal courts. However, the recommendations were never followed. 

The Tribes do not need yet another survey or study performed unless 

that survey or study will result in some action. 

Therefore, it is recommended that this section contain language 

that explains the purpose of the survey and the use to which the 

results are to be. 

Additionally, this section provides for the "Office" to conduct the 

survey. This could result in a conflict of interest for the Office. The 

Office would, in essence, be commenting on the job it had done in the 

past as the Bureau Judicial Services Branch in assisting Tribes in the 

development of its justice systems. Therefore, it is recommended that 

the Secretary be given the responsibility to perform the survey and the 

Secretary be directed to use a non-BIA or Federal entity to perform the 

study. 

(a) IN GENERAL. • Not later than one year after the date of the enactment of this 

Act, the Office shall conduct a survey of conditions of tribal justice systems and Courts 

of Indian Offenses to determine the resources and funding needed to provide for 

expeditious and effective administration of justice. The Office shall annually update the 

information and findings contained in the survey required under this section. 

COMMENT: The Standard used in this provision, "expeditious and effective 

administration of justice" is very broad. There is a possibility that the 

5 
37 

federal government's definition, as set forth by the Office in its survey, 

would not match the Tribes definition. Tribal governments should 

receive sufficient funding to bring their court systems into line with 

similar state and federal court systems. There should not be a lower, 

•expeditious and effective• standard for Tribal courts. Therefore, it Is 

recommended that the standard in this section be changed to so that 

resource and funding needs are determined based upon those 

necessary to bring Tribal courts up to, at a minimum, the level enjoyed 

by similarly situated state and federal courts. 

(b) LOCAL CONDITIONS. - In the course of any annual survey, the Office shall 

document local conditions on each reservation, including, but not limited to -

(1) the reservation size and population to be served; 

(2) the levels of functioning and capacity of the tribal justice systems; 

COMMENT: This provision is unclear. Does it mean that the tribal justice 

systems will be evaluated to determine at what level it is functioning 

and what volume of cases it can handle? There is a danger here that 

any Office evaluation of the Tribal justice system would be result in the 

tribal justice systems being evaluated according to the same generic 

Anglo concept of a justice system. Tribal court systems, although 

sharing some characteristics, are unique to each Tribe. What a Tribe 

determines to be an adequate level of functioning for their court 

system may not coincide with the Office's view. Therefore, this 

provision should be rewritten to reflect exactly what "levels of 

functioning and capacity" mean and that it will be measured against the 

particular Tribe's concepts, not as determined by the Office. 

(3) the volume and complexity of the case loads; 

(4) the facilities, including detention facilities, and program resources 

available; 

COMMENT: What is meant by "program resources?" 

(5) funding levels and personnel staffing requirements for the tribal justice 

system; 

(6) the experience and qualifications of judicial personnel of the tribal justice 

system; and 

COMMENT: What is the point of this? Under the policy of Tribal self6 
38 

determination, the qualifications and experl.ence of judicial personnel, 

including judges, should be a purely Tribal determination and concern. 

The Tribes should not be placed in a position of justifying their 

decisions as to the necessary qualifications and experience for judicial 

personnel to the Office (BIA). Therefore, It Is recommended that this 

provision be deleted. 

(7) the training and technical assistance needs of the tribal justice system. 

SEC. 103. BASE SUPPORT FUNDING FOR TRIBAL JUSTICE SYSTEMS. 

(a) IN GENERAL. - Pursuant to the Indian Self-Determination and Education 

Assistance Act, the Secretary is authorized (to the extent provided in advance in 

appropriations Acts) to enter into contracts, grants, or agreements with Indian tribes and 

tribal organizations for the development, enhancement, and continuing operation of tribal 

justice systems on Indian reservations. 

COMMENT: The language in this provision appears to state that the Secretary 

can only enter into contracts and grants, etc. to the extent provided for 

In budget appropriateD Acts. The extent to which the Secretary uses 

the appropriations for the purposes of this Act should not be controlled 

and subject to change each year during appropriations. The Secretary 

should be able to enter Into contracts, grants and agreements for ALL 

of the monies appropriated. Therefore, it is recommended that the 

language "(to the extent provided in advance in appropriation acts)" be 

deleted. 

(b) PURPOSES FOR WHICH FINANCIAL ASSISTANCE MAY BE USED. - Financial 

assistance provided through contracts, grants, or agreements entered into pursuant to 

this section may be used for; 

(4) the acquisition, development, and maintenance of a law library or a 

computer assisted legal research capability but not both. However, both are 

needed. Therefore, to make it clear that Tribal courts can maintain a law library 

and also have access to computer aided research programs, the "or" should be 

changed to "and" or "and/or." 

(6) the development and operation of records management systems; 

COMMENT: This provision provides for the development and operation of the 

systems, does that include the purchase of the hardware to run the 

7 
39 

systems? 

(7) the construction or renovation of facilities for tribal justice systems; 

(8) membership and related expenses for participation in national and 

·regional organizations of tribal justice systems and other professional 

organizations; and 

(9) the development and operation of other innovative and culturally 

relevant programs and projects, including programs and projects for -

(A) alternative dispute resolution; 

(B) tribal victims assistance or victims services; 

(C) tribal probation services or diversion programs; 

(D) multidisciplinary investigations of child abuse; 

and 

(E) tribal traditional justice systems or traditional methods of dispute 

resolution. 

COMMENT: This section lists other uses to which the funds can be put. 

However, it does not allow tor the funds to be used tor public defender 

services. When Congress passed the Indian Civil Rights Act the 

requirement to provide public defender services was left out because 

of the cost such services would be to the Tribes. However, one of the 

criticisms directed at many tribal court systems is the lack of public 

defender services tor Indigent defendants. There is a need tor such 

services. Therefore, a provision should be added to the list to allow 

funds to be used for such services. The following language is 

suggested: 

(F) tribal public defender services; 

(c) FORMULA. 

(4) In developing the formula for base support funding for the tribal judicial 

systems and tribal judicial conferences under this section, the Secretary shall ensure 

8 
40 

equitable distribution of funds. 

COMMENT: What happens If, as a result of the formula, a Tribe does not 

receive sufficient funds to support any court system? This section 

needs languageto address that possibility. Therefore, language should 

be included to assure that all Tribal court systems will be funded a 

certain minimum level with the rest of the funds being disbursed 

according to the formula. 

TITLE II - TRIBAL JUDICIAL CONFERENCES 

SEC. 201 ESTABLISHMENT. 

SEC. 202 LIMITATION 

In any case in which an Indian tribe receives financial assistance through a tribal 

judicial conference for the operation of a tribal justice system for any fiscal year, the tribal 

justice system of that tribe shall not be eligible for assistance under title I for that fiscal 

year. 

COMMENT: There is no provision that the funds available under this bill are 

in addition to the funds currently available under the BIA budgets for 

tribal courts. Also, all the functions of the BIA Judicial Services Branch 

are being transferred to the Office of Tribal Justice Support under Title 

I. Does this then mean that if a tribe participates in a judicial 

conference that their court system will be limited to receiving the funds 

appropriated under this Act? That seems inconsistent with the view 

that this Act should be providing additional funds, not in lieu of funds, 

for the enhancement of tribal justice systems. This problem should be 

addressed and resolved through language in this Act. 

TITLE Ill- AUTHORIZATIONS 

SEC. 301 TRIBAL JUSTICE SYSTEMS 

(f) ALLOCATION OF FUNDS. ·In allocating funds appropriated pursuant to the 

authorization contained in subsection (a) among the Bureau, Office, and tribal judicial 

conferences, the Secretary shall take such actions as may be necessary to ensure that 

such allocation is carried out in a manner that is fair and equitable to tribal justice systems 

9 
41 

and judicial conferences. 

COMMENT: All present functions and personnel of the Bureau Tribal Justice 

Branch have been shifted to the Office of Tribal Justice Support, so 

why should any agency in the Bureau besides the Office be getting 

funds under this Act? The word "Bureau" should be deleted, making 

it clear that all funds are to go to Tribal justice systems either through 

the Office or through Judicial Conferences. 

10 
42 

Mr. LESLIE. Thank you. The Hopi Tribe is very concerned about a number of provisions 

contained in the current bill, as introduced, and we have provided 

these comments and suggestions in the hope that they will prove 

helpful in improving H.R. 1268 to a point where we will be able 

to express our support for it. The Hopi Tribe is encouraged to see 

these issues raised early in Congress, and we strongly encourage 

the subcommittee to continue working to enact this legislation. 

Quite honestly, we would have preferred to see legislation introduced that more closely resembled S. 1752, that emerged in the 

Senate during the last Congress. In withholding our support for 

H.R. 1268 today, the Hopi Tribe pledges to work with both houses 

of Congress to develop legislation that we can support without 

qualification. 

AB you review our specific comments on H.R. 1268, we will note 

that several of them deal with issues relating to sovereignty. That 

is because the Hopi Tribe feels very strongly that any legislation 

that directs a Federal agency to work with or study tribal governance or, in this case, tribal court systems, must continue to emphasize the Government-to-Government relationship between Tribes 

and the Federal Government. Thus, the legislation should specifically and expressly provide for tribal participation in all areas of 

any such studies. Mr. Chairman, in many respects the issues relating to tribal 

court systems have been studied enough. What we need to see is 

action. The American Indian Policy Review Commission identified 

and discussed the needs for additional funding for tribal court systems in 1976, but very little was done. Fifteen years later, in 1991, 

the U.S. Commission on Civil Rights studied the issue again and 

reported a similar conclusion. H.R. 1268 proposes yet another review or a survey of tribal justice systems, but states no purpose for 

the survey or the intended use for its results. 

If it is necessary that we endure yet another study, Mr. Chairman, we request that one point be made clear: That the U.S. Congress should mandate that the results of this study be used to ensure that tribal justice systems are adequately funded and brought 

to the lev~l that is comparable with similarly situated State and 

Federal courts. 

The Hopi Tribe is particularly concerned that the current branch 

of judicial services at the BIA will, under the current bill, receive 

a new name, additional responsibilities and duties, and more funding. Our concern is based upon the long history of the branch's unsatisfactory performance in meeting tribal needs. 

This problem will and cannot be solved by merely changing the 

bureaucratic title from ''branch" to "office." Something must be 

done to ensure that the BIA does not continue to do "business as 

usual" with respect to tribal courts. 

Similarly, we believe the legislation should contain the single judicial conference concept contained in Senate bill S. 1752. Providing for multiple judicial conferences will only serve to further divide the scarce resources and encourage tribal courts to direct their 

energies toward competing for these resources as opposed to enhancing their judicial system. 
43 

Mr. Chairman, I realize my time is up. We have a great deal 

more to say, but you shall receive a copy, each one of you, of our 

testimony. Thank you very much. [Prepared statement of Mr. Masayesva follows:] 
44 

TESTIMONY OF CHAIRMAN VERNON MASA YESV A, HOPI TRIBE 

BEFORE TilE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS, 

HOUSE COMMITTEE ON NATURAL RESOURCES 

CONCERNING H.R. 1268, TilE INDIAN TRIBAL JUSTICE ACT 

Good afternoon, Mr. Chairman. My name is Vernon Masayesva, and I am Chairman of the 

Hopi Tribe. I appreciate very much the opportunity to appear before the Subcommittee on 

Native American Affairs today, to discuss a matter that is of great concern to the Hopi 

Tribe, and to other tribes throughout the United States. The Hopi Tribe commends you, 

Chairman Richardson, and Representative Karan English, for taking the lead in seeing that 

the 103rd Congress will develop legislation to provide much needed additional funding for 

tribal courts. 

I am submitting written comments on H.R. 1268 to accompany my presentation this 

afternoon, attached to my testimony as "Appendix A." I request that they be made part of 

the record of this hearing. The Hopi Tribe has very specific concerns about a number of 

provisions contained in the current bill as introduced, and we have provided these comments 

and suggestions in the hope that they will prove helpful in improving H.R. 1268 to a point 

where we will be able to express our support for it The Hopi Tribe is encouraged to see 

these issues raised early in this Congress, and we strongly encourage the Subcommittee to 

continue working to enact legislation. Quite honestly, we would have preferred to see 

legislation introduced that more closely resembled S. 1752 that emerged in the Senate 

during the last Congress. In withholding our support for H.R. 1268 today, the Hopi Tribe 

pledges to work with both houses of Congress to develop legislation that we can support 

without qualification. 

As you review our specific comments on H.R. 1268, you will note that several of them deal 

with issues relating to sovereignty. That is because the Hopi Tribe feels very strongly that 

any legislation that directs a federal agency to work with or study tribal governments, or in 

this case tribal court systems, must continue to emphasize the government-to-government 

relationship between tribes and the federal government. Thus, the legislation should 

specifically and expressly provide for tribal participation in all areas of any such studies. 

Mr. Chairman, in many respects, issues relating to tribal court systems have been studied 

enough: what we need to see is action. The American Indian Policy Review Commission 

identified and discussed the need for additional funding for tribal court systems in 1976, but 

very little was done. Fifteen years later, in 1991, the United States Commission on Civil 

Rights studied the issue again, and reported a similar conclusion. H.R. 1268 proposes yet 

another review or survey of tribal justice systems, but states no purpose for the survey, or 

the intended use for its results. If it is deemed necessary that we endure yet another study, 

Mr. Chairman, we request that one point be made clear: the United States Congress should 

mandate that the results of this study be used to insure that tribal justice systems are 

adequately funded and brought up to a level that is comparable with similarly situated state 

and federal courts. 
45 

The Hopi Tribe is particularly concerned that the current Branch of Judicial Services at BIA 

will, under H.R. 1268, receive a new name, additional responsibilities and duties, and more 

funding. Our concern is based upon the long history of the branch's unsatisfactory 

performance in meeting tribal needs. This problem will not and cannot be solved by merely 

changing the bureaucratic title from "Branch" to "Office". Something must be done to 

ensure that the BIA does not continue to do "business as usual" with respect to tribal courts. 

Similarly, we believe the legislation should contain the single judicial conference concept 

contained in S. 1752. Providing for multiple judicial conferences will only serve to further 

divide scarce resources and encourage tribes to direct their energy toward competing for 

those resources, as opposed to enhancing their judicial systems. 

Rather than have tribal court systems competing for scarce resources, and having an 

enhanced bureaucratic presence at BIA, we believe the goal of this legislation should be to 

put more responsibility and adequate funding, into court systems, not into a BIA office. 

The Hopi Tribe fully recognizes the timeless truth that holds a society responsible for 

providing justice for its members. Within our tribe, and within many other tribes, traditional 

systems for resolving issues remain as valid today as they have always been. And yet today, 

the Hopi Tribe, like many other tribes, operates under a constitution. The Hopi 

Constitution was adopted by our people in 1936, and under it, our tribe has established a 

court system that has become an essential part of the operation of the Hopi tribal 

government. 

Under that constitution, the Hopi Tribal Council is vested with the authority to enact 

ordinances. Pursuant to that authority, it adopted an ordinance in 1972 establishing the 

Hopi Tribal Court System. Our court system is called upon to address a wide range of 

issues and disputes, and like any contemporary court system, it needs to be adequately 

funded to do the job well. As members of this subcommittee know, jurisdiction of tribal 

courts, and the jurisdiction of tribes over activities within reservation boundaries is a 

complex area of the law. 

In conclusion, Mr. Chairman, the Hopi Tribe must respectfully express its opposition to H.R. 

1268 at this time. But we express our strong support for continuing to develop legislation 

that will provide those badly needed resources for the many tribal court systems whose 

·needs are so readily apparent. The Hopi Tribal Court, and indeed, the 133 tribal courts 

currently operating in other sovereign tribal governments, must be adequately funded if they 

are to continue in the difficult task of merging two diverse cultures, and their respective 

concepts of fairness and justice, into one workable court system. The federal government 

can best demonstrate its respect for tribal sovereignty, and its understanding of the difficult 

mission of tribal courts, by providing the funding needed to meet the challenge. Thank you. 
46 

Mr. RICHARDSON. I thank the gentleman, particularly for his timing. 

I would like now to recognize the chief justice of the Leech Lake 

Tribal Court, the Honorable John Herrera. Mr. Chief Justice, 

please proceed. 

STATEMENT OF HON. JOHN HERRERA 

Mr. HERRERA. Mr. Chairman, Leech Lake Reservation appointed 

me the chief tribal justice about a year ago. Up until this time, our 

court system was like many other courts that were similarly situated, in not having legally trained personnel at all the bases. We 

do have that now in our court system. This is due, in large part, 

to a financial commitment that is being borne by the tribe through 

taxation of its gaming resources and other forms of taxation. However, these resources, as new as they are and, hopefully, 

even these resources are under battle for the continued availability, 

are not enough to do the job that we need to see done. In fact, 

these resources have caused a dilemma and have caused a need for 

an expansion of the civil jurisdiction in the other areas-contract 

disputes and other things that have arisen that need to be addressed by our tribal court system. Leech Lake is in support of the House of Representatives bill 

H.R. 1268 and encourages the further development of tribal input 

to consultation and judicial conferences. 

We do not, as was mentioned here earlier, see a need to unduly 

study this issue. Leech Lake Reservation is concerned that we need 

immediate mobilization of resources out there at the tribal grassroots level to address these needs. I am a part-time officer-or basically not the officer; I am also the chief justice. We have part-time 

officers of the court that double in other roles and other capacities 

for the Reservation, and so these people are being stretched in 

terms of their abilities, and we need further support of our legally 

trained people. We need to train our paralegal people. 

There was talk in the bill of a computerized system, availability 

of codes by staff and information on the Navajo Nations' budgeting 

process. Things like this we have had the opportunity to do only 

recently. There are a lot of resources and availability of talent 

among other Tribes that have gone through things that we are 

looking at going through right now that could be made available 

through an effort such as this undertaking. 

So we are again in full support of the House version. We see that 

there is a tremendous need in the State of Minnesota at this time. I don't know if you are aware that we are having a tremendous dispute around the hunting and fishing rights in the State. Our court 

system, when it was first started, it was a substantive jurisdiction. 

Our court was in the area of hunting and fishing. We have got a 

substantial body of law that has developed around this code. We 

are viewed in the State as the frontrunner in terms of how Tribes 

enforce their bodies of law and to the fairness of the judicial sys- tem, as exemplified at Leech Lake. Other Tribes are just now beginning to go through the process of compacting with the State, 

and they are not only in need of the support of our Reservation but 

also the support of this body and all our brethren out there that 
47 

are already at farther advanced stages in terms of court development. 

So we see that the House version, especially as typified in the 

centralized communications, as being key. There are other Reservations that have gone through probably a lot of that same naturalresource-type disputes that we have gone through and continue to 

go through in Minnesota, and we think that we could be a benefactor of a lot of what has been learned in the process. 

So I guess I have nothing else to add than this. We have a written formal testimony, and I appreciate any questions and so forth. 

[Prepared statement of Mr. Herrera follows:) 

OFFICIAL WRI'ITEN TESTIMONY 

(Prepared by: John R. Herrera, Chief Justice Leech Lake Reservation Tribal Court; 

For: Leech Lake Reservation Tribal Council) 

Our comments and recommendations are prepared in response to a request from 

the U.S. House of Representatives Committee on Natural Resources. We understand 

that this committee proposes turning over responsibility for implementation of H.R. 

1268 once enacted to the Bureau of Indian Affairs (BIA). The B.I.A. will establish an office known as the office of Tribal Justice Support. 

Our view on the proposed bill will center first on comments relative to the approach that will be taken by the B.l.A. We recognize the approach as generally supportable. We feel and agree that in order to understand the diverse amount of Triballudicial systems one needs to start by a review of the current systems. 

From our standpoint the Leech Lake Reservation court system although established for over a decade has seen a rapid and continual evolution. The court has 

experienced changes in personnel while the amount of substantive law has increased. Today the court hae evolved into one which has legally trained professionals at the level of judge, prosecutor and defense. 

We have not always ad legally trained persons in these roles and this is reflected 

in past ways the courts have operated. While the major court positions have been seen a movement toward legally educated personnel we need to assist our existing 

court support personnel with the legal types of training discussed in the bill. 

Personnel at this reservation court need on going education and training at all 

levels of the system. We also, could use assistance in matching the personnel to the case load requirements. Our current support personnel are below acceptable levels 

needed to handle the existing through put of activity. The proposed survey must be able to assist decision makers in identifying Tribal 

groups such as Leech Lake Reservation where growth of the Tribe and substinative 

jurisdiction has caused added demands on the court. An important emphasis should 

be on the growth potential of the individual Tribe, Leech Lake for instance, has only a limited substinative jurisdiction that encompasses election and conservation law. 

The court thus interprets what is given to it through those laws legislated by the 

Tribal Council and it's delegated sub-divisions. 

Expansion of Jurisdiction will undoubtedly require further expansion of the court. 

Our concern here is that the current court system not be looked at on a snap-shot 

basis but be viewed as a moving picture. We are in our infancy in terms of 

substanative jurisdiction. 

The Federal assistance being ~rovided will assuredly be very competitively sought 

after. We feel that Leech Lakes needs are as strong as any ones. The Tribe has 

supplemented it's small B.l.A. contribution over the years in order to deal with the 

growing demands on the court. 

Part of the slow evolution and expansion of law has been due in large part to the 

lack of funds available to the court. The court under adequate funding could assist 

the government of the Leech Lake Tribe in identifying codes that could be adopted. 

We are encouraged by the bills support of centralization of information relative to 

Tribal codes, we further hope that such information can be effectively shared. 

The area of computerization and the development of a law library is obviously an area that is important to the effective administration of a court. We support the as- sistance discussed regarding this area. Leech Lake Reservation needs to develop a law' library and add to it's existing physical court room/office areas. We need computer systems to support legal research in addition to filing of court 

documents. The system if available could help streamline sone of the information 
48 

flow now being generated. On a related basis the staffs level of experience in this area needs to be assessed with a view toward training needs. Federal Assistance is needed and required by this Tribe in order to continue our refinement and performance evolution. We are optimistic that our current personnel 

provide the necessary foundation to reach the goals of providing a quality court 

service to our Reservation. The Tribal Council of Leech Lake is to be commended 

for it's forward thinking and deference to Tribal court decisions. 

