[Senate Hearing 107-605]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-605
 
  IMPACT OF SUPREME COURT RULINGS ON LAW ENFORCEMENT IN INDIAN COUNTRY
=======================================================================

                                HEARING

                               BEFORE THE

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

CONTEMPORARY TRIBAL GOVERNMENTS: CHALLENGES IN LAW ENFORCEMENT RELATED 
                TO THE RULINGS OF THE U.S. SUPREME COURT

                               __________

                             JULY 11, 2002
                             WASHINGTON, DC






                          U.S. GOVERNMENT PRINTING OFFICE
81-151                             WASHINGTON : 2002
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001






                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. INOUYE, Hawaii, Chairman

            BEN NIGHTHORSE CAMPBELL, Colorado, Vice Chairman

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

        Patricia M. Zell, Majority Staff Director/Chief Counsel

         Paul Moorehead, Minority Staff Director/Chief Counsel

                                  (ii)






                            C O N T E N T S

                              ----------                              
                                                                   Page
Statements:
    Akaka, Hon. Daniel K., U.S. Senator from Hawaii..............     3
    Bengochia, Monty J., tribal chairman, Bishop Reservation.....    22
    Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, 
      vice chairman, Committee on Indian Affairs.................     2
    Heffelfinger, Thomas B., U.S. Attorney, city of Minneapolis..     9
    Hillaire, Darrell, chairman, Lummi Indian Business Council...     4
    Inouye, Hon. Daniel K., U.S. Senator from Hawaii, chairman, 
      Committee on Indian Affairs................................     1
    James, Gary, chief of police, Lummi Nation...................     5
    Pouley, Theresa, chief judge, Lummi Tribal Council...........     5
    Toulou, Tracy, director, Department of Justice, Office of 
      Tribal Justice.............................................    11

                                Appendix

Prepared statements:
    Bengochia, Monty J...........................................    48
    Cypress, Billy, chairman, Miccosukee Tribe of Indians, 
      Florida....................................................    54
    Heffelfinger, Thomas B.......................................    35
    Hillaire, Darrell............................................    27
    Toulou, Tracy................................................    41
    Wellington, Victor, mayor, Metlakatla Indian Community, 
      Annette Islands Reserve....................................    58


  IMPACT OF SUPREME COURT RULINGS ON LAW ENFORCEMENT IN INDIAN COUNTRY

                              ----------                              


                        THURSDAY, JULY 11, 2002


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:00 a.m. in 
room 485, Senate Russell Building, Hon. Daniel K. Inouye 
(chairman of the committee) presiding
    Present: Senators Inouye, Akaka, and Campbell.

 STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII, 
             CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    The Chairman. The committee meets this morning to receive 
testimony on the challenges confronting contemporary tribal 
governments as they provide for the health, safety and welfare 
of those who reside on Indian reservations, both Indians and 
non-Indians.
    Enforcing the law on Indian reservations has increasingly 
become frustrated by the complex pattern of jurisdictional 
authorities that have been engendered by rulings of the U.S. 
Supreme Court. Today, we will receive testimony on the results 
of studies conducted by Department of Justice, and we will 
learn about more recently gathered reports and statistics which 
are simply shocking. For instance, Justice Department reports 
indicate that American Indians are victims of violent crime at 
rates more than twice the national average, far exceeding any 
other ethnic group in the country. Nearly one out of every four 
Native Americans between the ages of 18 and 24 are victims of a 
violent crime--the highest per capita rate of violence of any 
racial group considered by age and representing 10 percent of 
the violent crimes prosecuted by the Justice Department.
    Other alarming information instructs us that over a 5-year 
period, American Indian females were victimized by a spouse or 
intimate partner at rates which greatly exceed the comparable 
rates for any other ethnic group. Now, consider that the U.S. 
Supreme Court has ruled that tribal governments have lost their 
inherent authority to exercise criminal jurisdiction over non-
Indians on the grounds that it is inconsistent with the 
domestic dependent status of Indian Nations and you can begin 
to understand the extent and nature of the devastating problems 
we are here to address.
    The incidents of domestic abuse and domestic violence are 
high, yet if the abusing spouse is a non-Indian, tribal law 
enforcement officers are without jurisdiction to intervene. 
What other law enforcement presence is there on the vast 
majority of Indian reservations? The answer is none. Tribal law 
enforcement officers can call upon State or local authorities, 
but more often than not those enforcement authorities are 
reluctant to come on the reservation because the rulings of the 
Supreme Court have also rendered their jurisdiction unclear.
    Federal law enforcement officers have criminal jurisdiction 
over felonies and other acts enumerated in the Major Crimes 
Act, but sadly we know that the Federal law enforcement effort 
is underfunded, understated, and simply not able to respond in 
a timely fashion when crimes are in the process of being 
committed.
    Add to that the increased burdens placed on all of law 
enforcement--Federal, State, local, and tribal--in responding 
to the new climate of terrorism, additional responsibilities 
associated with homeland security and border security, and one 
could say that we may well have a crisis in law enforcement in 
Indian country.
    It is not widely know, but many Bureau of Indian Affairs 
police have been drafted to serve as air marshals, and there 
are no replacements provided for those officers who are no 
longer providing protection in tribal communities. Some have 
suggested that the Justices of the Supreme Court knew what 
impact their rulings are having on the ability of tribal 
governments to provide for the health, safety and welfare of 
all their citizens because if they did, they would not have 
invalidated the intergovernmental agreements that many State 
and tribal governments have entered into in order to provide a 
seamless and comprehensive law enforcement framework, as the 
court did in the Nevada v. Hicks decision handed down last 
year.
    This is just one of many dynamics that we are contending 
with when the legal experts tell us that the Supreme Court's 
rulings are having devastating impacts in Indian country. No 
where else in America does law enforcement jurisdiction depend 
on a determination of the race or ethnicity of the victim and 
the perpetrator of a crime. That in and of itself should signal 
to one and all that we need to bring some sense, some order and 
some clarity back to law enforcement in Indian country.
    Mr. Vice Chairman.

 STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM 
      COLORADO, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

    Senator Campbell. Thank you, Mr. Chairman.
    This is the second hearing we have held where we are 
analyzing the impacts of recent Supreme Court decisions on 
Indian tribes and residents, both Indian and non-Indian, as you 
have mentioned. Dealing as it does with matters relating to law 
enforcement, today's hearing will hopefully shine some light on 
a very practical problem. I do not want to knock the Supreme 
Court, but I have to tell you in many cases they live a very 
insulated lifestyle in an insulated atmosphere, and they are 
simply not out in the field enough to see how their decisions 
impact people at the local level.
    As the Justice Department continues to report to us, on 
many reservations crime is on the rise, as you mentioned, 
increasingly particularly violent crime, and that leads to both 
Indians and non-Indians being victimized. High crime on Indian 
lands also creates the obvious disincentive for different 
businesses that might come on the reservations to invest or 
innovate or create jobs and income for depressed economies, in 
many cases. And the complicated system of jurisdictions--on 
some reservations there are nine jurisdictions, so there is no 
question that it complicates prosecutions. And although some 
innovations like cross-deputization has helped, there are still 
huge loopholes in the system of trying to bring people to 
justice as the perpetrators of crime.
    Certainly, I think one of the most immediate concerns to me 
and to the Nation since 9-11 is homeland security and the need 
to collectively protect our borders and our citizens from 
people who mean to do us harm. Just as tribal law enforcement 
offices are often the first, and sometimes the only responders 
to crimes and other problems on Indian lands, in many areas of 
our Nation they are the first in the line of defense against 
those who would harm us. In some places on Indian reservations, 
there is a lag-time, a delay-time of when you actually call 
sometimes of one-half hour to an 1 hour of response time. That 
is not uncommon on reservations, unlike most urban areas where 
law enforcement has a response time of 5 or 6 minutes.
    Certainly, tribes are on the front lines in our borders. 
The Tohono O'odham, the St. Regis Mohawks in Upper New York, 
the Blackfeet of Montana, the tribes along the California-
Mexico border, and the tribes in the Seattle-Puget Sound area, 
to name a few. Against this backdrop, the Court has ruled that 
tribes do not have jurisdiction over non-Indians who commit 
crimes on Indian lands. I do not know where that leaves the 
enterprising terrorist, very frankly, if they infiltrate, come 
across the border on Indian lands from other countries. Since 
they are not Indian, that raises the question, do Indian law 
enforcement people have any control over potential terrorists? 
It really raises some obvious problems for tribes that are 
trying to arrest and prosecute offenders on their lands. I 
believe this is not just a tribal problem.
    So certainly this is a time of war. We are in this 
together, and I think the faster we recognize that, the quicker 
we will try to work on a seamless web of Federal, State and 
tribal law enforcement.
    Thank you, Mr. Chairman.
    The Chairman. Senator Akaka.

