The Honorable Victor Atiyeh
December 5, 1979
Page two

We have not received a response to a rough draft of this letter circulated earlier to Verne Duncan, Wes Kvarsten or Senator Dell Isham. I assume that this means the individuals agree with the tenor of the letter or will respond to you, personally, with their objections.

In summary, I think it is fair to state that the members of your committee, acting on behalf of the various agencies they represent, approve the Reservation Plan.

Senator MELCHER. Was there any opposition to the plan?

Mr. WALDRIP. Sir, there were what we are viewing as side issues raised regarding the question of fishing, but in the meetings I attended-and being the Bureau and the Department's representative on this, I attended most of the meetings as Chairman Bensell mentioned, once the plan was understood I heard no opposition to it, except this-what I am again describing because I view this as a neutral-thing on hunting and fishing as a peripheral issue.

Senator MELCHER. What about costs that the BIA might incur in regard to roads, and so forth.

Mr. WALDRIP. Mr. Chairman, in the situation of the 37 tracts, they are situated in an area that has been heavily logged over the years by Georgia Pacific. There is a good network of forest roads there. We have contacted Georgia Pacific about cooperative arrangements, which is very common in that area-utilizing other adjacent landowners' roads. You are responsible for maintenance.

There are, I believe, only two or three tracts that are as far away as one-half mile from any existing logging road. So the matter of access is not a major problem.

Senator MELCHER. Do you have to maintain those roads?

Mr. WALDRIP. Yes, sir, while you are using them. You enter into a use agreement with adjacent owners.

Senator MELCHER. And that will remain an obligation of the Federal Government?

Mr. WALDRIP. No; that will be a part of the stumpage.

Senator MELCHER. In terms of the bill, is that made clear?

Mr. WALDRIP. I think you asked another question about the cost of forest management?

Senator MELCHER. I did not ask about that particularly, but any other costs. I was just generalizing-"other costs."

First of all, is it clear in the bill that the stumpage will pay for the roads-whatever maintenance or construction is necessary?

Mr. WALDRIP. I do not think it is explicit in the bill, but this is a practice in Indian country. The roads that are necessary to get the logs out are part of the stumpage.

By the way, the roads were factored into this projection we used at 205.

Senator MELCHER. The tribe does not have to agree to that, even though that is a Federal practice. Are you saying that the tribe must agree to it or will have to agree to it, or for practical reasons, will have to agree to it? Would the tribe normally follow the same procedure in timber sales as the Federal Government does, whether it is BLM or the Forest Service?

Mr. WALDRIP. Yes; the BIA would actually be the person administering the contract.

Senator MELCHER. What about other Government costs?

Mr. WALDRIP. We estimate that the cost of the regular forestry operation by that, I mean BIA forestry-to be $75,000 to $80,000. We think the Commissioner has enough money in his total budget to cover that for Siletz. By that, I mean we have not requested additional funds from Congress; we think there is enough to do that.

Senator MELCHER. When termination occurred, were there some parcels of land-tribal lands or allotments-which were held for individual members of the tribe?

Mr. HALLETT. Yes, sir.

Senator MELCHER. How much was involved, in acres?

Mr. HALLETT. I think there were about 76 allotments totaling 5,390 acres at the time of termination. Tribal land dwindled down to about 2,958 acres.

Senator MELCHER. Will that become part of the reservation or not? Mr. HALLETT. No; just the two specified parcels of 37 separate tracts and one tract of 36 acres.

Senator MELCHER. Is it trust land?

Mr. WALDRIP. Sir, it was not trust land. That land was liquidated on termination.

Senator MELCHER. Oh, that was liquidated. So there is no trust status remaining on that land?

Mr. WALDRIP. There are a few individuals who did hang on to their allotments, but not very many.

Senator MELCHER. And the status of that-whatever it is-will not be changed by the bill?

Mr. WALDRIP. No, sir.

Senator MELCHER. All right. These are very scattered pieces of land, and I understand the reason why you have selected that in the proposal. But also, I believe, the part of the bill on criminal would be concurrent jurisdiction with the State.

Ms. AYER. The reservation would be under Public Law 280, under State jurisdiction.

Senator MELCHER. So that is different from concurrent jurisdiction? Ms. AYER. In the opinion of the Department of the Interior, the tribe under Public Law 280 does have within its powers still, the authority to exercise concurrent criminal and civil jurisdiction.

Senator MELCHER. It would be a nightmare, I think to have some hybrid form of jurisdiction on this land. What would be the status of this if we passed this bill and then we passed, as it is reported to the Senate and signed into law, the recodification of the criminal code?

Ms. AYER. This land is Indian country. And that is what the codification deals with. So the Federal criminal laws would apply, that is, the Major Crimes Act and the General Crimes Act, on this reservation. Senator MELCHER. Section 165 or 166

Ms. AYER. Excuse me, Senator; that is not true because Public Law 280 gave back to the States all that jurisdiction. So, to the extent that this is a checkerboard area, the primary jurisdiction, both criminal and civil, would be exercised on the checkerboard reservation and the nonIndian owned lands. So, there will not be a checkerboard problem there.

Senator MELCHER. You mean it would be State jurisdiction?

Ms. AYER. That is right.

Senator MELCHER. What would be the effect if, as reported in the Senate bill, the tribe later chose to assume jurisdiction over their reservation land and the Secretary of the Interior agreed?