Recommendations 

We fully support the passage and implementation of H.R. 1268. We feel that there 

is an enormous demand nationally for this initiative to address a growing need on the part of Tribal governments. We encourage the swift implementation of the Tribal consultation portion of this act and will continue to provide our input as needed. 

We stress the need to not only survey the current level of court operations but 

to review the amount of growth that is necessary to meet the demands of the Tribal 

government. Reservations like Leech Lake are m a growth stage of their court development and require detailed analysis with respect to the amount of additional 

substantive jurisdiction necessary to meet the civil law demands of it's members. 

Growth in large part depends on the availability of resources which Tribes have 

typically had difficulty in providing on their own. We feel that our continued involvement in the process can point decision makers 

in those directions that will lead to the most efficient use of the proposed funds. 

We have many ideas that in the interest of time cannot be fully addressed at this 

forum due to the nature of this testimony. We feel that Tribal courts working together can and will continue to share ideas and model codes that will help to over- come some of the competitiveness limited Federal funds stimulate. 

In ending, we feel that the job of Tribal courts will strengthen the relationships 

between not only on the Federal government and Tribes but also State/local governments. We would expect that these funds will do a great deal in assisting Tribal 

governments through providing enhanced forums for dispute resolution. We encour- age and support the passage of this bill so the diligent work of Tribal courts can further their needed judicial service within their communities. 

Mr. RICHARDSON. Thank you, Mr. Chief Justice. I appreciate your 

statement. 

Before I recognize Kevin Gover, I would like to ask the gentleman from American Samoa to briefly chair while I go outside. 

I should be right back. 

Mr. Gover, please proceed. 

STATEMENT OF KEVIN GOVER 

Mr. GOVER. Thank you, Mr. Chairman. 

Mr. Thomas, I bring greetin~s from Chairman St. Clair and 

Chairman Spoonhunter. In addition, the Arapaho Business Council 

endorses the testimony that we will be presenting today, so that 

the two Tribes are of the same mind on this matter. 

First of all, we are in full support of H.R. 1268. The urgent need 

in the tribal courts is for additional resources. This bill will provide 

that, and it is an important matter that needs to be resolved in 

this session of Congress. 

Second, the bill does this through the traditional devices upon 

which the Indian Tribes have come to rely. That is, the Bureau of 

Indian Affairs and the Self-Determination Act process. 

The Bureau of Indian Affairs has not done a good job of administering the tribal court program to this point. They have been allowed to make the rules as they go. This is a Snyder Act program. 

It is a general authorization program, and there has been no guidance from Congress on how this program ought to be run. Therefore, the criticism of the Bureau that you will hear throughout 

these proceedings I believe is legitimate. 

However, having said that, I don't think that we should throw 

out the baby with the bathwater. Just because the Bureau has not 
49 

done a good job on this program doesn't mean that we shut it down 

there and create a new agency. If that is going to be the policy of 

the committee and Congress, we soon will have dozens of new Federal agencies running Indian programs. The proper approach is for this Congress to require the Bureau 

of Indian Affairs to run the program correctly, and that can be 

done by providing the clear guidance in H.R. 1268, by providing the 

resources necessary for the effective administration of the program, and by aggressive oversight by this committee. 

We stand very much opposed to a tribal judicial conference, a 

single tribal judicial conference recognized by Congress and receiving its funding directly from the Congress. That was the approach taken in S. 1752. 

The reason that we oppose it is that these two Tribes on the 

Wind River Reservation are general council systems. It is not a 

separation-of-powers system. We do not have an executive branch 

and a legislative branch and a judicial branch. 

The tribal court is little more than an agency of the government, just like the other programs administered by the Shoshone Business Council. The Shoshone Business Council and the Wind River 

Tribal Court exercise only the power that has been delegated to 

them by the general council. It is not a coequal branch of government. And for that agency of the Tribe to be elevated in the mind 

of Congress to something more than it is, is simply incorrect. 

Separation of powers is not a requirement of Indian Tribes, and 

in most cases it is not even wise. The reason is, very simply, that 

in a large government, such as a State or the United States, you 

can successfully remove a dispute from the community and set it 

before an impartial arbiter such as a judge; in a small community like most Indian Reservations, it is simply not possible to lift a dispute out of that community and set it before an impartial judge who is a member of that community. And so, wisely, these two 

Tribes have chosen not to employ a separation-of-powers system; instead, they rely on their traditional general council system, and 

it has served them well. 

Mr. Chairman, we do have a number of specific comments on the 

bill. Those are in our written testimony. We would just say again that we support this bill, we urge its prompt passage, and we 

would be happy to answer any questions you might have. [Prepared statement of Mr. Gover follows:] 
50 

SHOSHONE TRIBE 

BOX 538 

CHIEF WASHAKIE 

FORT WASHAKIE, WYOMING 82514 

CHIEF 

I WASHAKIE 

'l'ESTDI:Ifi OF KEVIN GOITER, 

GOITER, STEl'SCfi & ~. P.C., ~. NEW MEXI<D, 

<»> BEliAIF OF '!HE SIIEIDm DIDIAN TRIBE 

OF '!HE WIND RIVER INDIAN RESERIIATI<»> 

llEF'C»m 

SUBCX:Mfi'l'l'E 

'!HE 

CCHIITl'EE 

UNITED S'l2'.T&S 

<»> 

<»> 

NATIVE 

NAWRAL 

IDlSE 

AMERICAN 

~ 

OF ~ 

AFFAIRS 

April 21, 1993 

Mr. Olai:nnan and members of the SUbcanunittee on Native American 

Affairs, my name is Kevin GoVer, I am testifying in place of Dal:win st. 

Clair, Sr., the Olairman of the Shoshone Business Council of the Shoshone 

In:tian Tribe, Fort Washakie, Wyoming. Olai:nnan St. Clair sends his regrets 

and is atten:ling today a =itical meeting concerning the tribal water 

rights dispute with the state of Wyoming. On behalf of the Shoshone Indian 

Tribe, I appreciate the opportunity to appear at this hearing and provide 

the Tribe's views on H.R. 1268, the "Indian Tribal Justice Act." 

I would like to begin by commending Olairman Richardson for his 

continued support of tribal rights. I also would like to commend Ms. 

English of Arizona for co-sponsoring H.R. 1268, which has as its purpose the 

enhancement of tribal judicial systems. 'lbere is no question that 

strengthening tribal courts strengthens tribal self-goverrunent. The 

United States SUpreme Court has made clear that strong tribal courts are at 

the heart of tribal sovereignty. 'lbe systematic enforcement of legal 

rights that tribal courts provide to both tribal members and non-members 

is essential to strong tribal economies and the health and safety of all 

reservation residents. 

Today, two major problems hinder tribal development of court systems: 

lack of technical and financial resources and poor tribal court program 

administration by the Bureau of Indian Affairs. H.R. 1268 addresses both 

of these problems. '!he appropriations authorizations in the bill will make 

it possible to secure adequate tuhding for needed personnel, equipment, 

training, and technical assistance. 

'lbe bill also addresses the lack of administrative direction in the 

program. '!here is no question that BIA has done a poor job of administering 

the program. However, despite the Bureau's poor track record in 

administering the present tribal court program, the Tribe believes that 

leaving the program in the Bureau, and forcing the Bureau to operate it 

correctly, is a far superior approach to establishing a separate agency. 

Mr. Chairman, if Congress were to create a new agency for every program the 

1 

WIND RIVER INDIAN RESERVATION, WYOMING- Shoshone Business Council Office Phone Number 332-3532 
51 

Bureau has run poorly, we soon would have dozens of new federal agencies and 

the Bureau would cease to exist. Congress can and should see that tribal 

justice systems are assisted properly. H.R. 1268 would give the Bureau 

explicit direction on how to proceed in helping tribes develop and operate 

effective judicial systems. We reconunend aggressive congressional 

oversight of its ilnplementation. If experience shows that the BIA cannot 

effectively run a program that is properly funded and as to which Congress 

has provided clear instruction, then Congress should consider alternative 

structures for running the program. 

'!be Tribe believes that H.R. 1268 is a promising vehicle to begin 

addressing the needs of tribal courts. The Tribe has several conunents 

about provisions in H.R. 1268. First, it is very ilnportant that the 

definition of "tribal justice system" remain broad enough to cover the 

types of dispute resolution practiced in traditional tribal governments. 

Many tribes choose not to have full separation of powers--judicial, 

legislative, and executive--and, thus, many tribes do not have distinct 

judicial branches. 

secom, the =eation of an Office of Tribal Justice Support ("Office") 

within the BIA is the appropriate way to address the current administrative 

deficiencies in the BIA by using existing resources. There silnply is no 

proven need to establish a new, separate federal agency to support tribal 

courts. SUch an approach would elevate tribal courts over other tribal 

agencies and would set a dangerous precedent of removing programs from the 

Bureau of Imian Affairs rather than making the Bureau operate programs 

effectively. 

'!bird, the Tribe supports the inclusion of the language in Section 

lOl(d) that makes clear that the bill is not authorizing the Office of 

Tribal Justice Support to ilnpose justice stamards on Indian tribes. This 

lan;JUage must remain in any final legislation. In addition, we urge the 

inclusion of the disclaimer language contained in the Senate's version of 

this bill, s. 521: 

TITlE V--DISClAIMERS 

SEC. 501. TRIBAL AI1I'HORITY. 

Nothing in this Act shall be construed to--

(1) encroa~ upon or diminish in any way the 

inherent sovere.1gn authority of each tribal 

goverrnnent to determine the role of the tribal court 

within the tribal goverrnnent or to enact and enforce 

tribal laws; 

(2) diminish in any way the authority of 

tribal governments to appoint personnel; 

(3) impair the rights of each tribal 

government to determine the nature of its own legal 

2 
52 

system or the apportionment of authority within the 

tribal government; 

(4) alter in any way traditional dispute 

resolution forum[s]; 

(5) imply that any tribal court is an 

instrumentality of the United States; or 

(6) diminish the trust responsibility of the 

United States to Indian tribal governments and 

tribal court systems of such governments. 

We would oppose any legislation that even suggests limitations on the role 

of tribal legislative bodies in formulating policy on the operation and 

functioning of tribal courts. Moreover, we would oppose any legislation 

that would weaken the federal trust duty c:Med to tribes. We believe that 

this trust, as established in Cherokee Nation v. Geomia, 30 u.s. (5 Pet.) 

1 (1831), and Worcester v. Georgia, 31 u.s. (6 Pet.) 515 (1832), requires 

federal protection of tribal self-government and tribal political 

independence. The disclaimer language is needed to clarify the intended 

effects of H.R. 1268 and to place tribal justice planning where it properly 

belongs ... in the hands of the respective tribal governments. The Tribe 

believes strongly that tribal governments must be the policy-makers for 

tribal justice systems, and each tribe must detennine its own needs and 

priorities. 

Fourth, the Tribe encourages the addition in Section 102 of a 

provision requiring measures to protect the confidentiality of certain 

records in setting up the information clearinghouse on tribal justice 

systems. Certain information and cases simply must be kept private. This 

would be particularly desireable with respect to personnel records and 

certain case records, including but not limited to matters such as 

adoption, juvenile adjudications, and financial andjor taxpayer 

information. 

Fifth, Title II authorizes two or more tribes to establish a judicial 

conference which shall be eligible to receive and administer funds for 

perfonning "some or all of the duties of the Bureau and the Office" on 

behalf of the members of the conference. Title III goes on to include a limitation in Section 202: where a tribe has received financial assistance 

through a tribal judicial conference for any fiscal year, "the tribal 

justice system of that tribe shall·' not be eligible for assistance under 

Title I for that fiscal year." This limitation applies even though the 

judicial conference may be perfonning only same of the BIA's duties under 

sections 101 and 102 of the bill. Thus, in some cases, the limitation will 

serve as a real disincentive for tribes to set up a judicial conference 

because they may receive less funding. Again, because funding to enhance 

and develop tribal courts is the key barrier facing tribes, we urge the 

Subconnnittee to revise Title II on this issue. 

Finally, the Tribe requests an additional authorization of $400,000 

3 
53 

for each of the fiscal years 1994, 1995, 1996, 1997, 1998, 1999, and 2000 

to cover the cost of the annual survey of conditions, resources, and needs 

of tribal justice systems as required in Section 102. We urge that this 

amount be authorized in addition to the amounts authorized in Section 301 

of the bill. Again, the additional appropriation will help ensure that as much money as possible will be spent to benefit tribal courts directly, 

rather than to support administrative efforts within the BIA. 

In closing, the Tribe supports the objectives of the Subcommittee on 

Native American Affairs and appreciates its efforts to improve tribal 

court programs. Chairman Richardson, your endeavors will help tribal 

goverrunents develop effectively their tribal courts. In turn, effective 

tribal courts will help Indian tribes achieve self-determination and 

economic self-sufficiency. In turn, tribal self-determination will 

inprove living conditions for all reservation citizens. On behalf of the 

Tribe, thank you again for the opportunity to testify. 

4 
CHIEF WASHAKIE 

54 

SHOSHONE TRIBE 

BOX 538 

FORT WASHAKIE, WYOMING 82514 

~SHEET RB:;ARDING: 

'l'ESTIK:tiY OF 'niE SIJ::61Dm 'l'RIBE OF INDIANS 

CHIEF WASHAKIE 

HEARING BEroRE 'niE UNITED STATES IDJSE OF~ 

SUBCXMnTl'EE 

ClHfiTTEE 

Cll 

Cll 

NATIVE 

NMURAL 

AMERICl\N 

~ 

AFFAIRS 

April 21, 1993 

1. Witness Name and Title: 

Kevin Gover, Attorney 

2. Address of Witness: 

Kevin Gover 

GOVER, STEI'SON & WILLIAMS, P.C. 

2501 Rio Grande Boulevard NW 

Albuquerque, New Mexico 87104 

3. Telephone Number of Witness: 

( 505) 842-6961 

4. Swmnary and Recommendations of Test:iJnony: 

On behalf of the Shoshone Tribe of Indians, Kevin Gover, Gover, 

Stetson & Williams, P.C., will present test:iJnony regarding H.R. 1268, the 

"Indian Tribal Justice Act." The Tribe believes that tribal courts must be 

developed and enhanced to strengthen tribal self-government and tribal 

economies. The greatest problem facing tribal courts is a lack of funding 

and ineffective tribal court program administration by the Bureau of Indian 

Affairs. The Tribe strorqly believes that tribal governments must be the 

prilnary policy-makers for tribal justice systems, and each tribe must 

retain power to determine its own needs and priorities. The Tribe makes 

several suggestions and recommendations: (1) the definition of "tribal 

justice systems" must remain broad to cover traditi onal forms of dispute 

resolution; (2) the Tribe supports establishing the Office of Tribal 

Justice Support within the BIA, rather than creating a new agency; (3) 

disclaimer language such as that contained in the Senate's version of the 

bill, S. 521, should be added to clarify the effect of the legislation with 

respect to tribal sovereignty, tribal political independence, and the 

federal trust obligation; (4) a confidentiality requirement should be added 

in Section 102 to protect certain information in the clearinghouse; and (5) 

the funding limitation making tribes ineligible for assistance if they are 

members of a judicial conference should be revised to address circumstances 

where such conference performs only some of the duties of the BIA or the 

Office. 

WIND RIVER INDIAN RESERVATION, WYOMING - Shoshone Business Council Office Pho ne Number 332-3532 
55 

Mr. FALEOMAVAEGA [presiding]. Thank you, Mr. Gover. 

I would like to turn the time over to the gentleman from Wyo- ming for questions. 

Mr. THOMAS. Thank you very much. 

I am interested in the general concept, Chief Herrera, about the 

size that is needed. Is there a number that is required to support 

a judicial arrangement? I am wondering, the Tribes come in all 

sizes. 

Mr. HERRERA. One of the things that I think we cannot do is look 

at the current level of service and stop at that point. If we did that, 

we would simply, at Leech Lake, for instance, be looking at the 

Reservation conservation code and the election ordinance, which is 

clearly too limited a scope. 

What we are looking at at Leech Lake is expansion of our civil 

jurisdiction area and improved areas of domestic law as well as 

commercial contract law, which is needed because we have anumber of instances there where we are having individuals, non-Indian 

people, that are doing a substantial amount of commerce on the 

Reservation. They're looking for the protection and exhaustion of 

local law, and we really have none to offer at this point. 

So I think we have to project ourselves and look at what the substantive basis of the law is going to be and then estimate what the 

throughput in terms of caseload might be. And we need to focus on 

that process to really identify what the need is going to be. 

Mr. THOMAS. So, in your instance, and probably others, your current system is not covering the needs entirely? 

Mr. HERRERA. No. Our current system relies on a patchwork of 

law, typically a heavy reliance on State law, and the Tribe really needs to focus itself. And we are in agreement, we are looking at 

the development of the UCC code and building codes and other 

areas, zoning ordinances and things like this. They all need to be 

implemented, and along with our legislative people, we are looking 

at a focus, foci, of addressing a number of these different matters. Mr. THOMAS. I guess the real thrust of my question was, can you devise a system that will apply to the different sizes of the needs, 

the different sizes of the Tribes and so on? It seems to me there 

is a limit to how small you can be and still set up an independent justice system, isn't there? 

Mr. HERRERA. Well, I have an M.B.A. degree as well as my real 

background, and I would say from the economic standpoint that, 

yes, we could be able to project, on the basis of an expansion of 

substantive law and population and the amount of commercial 

intercourse that is going on, we could reasonably put together a 

budget. 

Mr. THOMAS. Okay. 

Justice Leslie, did you express some concern about the survey? 

Mr. LESLIE. Yes, sir, that's correct. 

Mr. THOMAS. Would you think a survey is not necessary? 

Mr. LESLIE. Well, I think the surveys have been conducted on the 

Hopi tribal court, and the other Tribes, I believe, have already been 

done. However, the statement provided in the current bill for another survey, as we stated, does not really tell us what the survey is to be used for. It may be there, but if there were specific language in there telling us what it would be used for, we would then 
56 

consider that at that time. But it doesn't say that, and this is why 

we take that position. 

Overall, we believe that tribal courts have been studied, Tribes 

have been studied moreover, and I am not sure what another survey would conclude at this point in time. 

Mr. THOMAS. Well, it does seem, just in the sequence of things, 

that if there is going to be a survey, that the needs for funding 

would be determined after the survey was complete. I think this 

bill calls for a survey and also establishes the level of funding. How 

do you reconcile those two things? 

Mr. LESLIE. I am not sure I follow you, sir. 

Mr. THOMAS. Well, it would seem to me that a survey would be 

one of the tools you would use to determine what is the necessary 

level of funding. This bill arbitrarily sets a rather large level of 

funding. I think it's $50 million a year, isn't it? 

Mr. LESLIE. Yes. 

Mr. THOMAS. How do you know that that is the appropriate 

amount? 

Mr. LESLIE. Well, you see, I am not really sure how the $50 million was arrived at to begin with. 

Mr. THOMAS. Neither am I. 

Mr. LESLIE. And maybe prior surveys were done, I am not sure. 

But if you look at the tribal courts across the Nation, there are 

over 100 tribal courts at this present time. If anything, if the tribal 

courts are to emerge and do the kind of job that they're intended 

to do, the current funding for the courts is not adequate at this 

point in time. 

Mr. THOMAS. I suppose everyone would agree with that. It is 

hard to know the level. 

Mr. Gover, what is the arrangement with the surrounding jurisdictions? Is that a smoothly operating process with the local county 

and State courts and this kind of thing? 

Mr. GOVER. It's not terribly smooth right now. We are having 

some problem with cross-jurisdictional enforcement of judgments, 

child support, child custody orders, and that sort of thing. The 

Tribes actually tried to move a bill through the Wyoming State 

Legislature this year that would have granted full faith and credit 

to tribal court judgments in the State courts. Unfortunately, .that 

bill failed. And I believe that the State courts are obliged in any 

event to honor tribal court judgments as a matter of comity. I also 

believe that the tribal court is required to honor State court judgments as a matter of comity. But at this point I can't say that it's 

going well. 

Mr. THOMAS. Do any of the rest of you have any comment on the 

jurisdictional problem? 

Mr. MERCIER. Yes, sir. Specifically, our Tribe has just negotiated 

with our respective State, the State of Oregon. It is called the Indian Child Welfare Agreement. In that agreement the State of Oregon has a set of criteria that is already agreed upon by both parties where they automatically transfer their jurisdictions of Indian 

child welfare cases and such, custodial disputes, over to our Tribe. 

And so I think our tribal court load is going to increase dramatically because that agreement was signed by the Governor and I 

just about 30 days ago, if even that. So I think our court loads are 
57 

going to increase by about 50 percent. This has been estimated by 

our social services department. Mr. THOMAS. Anyone else? 

[No response.] 

Do any of you have any comment, again, on the funding; some 

little more specific notion why that is the appropriate amount of 

funding? Does anybody know? 

Mr. GOVER. Mr. Chairman, we could offer, as I recall, the tribal 

court budget at Shoshone and Arapaho Tribes is $350,000 a year. At this time they are receiving $100,000 from the Bureau. So at 

least in our case basically we need 21!2 times more than what is 

being provided now by the Bureau. I do believe the number was arrived at based on some estimations, working from previous surveys that had been done involving the tribal court judges and the Bureau of Indian Affairs. So it's not arbitrary, but it certainly couldn't 

be said to be scientific at this point. Mr. THOMAS. Thank you. I have no further questions, Mr. Chairman. 