  STATEMENT OF HON. DANIEL K. AKAKA, U.S. SENATOR FROM HAWAII

    Senator Akaka. Thank you very much, Mr. Chairman.
    I share the concerns of my colleagues this morning 
regarding the impact of recent U.S. Supreme Court hearings and 
rulings on tribal sovereignty, specifically as they relate to 
law enforcement in Indian country and adjudication of cases in 
tribal courts. Tribal governments face unique challenges in law 
enforcement due to a number of issues, including inadequate 
funding and resources. I am disturbed by the statistics which 
reflect that the highest per capita rates of violence are 
experienced by residents on Indian reservations. I am even more 
concerned by reports that in some cases responding to 
situations in Indian country is considered too low a priority 
to warrant a response by local, State or Federal law 
enforcement.
    All of this adversely impacts the health, safety, and the 
well-being of American citizens who deserve to live freely and 
safe from harm. We are faced with a difficult task of 
rectifying this situation. In doing so, we must ensure that 
tribal governments are afforded the right, their sovereign 
right, to be a part of the solution, to clarify criminal 
jurisdiction within government-to-government framework. We must 
be careful to preserve the fundamental authority of tribal 
governments. I am pleased to learn of efforts within Indian 
country to unify to protect these rights and I hope you 
continue to do that.
    I therefore, Mr. Chairman, look forward to hearing from our 
distinguished witnesses this morning, and I look forward to 
working with all of you to preserve the inherent sovereignty of 
tribal governments and to address the law enforcement needs in 
Indian country.
    Thank you very much, Mr. Chairman.
    The Chairman. I thank you very much, Senator.
    Our first witness is the Chairman of the Lummi Indian 
Business Council of Bellingham, Washington, Darrell Hillaire. 
Chairman Hillaire will be accompanied by Judge Theresa Pauley, 
Chief Judge of the Lummi Nation, and Gary James, Chief of 
Police, Lummi Nation.
    Mr. Chairman, welcome sir.

STATEMENT OF DARRELL HILLAIRE, CHAIRMAN, LUMMI INDIAN BUSINESS 
                            COUNCIL

    Mr. Hillaire. [Statement in native dialect.]
    Good morning. With me I have the esteemed Chief Judge of 
the Lummi Court System, Theresa Pauley, and our Chief of Police 
Gary James.
    We are really thankful for being given this opportunity to 
come and speak with you today. We felt at home at Lummi among 
our people that there seems to be this confusion in this 
relationship between the U.S. Government and the Lummi Nation. 
We felt the best way to clear up some of that confusion is to 
come here and speak with you one-on-one, eye-to-eye, and 
reiterate our understanding that we would be recognized as a 
government and respected as a people.
    We had this opportunity a couple of weeks ago to meet with 
one of our Elders. He is 83 years old, World War II veteran, 
who as a young boy wanted to become the chief of police on our 
reservation when nobody wanted to come to our reservation. So 
when he came back from the war, our Elders got together and 
they voted him in, and he was our chief of police for over 20 
years. He was given a badge and a pistol and some handcuffs. 
And they were from treaty-signing in 1855, and he was passing 
it on to me to keep, to make sure that I remember that we have 
always provided law and order on our reservation, and in those 
days for only our people because we were the only ones that 
lived there.
    Today, under self-governance, self-determination, we have a 
law and order office of over 20 sworn officers. We have a court 
system that is autonomous from the Business Council. We have a 
relationship with the county, with inter-local agreements with 
the Sheriff's Department and the welfare offices. We have a 
full faith and credit with the State court system and our court 
system.
    Though these things are important to us, that we extend 
ourselves to other local governments and work hard with them to 
understand one another, it is here that we seem to recognize a 
lot of confusion. I would like to have Chief Judge Pauley say a 
few words, and Chief of Police Gary, if they would.