MS. AYER. I think so, Senator, but their concurrent jurisdiction would go to offenses like those between Indians-to the minor kinds of offenses.

I think the important question is what kind of jurisdiction the tribe is planning to exercise. I think they have that fairly well laid out in their plan. I think that is minimal. They are not planning to exercise

any.

Senator MELCHER. I gather that. It seems to be pretty clear. But my question is: What would be the outcome if that law were passed, as it has been reported to the House, if the tribe at a later time decided that they did not want State jurisdiction? Would they not just approach the Secretary of the Interior and say, "We want to assume criminal jurisdiction," and ask the Secretary to approve that?

Ms. AYER. The only way the tribe could get rid of State jurisdiction, if it decided to do so, would be if the State retroceded. That is in the control of the State.

Senator MELCHER. Are we talking about the same thing? Are we talking about the section in the recodification that would allow the tribe to assume criminal jurisdiction if the Secretary agreed to it?

Ms. AYER. It has been some time since I reviewed that codification. It does provide for retrocession at the tribe's request.

Senator MELCHER. So, the effect, then, would be that the State would not have anything to say about it, would it?

Ms. AYER. I guess that is right.

Senator MELCHER. I think it is important to point this out. I know what the intention of the tribe is. I think we might as well face this. issue now because it is going to be before the Senate very shortly.

As I read that, it means that if the tribe decides to do that and gets the Secretary to agree with them, the State is out of it and has nothing to say about it. It would be a weird arrangement.

Senator HATFIELD. Mr. Chairman, would you yield?

Senator MELCHER. Surely.

Senator HATFIELD. That would be true of any Indian land. All we are doing is classifying Indian land-land which has not previously been Indian land. I would hope that this would not be held in any kind of special category against any other rights that would be bestowed. upon Indian lands by future acts of the Congress.

We have other Indian land in Oregon today which has entered into agreement. The Indian tribe of Warm Springs entered into agreement with the local officials for the policing and jurisdiction of that land. But if the Congress of the United States should recodify to bestow upon "Indian land," anywhere it might be in the United States, certain authority that now is vested or is being performed by State and local governments, I would hope that they would not discriminate against the Siletz lands.

I think it would have to be considered along with the general category of what we call "Indian land." And I agree with the chairman that it is an issue which is going to cause some difficulties in the adjustment if that should occur, or it may be that the Siletz would choose not to make that request. But I do not think that should be a right denied the Siletz if it is bestowed upon any other Indian land. Senator MELCHER. I think there is logic to your statement, Mark. The unusual circumstance about this land, however, is that it is extremely scattered. Nobody, unless the tribe is going to identify all these scattered parcels of land as being reservation, would know when they were on the reservation or when they were off the reservation. Or is there some method to determine that? I assume there will not be.

Senator HATFIELD. I assume, Mr. Chairman, that after they take this forest land under their management, the trees will be so much greater, bigger, and more distinctive

Senator MELCHER. That we would automatically recognize them. I

see.

Mr. WALDRIP. Senator, could I make a comment?

Senator MELCHER. Yes.

Mr. WALDRIP. The area we are talking about—it is very unlikely that it would be used for anything other than growing timber, except the traditional root gathering and this sort of thing.

If I understand the jurisdiction issue, the concern would be a matter of trespass, and I am not sure that that would be affected either way. For instance, on such things as timber trespass, we still use Federal remedies, regardless of whether it is Public Law 280 or where a tribe has jurisdiction.

Senator HATFIELD. Mr. Chairman, if I may interrupt, we have a checkerboard situation under BLM ownership today which we have been hoping and struggling to try to consolidate by land trades and so forth. So that same question of jurisdiction exists now in terms of Federal, State, and local, based on the checkerboard ownership of BLM in our State and other Western States.

Senator MELCHER. I do not think we have any problem with criminal jurisdiction, however.

Senator HATFIELD. We have not had.

Senator MELCHER. No, I do not think there is any problem. The State just has criminal jurisdiction.

Senator HATFIELD. Jurisdiction does separate on the borders of those checkerboard ownerships.

Senator MELCHER. The one example is trespass.

Senator HATFIELD. That is the main one.

Senator MELCHER. I am sure that trespass is a common problem which has to be dealt with. But there are so many things involved with criminal jurisdiction; it is a nightmare. Of course, I know it is not the intention of the tribe to assume criminal jurisdiction, but the problem becomes much more complicated if the tribe does assume it in terms of very scattered parcels of land.

Now, the tribe has no intention, as I understand the tribe's testimony and the bill, of assuming any jurisdiction over fish and game on the land?

Mr. BENSELL. No, sir.

Senator MELCHER. Does the tribe feel it has any rights on lands once occupied by the tribe that have not been extinguished in that regard?

Mr. BENSELL. Mr. Chairman, I think that on the land we are talking about, none of the land we were looking at even bordered the Siletz River. We had one piece that touched the river. In order to not have any fight over that land, we did not include it in our reservation plan. So, at present, we do not intend hunting and fishing.

Senator MELCHER. Senator Hatfield?

Senator HATFIELD. Mr. Chairman, I would ask unanimous consent that my formal statement be placed in the record following the chairman's opening statement.

Senator MELCHER. Certainly. That has been done.

Senator HATFIELD. Mr. Chairman, I would like to make a few observations.