Mr. RICHARDSON. [presiding). I thank the gentleman. The Chair recognizes the gentleman from American Samoa. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. Just a couple of 

questions for the members of our panel here this afternoon. I took with interest your comments. A couple of you said we really don't have much of a choice, we have to deal with the Bureau 

of Indian Affairs, perhaps suggesting there may be another option 

on how best to handle the situation with the tribal courts, but yet reluctantly. I seem to hear that reluctance, ''We have to deal with 

the Bureau of Indian Affairs in this regard." Is there any real reason for this, or is it primarily because of the 

funding aspects of the bill, what the bill proposes? I sense that you 

are really unhappy with the way the Bureau has been handling tribal court deeds over the years. That is an understatement of the 

year, I suppose. But can you tell us where your real options should 

be if perhaps it could be taken out of the jurisdiction of the Bureau 

of Indian Affairs? Do you have a national tribal court association 

in place, or do you have some kind of a national association that 

oversees and discusses the needs of the various tribal courts 

throughout the country, or am I out on a limb here? Can some of 

you respond? 

Mr. LESLIE. There is the National American Indian Court Judges Association, which is very active at this point in time. 

Mr. FALEOMAVAEGA. Do you suggest that they can perhaps also 

be an integral part of the legislation. Could they in some way help, rather than just leaving everything to this office that we are going 

to be creating? I sense that we are just going to be adding another 

layer to the problems. The Bureau of Indian Affairs has enough problems already, with all the other issues, and now we are going 

to give them another problem to deal with, and they may not necessarily have the resources or the expertise to deal with it. That 

about law schools, what about institutes, what about some of these 

other NGOs-maybe I shouldn't call them NGOs-but other organi- zations that could be helpful to meet the needs of the tribal courts? 

Yes? 
58 

Mr. MERCIER. Well, it's our Tribes' feelings that we are aware of 

the problems within the Bureau of Indian Affairs, but if the tribal 

courts are removed from there, then before long it would seem like 

somebody is going to target another program within the BIA. And 

what is to prevent the Tribes from having to deal with about X 

amount of different entities all total? The problem is, if you put it 

under the Department of Justice, how familiar would the Department of Justice be with Indian Tribes, their sovereignty, the way 

their Tribal courts operate, and so on and so on? 

So, to us, our Tribe specifically, we think it would be more logical 

to get together with the Bureau of Indian Affairs and identify the 

problems and work collectively to get them ironed out. We believe 

that it's very possible to do just that. But to establish just a totally separate entity then it is totally unclear who would specifically be accountable, what kind of communication they would have with the Tribes that would be directly affected for funding and other matters associated with tribal 

courts? That is always what frightens our tribal council-when we 

are really unclear about another new entity that would be taking responsibility away from an existing agency. 

Mr. LESLIE. Mr. Chairman, we would recommend, as I stated 

earlier, that there be something done. I guess that's what you're asking. We are saying that the Bureau be held in some way accountable for its actions. There should be somebody to oversee the 

Bureau to make sure that problems are identified and problems are 

corrected, and that things are done within the agency so that these 

problems can be eliminated. I am not sure who can do that or what 

can do that, but that is basically what we are saying. 

Mr. GOVER. Mr. Chairman, it seems to me there are two ways 

to force the Bureau to do what it is required to do. The first is congressional oversight. But the second is that, armed with the provi- sions of legislation like this, we can sue the Bureau to require them 

to do the things they're supposed to do. 

The problem right now is, this is a Snyder Act program and 

there are no rules. There is no law that tells the Bureau how this 

program is supposed to be run and that gives the Tribes any leverage in dealing with the Bureau. That's why we need this sort of 

legislation. Mr. FALEOMAVAEGA. At least for starters. What has been your 

experience in dealing with the problems with the State courts versus tribal courts? And of course this is always an ongoing problem. 

Do you think that perhaps the Congress needs by definition or by 

law a better sense of understanding in terms of the jurisdictional 

problems that sometimes State courts have against tribal courts? 

Are you having any serious problems with that, or is everything okay? 

Mr. GOVER. We have few actual jurisdictional disputes with the 

States. We know what jurisdiction the State has, and they know 

what jurisdiction the Tribes have. That is not a primary issue. And 

particularly on civil matters, we are both pretty clear on who has 

the authority to do what to whom. It's when we have these crossjurisdictional issues where there is a judgment on tl;le Reservation 

that has to be enforced off the Reservation where we are having 
59 

some breakdowns. But the pure jurisdiction issue has been pretty 

much resolved by the Supreme Court. 

Mr. FALEOMAVAEGA. Thank you, Mr. Chairman. 

Mr. HERRERA. Could I add a comment to that? In Minnesota we 

are looking at a lot of commercial expansion of the law. A number 

of Reservations have enacted a corporate code so that not only 

Tribes can incorporate but also individuals can incorporate under 

tribal law. We are looking at a number of things such as banking 

codes, SEC-Securities and Exchange Commission-blue-sky type 

of legislation that normally States exercise. We are looking at lot 

of things, licensure areas, things like that. Yes, we know we have 

similar jurisdiction, but we don't have the legislation that we can 

look at. 

Mr. RICHARDSON. I thank the gentleman. 

Let me ask Mr. Gover, since he has worked many hours on this 

issue, I take it that you have studied S. 1752 extensively. 

Mr. GOVER. Extensively. 

Mr. RICHARDSON. Under that bill, the national tribal judicial conference mandated a Federal funding formula. In your judgment, is 

that a significant Federal function? 

Mr. GOVER. Very clearly. Very clearly. And that was not the only 

function of the judicial conference. It would have also basically 

been administering all of the contracts for the funds to the Tribes. And that, of course, was the big issue, in our judgment, in terms 

of the constitutionality of the statute. 

You cannot have a non-Federal officer performing substantial 

Federal duties. That is a violation of the appointments clause, and 

that was precisely the scenario that was set up by the judicial conference concept. 

Mr. RICHARDSON. So, what you are saying is that there is a problem, a constitutional problem, with the appointments clause? 

Mr. GOVER. Clearly. And I think that is why we would have had 

enormous difficulty moving that bill through the Judiciary Committee. 

Mr. RICHARDSON. Now, to Judge Leslie, back again on this national judicial conference, you support it. What would you propose 

for those Tribes that don't want to join the judicial conference and 

don't participate in the funding formula? What is the Federal responsibility to those Tribes? 

Mr. LESLIE. Mr. Chairman, I believe that each Tribe is entitled 

to services from the Federal Government. Now, to narrow that a 

little bit, any tribal court or any CFR court in the United States 

is entitled to services from the Federal Government, in this case, 

regardless of whether or not they want to participate in a judicial 

conference. I do believe that a judicial conference would not be 

mandatory, but it would be at the pleasure of each Tribe whether 

or not they want to participate. Because they don't want to participate does not mean that they should not receive benefits from the 

judicial conference. Mr. RICHARDSON. Chairman Mercier, how do you feel as a tribal 

chairman-you obviously have been very involved in this-how 

would you feel about a national judicial conference dictating funding formulas? Isn't that a problem for you? 
60 

Mr. MERCIER. Absolutely, it would be a problem. When we were 

reviewing S. 1752, the thing that alarmed us the most about this 

was that this judicial conference, to the best of my knowledge, would have been accountable to Congress within the whole. There 

were no provisions that I could see in there that would allow the 

Tribes to get their input, to ensure that someone was ultimately responsible within the conference to provide that the funding was, 

No. 1, fair and equitable? Based upon the analysis that our Tribe 

did on this, there was no system in place that would assure that. 

I hope I answered your question there. 

Mr. RICHARDSON. Oh, you did. You did. 

I think before I call the next panel and before I tum the gavel 

over briefly again to my colleague from American Samoa, let me 

just say that it has been implied by a couple of groups here this 

morning that they prefer a bill which passed the United States 

Senate in the last Congress. The position that the House took last 

year is, very simply, that we would not take up that bill, for several reasons. First, it gets referred to the Rules Committee; second, 

it mandates House floor procedures; third, it mandates a national 

entity that some Tribes just don't want; and fourth, I think as we 

have heard from several witnesses, that it may be unconstitutional 

under the appointments clause. So, for these reasons, the position of the House remains unchanged. I think the bill before you-and I asked the staff to try 

to work something out with the Senate-is basically a compromise. And right now-and I am going to be open for further testimony today-that is about as far as we are going to go. I hope you pass this message on to the other body, and I hope that they introduce 

the bill that we have here today. 

I think we can work out minor differences, but we have to move 

this bill forward. The biggest problem, in my judgment, is one of 

Tribal resources, and if we move forward, I could almost guarantee, if there is consensus, that we would have a public law by October. 

But if we keep dilly-dallying on this issue, we are not going to get anywhere and this subcommittee has a very, very broad agenda. That agenda is economic development; it's the American Indian Religious Freedom Act; it's a number of health care issues. We want 

to make sure that the health care component is part of the Administration health care bill. We have the Indian gaming issue that is 

about to explode. 

So, again, I want to send a very clear message-and I will listen 

to some more of the testimony-but it just does not seem, for the 

reasons that I mentioned, that we are ready to take a look at that 

Senate bill again. It's as simple as that. If they persist in pursuing the same vehicle as last year, we are just not going to move any- thing and move on to other issues. There are too many issues that 

we need to deal with. Thank you very much to the panel. 

I would now like to call on Ms. Denise Homer, the chief of the 

Division of Tribal Government of the BIA, the Department of the 

Interior. Ms. Homer, welcome to this committee. 

I would like my good friend, the gentleman from American 

Samoa, to chair until the chairman returns. 
61 

Thank you very much. 

Mr. FALEOMAVAEGA [presiding]. Without objection, Ms. Homer, 

your statement will be made part of the record. So, welcome to the 

subcommittee, and you may proceed. 

STATEMENT OF DENISE HOMER, CHIEF, DIVISION OF TRffiAL 

GOVERNMENT, BUREAU OF INDIAN AFFAIRS, DEPARTMENT 

OF THE INTERIOR, ACCOMPANIED BY BETTY RUSHING, 

CHIEF, BRANCH OF JUDICIAL SERVICES 

Ms. HOMER. Thank you. Good afternoon, Mr. Chairman. I am 

here today to present the views of the Department of the Interior 

on H.R. 1268, a bill to assist the development of tribal judicial systems. Accompanying me today is Betty Rushing, Chief, Branch of 

Judicial Services. 

The Department of the Interior supports the underlying intent of 

H.R. 1268 and the efforts of this Committee to improve and 

strengthen tribal judiciaries and courts of Indian offenses, but we 

cannot support taking funds from other programs that demonstrate 

a need equal to that of tribal courts. Nor can we support displacing 

Tribal Governments in the determination of program priorities and 

operations through the tribal budget system. 

We do have specific concerns with H.R. 1268. We believe that the 

formula approach used in H.R. 1268 to fund tribal courts could impair the flexibility of Tribal Governments to reallocate resources on 

the basis of priority and could conflict with the recommendations 

of the Joint Tribal DOIIBIA Task Force that Tribes should have 

control over the resources appropriated for their benefit. 

The projected cost to fulfill the requirements of H.R. 1268 could 

reach $58 million annually and should be carefully considered with 

respect to the Federal deficit and other Indian program needs. 

In addition, it is unclear whether H.R. 1268 increases mandatory 

spending which would be subject to the pay-as-you-go provisions of 

the Budget Enforcement Act. 

We do not support the elevation of the Branch of Judicial Services to an office. We would, however, consider recommending to the 

Joint Tribal/DOIIBIA Task Force on BIA Reorganization that a division be established administratively. Elevation to a division within the Office of Tribal Services would not unnecessarily duplicate 

budget, fmance, and planning personnel or the support services required for the administration of an office, but would provide greater coordination with other Tribal Government services and programs, particularly social services, child protection, Tribal Government services, and self-determination. 

We do support a survey of the type proposed in H.R. 1268 of tribal judiciaries and courts of Indian offenses. For that reason, we are 

planning in FY 1994 to request $250,000 from the special tribal 

court program to contract a study of the needs of tribal judiciaries 

and courts of Indian offenses. 

In addition to collecting data, this study is intended to address 

equity funding, economies of scale, the variations among tribal 

communities, governments, and traditions, automation, education 

and research requirements, as well as the needs of a growing number of Public Law 280 and similarly situated Tribes desirous of developing tribal forums. 

69-593 0 - 93 - 3 
62 

This concludes my prepared statement, and we will be happy to 

answer any questions. 

[Prepared statement of Ms. Homer follows:] 
63 

STATEMENT OF DENISE HOMER, CHIEF, DIVISION OF 1RIBAL 

GOVERNMENT, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE 

INTERIOR, BEFORE THE COMMTITEE ON INDIAN AFFAIRS, UNITED 

STATES SENATE, ON Bill... H.R. 1268, THE INDIAN 1RIBAL JUSTICE ACT 

OF 1993. 

April 21, 1993 

Good afternoon Mr. Chairman and Members of the Committee, I am here today to 

present the views of the Department of the Interior on H.R. 1268, a bill to assist the 

·development of tribal judicial systems. Accompanying me today is Bettie Rushing, 

Chief of the Branch of Judicial Services. 

The Department of the Interior suppor.s the underlying intent of H.R. 1268 and the 

efforts of this Committee to improve and strengthen tribal judiciaries and courts of 

Indian offenses but we cannot support taking funds from other programs that 

demonstrate a need equal to that of tribal courts. Nor can we support displacing 

tribal governments in the determination of program priorities and operations 

through the tribal !:>udget system. 

We do have specific concerns with H.R. 1268. We believe that the formula 

approach used in H.R. 1268 to fund tribal courts could impair the flexibility of tribal 

governments to reallocate resources on the basis of priorities and could conflict with 

the recommendations of the Joint Tribal/DOI/BIA Task Force that tribes should 

have control over the resources appropriated for their benefit. 

The projected cost to fulfill the requirements of H.R. 1268 could reach $58 million 

annually, and should be carefully considered with respect to the Federal deficit and 

other Indian program needs. In addition, it is unclear whether H.R. 1268 increases 

mandatory spending which would be subject to the pay-as-you-go (PAYGO) 

provisions of the Budget Enforcement Act (BEA). 

We do not support the elevation of the Branch of Judicial Services to an Office; we 

would, however, consider recommending to the Joint Tribal/DOI/BIA Task Force 

on BIA Reorganization that a division be established administratively. Elevation to 

a division within the Office of Tribal Services would not unnecessarily duplicate 

budget, finance and planning personnel or the support services required for the 
64 

2 

administration of an office; but would provide greater coordination with other tribal 

government services and programs, particularly social services, child protection, 

tribal government services and self-determination. 

We do support a survey of the type proposed in H.R. 1268 of tribal judiciaries and 

courts of Indian offenses. For that reason, we are planning in FY 1994 to request 

$250,000 from the Special Tribal Court program to contract a study of the needs of 

tribal judiciaries and courts of Indian offenses. · In addition to collecting data, this 

study is intended to address equity funding, economies of scale, the variations 

among tribal communities, governments and traditions, automation, educational 

and research requirements, as well as the needs of the growing number of P.L. 280 

and similarly situated tribes desirous of developing tribal forums. 

This concludes my prepared statement. I would be happy to answer any questions 

the Committee Members may have. 
65 

Mr. FALEOMAVAEGA. Thank you, Ms. Homer. 

You indicated earlier in your testimony the fact that, based on 

recommendations of the Joint Tribal/DOIIBIA Task Force, perhaps 

we should await the recommendations or consider the recommendations of this task force. 

Our subcommittee held an oversight hearing on this, bringing 

the task force to testify before the subcommittee. Their indication 

to the subcommittee is that it is going to take well over a year before they complete this survey or this study that is being conducted. 

Are you suggesting that we ought to wait another year before we 

initiate some formal legislation to resolve the problems that we are 

faced with as far as tribal courts are concerned? 

Ms. HOMER. No. What I was referring to, referring to the tribal 

task force, was the elevation of the Branch of Judicial Services to 

a division. All we need to do there is to present this to the task 

force at one of their future meetings, and they would either approve or not approve. I think the indications were in previous task 

forces that they would support the elevation of this office to a division. So that would not take a year. I was not referring to the survey. 

Mr. FALEOMAVAEGA. Do you feel that perhaps what the proposed 

bill is providing is that the office itself is not elevated sufficiently 

as far as the hierarchy of the administration of the BIA is concerned? 

Ms. HOMER. Currently? 

Mr. F ALEOMA v AEGA. What the bill is suggesting here, providing 

for the office? 

Ms. HOMER. Well, our main objection is that it would cost money, 

obviously. It takes more money to establish an office within the Department of the Interior than to establish a division. 

Mr. FALEOMAVAEGA. Okay. 

Ms. HOMER. That is our main concern. It has to do with the 

availability of funds to establish an office as versus those available 

for a division. 

Mr. FALEOMAVAEGA. Well, maybe it's a matter of semantics. We 

can just simply change the word "office" to the word "division." Will 

that meet your concerns? 

Ms. HOMER. Yes, sir. 

Mr. FALEOMAVAEGA. Okay. 

Now, could you explain the situation in terms of the tribal court 

needs for your fiscal year budget? FY 1994, at least for this fiscal 

year, how much is being proposed by the Administration to provide 

for the needs of the tribal courts? 

Ms. HOMER. $15 million. 

Mr. FALEOMAVAEGA. $15 million? 

Ms. HOMER. Yes. Close to $16 million. Actually, it's $15.7 million. 

Mr. FALEOMAVAEGA. And this has been the constant request for 

the past 5 years, or is this an increase or decrease? 

Ms. HOMER. The amount of money for tribal courts has had a 

slight increase over the last several years. This current year, our 

appropriation is $14.9 million. 

69-593 0 - 93 - 4 
66 

Mr. FALEOMAVAEGA. And that is out of the total BIA budget for 

this fiscal year of how much? What is the total BIA budget pro- posed by the Administration? 

Ms. HOMER. I believe it's $1.5 billion. 

Mr. FALEOMAVAEGA. $1.5 billion. You indicated earlier that there 

are other, competing interests as far as priorities are concerned. 

How does that match with a $1.5 billion budget? We are only asking for $15 million for the tribal courts. You don't consider this to 

be a high priority, or you just think that there are other, competing interests more important than this issue? 

Ms. HOMER. They are all equally important, but I guess when we 

have a certain amount of money that we have to allocate to Tribes, the decisions are made as to which program is more important in 

any given year. I don't think that you will find that many of the 

other programs receive a lot more funding than tribal courts do, 

and it all comes back to the fact that we have limited dollars. 

Mr. FALEOMAVAEGA. Has there been any indication by this Administration in terms of the priorities? Let's say, what is Secretary Babbitt's list of priorities for this year for Indian country? Ms. HOMER. I haven't really seen a~ything come down to my level from Secretary Babbitt as far as Indian programs are concerned. So I really couldn't answer that question. Mr. FALEOMAVAEGA. I see. So we are somewhat in the dark. Ms. HOMER. Considering the fact that we don't have an assistant 

secretary or a deputy commissioner, we are still kind of in limbo. 

Mr. FALEOMAVAEGA. How soon do you think we might get an ap- pointment on this? 

Ms. HOMER. You're asking the wrong person. I have no idea. 

PANEL CONSISTING OF HON. CAREY VICENTI, CHIEF TRIAL 

JUDGE, JICARILLA APACHE TRIBAL COURT, DULCE, NM; 

HON. ROBERT YAZZIE, CHIEF JUSTICE, NAVAJO NATION JU. 

DICIAL BRANCH, WINDOW ROCK, AZ; AND HON. ELBRIDGE 

COOCHISE, PRESIDENT AND CHIEF JUDGE, NORTHWEST 

INTERTRIBAL COURT SYSTEM, EDMUNDS, WA 

Mr. FALEOMAVAEGA. We have for our next panel that will now 

appear before the subcommittee the Honorable Carey Vicenti, the 

chief judge of the Jicarilla Apache Tribal Court; the Honorable Robert Yazzie, the chief justice of the Navajo Nation Judicial Branch; and also the Honorable Elbridge Coochise, the chief judge of the 

Northwest Intertribal Court System in Edmunds, Washington. Are these gentlemen here with us? 

Mr. Vicenti, would you proceed? 

STATEMENT OF HON. CAREY VICENTI 

Mr. VICENTI. Thank you, Mr. Chairman. 

I would like to give at least an opening special thanks for the 

passage of the Bureau legislation and recently for the Jicarilla settlement. I waited my entire adult life for that settlement to come 

through, and I am glad to see that eventually we will get on the 

road to some economic development. A short response of the Jicarilla Apache Tribe to the introduction 

of this bill is that we are in support of this legislation, H.R. 1268, 

with some major caveats. But first I would like to make some com-
67 

ments about the courts themselves, and I hope I can infect you with my enthusiasm about this. 

We are the engines of economic development on the Reservations. 

We assure that there is a stable government with whom banks can deal and expect that there are going to be fulfillment of expecta- tions. We minimize the destructive forces within tribal society. We 

prevent economic loss. We encourage social cohesion and coopera- tion. We ensure that there is a healthy workforce. 

We do identify and protect some very important traditional values, and as such, I guess you can conclude that we are a basic element of the tribal infrastructure and ultimately lead to govern- mental viability and we therefore assure outside investment. That 

element really does suggest that you are not the only source of 

money that we should be going to, but without a strong court sys- tem I don't see the outside investing in the Tribes themselves. 

Then, finally, we have become increasingly the means of nego- tiating State and tribal relations. 

But the courts do not do their work in isolation. We do need important questions of law settled, jurisdictional questions, questions of choice oflaw, questions of full faith and credit and comity, issues 

of the trust responsibility, and the internal tribal law itself, which 

can be complex on its own. 

We do need competent law enforcement, incarceration facilities, court facilities themselves, which are not being discussed really at 

present, juvenile detention facilities, rehab programs, competent Bureau support which does not fight against our operations, which 

at present it does. We need foster care placements, foster care funding, mental health inpatient care. We need access to medical 

and psychological testimony and nursing homes. 

Now, we need those to operate. I can be a wonderful judge, but 

if I don't have those, I can sit there with a case incapable of being decided. 

Hence, I think our first comment about the bill is that it is entitled the Indian Tribal Justice Act, and it is a bit too ambitious. We perceive it as a funding bill in its essentials. I think if we stick to that name, we also might suggest that this is a bill that is com- prehensively dealing with Indian justice and may mislead the future. 

In light of the funding objectives of this bill, I think it would be 

more appropriately called the Indian Tribal Courts Emergency Funding Act. 

Now, the bill itself is structured so that it creates the Office of Tribal Justice Support-and I always twist up on that, so let me 

just call it OTJS-endowed with certain powers. It allows for the 

creation of judicial conferences. It provides funding to the court, subject to a secretarial formula. 

Now, I do recommend that we do make a little bit harsher findings with respect to the emergent character of the funding. Viable 

courts are essential to long-term development of the Reservations. 

Because the American Indian Policy Review Commission did recommend great infusion of capital back in 1976 or 1977, I think we 

have delayed the building of our infrastructure far too long. More specifically, the Jicarilla Apache Tribe approves of the creation of the Office of Tribal Justice Support. We think it is appro-
68 

priate to centralize and elevate that function. But we will be real 

honest with you. We find the BIA to be extremely inefficient and 

insensitive to tribal court needs. And while we say you can elevate 

and centralize it, we think that if they are going to expand the 

tasks at all, it should be simply to ensure that the Bureau functions are tailored to assist the courts rather than obstruct them in 

their performance. 

I will be blunt with you, too, on another point about this legisla- tion. We are basically indifferent to the judicial conferences provi- sions. In deference to my colleague and good friend, Justice Yazzie, 

and all the others who are supportive of S. 1752, I would have to 

say that that may be an issae that is better postponed and left out 

of this bill at this point. It may obstruct our real goal, and that is 

to get funding to the tribal courts. On the question of funding, we are concerned about the ultimate 

formula. We think that the use of the terminology ''base funding'' 

may also mislead and connote that this is what it is going to take. 

But I suspect that after the appropriations process is done, that 

what we are going to have is an equitable apportionment of what 

is actually available. So it may be misleading, and I would just like 

to correct it in the record somehow. 

As long as the Bureau is in existence, it's there to be the conduit 

for money. But we would insist that if it is going to be a conduit, 

that there be no skimming, there be no set-asides, we just take it 

down to the barest of administrative costs. 

I do want to point out for the benefit of Congressman Thomas, 

in his absence at this point, that we operate a system of about 

3,000 people. It costs us $300,000 a year. I suspect it would cost 

us $400,000 a year. That means that the cost is somewhere from 

$100 to $133 per person for basic operations. We still have a big infrastructure deficit. We have never received 

funding from the Bureau except for recent allocations from the tribal court funds. And that infrastructure development-facilities, a library, training, and that sort-really means that we may have 

extra monies, we estimate it about $500,000, just to build up that 

infrastructure. 

Let me close by perhaps unveiling something about my testimony. The problem that I perceive in the legislation is that by including reference to the judicial conferences and including an expansion of the Bureau functions, you have dropped on us a couple of very highly debated political issues here in the Indian community which eventually may obscure our real concern. And I can almost assure you with absolute certainty that you will hear every Tribe say that we need the money. And I suspect that we will have 

enough of a political battle over the funding formula. And my recommendation would be to omit references to the expansion of the 

Bureau or references to the judicial conferences, and we can get to 

that money issue. 

I will close with that. 

[Prepared joint statement of Messrs. Atole and Vicenti follows:] 
69 

THE JICARILLA APACHE TRIBE 

EXECUTIVE OFFICES 

P.O. Rox 507. Oulrc. New Mexico K752~-507 

(505) 759-)~42 

TZBTIKOHY OF PRZBIDZMT LZONARD ATOLZ. Jr.·ar il lo~ 'r 11 .:~w Rc:'(r•·:ni.\n UD CRIB!' TRIAL JUDGB CARBY VICINTI Fcl'>ru:u~ II.111!11 1~1D 

JICARILLA APACRZ TRIBZ 

BZARINGB ON B.R. 1268 

"INDIA!! TRIBAL JUBTICZ ACT" 

BUORZ TBZ 

SUBCOXKITTZZ ON NATIVZ AKBRICAII AFFAIRS 

UNITZD STATES BOUBZ OF RZPRZSBNTATIVZS 

April 21, 1993 

I. Intro4uction 

Mr. Chairman and members of the Subcommittee on Native 

American Affairs. The Jicarilla Apache Tribe has followed with 

great interest and concern the legislation presently pending before 

you and appreciates your invitation to present testimony on H.R. 

1268. on April 14, 1993, the Jicarilla Apache Tribal Council deliberated the merits of the pending legislation on tribal court 

systems, the testimony we submit today reflects Council's positions on this funding legislation. These positions are consistent with 

Tribal Resolution 92-R-413-5 previously submitted to the Subcommittee. 

H.R. 

The Jicarilla Apache Tribe supports the passage into law of 

1268. Although we believe that the Bill must be amended to 

increase tribal participation in the formation of the funding formula and to avoid the duplication of services within the BIA, 

we also enthusiastically endorse the legislative initiative, as 

reflected in both H. R. 1268 and S. 521, to provide additional 

resources and funding to strengthen tribal court systems. Last 

year, the Tribe submitted testimony and correspondence on H. R. 

4004. We were pleased when H.R. 4004 was amended to provide for 

the provision of funding to Indian tribes for their judicial 

systems in as relatively efficient manner as possible without the 

imposition of_ standards or interference with the government-togovernment relationship . We are pleased to see that H.R . 1268 

House 

preserves the most positive aspects of H.R. 4004 as passed by the 

last year, and also provides for the voluntary format i on 
Testimony of Pres. Atole 

April 21, 1993 

Page 2 

70 

tribal judicial conferences. As discussed further below, however, we believe that this Bill represents only the first legislative step needed to strengthen tribal judicial systems. This Bill 

provides needed funding for tribal courts and as such might be more appropriately called" The Tribal Justice Emergency Funding Act." 

However, there are many ways in which the policies of the federal 

government undermine tribal courts and we encourage congress to address these issues today or in the near future to strengthen tribal judicial systems without the necessity of additional resources. 

II. status of The Jicarilla Apache Tribal Court 

As noted last year, the lack of federal funding and resources remains the biggest obstacle facing tribes as they develop effective tribal justice systems. As an example, until last year, the Jicarilla Apache trial court was lOOt tribally funded, despite repeated requests for funding submitted to the BIA. No rational reason was ever offered for the denial of federal funding. 

Two full-time judges, both of whom have law degrees, a court administrator, a part-time prosector and several court clerks staff 

the tribal trial court. Nine pro tem judges also assisted in 

handling a combined civil and criminal caseload of close to 4,000 cases last year. In addition to the trial court, the Jicarilla 

Apache Tribe has an appellate court. 

Because of the scarcity of tribal resources and other pressing governmental and social services needs, the tribal court budget has not seen a real increase for five consecutive years. The $250,000 the tribe annually allocates to its trial court is money it can't use to solve the rampant unemployment and other needs on the Reservation. Although training is mandated by tribal policy, there are insufficient funds to provide that training. The trial court is in dire need of additional staff, a public defender, a fulltime prosecutor, law books and space to house the books, additional court and office space, updated equipment and monies to repair, expand and modernize the court and juvenile and adult detention 

facilities. Too often important court proceedings are interrupted by the emergency of fixing a busted pipe. 

The funding and staffing problems are particularly acute given the demands placed on the Jicarilla Tribal Court . Two state thoroughfares cross the reservation, the Tribe has a very large wildlife, game and fishing program which attracts tourists, fishers 

and hunters from throughout the region, substantial oil and gas activity occurs on the reservation, and the Tribe has enacted and 

codified numerous ordinances regulating business, the environment, 
Testimony of Pres. Atole 

April 21, 1993 

Page 3 

71 

oil and gas and other activities on the reservation. Our Tribal 

Court is frequently called upon to enforce those laws in 

proceedings involving members of the Tribe, non-member Indians and 

non-Indians. The Tribe believes that its tribal justice system is an integral and essential element of its tribal government. The 

particular structure of the Jicarilla Tribal Court is a response 

to the unique needs, culture, history and traditions of the 

Jicarilla Apache Tribe and is itself an exercise in selfgovernance. 

We must also recall that courts do not exist in isolation, but 

also depend upon the support of tribal and federal institutions to carry out many of their orders. For example the courts need the 

support of a competent police force; adequate codes of law; 

appropriate jail and juvenile detention facilities; properly trained and staffed social service offices; foster care funding, and mental health facilities and professionals to name a few of the 

corollary support services. In addition, the Court must receive 

the BIA and IHS' respect and compliance with lawful court Orders. 

Because many of the issues surrounding the delivery of justice services are not addressed in H.R. 1268, the Tribe urges Congress to recognize that this Bill only addresses the gross inadequacies in funding levels for tribal courts, but does not comprehensively solve some of the problems facing tribal courts which often emanate from the federal government itself. 

III. Specific Coamenta on H.R. 1268 

1 . Section 10 1 - The Office of Tribal Justice Support 

a. The office's functions are too broad. 

The Jicarilla Apache Tri be supports the creation of an Office o f Tribal Justice Support withi n the BIA to serve as a conduit of 

funding to Tribes for the benefi t of tribal justice systems. The 

Jicarilla Apache Tribe recognizes that the absence of federal 

funding is one of the biggest obstacles to the development and 

strengthening of tribal court systems throughout Indian country. With additional funding, tribes themselves can study and implement training programs to improve the administration of justice in their 

particular system. 

The Tribe does not support, however, the use of the Office to provi de technical assistance, continuing lP.gal education, trai ning, 

and the other functions described in SS l01(c) (1), (3), (4) and 

(5). In the Jicarilla Apache Tribe's experience, the BIA has been unable to perform these functions in the past and we see no reason 

for increasing federal bureaucracy when these services are already 
Testimony of Pres. Atole 

April 21, 1993 

Page 4 

72 

available from other Indian and business organizations. 

Furthermore, these duties impinge upon the independence of tribes 

and their courts. The Jicarilla Apache Tribe knows its needs better than anyone, we also know how to solve those needs given 

adequate resources. We should be free to use federal funds to contract with the National American Indian Court Judges Association, the National Indian Justice Center, or any other 

Indian or non-Indian entity which we feel could best serve our training needs. 

Additionally, placing the responsibility for providing these 

services on the BIA is extremely inefficient. Because of the 

diversity of tribal justice systems, their training needs run the 

gamut from sophisticated computer research capabilities to 

mediation techniques. The distinct geographical and cultural 

factors also influence the type of training best suited for distinct tribal justice systems. We should not expect that a single office could acquire this diverse wealth of knowledge in an efficient manner. 

b. No imposition of standards. 

Section 101(d) incorporates one of the Jicarilla Apache Tribe • s main concerns last year: that judici"al legislation not serve as a tool to impose standards from the outside on the diverse 

tribal court systems. However, this disclaimer only applies to Section 101. It should be broadened to apply to the entire bill. 

Additionally, Sections 101(e) and 103(c) (2) should be amended to comply with Section 101(d). 

c. Technical assistance to Tribe. 

Once again, the Jicarilla Apache Tribe questions whether the 

BIA is best suited to provide the technical assistance to tribes 

contemplated in Sl01(e). For example, the Tribe has developed ordinances and codes regulating conduct ranging from wildlife 

management to oil and gas activity to environmental protection to court administration. The Jicarilla Apache Tribe developed these codes internally with the advice of experts of its own choosing. The Jicarilla Apache Tribe recognizes that this freedom of choice is provided in SlOl(e) (2) inasmuch as technical assistance may be 

provided through grants to Indian tribes. The Jicarilla Apache Tribe, nevertheless, worries about the tendency of the Bureau to 

attempt to accomplish this training in-house which may affect its 

willingness to award grants to Indian tribes or organizations. 

Finally, the Jicarilla Apache Tribe is cognizant of the 

homogenizing effect BIA may have in proposing boilerplate codes and 

court administrative procedures. We recall the use of boilerplate 
Testimony of Pres. Atole 

April 21, 1993 

Page 5 

73 

constitutions following passage of the Indian Reorganization Act. The Jicarilla Apache Tribe has had to review and reform that model 

constitution five times since its adoption because the form 

consti tution simply could not and did not reflect the Tribe's own 

history, traditions and dec isions on how to structur e its 

government and laws. 

As noted earlier, the court also needs the support and 

assistance of agencies of the federal government to enforce lawful court orders. This is especially true in foster care placements, 

child and adult welfare cases and foster care funding. We need 

assistance from the federal government to investigate cases and of 

IHS physicians to testify on commitment and child welfare c a ses. 

Lamentably , our courts often find themselves facing recalcitrant 

IHS or BIA officials unwilling to abide by tribal court orders. 

In the absence of clear direction from Congress, BIA and IHS have 

"interpreted" regulations so as to undermine the effectiveness of 

tribal court orders. We suggest that one function of the Office 

of Tribal Justice Support which can and should be conducted within 

the BIA is to work with the various federal agencies to ensure 

greater support and assistance to tribal courts and their 

decisions. 

c. Clearinghouse 

Some of the functions proposed for the Office Cleari nghouse 

are already provided by Indian organizations. For example , the 

American Indian Resource Institute publi shes the Indian Law 

Reporter. The Bill should be amended to ensure that tribal 

organizations already supporting tribal justice systems can receive federal funding to improve their services. The Indian Law Reports 

should be computerized and made more accessible to the various 

tribal justice systems. The BIA should not be asked to provide duplicative s e rvices. We also recommend that the Bill authorize 

funding to the National American Indian Court Judge Association, 

the National American Indian Court Clerk Association and the Native American Bar Association to support the services these 

organi zati ons provide for the improvement of tribal justi ce systems. 

2 . Section 102 - Suryev of Tribal Judicial Svstems 

The Jicarilla Apache Tribe recognizes the importance that 

Congress has placed on the survey to determine both the funding formula and future resource needs of tribal courts. For this 

reason, the Tr i be would like further clarification as to the manner 

in which tribes will be involved in the process of both determining the survey content and its process. Once again, we urge Congress 
Testimony of Pres. Atole 

April 21, 1993 

Page 6 

74 

to recognize tribal sovereignty and rely on tribal experience in 

providing the necessary information for the national survey. As 

noted earlier, the Jicarilla Apache Tribe knows best what its needs are and how to solve them. We believe that the Office should not dictate to Tribes what information will or will not be accepted, but rather invite participation from tribes to submit information on the factors each particular tribe deems important for their 

tribal justice system. For example, we beli eve that the survey should also gather information on the history of federal funding; the incidence of reported federal crimes, and the incidence of non- reservation businesses and populations subject to the jurisdiction of the courts while on the reservation. 

3 . Base Support Fundina And The Fundina Formula 

The Jicarilla Apache Tribe believes that equitable apportionment of funding among the tribes should be a primary goal of this Bill. AS noted earlier, federal funding of tribal courts has too often been subject to the arbitrary decision making process of the BIA. The BIA has based funding on historical patterns of 

funding rather than true need. For this reason, the development of some type of fair and equitable funding formula is useful. 

However , the Jicarilla Apache Tribe objects to . the i mplementation and use of caseload standards to determine the funding formula as 

contemplated in S 102 (c) (2) . The Tribe objects to case load standards for two reasons: first , the imposition of these standards 

impinges upon sovereign authority. to determine the form and structure of its tribal justice system. The standards will be 

adopted with reference to standards used by the federal and state courts and the American Bar Association. These courts are of 

necessity uniform. But tribal justice systems are as diverse as 

the tribes themselves. Attempts to impose caseload standards 

adopted by the Secretary assumes a uniform manner of administeri ng j ustice and obliterates the important distinctions and traditional 

elements present in tribal justice systems. Second, caseload 

standards do not accurately reflect funding needs. Our trial court is increasingly using what is now known as "alternative dispute resolution" mechanisms and traditional methods for resolving disputes before a case is actually filed. These ADR and 

traditional mechanisms are often more labor intensive the standard 

court filings. However, they usually produce better results. 

Caseload standards simply will not reflect these distinct methods of resolving di sputes and tribes should not be penalized in the 

funding formula for being i nnovative or using traditional dispute 

resolution mechanisms. 

We also urge Congress to recognize that many tribes require federal funding beyond what might be needed to simply operate a 
Testimony of Pres. Atole 

April 21, 1993 

Page 7 

75 

justice system on a yearly basis. These courts have not had 

funding in the past and will need to build the necessary infrastructure to ensure the efficient administration of justice. 

Finally, it is our understanding that S 103(c) (3) (f) includes 

recognition of isolation factors, infrastructure needs and 

innovative and alternative dispute resolution programs. 

In closing, the Jicarilla Apache Tribe supports this 

Subcommittee's initiative in authorizing much needed funding for 

tribal justice systems. We believe that the authorized sums are 

much too low to accomplish the goals of the Bill. We also ask the 

Subcommittee to amend the Bill to streamline the functions of the 

Office of Tribal Justice Support and to eliminate the use of 

caseload standards as a means of funding tribal justice systems. 
76 

Mr. FALEOMAVAEGA. Thank you. Judge Yazzie? 

STATEMENT OF HON. ROBERT YAZZIE 

Mr. YAZZIE. Mr. Chairman, since our time is limited, I will get 

to the point. My name is Robert Yazzie. I am the chief justice for 

the Navajo Nation. The position of the Navajo Nation is to reject H.R. 1268. 

Yesterday I appeared before the Senate committee to tell it that, 

among other things, most tribal leaders want what was in last 

year's Senate bill, S. 1752. It replied, "We want what the Indian 

country wants. You should go and speak with the House." 

I spoke with the Navajo Nation, our president, Peterson Zah, and 

he supports this position. 

It is our decision to stick to our guns, and that is why I am here 

today. We spoke with approximately 75 Indian judges at its annual 

meeting here in Washington, and most of them are here in this 

room. We hear the following: 

No. 1, we prefer the concepts of S. 1752; 

No.2, we do not want the BIA to have more control over us; 

No. 3, we don't want more power for the BIA; and 

No. 4, the BIA has never helped us; we can't expect it to in the 

future. 

Most of all, we badly need more money now. This bill is unacceptable. Federal agencies have no role in making Indian court pol- icy. This bill would allow the BIA to impose standards on us, despite the language not to do so. Control of the purse strings includes control as to how the money is spent. That is aside from the fact that the BIA keeps 75 cents 

of every Indian dollar appropriated. The BIA record is poor. It 

never gave us the resources to implement the 1968 Indian Civil 

Rights Act. It never followed through with a prior plan to give tribal courts data systems. It never implemented the 1968 Judges Association study on tribal court needs. When you look closely at this bill, at what this bill actually does, it could have been accomplished with regulations under existing law. 

We want one national Indian judicial conference. It would get things done because it would be in the interests of Tribes to get what they need. It would target what we need to get the job done. 

It would give Congress direct access to the leadership of Indian 

country. 

We want one unified national Indian judicial conference. What is 

it? A national body, like ones with the Federal, State, and administrative law judges, which adopts policy, identifies needs, communicates those needs to funding sources, and directs the methods of 

allocating funds. 

We do not want a tribal court law which promotes the practice of "divide and conquer." I am here again today to tell you we want 

what was in S. 1752. If it is not acceptable to this committee, we 

want no bill which has Washington telling us how justice programs will be run. Whether we have a tribal court bill or not, we want 

and must have a significant increase in funding immediately. The 

tribal courts have been in a state of emergency for some time, and 
77 

we are suffering. Tribal judges are so broke they can't pay attention. 

As a compromise, if we need an authorization bill, I propose the 

following. Strike everything after the title and substitute the following language. ''The Bureau of Indian Affairs shall within 90 

days of enactment promulgate regulations to implement this act 

consistent with the sovereignty, independence, and integrity of Indian nations." That there be language which says there are authorized to be appropriated to carry out this act $75 million to each of 

the following fiscal years. 1994, 1995, 1996, 1997, 1998, 1999, and 

the year 2000. 

Thank you. [Prepared statement of Mr. Yazzie follows:] 
78 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

COMMITTEE ON NATURAL RESOURCES 

UNITED STATES HOUSE OF REPRESENTATIVES 

TESTIMONY OF THE NAVAJO NATION 

on 

H.R. 1268. THE "INDIAN TRIBAL JUSTICE ACT" 

by 

The Honorable Robert Yazzie 

Chief Justice of the Navajo Nation 

April 21, 1993 
79 

INTRODUCTION 

Mr. Chairman and members of the Subcommittee on Native American Affairs 

(SNAA), the Navajo Nation appreciates this opportunity to provide our concerns 

regarding the tribal court legislation, H.R. 1268. I am Chief Justice Robert Yazzie 

of the Navajo Nation Judicial Branch, presenting these views on behalf of the 

Navajo Nation. This testimony is supported by the Judiciary and Intergovernmental 

Relations Committees of the Navajo Nation Council. 

Legislation for tribal justice is vital to tribal sovereignty. In this context, 

"sovereignty" means independence and integrity, and freedom from outside 

interference or control. Sovereignty also means tribes being able to provide 

complete justice to all plaintiffs and defendants who appear in our courtrooms . 

H.R. 1268 is not the first tribal court enhancement bill we have seen. Over 

the past five years, the Navajo Nation has discussed and reviewed tribal court 

legislation beginning with the January 1988 oversight hearing of the Senate 

[Select) Committee on Indian Affairs (SCIA). This is my fourth appearance to 

testify on tribal court legislation. 

In February 1993, tribal judges, American Indian organizations, and I met 

w ith Chairman Daniel K. Inouye and urged him to reintroduce the text of last year's 

Senat e tribal court bill, S. 1752. We are deeply disappointed this has not 

happened . Neither S. 521 introduced by Senator John R. McCain (R-Ariz.) nor H.R. 

1268 incorporates the recommendations made by tribal judges these last five 

years . Please recall that last year's Senate bill had overwhelming tribal support. 

H.R. 1268 is a marked departure from the consensus bill of last year. 

I testify before this Subcommittee seeking assurances that tribal court 

legislation must appropriate significant additional monies for Indian justice - without 

delay, provide tribal courts the resources to protect civil rights, and reinforce tribal 

court independence and integrity - not strengthen federal control over tribal courts . 

LACK OF TRIBAL COURT FUNDING AND BIA ACCOUNTABILITY 

In 1977, the American Indian Policy Review commission published find ings 

on civil and criminal justice in tribal courts. In their report the Commission 

recommended that "Congress appropriate significant additional monies for the 

maintenance and development of tribal justice systems: Funding be direct to 

tribes .... " In 1991, the United States Commission on Civil Rights concluded that 

the primary obstacle to civil rights in Indian Country is the failure to give Indian 

courts the resources they need . When Congress overruled Duro v. Reina a few 

years ago, it concluded that Indian courts must have funds to carry out their 

responsibilities. Yet, to date, Congress and the BIA have not appropriated 
80 

additional or sufficient monies for tribal courts . Federal funding was only 21% of 

our tribal court budget in fiscal year 1992, and 15% in 1993. We do not expect 

any increase in fiscal year 1994. 

In addition to lack of resources, tribal courts are forced to rely on the BIA. 

The BIA has a record of almost 60 years, since the Indian Reorganization Act of 

1934, of failure to support tribal justice. In January 1988, the Senate [Select) 

Committee on Indian Affairs recommended that the BIA develop a funding formula 

for tribal courts. To date, the BIA has not established this funding formula. 

Further, Congress has enacted several laws that positively impact tribal 

governments and courts, but the BIA continually fails to request authorized funds 

or asks for limited amounts. Tribal courts are at a critical juncture. Simply relying 

on the BIA will not answer our needs or problems. 

CIVIL RIGHTS 

Non-Indians use civil rights as their pretense to attack tribal courts. Yet, the 

civil rights debate ignores the rights of poor people to access courts for speedy, 

inexpensive, and fair due process of law. Insufficient resources in current tribal 

court systems limit the right of economically deprived individuals to access the 

courts for their fair trial. For example, in our fiscal year 1992, beginning April 1, 

1991 and ending March 31, 1993, we handled 85,000 cases. Ninety-three per 

cent (93%), or 79,000, were criminal cases. 5,000 cases mostly involved child 

abuse or neglect, delinquency, and family disputes. 3.480 cases involved drunk 

driving. Of the 79,000 criminal cases, 20 probation officers handled approximately 

4,000 cases each and most of the criminal cases were alcohol-related. We need 

more tribal judges, probation officers and court staff to handle our overwhelming 

case loads. 

It is the rights of victims of crime, and people who are victimized by 

circumstances to look to a tribal court for protection. As things now stand, we 

cannot keep up with the public demands to serve all victims of these offenses. 

The key to this bill is people. Congress should honor its constitutional obligation to 

Indian justice by providing adequate resources and funding for tribal courts. In 

doing so, I firmly believe we can better serve all persons who come into contact 

with Navajo courts. 

We also are concerned about the rights of defendants in criminal cases, as 

we have provided for them in our tribal law. Now, we stress the rights of victims, 

and the rights of criminal defendants as the victims of their circumstances. But, 

we can only provide limited service to these victims because of our limited tribal 

court budget . 

2 
81 

APPROACH TO TRIBAL COURT FUNDING 

H.R. 1268 (and S. 521) both establish an Office of Tribal Justice Support 

(the Office) within the BIA. We have several concerns about this. First, the BIA's 

service to tribal courts, as stated above, is inadequate. The BIA has not capitalized 

on previous recommendations to enhance tribal courts by tribal judges, leaders and 

organizations. The BIA has always ignored recommendations and advice of tribal 

judges on improving tribal courts. For example, the Judicial Services Branch in 

studying tribal court assessment standards did not seek our input. These BIA 

assessment standards have only interfered with our court systems. Second, the 

function and operation of the proposed Office is unclear. Third, and most 

importantly, BIA control of technical assistance functions , including monitoring 

grants and contracts limits tribal courts from effectively managing their own 

operations. 

Currently, the BIA is managing special tribal court grant and judicial 

education programs without regulations, contrary to federal law. The BIA has 

managed these funds inappropriately which has hindered the effective operation of 

tribal courts. History shows that the BIA cannot provide the support we need, 

therefore, the BIA should not gain control over tribal courts through the proposed 

Office of Tribal Justice Support . 

THE TRIBAL JUDICIAL CONFERENCE 

The proposed tribal judicial conferences in H.R. 1268 (and S. 521) are a 

means to divide and conquer tribal governments. Both bills allow tribes the option 

of either contracting directly with the Office, or participating in a tribal judicial 

conference and then contracting with the BIA. This option for tribes to participate 

or not participate in a tribal judicial conference may cause disunity between tribes. 

Further, the legislation assures that there would be no unified national tribal voice . 

We in Indian country can not afford such divisiveness. Further, the proposed 

authorization levels of funding for the tribal judicial conference in H.R. 1268 (and 

S. 521) is wholly inadequate. 

The Navajo Nation supports one national tribal judicial conference that is 

tribally created, under the effective control of tribal governments and responsible 

for justice initiatives identified by tribes . The concept of a national Indian judicial 

conference is the same as the examples of the Judicial Conference of the United 

States, the Conference of State Courts, and the national conference of 

administrative law judges. Those bodies work together to draft court policies, set 

needs and priorities, and work with Congress. A judicial conference is the means 

for judges in a legal system to develop comprehensive approaches to justice 

3 
82 

functions, assess needs, and communicate directly with bodies such as Congress. 

A comparable national Indian judicial conference that would regulate tribal courts 

overall, in place of BIA, is necessary in order for tribal courts to function properly . 

CONCLUSION 

We supported the lnouye-McCain tribal court bill, S. 1752 of last Congress . 

It remains the best legislative proposal. It is what we want. A national tribally 

sanctioned Indian body should control tribal court programs and keep the federal 

presence to an absolute minimum. The approach taken this Congress reinforces 

the BIA, although we are in an era when self-determination is overtaking BIA 

control. Why should tribul courts succumb to BIA control and standards? Our 

major concern is that the BIA will impose court standards on our tribal system at a 

time when we are developing our own innovative and traditional approaches. 

I hear over and over again from the Indian authorizing Committees that any 

Indian bill, let alor>e tribal court bill, must be "Indian Country's" bill. We in good 

faith believed and trusted that the Congress understood our position--recorded and 

developed since 1988--that adequate resources, tribal services and judicial integrity 

were the bench marks. We believed we achieved this inS. 1752 of last year. But, 

here I am, again. revisiting w hat had previously been decided and agreed to - or so 

we thought . 

Chairman Richard son and members of the Subcommittee, I urge you to 

carefully craft tribal court legislation comparuble to S. 1752 that will give tribal 

courts the necessary resources to preserve American Indian families and assure 

that every person in Indian country has access to tribal judicial relief that is prompt, 

equal and fair . 

4 
83 

ATTACHMENT A 

PROFILE OF THE COURTS OF THE NAVAJO NATION 

POPULATION: 200,000. 1990 Census- 148.451 persons. Indian population 

143.405 (96.6% of total). Largest Indian tribe in population. 

AGES & GROWTH RATE: Median (mid-point) age is18.7 years . 52% are age 19 

and under. Annual growth rate is 2.31% (0.989% for the U.S.). 23.% per decade. 

Age cohorts: 

0-19 

10-19 

20-24 

25-34 

35-44 

45-64 

65+ 

9% 

25% 

9% 

13.5% 

9.5% 

11% 

5% 

EMPLOYMENT AND INCOME: (Bureau of Indian Affairs, Indian Service PopulatiQQ 

and Labor Force Estimates, December 1991) 74% of the population is out of the 

work force due to age, inability to work (children or disabilities), or unable to find 

work. 43,026 (26%) in work force- 32,616 (24.2%) earn less than $7,000 per 

year. 

Population ( 1991) 

Under age 16 

Unable to work 

Able to work, unemployed 

Employed 

Earn more than 7K 

165,086 

45,098 

27,355 

49,719 

43,026 

32,616 

(27.3%) 

(16.6%) 

(30.1 o/o) 

(26.0%) 

(29.8%) 

TERRITORY: 17,202,118.21 acres or 27,523 square miles in Arizona, New 

Mexico and Utah. Navajo Nation is 19 square miles larger than Ireland; larger than 

West Virginia, and slightly smaller than Sough Carolina (40th State in size). 

CREATION: Originally established as the Navajo Court of Indian Offenses in 1892. 

Created as the Courts of the Navajo Nation, April 1, 1959. 
84 

COURT STRUCTURE: Unitary system, with seven judicial (trial) districts and one 

court of last resort, the Supreme Court of the Navajo Nation. Each district has a 

district and family court. There is a traditional Navajo Peacemaker Court, with 227 

peacemakers in 89 local governmental districts (chapters). 

LAW APPLIED: (1) Applicable statues and laws of the United States, (2) Navajo 

Nation statues, (3) Navajo common law (as the law of preference), and (4) (where 

no other applicable law) law of the State where the action lies. 

JUDGES: 14 district and family court judges (7 women). Three justices of the 

Navajo Nation Supreme Court. Chief Justice has supervisory and administrative 

authority. 

COURT PERSONNEL: 135 support employeesadministration 10 

bailiffs 7 

clerical 17 

court attorneys 5 

court clerks 38 

financial 3 

probation 20 

other 18 

BUDGETS: 

Navajo Nation general fund 

Federal "638" fund ing 

Special Tribal Court funds 

Other grant funds 

Total funds : 

FV 1992 

$3,696,000 

856,308 

135,000 

$4,687,308 

FV 1993 

$4,234,858 

740,000 

-0-

20,000 

$4,974,858 

CASELOADS: FY 1992 caseload of 85,014 matters. 58,005 (68.2% of caseload) 

filed, 27,009 (31. 7%) brought forward, and 42,387 (49.8%) closed . 42,627 

cases (50.2% of caseload) .carried forward into FY 1993. 
85 

CRIMINAL CASES: 24,182 filed (42.5% of total caseload). Major offense 

categories: 

Offenses against the public 

Intoxicating liquor violations 

Offenses against persons 

Obstruction of justice 

Offenses against the family 

12,390 

3,176 

2,617 

1 '115 

1,096 

TRAFFIC CASES: 29,878 filed (40.9% of total caseload). 

General vehicle violations 

Vehicle equipment violations 

Driving while intoxicated 

22,124 

4,267 

3.480 

(51 .2%) 

(15.3%) 

(10.8%) 

( 4.6%) 

( 4.5%) 

(74.0%) 

(14.2%) 

(11.6%) 

JUVENILE OFFENSES: 799 delinquency cases file (1.2% of caseload). 

Major youth offenses: 

Public intoxication 

Assault & Battery 

Disorderly conduct 

Property damage 

Theft 

165 

114 

92 

84 

49 

(20.6%) 

(14.2%) 

(11.5%) 

(10.5%) 

( 6.1%) 

CHILD WELFARE CASES: 378 child welfare actions ( > 1% of caseload). 

Top five categories: 

Physical abuse and neglect 

Guardianship 

Adoption 

Termination of parental rights 

Indian Child Welfare Act transfers 

19 cases (5%) involved child sexual abuse. 

174 

74 

39 

25 

23 

(46.5%) 

(19.5%) 

(10.3%) 

( 6.6%) 

( 6.0%) 

CHILD STATUS OFFENSES: ("Child in Need of Supervision") 209 CHINs petitions 

( > 1% of caseloadl : 

Traffic citations 

Beyond control of parents 

Truancy 

Other ( > 1 %) 

209 

97 

20 

1 

(63.9%) 

(29.6%) 

( 6.1%) 

(>1 .0%) 
86 

DOMESTIC RELATIONS: 495 actions (2.1% of total caseload) with the major five 

categories of: 

Divorce 

Change of name 

Other family cases 

Probate 

Enforcement of decree 

495 

228 

193 

99 

87 

(36.6%) 

(16.8%) 

(14.2%) 

( 7.3%) 

( 6.4%) 

CIVIL ACTIONS: Civil actions, other than family matters, 1,191 (1.9% of the 

caseload). Major five categories of civil actions: 

Contracts 

Various civil actions 

Torts and personal injuries 

Land disputes 

Equitable and injunctive relief 

682 

363 

56 

49 

37 

(57.2%) 

(30.4%) 

( 4.7%) 

( 4.1%) 

( 3.1%) 

There were three civil rights actions and one prisoner habeas corpus petition. 

RESOURCES NEEDED AND COST: 

Judicial complex and court facilities 

Additional personnel for pubic access 

Equipment 

Supplies 

Other needs 

TOTAL: 

$12,000,000 

1,199,979 

833,850 

61,000 

123,035 

$14,217,864 
87 

Mr. FALEOMAVAEGA. Judge Yazzie, what do you think of a bill 

that says, "The Bureau of Indian Mfairs within 90 days shall hereby be terminated and that the $1.2 billion be given to every Tribe 

proportionately to its needs"? I am just offering that as a sugges- tion. 

Judge Coochise? 

STATEMENT OF HON. ELBRIDGE COOCHISE 

Mr. COOCHISE. I don't think you want an answer to that ques- tion. [Laughter.] 

I am Judge Elbridge Coochise from the Northwest Intertribal 

Court System, which provides services to 15 small Tribes in western Washington State. 

Mr. Chairman and members, I am honored to be present before 

you today to make comments on behalf of the Northwest Intertribal 

Court System regarding H.R. 1268, the Indian Tribal Justice Act. 

I have submitted written testimony for the hearing, and I hope 

that it will be included as part of the record. So I will summarize 

our recommendations. We have been involved all previously on the Senate side as well 

as looking at some of the House versions. The proposed legislation 

is not as comprehensive as the previous legislation that was pro- posed on the Senate side. We have certain concerns and recommendations that we would like to make. 

We do agree and support the findings and declarations of the bill 

itself. We strongly support and agree that no standards or anything will be imposed on Tribal Governments and tribal courts. With all due respect, we are concerned in this proposed legislation that it is taking several steps back from what was previously 

proposed in the Senate version, S. 1752. And our concerns are prin- cipally that a distinct majority of the Tribes supported that pro- posed legislation and had ample opportunity to participate in the 

development of the provisions of the previous bill. 

To expect from the Congress or the Federal Government that 

tribes should reach consensus on any tribal courts legislation, to 

me is outrageous when in this democratic society the majority rules, and certainly there has been a distinct majority who sup- ported that legislation and the concepts. 

And we are always being admonished or required to go to a higher standard than you impose on other outside entities, such as in 

State courts. There have been proposals for ethics and standards 

required for tribal courts higher than State courts are required to 

live under. And we have seen that a number of times. 

There are two major concerns in this bill. First, of course, is the 

adequate funding. Tribal judiciaries are vital to the maintenance 

and the enhancement of tribal sovereignty. Therefore it is essential 

that Tribal Governments receive adequate funds for their judicial 

systems. The concern here is limiting Tribes to only one entity within the 

Federal system, the Interior Department, for appropriations. I 

think this is wrong. As tribal sovereigns and governments, they should be entitled to all access to the Federal appropriations agencies throughout the Federal system. 
88 

We always make Tribes only required to come to Interior, and I 

think as any government, from the outside, including those foreign 

governments, they are not limited, and generally they will usually 

get funding from different sources. I agree with the Bureau's statement that they will be putting us 

to compete with Indian monies for other programs, and there is 

just not enough money there at all. But to tie them down into one 

appropriations committee I think is wrong, and should not be imposed on Tribal Governments who are sovereign, and they should 

be allowed to have access. 

The other major concern is in relation to the judicial conference. 

While in this bill you have provisions that would provide for one 

or more, in the previous bills that was also a problem. So there are 

concerns there. Our position is that any judicial conference should 

be created in form and substance by Tribes themselves. 

I do take a point, though, on Congressman Thomas' statement 

that if the Tribes wanted to form a judicial conference, they should 

do it with their own money. I think we have, as Indian Governments, paid our dues well beyond any other agency, and we now 

expect the Federal Government to live up to its treaty obligations 

and trust responsibilities. 

And we do make one major recommendation, as my colleagues 

here have. We are talking here about funding resources that we 

need. This bill in itself does not in any essence constitute a justice 

act. There are not enough provisions in there to consider it a justice-entailed act. The title should automatically be changed to the 

"Tribal Courts Emergency Funding Act." 

We oppose the establishment of the office in the Interior, and we 

strongly urge the current BIA Judicial Services' · role be limited as 

a conduit for appropriated funds so that the funds actually get 

there. We have seen numerous times appropriations, and a minute 

amount of that funding gets to the tribal level. 

I want to answer additional questions, but I can answer where 

the $50 million figure came from. That came from a recommendation from my testimony from the National American Indian Court 

Judges Association, based on recommended base funding of 

$150,000 per court, no matter what it is. And that's where that figure came from. 

You have my other recommendations on record, and I see my 

time is up. 

[Prepared statement of Mr. Coochise, and document entitled 

"BIA Budget Justification Estimates-Tribal Courts" follow:) 
II 

89 

NORTHWEST INTERTRIBAL COURT SYSTEM 

121 fo'I F1'11 AVK NOiriH 

SUITE 13()!; 

EDMONDS, WASHINGTON fiH020 

ELHRIDGE C<X>CIIISE 

Admtnt""''"" c•••r .Ju<!iitatement of Elbridge Coochise, President 

Northwest Intertribal Court System 

Before the 

Phone: (206) 774-5808 

FAX: (206) 77R-7704 

House Subcommittee on Native American Affairs 

on 

"Indian Tribal Justice Act" 

H.R. 1268 

April 21, 1993 

Mr. Chainnan and Members of the Committee, I am honored to be here today to 

present comments on H.R. 1268, the Indian Tribal Justice Act. 

The proposed legislation, while not as comprehensive as the recent Senate legislation 

of last session, S. l752, is a step toward our primary concern of adequate funding for 

Tribal Courts. 

We have certain concerns and recommendations for any Tribal Courts bill . 

We ag ree and support the findin gs and declarations that: there is a government-togovernment relationsh ip between the United States and each Indian Tribe; selfde termination, self-reliance, and inherent sovereignty of Indian Tribes is supported 

by statutes and Treaties; that Indian Tribes posses inherent authority to establish their 

own form of Government and Tribal justice systems: that Tribal justice systems are 

essential to self-government and integral to the fulfillment of the self-detenninatiun 

policy; and, that Tribal justice systems arc inadequately fu nded and this lack of 

funding impairs Tribal ability to administer justice effectively. 

The Tribal Courts, as the third component of Trihal governments, serves as the 

provider of justice fur Tribes in their exercise nf the puwer of Self-Government. The 

Tribal Courts. as the protector of the Indian Civil Rights Act provisions, can only 

guarantee those rights with adequate resources. As an integral part of the eKercise 

of sovereignty and providing justice, the Tribal Courts are the balancing entity 

charged with assuring that justice is carried out fur the Tribes and its pcuple. 
Testimony of Judge Elbridge Coochise 

Northwest Intertribal Court System 

90 

April 21, 1993 

Page 2 

This legislative funding authorization, if enacted, will go a long way in providing for the 

inadequacies of financial resources to the Tribes for their judicial systems. With the increase 

in number and complexity of cases, and the mandates of the Federal Courts in the exhausting 

of Tribal Courts remedies, it is essential that the inadequacies of funding for Tribal Courts be 

resolved . Only with adequate resources to Tribal judiciaries will the Tribal justice systems 

become strong, independent systems further strengthening the sovereignty of the Tribes. 

We support base funding for each Tribal justice system, based on their need as determined by 

the Tribal government with their judiciaries. It is imperative that full participation of Indian 

Tribes with the Secretary of the Interior, be honored in the development of an appropriate 

allocation formu la which establishes base funding for each Tribal justice system, and ensures 

equitable distribution of funds. The $50 million authorization for base funding for seven years. 

beginning in FY94 for the approximately 170 Indian Court systems, would more realistically 

meet the needs of the Tribal Court systems. The $7 million separate authorization, among other 

purposes, should be added to the above base to assist judges and court personnel in training, 

automation, record keeping and overall improvement of court operations. 

We strongly agree and support Title I. Section lOl(d): that the Act will not impose any 

standards. Nothing in this Section shall be deemed or construed to authorize the Office to 

impose justice standards on Indian Tribes. 

We are concerned that this proposed legislation is taking several steps backward from the 

previously proposed legislation (S.l752) of the Senate. Our concerns are principally that a 

distinct majority of the Tribes supported S.l752 and had ample opportunity to participate in the 

development of the provisions in that bill. Part of our concerns are that several fundamental and 

progressive concepts embodied in S.l752 are not in this proposed legislation. 

Several of these issues include: the limiting of funding authority to only the Deparunent of the 

Interior with the obvious exclusion of financial support from the Deparunent of Justice; the base 

level of funding not being based on equivalency to State courts of general jurisdiction performing 

similar functions in the same or comparable geographic regions; no protective provisions that 

any standards developed under the Act are not to be imposed on a Tribal Court except by the 

Tribal government; no appeal procedures for Tribal governments who feel slighted by the 

formula and level of funding received; funding for intertribal appellate courts is not included; 

no provisions to assure a right to counsel as defined by Tribal law; no provision that Federal 

funding to courts be administered in a manner that encourages flexibility and innovation by 

Tribal judicial systems and that avoids encroaching on Tribal traditions that may be manifested 

in Tribal Judicial systems, and assuring the protection of the diversity of Tribal Court systems; 

and, most critically a mandate that funding for Tribal judicial systems be in a manner that will 
Testimony of Judge Elbridge Coochise 

Northwest Intertribal Court System 

91 

April 21, 1993 

Page 3 

minimize Federal and administrative costs; no provision that encourages the murual recognition 

by Tribal. State and Federal couns of the public acts, records. and proceedings of each other's 

courts. 

Tribal jud iciaries are vital to the maintenance and enhancement of Tribal sovereignty. 

Therefore. it is essential that Tribal governments receive adequate funds for their judicial 

systems. By limiting appropriations for Tribes' judicial systems to the Interior Deparunent 

(BIA) presents two very real problems: (I) that the Tribal Courts would compete with other 

Tribal programs tor limited BIA funds. and; (2) that Tribes would not have access to logical 

Federal support resources in the Justice Deparunent. Tribes. as sovereign governments, should 

be allowed to access all Federal resources that could improve their operations. Limiting funding 

to only the BIA and excluding access to the Justice Department is difficult to support. The Trust 

Responsibility is with the United States. not specitic Deparunents or Agencies. 

The other concern involves the Tribal Judicial Conference. In S.l752, there was concern by 

some Tribes that this provision would mean a proliferation of Judicial Conferences even though 

the bill stipulated only a national conference. This legislation under consideration actually will 

allow many judicial conferences to be created at regional, local and national levels since it will 

take only two or more governing bodies of Indian Tribes to establish a judicial conference. 

We do agree and support the notion that Tribal Judicial Conference established by Tribal 

governments and authorized by the Tribal governments shall be considered a Tribal organization, 

not a Federal entity. These Judicial Conferences should also be authorized 10 receive funds and 

perform any or all of the duties of the Bureau of Indian Affairs and Office that will be created 

under this Act. as proposed in S.521. 

We are concerned that this proposed legislation does not offer the breadth of Tribal Court 

advancements contained in previous proposed bills, although this bill would authorize the same 

level of funding . In order to achieve a solid enhancement of Tribal judicial systems, seuling for 

a less detailed bill may hinder fundamental improvements authorizing Tribal control and 

authority while reducing the Federal bureaucracy. 

We do commend Congressman Bill Richardson and Congresswoman Karen English for their 

efforts and their for Tribal Courts. We urge the Subcommiuee on Native American Affairs to 

get a bill passed on behalf of Tribal Courts. We understand the compromise realities 

represented in this bill , but we encourage inclusion of amendments that would more accurately 

retlect a clear majority of Tribes recommendations. We contend that a Tribal Court's bill must 

be an "Indian Country bill" . 
Testimony of Judge Elbridge Coochise 

Northwest Intertribal Court System 

We make the following recommendations: 

92 

April 21, 1993 

Page 4 

(l) That the title be changed to the "Indian Tribal Courts Emergency Funding Act" . 

(2) We oppose the establishment of an Office of Tribal Justice Support in Title I, Section 

101 (a). We oppose the automatic transfer of existing functions and personnel of the 

Branch of Judicial Services to a newly created Office . We strongly urge that the current 

BIA Branch of Judicial Services, only be a conduit for appropriated funds and remain 

operable under the BIA. 

Several justifications for these recommendations are : (1) Tribes should be allowed to 

control and direct any Office; (2) Any Office should be directly accountable to the Tribes; 

(3) Federal and administrative costs should be minimized ; (4) Any entity should serve an 

advocacy role for Tribal Courts funding and needs; and, (5) There would be better 

assurance that tt.e appropriated funds reach Tribal levels. 

(3) The base funding level should be established at a minimum for any Tribe at $150,000 and 

increased from that amount based on allocation formula criteria. 

(4) The funding authorization, Section 301(b), should be increased to $75 million to 

recognize the court needs of the many Alaska Native government entities. The base 

funding level at $150,000 per Tribe would not be sufficient under the proposed 

authorization when the current 170 Tribal Courts expand to include some 210 Alaska 

Natives villages. 

(5) The formula criteria of Section 103 C(3)(B) population to be served, should include 

population of both Indian and non-Indian on reservation and off reservation (i.e. , in civil 

cases and usual and accustomed jurisdiction). 

(6) The Tribal Court base level funding should be equivalent to State courts of general 

jurisdiction performing similar functions in the same or comparable geographic region. 

(7) An appeal process should be established in the legislation for Tribes who contend 

inequitable treatment. 

(8) Intertribal appellate courts should be included under the definition of "Tribal Justice 

System". Intertribal appellate court systems funding should be authorized. 

(9) A clear legislative safeguard should provide that there will be no imposition of Federal 

law, meaning the "Separation of Powers" , on any Tribal government. 
Testimony of Judge Elbridge Coochise 

Northwest Intertribal Court System 

93 

April 21, 1993 

Page 5 

(10) The bill should clarify that Federal funding should be made to Tribal governments for 

Tribal Courts in a manner that minimizes Federal and administrative costs and in a 

manner that encourages flexibility and innovation by Tribal judicial systems. This 

funding must avoid encroaching on Tribal traditions, and should protect the diversity of 

Tribal Court systems. 

(II) Federal funding to Tribes should be specifically earmarked for Tribal Court functions and 

operations. There should not be discretion to divert these funds to other unrelated 

purposes. 

( 12) Tribes should be eligible for Federal funding from other Federal Departments and 

Agencies, including the Justice Department. Tribal governments should have access to 

Federal resources and assistance available to all other units of government in America . 

As currently crafted , the legislation continues to force Tribal Court funding to compete 

with all other Indian programs in the overburdened and under-funded BIA. 

(13) The legislation should include a provision stipulating a right to counsel as defined by 

Tribal law. 

(14) A provision should be included that encourages mutual recognition by Tribal, State and 

Federal courts of the public acts, records and proceedings of each other's courts. 

(15) The bill should clearly note that no standards developed will be imposed on any Tribal 

Court except by its Tribal government. 

( 16) A provision of a disclaimer should be included: that the Act will encroach upon or 

diminish in any way the inherent sovereign authority of each Tribal government to 

determine the role of the Tribal Court within the Tribal government to enact and enforce 

Tribal laws; or diminish in any way the authority of Tribal governments to appoint 

personnel; nor impair the rights of each Tribal government to detennine the nature of it's 

own legal system or the apportionment of authority within Tribal government; nor alter 

in any way traditional forums; or, to imply that any Tribal Court is an instrumentality of 

the United States; nor diminish the trust responsibility of the United States to Indian 

Tribal government and Tribal Court system of such governments. 

( 17) There is a great deal of interest and discussion of a Tribal judicial conference in Indian 

country . This is properly a Tribal concern for both creation and fonn . Let us defer 

Federal legislation on a judic ial conference for now . 
Testimony of Judge Elbridge Coochise 

Northwest Intertribal Court System 

94 

April 21, 1993 

Page 6 

We urge the passage of Tribal Court Improvement legislation co include our recommendations 

so that our Tribal judicial systems will be afforded the realistic and needed capabiliry to provide 

the necessary justice forums for our people. An effective, efficient Tribal justice system will 

obviously strengthen Tribal sove reignty. 

Thank you for the opportu nity co provide comments on the legislation. 
FY93 

FY92 

FY91 

FY90 

FY89 

FY88 

FY87 

FY86 

FY85 

95 

BIA BUDGET JUSTlllCATION ESTIMATES 

TRIBAL COURTS 

Special Tribal 

Courts 

1,983,000. 

2,008,000. 

1,568,000. 

2,065,000. 

2,065,000. 

2,391 ,000.(enacted) 

1,391,000. 

1,029,000. 

Judicial Service 

Center 

660,000. 

560,000. 

139,000. 

359,000.(enacted) 

Tribal Courts 

Tribe/ Agency 

13,061,000. 

(-$99,000 from 

FY92 enacted) 

10,961,000. 

(-$954,000 from 

FY91 enacted) 

10,643,000. 

( +$49,000 from 

FY90 enacted) 

9,542,000. 

(-$102,000 from 

FY89 enacted) 

9,650,000. 

(-$135,000 from 

FY88 enacted) 

9,256,000.(enacted) 

9,119,000. 

10,598,000. 

( +$2,312,000 

incl. CSF redist.) 

8,286,000.(enacted) 
PART I, PERSONNEL: 

Judge 

Court Clerk 

Secretary 

Law Clerk 

Prosecutor 

96 

TRIBAL COURT BUDGET 

(One judge court) 

Fringe Benefits 30% 

Total Personnel Costs 

PART II, OPERATIONS: 

Audit 

Copying $318/mo X 12 months 

Office SpacejRent $12/sq.ft.X 1500 sq.f 

Postage $100/mo X 12 months 

Supplies $350/month X 12 months 

Telephone $350/month X 12 months 

Travel $400/month X 12 months 

Training,legal Education 

(1,500 + 1,300 + 995 + 940 + 940) 

$60,000 

24,000 

20,000 

24,000 

31,000 

47,700 

$ 2,500 

3,816 

18,000 

1,200 

4,200 

4,200 

4,800 

5,584 

$159,000 

47.700 

$206,700 

Total operations costs......................... $44.300 

TOTAL TRIBAL COURT COSTS ••••..••.•.•.••••••.•••..•.•• $251,000 

Tribal Trial Court Costs 

169 Indian Courts at 251,000 per court 

(a one judge court) 

$251,000 X 169 courts = 

If public defender services are to be 

Public Defender 

Fringe Benefits 30% 

$39,000 X 169 courts 

included: 

$30,000 

9.000 

39,000 

$42,419,000 

6.591.000 

$49,010,000 
97 

Mr. FALEOMAVAEGA. Well, you gentlemen have certainly provided 

for the committee some very comprehensive thoughts on the issues, 

and I will say quite candidly it will not make it any easier for the 

subcommittee to consider or review again the provisions of the proposed bill now pending before the House. A question to Judge Yazzie. You had recommended that we set 

up only one judicial conference, but how will this meet the needs 

of other Tribes that may not have the fully functioning aspects of 

a three-branch system, as perhaps the Navajo Nation currently 

has? I mean how would you accommodate their needs if this is not 

currently being used or utilized under the tribal systems? 

Mr. YAZZIE. The one judicial conference will definitely meet the 

needs of all the tribal courts. We have 170 tribal courts across the 

country, and each will have a voice in the conference as to what 

the policies should be, what the formula should be, and it will address their needs to the judicial conference. 

The judicial conference will not be to impose anything. If there 

is a survey to be done, it will be done with the participation of the 

170 tribal courts. And there is a mistaken notion that this judicial 

conference will be a separate agency, a separate Federal entity. That is not the case. The judicial conference concept is based upon 

and rooted in the sovereignty held by the Tribal Government. They 

will exercise their authority as to who shall participate in the judicial conference. 

Mr. FALEOMAVAEGA. It has been suggested, and correct me if I 

am wrong, I think as it relates to the Senate version of this whole 

issue that we are discussing, that the funding or the appropriations 

process come out of Commerce and Judiciary and State. We have 

a different system as opposed to how the Senate does its activities 

as far as the funding process is concerned. 

Quite obviously, we are going to definitely end up probably in 

conference if the House should assert itself as far as passing our 

version, and as opposed to whatever the Senate may want to do, 

and we will then probably go through a process really, hopefully, 

that will come out with some compromises in the process. 

As all of you three gentlemen are aware, our procedures are not 

exactly the same as the Senate, and one of the reasons that we are 

proceeding with the way the provisions are outlined in the bill is 

simply because we don't want to end up with having other committees having jurisdiction over this legislation. I don't know if Judge Yazzie is aware of the fact that under the 

Senate version it will definitely trigger other committee jurisdiction 

problems procedurally that we have here in the House, as it is 

quite different from the way the Senate has its operations and 

workinfs. 

But just wanted to point that out for your information. You 

might have some suggestions of how we might resolve this obstacle 

or problem that we currently have. 

Judge Coochise, and then Judge Yazzie? 

Mr. COOCHISE. Yes. In response to that, many of the Tribes that 

I have talked with and then certainly the courts have said, we 

don't want to be limited to one, Interior. If it has to go through several committees, then so be it, we are willing to. And certainly they 

can answer more readily. I talked with their president sometime 

69-593 0 - 93 - 5 
98 

last year, and finally he went to a Department of Agriculture for 

different funding, and he was told, ''Why haven't you been coming? 

Why do you always go to Interior?" 

The perception is that we only belong in Interior. For example, 

I have been requesting to testify in the Commerce and Judiciary 

Committees. The first thing they said was, ''Why are you coming 

to us? Tribal courts belong in Interior." The government's trust relationship is between the U.S. Government and the Tribal Governments, not BIA agency with the Tribal Governments. If so and 

that's the case, then they should not be limited to only one appropriations committee. 

Mr. F ALEOMA v AEGA. So you're suggesting that we currently have 

a flaw in our own policy as far as if there is a Federal policy-and 

I am not sure if it's even written by law-that all appropriations 

dealing with Native Americans should come under just one Federal 

agency and I can fully appreciate your concern about that. Why 

should they just come under one Federal agency? Is that what 

you're saying? 

Mr. COOCHISE. Right. 

Mr. FALEOMAVAEGA. Judge Yazzie? 

Mr. YAZZIE. Mr. Chairman, we can be talking about details-and 

you have just stated correctly that you don't make our job any easier-we can talk about details of the current bill later. Right now 

we are in an emergency situation. 

I have a suggestion. Why not just give us the money now? Why 

not tell the BIA, look at the Interior appropriations act and get a 

line item for the tribal courts? There is not one now. If there is 

anything, there is only a line item for training, for special tribal 

courts grant, that's it. Those are given on a competitive basis. 

What I am suggesting is that if the committee chooses to create 

a line item, take it out of the priority system. We don't need to 

compete. Like I said, 75 percent of the appropriation is spent by 

the BIA for its overhead. Why not use that 75 percent and give it 

to the Indian tribal courts to take care of its needs? They don't 

need 75 percent to operate on to run a business? They can do with 

less. 

Mr. FALEOMAVAEGA. Mr. Vicenti? 

Mr. VICENTI. It's going to be difficult to comment on the question. 

It seems to be blossoming as it makes it this way. But I recognize 

that there were problems with S. 1752, not so much in the concept 

that Justice Yazzie is arguing in behalf of. I recognize that there 

were procedural problems when it came on the House side. 

In response to the narrow question as to whether it should go 

through State, Justice, and Commerce, there are some positive aspects and some negative aspects. The most positive is that they are 

used to seeing State court budgets, and I would expect that they 

would have a tendency to expect the funding needs to be the same 

in a tribal court as there would be in a State court. 

The dangers would be that the same committee may want to 

strap issues about civil rights enforcement onto the question and 

begin to use their funding power punitively if they don't see tribal 

courts doing what State courts do. I think that there are ways to 

get around that, and obviously all of Indian lobbying and legislative history has been one of education. This is, I think, an edu-
99 

cational process that we can somewhat foresee any which way it 

goes. 

Mr. FALEOMAVAEGA. If I were to understand Justice Yazzie's concern, I think the point is well taken. To say it a little more basically, of the $1.2 billion that is allocated for the Bureau of Indian 

Affairs, 75 percent of that goes to administrative costs. And I think 

that is really the bottom-line issue in a situation where it has 

caused some very, very difficult administrative policy issues affecting the needs of Native Americans for how many years now? 

Taking again the recommendation that Justice Yazzie has suggested here, why don't we just scrap both bills and simply make 

this as a line item appropriation in terms of really the top priority 

is the money and not the office or all these other things? 

Is this what you are suggesting, Justice Yazzie? How much are 

you recommending? The Administration is recommending $15 million to meet the needs of the 130 tribal courts that we now have 

in the country. Do you recommend a higher figure? 

Mr. COOCHISE. $15 million is like a drop in the bucket. Less than 

that. Yesterday we heard it said by Senator Campbell that the Administration is proposing to give China $19 million and Russia $1 

billion. 

Mr. FALEOMAVAEGA. $1.6 billion. 

Mr. COOCHISE. $1.6 billion. And how much of that is going to Indian Nations? Zero. And we are talking about a small budget, very, 

very small. And in the case of the Navajos, we are proposing $14.2 

million. If we were to be allocated that money, it will just exhaust 

all that BIA has now. And as it is, you heard the director of tribal 

services say there is a slight increase in the BIA budgets. In our 

case there was a decrease of what we got this year over last year's 

fiscal. The amount of decrease, $116,000. 

Mr. FALEOMAVAEGA. Justice Coochise? 

Mr. CoocHISE. Yes. I wanted to make a comment regarding the 

survey. Appropriate money within the Bureau to do its own survey 

on behalf of the tribal courts, and this is going to happen. It has 

already happened. I got a call two weeks ago saying, "Give us the 

stats for fiscal year 1992"-they want us to do it with no more 

money. They're going to say, "Well, we'll do the survey," but it's 

going to be us who are sitting on the bench, our clerks, and no 

more money. We argued that point with them many times in many 

years on this issue of the tribal courts. 

And I have a listing here of the last eight, nine years of funding 

actually appropriated for tribal courts, and there are no increases. 

And that is a real concern, that any survey, if there is going to be 

one, should not be by the Bureau, it should be by an outside entity. 

And if you're going to put money somewhere, let's get a decent survey that somebody is going to look at other than putting it on 

somebody's shelf. As stated by the Hopi delegate, there are surveys 

done, but nobody has even looked at them to follow up on them. 

Mr. FALEOMAVAEGA. Well, gentlemen, I want to say that your 

comments are well taken, and I am sure the chairman is going to 

seriously consider these options and see what we are going to do 

and where we're going to go with the proposed bill. 

I am certain that he is going to conduct consultations closely 

with Chairman Inouye on the Senate side and see where we can 
100 

come to an agreement in terms of some of the problems that you have indicated. 

Thank you very much. 

Mr. CoOCHISE. Mr. Chairman, may I make one point that I forgot. The Tribes told me to make sure that in this legislation let's 

defer the judicial conference. Let the Tribes decide if there needs 

to be more discussion to look at it or not be in this issue because 

there is some interest and discussion that needs to take place in 

Indian country. Thank you. 

Mr. FALEOMAVAEGA. Thank you very much. 

The hearing is adjourned. 

[Whereupon, at 2:35 p.m., the subcommittee was adjourned.] 
APPENDIX 

APRIL 21, 1993 

ADDITIONAL MATERIAL SUBMITTED FOR THE HEARING RECORD 

OUioe of: 

PUEBLO OF LAGUNA 

P.O. BOX 194 

LAGUNA, r-;t,:W h1EXICO 87026 

The Go,. .,rnor 

The S e crPtllry 

The Tre11eurer 

(505) 243-7616 

(505) 552-6654 

(505) 552-6655 

TESTIMONY OF GOVERNOR HARRY EARLY 

PUEBLO OF LAGUNA 

HEARINGS ON H,R, 1268 

"INDIAN TRIBAL JTJSTICE ACT" 

BEFORE THE 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

UNITED STATES HOUSE OF REPRESENTATIVES 

April 21, 1993 

Mr. Chairman and members of the Subcommittee on Native 

American Affairs, it is a pleasure to· ·cOme >.before you today to 

testify in support of the·. Congressional' '1ilit.ia'tive to increase 

funding and resource support .. to· tribal:,:'cpur.t~. J~. Exactly 11 months 

ago, the Pueblo of . Laguna ~uJ?mitt<>d::l.,1;.,~stimony, on this Bill's 

predecessor legislation, H.R.\.4004, .\isl<:ing-'for majorchanges to the 

legislation to ensure 'tttilt:,fund;iJ;ig'!'wplii<f be provide<;i to tribes in 

the most efficient .. manner:·< wi~~9ut~the imposi tionf)of standards 

emanating ous.~;C!.~'....O,f...._;}:j.ibes'-!.q;-~:·'.,.~h.EiA~~.cre.ation of c~ngressionally mandated organizations •. The.-Eueb:J:o"'xas:.pleased that H.R. 4004 as 

eventually passed by--thiS--Committ:l!ef.and, .. the ;Ho_use adopted many of 

the Pueblo's (and .fl\llll§!.r.oul' ,gt.tiiir.:,'\;:;.:iJ?,~~,;l~-suggei.ted-changes. H. R. 1268 builds upon the positive ~:c:tsp~-t;s, of H.R. 4004 and we will 

continue to support this legisJ~t,i'on~~;However, from the Pueblo's 

perspective, the Bill still:•.needs,~improvement to realize its laudable goal of strengthening tribal.~ courts as an essential and 

critical means of preserving a~d protesting tribal sovereignty and 

self-governance. , , 

Before addressing the particular sections of H.R. 1268, the 

Pueblo would like to review briefly its tribal justice system. The 

distinct version of a tribal justice system which has evolved at 

the Pueblo of Laguna illustrates the diversity of tribes and the need to protect that diversity from outside interference. 

Pueblo of Laquna And Its Tribal Justice System 

Six traditional villages make up the Pueblo of Laguna which 

is located in the Southwest center of New Mexico. The Pueblo 

adopted its first written constitution in 1908, with subsequent 

constitutional amendments in 1949, 1958 and 1984. The constitution vests all sovereign powers in the Pueblo Council to be exercised 

in accordance with the Pueblo 1 s constitution, ordinances, customs 

and traditions. 

(101) 
Governor Early Testimony 

April 21, 1993 

Page 2 

102 

To govern its members and those who come on to the reservation to conduct business, the Pueblo has enacted ordinances for a wide 

range of activities. These written ordinances complement the 

culture and traditions by which we are governed . Our laws, 

traditions and customs are enforced by a combination of traditional 

dispute resolution forums and a formal tribal trial and appellate 

court system. We will refer to this entire dispute resolution 

mechanism as our tribal court system. 

The tribal court system consists of (1 ) the traditional forum 

within each village for resolution of civil and personal disputes 

which arise between members of that vi llage; (2) a tribal court of 

general jurisdiction with a full-time judge for all criminal and 

civil cases (not resolved in the first instance by tradi tional 

village mediation); and (3) an appellate court made up of the 

traditional cane bearing staff officers of the Pueblo of Laguna 

(Governor, First Lt. Gove rnor, Second Lt. Governor, Head Fis cale, 

First Fiscale, and Second Fiscale). Our tribal court system i s a reflection of the unique traditions, culture, development and 

beliefs of the Pueblo of Laguna. To our knowledge, although the 

Pueblo of Laguna's tribal courts system shares certain elements 

with other tribes and pueblos, the particular structure is unique to the Pueblo of Laguna. 

Our tribal court of general jurisdiction is a court of rec ord 

and employs a chief judge, a court administrator, two clerks and an adult/juvenile probation officer. Presently, the interpreters volunteer their time and assistance when needed. The court is in 

dire need of money for a courtroom deputy, process server, prosecutor, and advocates. The Pueblo is interested in instituting an advocate system, but we presently lack the resources to do so. 

The Indian Pueblo Legal Services provides assistance to petitioners and parties in our court for guardian ad litem procedures onl y. 

The funding and staffing problems are particularly acute g i ven the demands placed on the Pueblo tribal court. A major state thoroughfare crosses the reservation and the Pueblo has one of the 

country's largest tribally owned manufacturing businesse s located on the reservation. 

Although the Pueblo of Laguna currently receives funding from 

the Bureau of Indian Affairs ("BIA") for its tribal court, the 

Pueblo shares and understands the criticism many tribes direct at BIA for its failure to provide a satisfactory level of funding and 

assistance to tribal c ourts. The Pueblo also believes that it is 

essential to hold BIA to its task and insist that it fulfill i ts trust responsibility and provide the funding necessary for the full 

development of tribal courts. 
Governor Early Testimony 

April 21, 1993 

Page 3 

Comments on H.R. 1268 

103 

1 . Section 101 - Office of Tribal Justice Support 

The Pueblo of Laguna has previously stated that tribal justice systems do not need another or bigger federal bureaucracy, they 

need additional funding. Despite the gross inadequacies of 

funding, tribes are running their tribal justice systems. The 

Pueblo of Laguna knows best what its needs are for its tribal court system, and given adequate resources, how to meet those needs. 

H.R. 1268 by authorizing the appropriation of $50,000,000. for 

direct funding of tribal justice systems begins to resolve this 

funding problem. The Pueblo of Laguna does suggest that the 

authorized funding level be increased. 

Given the Pueblo's recognized competence and sovereign 

authority to determine its own tribal justice structure and needs, 

Congress should ensure that funding is provided to Tribes for their 

justice systems in the most efficient manner possible. In the 

absence of direct funding from Congress to Indian Tribes, the 

Pueblo does not object to the creation of an Office of Tribal 

JuRtice Support within the BIA dedicated to running the CFR courts 

and funding Indian tribes and tribal organizations for tribal 

justice systems. S lOl(c) (2) and (6). However, the Pueblo urges 

Congress to reduce the scope and responsibilities of the Office and 

eliminate sections 101(c)(l), (3), (4) and (5) from the Office's 

functions. The BIA does not presently possess the expertise 

necessary to conduct continuing legal education and training for 

tribal court systems or to perform the other listed functions. At the same time, inter-tribal organizations, businesses and other 

organizations already exist that perform these tasks. Because the 

training needs cover a vast array of services, it is almost 

impossible, as well as quite inefficient, to expect a single 

federal office to acquire all this expertise. In addition, Congress and the Tribes have been careful to avoid the imposition 

of standards on Indian tribes and their court systems. If a single 

office is conducting training and proposing model codes for Indian 

Tribes, the tendency will be to homogenize tribal court systems, in direct contravention of each tribe's sovereign authority and 

distinct traditions and history. 

A better approach is to grant the Office the authority to disperse Section lOl(c) funding to tribes under self-determination 

grants so that tribes can contract with the appropriate organization or business to provide the training. Section 

lOl(e) (2) allows the provision of technical assistance and training 
Governor Early Testimony 

April 21, 1993 

Page 4 

104 

through grants to Indian tribes or tribal organizations. This 

referenced section should incorporate and replace Sections 

101(c)(1), (3), (4) and (5). Reference to the provision of 

technical assistance and training through direct services in 

S101(e)(2) should be deleted. 

The Pueblo endorses S 101 (d) and the disclaimer that the section should not be construed to authorize the imposition of 

justice standards on Indian tribes. This disclaimer should be 

expanded to apply to the entire bill. Furthermore, this section is 

undermined elsewhere in the Bill. For example, the Secretary is 

mandated to provide "appropriate caseload standards and staffing 

requirements for tribal justice systems" in S 103 (c) (2). The 

imposition of universal caseload standards on distinct and diverse 

tribal justice systems are exactly the type of standards which this 

Pueblo and many other tribes opposed last year. When the Office 

begins dictating how many cases must be handled by tribal staff in 

order to receive funding, it is in effect dictating the manner in 

which justice is to be dispensed. Some tribal justice systems 

incorporate traditional forms of dispute resolution which can be 

quite labor intensive; many of these 11 alternative dispute 

resolution11 forums do not, because of their nature, result in 

formal case filings or the public dissemination of the existence 

of a dispute. 

The creation of a clearinghouse is, at first glance, a good 

idea. However, once again, the BIA is being asked to duplicate 

existing services. The American Indian Resource Institute already 

publishes the Indian Law Reporter which gathers decisions of Tribal 

Courts and those of other courts addressing Indian issues. Rather 

than duplicate these services, the BIA should be authorized to provide funding to entities like the AIRI to improve the reporter 

service by computerizing the database, increasing the number of tribal courts submitting decisions, and improvin9 tribal access to 

the Indian Law Reporter. Finally, the provision of information on personnel and funding for the clearinghouse must remain a discretionary and optional decision of each tribe and its tribal 

justice system. 

2. Suryey of Tribal Judicial Systems 

The Pueblo of Laguna recognizes that it is important to have some of the information called for in the Survey of Tribal Judicial 

Systems. But surveys regarding Indians typically are not able to present a clear or true picture of the actual circumstances !or two reasons. Survey developers don't understand Indian tribes and 

their workings, and tribes typically have inadequate response to surveys. Care must also be taken so that the survey does not 
Governor Early Testimony 

April 21, 1993 

Page 5 

105 

interfere with internal tribal decision making processes. Once 

again, the Office should utilize existing resources. The Pueblo 

of Laguna already evaluates its own justice system on a yearly basis. The Pueblo of Laguna already has the capability to determine 

the "resources and funding needed to provide for expeditious and 

effective administration of justice" on its lands. The Pueblo 

would be more than happy to share this information with the Office as part of a national survey. By allowing each tribe to provide information it deems pertinent to this national survey, the Office can avoid inadvertently imposing standards of expectations on tribes. The manner in which the survey is constructed will, of course, determine its outcome . Because of the importance the 

Survey will play in determining funding levels and Office policy with regard to tribal justice funding, the Pueblo is particularly concerned that "consultationn with Indian Tribes involve meaningful 

participation of tribal leaders and advocates in the development as well as conduct of the survey. As the Bill is presently drafted, tribal input does not have to be incorporated into the 

final survey report. 

J. Base Support Funding For Indian Tribes 

The Pueblo believes that the equitable distribution of tribal 

justice system monies among tribes is an important goal of this 

Legislation . The Pueblo opposes, however, the utilization of 

caseload standards developed by the Judicial Conference of the 

United States, the National Center for State Courts, and the 

American Bar Association as points of reference. Once again, tribal courts should not be forced to adopt all indicia of 

•western" court models to receive adequate funding . The standards 

adopted by state and federal courts do not and cannot reflect the 

diversity which exists in tribal courts, in contrast to the 

required consistency of federal courts, for example. 

Instead, the Office should rely on needs justification for 

funding provided by the Tribes themselves. The Pueblo does support a base support funding mechanism for delivering resources to tribal court systems. Small tribes should not have to compete with larger tribes for scarce tribal court resources. 

4. Tribal Judicial Conferences 

Last year, the Pueblo opposed the creation of a Tribal 

Judicial conference as contemplated in s. 1752 and the original version of H.R. 4004. The Pueblo does not oppose the authori&ation ot voluntary tribal judicial conferencea. Such contereneea are already authorized under P.L. 93-638. 
Governor Early Testimony 

April 21, 1993 

Page 6 

106 

5. Funding Author i zations 

As noted, the funding authorizations may need to be increased. 

The Pueblo also suggests inserting the same language contained in § 301{a) prohibiting the use of monies earmarked for training and 

technical assistance for administrative purposes inS 103 (b) which authorizes base support f und i ng. 

In summary, while the Pueblo supports the core of the Bill, we believe that funding should be provided to tribes in as direct 

and efficient means as possible . We oppose the creation of a large bureaucracy as presently contemplated for the Office of Judicial 

Support when many of the functions of that Office are already being performed by either the tribes themselves or other competent 

organizations. The Pueblo opposes the development of case load 

standards for tribal courts, either as a means of determining 

funding or evaluating tribal court performance. Neither Congress, the BIA, nor any outside entity should determine the structure of 

tribal justice systems. The imposition of caseload standards 

determines, in many aspects , the structure of the tribal justice 

system. Once again, we thank you for inviting us to submit 

testimony on this Bill and look forward to working with you to improve the Bill and pass it into law. 
107 

TESTIMONY OF THE CHIEF JUDGE 

OF THE SHOSHONE AND ARAPAHOE 

TRIBAL COURT OF THE WINO RIVER 

INDIAN RESERVATION, WYOHING 

HEARING BEFORE THE UNITED STATES HOUSE OF 

REPRESENTATIVES COMMITTEE IN NATIONAL RESOURCES 

SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS 

Aptil 21 . 1993 

Hr . Chairman and members of tba committee on Indian Affairs , my name ia John St .Ciai r, and I have been the Chief Jud9e of the Shoshon e and Arapahoe Tribal Court since it's creation in 1988; ~nd prior to 'that Chief Judo• of the Wind River Court of Indun 

Offenses since 1983 . 

I wish to thank the sponsors of H. R. 1268. the " Indian Tr1bal Just ice Act. " Cha> rman Ri chardson and Hs. En9llah of Ar itona . 

The Wind River Ind i an Rese r vation is in wast central Wyomin9 3 500 square miles aet aside in 1863 and 1868. The Northern A~apahoe and Eastern Shoshone Tribes . (the Tribes) jointly occupy and own it . There ate about 6 . 000 enrolled Arapahoes and 4,000 enrolled Shoshones, many of who live there along with non - enrolled membeta . members of other Indian tribaa , and non-Ind i ans . 

In 1992 the Shoshone and Arapahoe Tribal Court processed approximately 3,500 Civil, Traffic, Child Custody , Juvenilaa, Criminal Misdemeanor , and Appeal cases . The Court was created in 1988 when the Tribes enacted the Shoshone and Arapahoe Law and Order Code, which exerts civil jurisdiction over all peraons who have significant contacts with the re•arvation and criminal misdemeanor jurisdiction over all Indians who comntit auch c r imes on the reservation . The Tribal Court ayatem consists of a permanent Chief Judge who muat have a law degree, and three Associate Jud9es who need not have attended law achool. All judges must be tribal members and those not members of a state or federal bar association must pass a test f or competence within one year of their appointment . 

Major problems have plagued the tribal court and ita predecessor the code of Federal Regulations (CFR) Court. They include lack of resources in general and lack of separation of 

powers . Other major problems have been poor and ineffective administration by the Bureau of Indian Affair• (IliA) ot their judicial ••rvices program along with the exarciae of governmental immunity in order not to comply with tribal court orders relatin9 to garni1hmenta and aubpoenu . This problem also arises with Indian Ileal th Service ( IHS) , and in both instances , it has the effect of underminin9 the administration of justice by the tribal court. An article appeared in 1988 in the Billings , Montana Ouetta, in which a special aanate inv .. tigative committee, who looked into allegations that the BU. spends ninety percent (90\) of ita budget on administrative costs, found" ... miamanagement, gross negligence and a lear evidence of criminal wrongdoiniJ," in the administration of government programs that help Indian•, see Attachment 11 . This article illustrates the only problem that I have with H. R. 1268 . Section 101 eub .. ctions (a) (b) and (c) establishes the Office of Tribal Justice Support within the Bureau of Indian Affairs and transfers the functions of ita Branch of Judi chi Services to the Office of Tribal Justice Support. I vehemently disagree with thia, It is imperative that the provisi ons in the previous Senate Bill 8. 1542 be reinstituted to place the Office of Tribal Juatice Support outaida the 8IA , and be composed of tribal judges rather that bureaucrats . 

Transferring the f unctions of the Branch Judicial Services to the Office ot Tribal Justice Support 1a simplistic and ignores reality . This office has no plan to deal with the real problem5 of 
108 

tribal court~ . And i n testimony before the Select Commi ttee on Indian Affaas of tha Senate in 1988. lh~ fa ct emerc;~ed that the offi c e at Judicial Servi ce~ had not even asked for any additional funding for tribal courts at a time wh~n statistics indi c ated an in c rease in cas eloads . 

S. 1542 was extremely innovative in dealing with the problems created by lack of separation of power& . A ~roblem that can be 

tra c ed directly to the BIA's Hodel Constitutions in implementing the 1934 Indi an Reo roanization Act. 25 U.S .C. HI et seq . Placi nQ the Offic~ of Tribal Ju~ti e Support outside the BIA and its priori ty system of funding Tr i bes diminishes the lever&Qe tribal coun c ils and the BIA c an exert over tribal courts. Within the BIA 

pr iodty system and mo r e than likely outside of it. th~ Bureau usually will not d.,al financially any tribal entity ex.:ept tha Tribal Counci 1 . In doing this 11ll decisions re~udin~ Bill money for the tribal courts must pass throuQh the Tribal Council to reach the court ant! than mu s t be approved b~ lh• Tribal Council f or disburseme nt . Th i s i~ exa c tly where the control exists . 

Besides control of Tribal Courta via the purse strings, another problem with BIA administration of Tribal Courts funds can be found on Nile 42 and 43 of A REPORT OF THE UNITED STATES CDHHISS!ON ON CIVIL RIGHTS June 1991 , see Attachment 12 . That is, that Tribal Courts receive only part of the funds earma rked f or them . Judge David Hatding of the Coeur D'Alen~ Tribe of Idaho stated at a hearin11 before the Commission in Portland , Oregon : "Much of the money earmarked for the Courts is lost on the way from Washington to the Tribes . mostly at the BIA Area Offi ce level . " Another problem exists when the mo ney reaches the Tribal Councils , 1t , in turn th en decides how the mon ey sh ould be all ocated against other priorities . Finally , funding for law enfor c ement and court operations are often lumped together and as a result, funds are sometimes diverted tram court operations to other needs such as police car3 ~r operating jail facilitie s. 

In summary , while Congress is reluc tant to impose standard~ on tribal court& such as separation of powers, it was the BIA who created this problem by opposing the formation of t r ibal 

governments without it when implementin<;~ the pro visi on• of the 1934 IRA . This bas plagued tribal cout·ts more than lack of funding since that time and has never been addressed since . The effects of lack of separation of powers were taken into consideration when s. 1542 was bef ore the last ConQress by placing administration and funding outs ida of the B!A ; however H. R. 1268 do<ts no th n<;~ more than provide mar~ money to the BIA fa~ continued mismanagement . 

While addition11l resources are welcome , it is extremely diacouraging to witness Congressional effo~ts to enhanc e tribal 

courts to be merely to put more money into the BIA . With a poor track record of administering pro<;~rams for Indian Tribes and a history of mismanagement of money intended to benefit Tribes, the Bureau is a poor risk to solve any kind of tribal court problem . tribal court Judges have the first hand ~orking knowledge necesAary to carry out the proposal of this bill rather than an administrative office of bureaucrats located in Washington, D.C . , Therefore the Office of Tribal Justice Support should be composed of tribal court judges. 

For funding to be out of the control of tribal wovernments , it 

has to be outside of the BIA . Its priority system has aystematically placed tribal courts near tho! bottom. There is nothing to guarantee that the BIA will folio~ direction from Congress , and if history can be believed, it won't. Consequently to fund the BIA is to enhance the BIA . If that is Congress' <;~oal this bi 11 can accomplish that . If ConQress wishes to enhance tribal courts, than is must deal with the problems that exi3t . s. 1542 of the previous Congress accomplished that by placinQ administration and funding outside tha BIA and as a result of out of the eontrol it exerts throuqh tribal governments. Th i s bi 11 needs to be amended to do what s . 1542 did previously . A new method of fundin'J Indian Tribe~ i~ nothing to be aft-aid ot . It 
109 

just mtQht prove to be a more efficient vehicle than what now 

ex 1sts . No one will kn ow unt1l it is tried. That time I believe 

has come . 

On behalf of the Shoshone and Arapah oe Tribal Court Sy5tem I want to thank tbe Committee for this opportunity to t<:~tify b<:f o re 

you at thi5 heatln~ and expre~~ my =upp or l for H. R. 1268 . 

Signed: ····-

~ 

J 0 JjChief 

le~_ Judge 

Shoshone and Arapahoe Tribal Court 

P . 0. Box 608 

Ft . Washakie WY 82514 

( 307 ) 332-7094 

FAX (307) 332 7~87 
110 

ATTACHMENT tl 
.. nor caaeJo.d and court bucfeeta. It fDund lbal:apendltwea varied 

.. on $2.96 to$14.19 per copltamd from ta.30 1Dt35.08 per cue. 

.1 rther, the neport said that. due to wrying.._... oCII1bal aupport 

• courta land law eulorcemont), fwldlng IDequiUea ""' far IDDft 

oiouo In reality. 1ll get the eame oenr~c:ea • ..me ll1bea apend !lODe 

• · U>dr own mcney, wldle olhen ha"" to apeod a a--t deal. 'lb<.e 

• .able to apeDd Utball\mdsdepend on the BL\ eotln:ly. but the.....,. 

• 

~ Yarlea. -the report. the BlK'eau buena>UIIIged ana 

.. d agency ofllcea eo buelbdrboqellng on a formula which would 

,Jd to 11001<: parity In funding. Judging &om the ~DCtVallllJM vlllttal. 

. docs not appear - the ftmdiDg wblch reachoa lodlan court. Ia 

. >l1Sisl£nt 1llltb the fDrmUJL .. 

• ne tnbal judges' report goes em to say that althoug,b Federal 

,,cles other than the BIA alao I!ClQJdtmes provided funds fO£ 

.dl court operations "lilt seems that they rarely lmoolr what funds 

being dlsbur.ied by the BIA or other agencies":'"' 

.; ..,., II1be aur\leytd- due fur a large llncn:aaeln fl.mdk>g bonuae 

ihe fundi! fOr court operallana aupplled by ooe agoucy ...,..., lnade-

·luate. llwaa dJec:oft:red that Dlha agendea -re coolrlbutiiJ& fuoda 

"' court openolloll8 lll1d that the Utbe IICtualy bad one of tbe largos! . ourt ~Ia In tbe aJUDIJy. • 

Another problem hJgJillghted by the trlbaljudges was that thetr 

. •rts reoe!vcd ~ a part of the funds they 1ftR suppoaed to 

etve: "Much money earmarlu:d for the courts Ia loet em the way 

,n Wash!Dgton to the trt~. mostly at the BlA area Clftke 

"L.,. The 1DODey that reaches the trllal govanmeut. aa a 

.1CTal rule, IS jli'Of1ded ID the tribal counc:lla, and they, 1D tum. 

.• st decide bow the ltiODey Bhould be allocated agamat atber rtt1cs ADotlJc:r compiJcatlan, according to the report by the 

l•al judges aasoclaUOU. IS that fWldlng for law ealorcanent and 

fd., diVJg-.,-Nr-.--JIIIDII ~JIJ8ncz 

,, f'oRcE AI<AI.YSS 1974-76, lOt 43 {19751. Tbe trboJ JOO,.. - .eluded that only 3 a( the 23-ounqo<d IJiau&bt th.t-tr1bool aJUrt l~ets......, adequale. - Coulml MD n.t Funas. supnz DOle 1, Ill 57. 

oJ . ... 56-07. 

,,L at 57. 

ld. Ill 57. In lhla rqpri. the Utbal ~· "'PPOt- !hal ~ 

•-lie law ll3-638-.._.s to miuce the numba- ollhe BIA ~ 

oonln.clln« out poeiUona to the lribea, the numba- d ~ baa 

reascd olnce pa.-ge oC lbt N:t.. Jd. 

court opeuitaas Js aftc:o ."lumped togethc:r. "71 Ita a result. furus 

an: aometmJes diverted from court apcnUoos to other D£eds such 

aa pollee cars or the lm)liovemeut 01' operation of jail fadllties.'" 

Two :rears later, the~ Jndtsn Lawy1!1' TnUnlng Pnlgram complained that a central repasttory f« data em tnba1 admlnlstra· 

t1nn oL Justice ...,. stfll :oecded... H~ the amount of money 

provided to tr1bal courts bythe·BIA wasiDcreasiDg. a treDd It fuUDd 

encouragtng. though stfll "grossly Joadequate.• 74 Information on 

trtbal court fundlag which the Department oC the Interior provided 

to the Conxn•GR!on cooflrms that the funding has been gradually and significantly locnased. The llgures below are measured In 

thousands oL dollars: -T- T-T-c:-u -T.-g 11180 $4,001 > 1-l 

1981 6 ,11511 1-l z,. 1982 7.- 0 

11183 7,710 :c :.: 

1984 7,128 z "' 1015 8,286 8 

\Ge& 10,625 

-

11187 11 ,186 1,000 "' 

·- 11,1147 1,000 ,_ 11,72& 1,2110 

11180 12,1112 1,2110 

'Jbese ligures JDclude fuDdlog for the Ceutral Oftlce and Ita local 

agendeS. The Department told the Crmmtss!nn that It was unable 

to pnMde tralDtng coats tD::w:Ted by tta1ocal BIA ~~geDdes. and that 

nJd_ 

"' ld. ---.lil:lr"d ClliJ ll-*'fl. -DOle 50, ... 192 (laamany ol.Judee 

~-) . 

... JI.Bn(s.- co..mr. _....., 4.2,101; IlL 

ld. 

1ll dale, a__. clea1DCI-""""""*'<--J-Ia-.. -.anlry-<a ,_,...,., llOillet'wbere ll1liarma-. ~ .n matlen oC trtbal_,_ C!IOUid becdla:ted. cnluat<d-~­ ba:n-bUebrc!, g...-.t-ba:n~ID~Ift-fGr-ca. 

trbl~-.-....---......... ..-tbd.., bdl...,.,... to a~ .-.urce CIC<IIa". 

.. ld.at4&-47. 

...... 

...... 

...... 
112 

April 29, 1993 

The Honorable Bill Richardson, Olairman 

Cclllnittee on Natural Resalrces 

SUbccaxmittee on Native American Affairs 

2349 Raylxlrn House Office Building 

Washington, D.C. 20515 

Re: H.R. 1268, the "Irxtian Tribal Justice Act" 

Dear Mr. Olairman: 

Harry P. Cuaro. Jr. 

Treasurer 

COMMITT5J:: 

Brian Connolly 

Tonya Largo 

Michael Connolly 

'lhe CaJii)O Band of Mission Irxtians is a federally-recognized Indian 

tribal government 1olhose reservation is located in southern california. I 

am the Olairman, and, on behalf of the CiUip) Band, I want to ccmment on the 

scope of H.R. 1268 as it awlies within Public Law 280 states such as 

california. The CiUip) Band believes that the bill overlooks totally the 

enhancement of tribal justice systems within Public Law 280 states which, 

just like tribal justice systems located elsewhere, are in dire need of 

adequate funding, technical assistance, and equipoent. 

As you know, Indian tribes retain broad civil authority over persons 

and activities within their territories, and, generally, state 

jurisdiction within Irxtian country is of a limited nature. Public Law 280 

confers on certain states, including california, partial =imina! and civil 

jurisdiction over Indians and Indian country. li<7o'ever, it is incorrect to 

.assume that Public Law 280 strips tribes of all authority. In fact, nothing 

in Public law 280 precludes =ncurrent tribal court authority. Moreover, the language and judicial intarpretations except fran the delegation of 

authority to such states regulatory and tax laws, the tribes retain 

authority in those areas. l!!1!;l, L!L., Brvan v. Itasca eounty, 426 U.S. 373 

(1976); california y. cabazon Bane! ot Mission Indians, 480 u.s. 202 (1987). 

Two regulatory areas of great import to Indian tribes today are 

environmental regulation and gaming regulation. As you nay IO'low, the ~ 

Band is developing a ccmnercia1 solid waste landfill on its reservation. 

The Band has enacted a Tribal Environmental Policy Act, Solid Waste 

Management COde, and oauprehensive regulations thereunder. 'lhis 

regulatory sc:heme includes enforcement through a tribal environmental 

court, and the Band plans to establish a tax court as well. In addition, 

Congress is relying on tribal forums to adjudicate disputes arising under 

the Indian Gaming Regulatory Act. Presunably then, there must be sane 

1779CAMPOTRUCKTRAIL • CAMPO. CALIFORNIA 91906 • (619)478-9046 • FAX: (619)478-5818 
Cllainnan Bill Richardson 

April 29, 1993 

Page 2 

113 

tribal forum in existence to handle these matters, even in Public I.aw 280 

states. 

Fairness requires that all tribal justice syg':eJns receive the 

benefits of H.R. 1268. Unfortunately, based on the current practices of the 

Bureau of Indian Affairs in denying assistance to the justice systems of 

Indian tribes residing in Public I.aw 280 states, we do not believe that 

this will happen without express language fran congress. Accordingly, we urge that H.R. 1266 be amended to give the Bureau of Indian Affairs express 

direction to assist all federally-recognized Indian tribes with enhancing their justice systems, regardless of whether Public I.aw 280 is applicable 

to the state. SUch language would allow all tribes to participate fully in 

the assistance and funding offered by the bill. 

In closing, we respectfully request that our ccmnents be included in 

the legislative hearing record for H.R. 1268. 'Ihank you for your 

consideration. 

With wannest regards. 

Sincerely, 

CAMFO !WID OF MISSION INDIANS 

<ii(l{U 
Jf>,, 4fS :, . ·r~ ~ .. ! :hair man 

I'IIY ':' t,;. • .-::-.' .: ;liC&·Chauman 

DANIEL l SAN<..HtZ. Secrelluy/ Treuurer 

114 

ALL INDIAN PUEBLO COUNCIL 

OFFI CE OF THE CHAIRMAN 

3939 San Pedro. N.E . Suite E Po5t Off1ce Box 3256 

Ap=il 22, 1993 

The Honorable Bill Richardson 

Chairman - Subcommittee on 

Native American Affairs 

U.S. House of Representatives 

1522 Longworth H.O.B. 

Washington, D.C. 20515 

Dear Mr. Chairman: 

Albuquerque. New MeJC ico 87190 

Please accept this letter as our testimony on H.R.1268. 

(505) 881 - 1992 

Our review indicates that H.R.1268 and S.521 are not too different as introduced. Basically, we would continue to support the Judicial 

Conference as envisioned in last years Senate Bill, however, both H.R. 

1268 and S.521 are identical wi th respect to the Judicial Conference. 

Our primary concerns are: 

(a) Because the real objective is to improve the tribal court system(s) we do not want BIA to arbitrarily take appropriations for its own management purposes; consequently we recommend language in the Bill 

to restrict BIA !:rom using not more than twenty percent (20%j overall 

for its administrative purposes. That there be explicit language in 

the Bill t o insure that the BIA Tribal Justice Office a s envisioned in 

this Bill is not going to be swallowed up, by BIA ' s bureaucracy and 

sub jected to the wh ims of the bureaucrats. 

(b) To insure against (a) above, we recommend that all aspects of 

pro grams consistent with tribal court improvement be subject to c ontracting under authority of P.L. 93-6 38 as amended. 

(c) To insure that all tribal courts receive funding, we reconunend 

base funding for each tribe/court of $150,000 to $200,000 each, based 

in l aw. Any balance to be d i stributed on a formula basis. If we leave 

formula distribution to BIA you can be assured that the small tribes 

(like Pue blos ) would get crumbs. 
Letter-Bon. Bill Richardson 

April 22, 1993 

Page 2 

115 

(d) The "92 Bills identified $50 million for court purposes. We feel 

this needs to be increased to $75 million in the H.R. 1268 with $25 

million to be used for construction of court/detention facilities. 

(e) We also recommend that the DISCLAIMER language contained in S.521 

be placed in B.R. 1268. 

We respectfully remind you, Chairman Richardson, of your address to the 

New Mexico State Legislature where you had sharply criticized the BIA 

for its inefficiency in dealing with Indians. Its in this spirit we 

submit this letter of testimony. 

Respectfully, 

ALL INDIAN PUEBLO COUNCIL 

~£~ 

J~s s. Rena, Chairman 

JSH:mc 

xc: Senator Daniel Inouye 

Senator Jeff Bingaman 

Senator Pete Domenici 

Congressman Joe Skeen 

Congressman Steve Schiff 

19 Pueblo Governors 

File 
116 

Nann Spnngs Ore90n 97?61 503 553- I 16 1 

April 19, 1993 

The Honorable Bill Richardson 

Chairman, Subcommittee on Native 

American Affairs 

committee on Natural Resources 

United States House of Representatives 

1324 Longworth House Office Building 

Washington, DC 20515 

Re: H.R. 1268, the Indian Tribal Justice Act 

Dear Chairman Richardson: 

- - - - --

This letter represents the official comments of the Confederated 

Tribes of the Warm Springs Reservation of Oregon concerning H. R. 1268, the Indian Tribal Justice Act. This bill was the 

subject of a hearing before the Subcommittee on Native American 

Affairs on April 21, 1993. Although a Warm Springs tribal 

representative did not testify at the hearing, we respectfully 

request that the comments contained in this letter be made a part 

of the hearing record and that our views be considered in 

developing this legislation. 

The Warm Springs Tribal Council supports the enactment of 

H.R. 1268, with some minor modifications and clarifications. our 

support for this legislation is in keeping with the position we 

took during the last Congress when the House and the Senate took 

radically different approaches to tribal courts legislation. As 

you.may recall, in the last Congress the House Interior and Insular 

Affairs Committee reported out a bill, H.R . 4004, that is very similar to H.R. 12 68 now before your Subcommittee. In the Senate, 

however, the Senate Select Committee on Indian Affairs reported out 

a bill, s. 1752, that would have created a new entity called a 

"Tribal Judicial Conference" with control over all funding of 

tribal courts, either directly or through establishing distribution 

formulas. Under S. 1752, tribal court funding, other than the 

routine issuance of base support, would be removed from the Bureau 

of Indian Affairs and appropriations for tribal courts would go 

through the Appropriations Subcommittee for Commerce, State, 

Justice and the Judiciary, a subcommittee with no experience in 
The Honorable Bill Richardson 

April 19, 1993 

Page 2 

117 

Indian affairs. We strongly opposed last year's Senate Bill, 

s. 1752, and strongly supported the House version of tribal c ourt 

legislation, H.R. 4004 . (Attached is our letter of July 13, 1992 

to Chairman George Miller of the Committee on Interior and Insular 

Affairs explaining our position on the House and Senate bills) . 

we are pleased to support this year's House version of tribal 

courts legislation, H.R. 1268, primarily because it embodies most 

of the positive features of H. R. 4004, which we supported last 

year. We are also very pleased to note a tribal courts bill was 

introduced recently in the Senate by Senators McCain, Inouye and 

Campbell, that is very similar to H.R. 1268. In other words, it 

appears that the Senate has abandoned the unworkable, objectionable 

and perhaps unconstitutional approach to tribal courts legislation 

contained in s. 1752 in favor of the flexible, understandable and 

straight-forward approach to tribal courts legislation contained 

in the bill now before you, H. R. 1268, and last year's legislation, 

H. R. 4004. 

With those background comments in mind, we would like to address 

some specific provisions of H.R. 1268. First, we are generally 

supportive of the approach taken by the legislation to the idea of 

tribal judicial conferences. The way last year's Senate legislation handled the idea of a tribal judicial conference was its most 

objectionable feature. However, H. R. 1268 avoids most of the 

problems of last year's Senate legislation by making any conference 

a purely voluntary organization that tribes may join or leave as 

they wish. 

We would, however, like to see a definition of "tribal judicial 

conference." It is unclear whether these are simply inter-tribal 

coordinating bodies, similar to the Northwest Tribal Court Judges 

Association, or whether they include inter-tribal judicial systems, 

such as the Western Washington Inter-Tribal court System or the 

various inter-tribal appellate systems that exist in some parts of 

the country. If the inter-tribal judicial systems are included in 

the definition of a "tribal judicial conference," there needs to 

be some way to separate the funding for inter-tribal appellate 

courts from the base funding for trial courts. 

Also, if inter-tribal appellate courts are considered a "tribal 

judicial conference," then the Section 202 language requiring that 

~ funding for a member tribe's judicial system go through the 

tribal judicial conference needs to be changed. If a member tribe 

of an inter-tribal appellate system wishes to fund its trial court 

through the Office of Tribal Justice Support established by Title I 

of H. R. 1268, while funding its appellate function through an 

inter-tribal court system that is considered a "tribal judicial 
The Honorable Bill Richardson 

April 19, 1993 

Page 3 

118 

conference," it should be able to do so. Section 202 should not 

force a tribe into an all-or-nothing decision of whether to seek 

funding through a tribal judicial conference or through the Office 

of Tribal Justice support. 

We very much support the idea of creating an Office of Tribal 

Justice support within the Bureau of Indian Affairs. We think it 

makes a lot of sense to concentrate expertise within the agency in 

a single office devoted solely to strengthening and assisting 

tribal justice systems. Moreover, for all of its faults, the 

Bureau of Indian Affairs is the only federal agency with extensive 

experience in carrying out the federal trust responsibility to the 

tribes and it is also the federal agency with which the tribes are 

most familiar in terms of structure , functions and contracting 

procedures. Indeed, a major failing of last year' s senate bill, 

in our view, was that it largely bypassed the Bureau of Indian 

Affairs and required that base support formula development and all 

other-than-base funding of tribal courts go through the new and 

vaguely described National Tribal Judicial Conference. Unlike the 

National Tribal Judicial Conference, we are familiar with the BIA 

and believe that we can make the new Office of Tribal Justice 

Support work in a way that genuinely benefits all tribes and helps 

the tribes improve their judicial systems. 

With respect to the levels of funding authorized in Title III of 

H.R. 1268, we believe that these funding levels are appropriate. 

We are especially supportive of the idea of separating the base 

funding for tribal courts from the Indian Priority system. This 

would have the effect of stabilizing court operations by taking 

the uncertainty out of tribal court funding. Further, we believe 

that the plan for developing a formula for distribution of base 

support funding for tribal justice systems set out in Section 103 

is the only reasonable way to approach the difficult issue of 

allocation of funding . While there are certain to be disagreements 

about development of the formula, we believe that the factors 

listed in Section 103 (c) (3) are the appropriate ones and the 

assurances in Section 103(c) (4) that the Secretary will ensure an 

equitable distribution of funds provide the necessary safeguards. 

Once again, because the funding is provided through the BIA, the 

tribes are familiar with the procedures and remedies for 

challenging agency action they believe is inequitable. This would 

not be the case with a new entity created outside of the BIA, such 

as the National Tribal Judicial Conference in last year's Senate 

Bill. 

In summary, the Warm Springs Tribal Council believes that H.R. 1268 

takes the right approach to the difficult and urgent problem of 

providing federal assistance to strengthen tribal judicial systems. 
The Honorable Bill Richardson 

April 19, 1993 

Page 4 

119 

You are fully aware , we are sure, of the cri tic al importanc e of 

tribal courts in the implementation and protection of tribal 

sovereignty. You are also well aware of the severe difficulties 

most tribal courts face in carrying out these v ital responsibilities because of meager tribal resources and inadequate assista nce 

from the federal government . This is an area where the federa l 

government simply must act to carry out· i ts trus t responsibility 

to the tribes. The approach taken by H.R. 1268 i s, in our v i e w, the right approach to this problem and, with the small changes we 

have suggested, we wholeheartedly support enactment of this legislation. 

Thank you. 

sz~ ~/ ~~__L RA~~ND CALICA, SR., Chairman Wa~v~prings Tribal Council 

cc: Oregon Tribes 

Mark Phillips 

Howard G. Arnett 
120 

PUEBLO OF ZUNI P 0 BOX 339 

ZUNI, NEW MEXICO 87327 PESANCIO LASILOO 

.JOSEPH OISHT A 

1'1<:1 .;.,W IC•Ir?~an 

'I AL A. PAtiTEAH. S R Cou•-cdmiltl 

1\pril 26 , 1993 

The Honorable Bill Richardson 

Chairman 

Subcommittee on Native American Affairs 

House Committee on Natural Resources 

1522 Longworth House Office Building Washington, D.C. 20515 

Dear Chairman Richardson : 

DI SON WA70. 5M . 

"--

AUGUSIINE .l. . . :lANT:S :~ l-i 

ln~,.,.,to: 

The Zuni Tribe hereby submits the following comments concerning 

H.R . 1268, the proposed Indian Tribal Justice Act which you introduced on March 9, 1993. 

Be fore making specific comments on various prov1s1ons in this 

proposal, we wish to make it clear that while we support the e stablishment of an Office of Tribal Justice Support within the 

Bureau of Indian Affairs as a means of further funding certain 

training and technical assistance to tribes, we also support the continuation of tradi tional tribal judicial practices. 

In particular, we urge you and your colleagues to allow tribes 

which wish to do so to continue their practices of handling land matters at the tribal council level where such issues as land 

division in the case of death on an elder can be resolved 

according to time-honored traditions. 

Section 1. We suggest that this proposal be call the "Indian 

Tribal Justice Act of 1993." 

Section 2. We suggest the addition of the following finding: 

"(7) traditional tribal judicial practices are essential to the maintenance of the culture and identity of tribes aa well as the goals of this Act and therefore should be 

allowed to continue. 11 
Honorable Bill Richardson 

April 26, 1993 

Page 2 

121 

The addition of this finding would clarify the intent of Congress 

to foster traditional tribal judicial practices as well as the 

more recently created tribal justice systems. 

Section 3. We suggest the definition of the term "judicial 

personnel" be amended to include any "tribal council member 11 

whether or not that individual is an official within the tribal 

justice system. 

This amendment of this definition would allow those tribal 

council members who engage in traditional judicial practices to 

be covered by the provisions of this proposal even though they 

may not be members of the judicial branch of a tribe. 

Section 101. We suggest that the following sentence be added to 

the end of subparagraph (b): 

"The Office of Tribal Justice Support shall be directed by a 

member of the Bar who shall have had at least two years of 

experience employed as an attorney within a tribal justice 

system~'' 

This amendment would ensure that the Office of Tribal Justice 

Support would be directed by an individual having some experience 

with the many i ssues which will be handled by the office. 

We suggest the following subparagraphs be added to subparagraph 

(c): 

"(7) Provide funds to Indian tribes and tribal organizations 

for the continuation and enhancement of traditional tribal 

judicial practices. 11 

This amendment would ensure that the functions of the Office 

include providing funding for traditional tribal judicial 

practices as well as the many other functions provided for in 

this proposed legislation. 

Section 102. We suggest that in subparagraph (a) the word 

"conduct" be deleted and in lieu therefore the word "complete" be 

inserted. 

This amendment would ensure that a survey of conditions of tribal 

justice system and Courts of Indian Offenses would be completed not later than one year after the date of the enactment of this 

legislative proposal. 
Honorable Bill Richardson 

April 26, 1993 

Page 3 

122 

Section 103. We suggest subparagraph (a) be amended as follows: 

After the phrase "tribal justice systems" insert "and 

traditional tribal judicial practices''. 

This amendment is intended to emphasize that many 

traditional judicial practices which may not 

definition of tribal justice system which may be 

Bureau of Indian Affairs. 

tribes conduct 

fall within the 

employed by the 

We suggest subparagraph (b)(9)(E) be amended to read as follows: 

"(E) traditional tribal 

tribal justice systems and 

resolution." 

judicial practices, 

tr~ditional methods 

traditional 

of dispute 

This amendment is intended to emphasize the same point as is made in the preceding amendment. 

We suggest subparagraph (c)(2) be amended by adding the following 

after the phrase "1u'nerican Bar Association11 : 

''and appropriate State bar associations. 11 

This amendment is intended to ensure that case load standards and 

staffing requirements developed by appropriate State bar dssociations are taken into consideration by the Secretary. 

Mr. Chairman, you are to be commended for your concern and 

interest in the justice systems of our tribes. H.R. 1268 will be a major step forward in our government-to-government relationship 

if it is ever enacted into law. The Zuni Tribe pledges its 

support to you and your Congressional colleagues in achieving 

that goal. 

cc: Honorable Jeff Bingaman 

Sincerely, 

,£}_' 1 ?d~ ~/1. Lewis, Governor 

Pueblo of Zuni 

Honorable Pete V. Domenici 

Honorable Ben Nighthorse Campbell 

Honorable Daniel K. Inouye 

Honorable John McCain 
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123 

HUALAPAI TRIBAL COUNCIL 

Chairman Bill Richardson 

House Subcommittee on Native American Affairs 

1522 Lonqworth H.O.B. 

Washington, D.c. 20515 

Dear Chairman Richardson: 

On behalf of the Hualapai Tribe, we would like to make 

you aware of our position on the pending bill before the 

house, H.R. 1268. This bill comes before us rather 

surprisingly given the type of bills which appeared before the Senate and House last year, H.R.4004 and s. 

1"/52. Please be aware that our overriding concern with 

respect to Tribal court legislation at this time is the 

question of funding. We do want to see funding come to our Tribal court with as little adainistrative cost being aeeeeeed as possible by the Bureau of Indian Affairs. We are hesitant to support these bills currently before 

Congress so long as they offer to expand the services 

provided by the Bureau of Indian Affaire. In addition, we are in agreement with statements which were made in 

the hearinqs during the week of April 19 to 23, that 

language pertaining to the formation of Judicial 

Conferences may be unnecessary or perhaps premature . Accordingly, we would like to express our support for 

H.R. 1268 (S.521) only if there is a clear limitation of 

funding to the Bureau of Indian Affairs for the 

additional duties placed upon the Bureau, and an exclusion of any reference• to Judicial conferences. If none of theee can be accomplished within the present bill, we auet than expresa our oppostion • 

We believe that our poaition may reflect the concerns of 

other tribee and aak you to earnestly consider our request • 

Sincerely, 

IIOALAPAl: T1UBAL COUlfCIL 

Delbert 

~~ Bavatone, tribal Chairman 
124 

Fort Belknap Community Court a.lot Jud~t 

Crazlotoa Hawley (406)353·2205/EI!. 464 Routt l Box 62 

fort Bolknap AJency 

Harlem, MonWia 59526 e . . 

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Hou~a SubcoMC:QittQe on ~at::Lvq ~ff•it-s 

t'5c<: LOilqWOI"th H.0.9. 

lol.a~ingtcn, D.C. 2051~ 

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''·ii!<"' ~ 

ln o?Aiv- io ~x3s:nl C'~~.~~ to the 

tr~be~,. we fvel '® ~e•u of lndi•n 

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•~ p, .. s 3bl.,.. 'lhiiii+i!'~,..,~~o<'l : '<>1 an af 7riba1 .Ju.,t:c., 

S>.:p~ort can happ~ ; )nt<>r,.,.;.}~ wHhi 'thv Bur;t;;ou o-f ln<ii;;m 

Affain;, .,i thout the- onro::"'"'"'~-;.f i'lldel"al le~i~lat~on. Tho~ <> 

s.hou3.d ~t be an ~~PCi\ nsilontC-1 t~:::' dutiPS of thf!' Bur~au of 

ndi•~ Aff•ir~. · 
125 

Ag.;oi,.., , the-re- is • din.> n.tld for ful,dinQ which ha~ l)ee-n 

uncentrov~rt•d in thq •ntlrR Cen~reswic~l r~corrl o-t~ng 

b•~~ to th~ A-vrican l~d)an Policy R•vi~ Co~i~~~on Report of 1977. This n~ed 5hculd b~ add~PS~~d i~~;.;otPly. 

Addltio!r.Ally, our ,;.oppoY"t of HR 1269 is. conting,.,..•t upon 

th~ S"XClu .. iOT'I of ·rl!'i"E''rt!'nCE' to Judizia] CorrfwrE>-nC&i"iio .ar..d • 

limitation on the rlut>Pa of and additional 1u~ing to th"' 

BurrQU oi lnd1an A~~•irs, 

~ ~wl~e-v~ th~t ou~ po~ition ~Y 

oth~e-r lntlian Tr;n""" ard N.;otions 

rerfl~t. th~ co nc.;;orn~ 

•nd .;os~ that you 

~~1'~ Chi•'f Judge 

Fcrt ~lknap c~~nity CouY"t 

0 


ISBN 0-16-041112-2 

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