 STATEMENT OF THERESA POULEY, CHIEF JUDGE, LUMMI TRIBAL COUNCIL

    Ms. Pouley. Good morning, Senators. I am Theresa Pouley. I 
am the Chief Judge of the Lummi Nation.
    I am here to talk to you a little bit today about 
contemporary tribal court and tribal judicial systems. Your 
honors, tribal judicial systems are poised to join the mosaic 
of State, local and Federal court systems to help provide 
solutions to all of the problems that Indian country 
experiences today, and that all of you have pointed out today. 
It is these problems that are facing our reservation that make 
it so important that Congress act.
    Tribal courts, tribal nations are looking for respect and 
recognition of their governments. As part of that, we pledge to 
be responsible to provide justice for all the people of the 
reservation.
    Chief.

     STATEMENT OF GARY JAMES, CHIEF OF POLICE, LUMMI NATION

    Mr. James. Thank you.
    Good morning. My name is Gary James. I am the Chief of 
Police, Lummi Nation.
    We want to continue to lead and monitor a fair, just and 
safe law enforcement system on our reservation. We meet 
regularly with the Federal Bureau of Investigation [FBI] and 
other law enforcement agencies in our area. Because of this 
communication, we have an overwhelming response from tribal and 
non-tribal citizens wanting us to continue to do the work that 
we do within the boundaries of our reservation.
    Thank you.
    Mr. Hillaire. The number one priority at Lummi is healthy 
spirits--healthy spirits for our entire community, especially 
our children. What we mean by that is that there seems to be an 
epidemic of substance abuse on our reservation. We know that. 
We have hired an extra drug detective. We have set up a drug 
court. We are going to build a treatment center. We have 
doubled our youth activities--all of this to set a clear path 
of opportunity for our children, to make sure that the homes 
they live in are safe and they are healthy.
    As was pointed out in opening remarks, it is of great 
concern to us because we have heard stories of our children 
where they are born to a tribal member and a non-tribal member. 
Perhaps the tribal member is gone and the non-tribal member is 
in care of the abuse of the child. And that is not acceptable 
to us, to stand there when substance abuse is going on and our 
children have to be abandoned for perhaps 3 days, and we do not 
have, as interpreted by this Supreme Court, the authority to go 
in and take care of those kids. We cannot afford that 
jurisdictional confusion, and that happens on our reservation.
    So we are going to extend ourselves to work real close with 
the local governments to make sure we understand one another 
going forward, but we need your help. We appreciate your help 
as we continue to work on recognition of each other as 
government and respect its people.
    So I thank you for this opportunity and really welcome some 
questions perhaps or some comments on where we are at, and 
where we need to go.
    So ``heishka'' to each and every one of you.
    [Prepared statement of Mr. Hillaire appears in appendix.]
    The Chairman. I thank you very much, Mr. Chairman. As noted 
by you, in order to better understand the problem, we have a 
few questions.
    We have been advised that the Lummi Nation and the State of 
Washington has entered into an agreement where the Lummi Nation 
will be assuming primary responsibility for areas that were 
previously assumed by the State pursuant to Public Law 280. 
Will you describe the responsibilities that you have assumed?
    Ms. Pouley. There are a variety of responsibilities that 
Lummi has assumed and will assume in the very near future. In 
particular, and it is hard to list because there are so many 
that have happened recently, Lummi provides virtually all the 
law enforcement on our reservation. Almost all of our officers 
are the ones who respond to crime. We are working very closely 
and carefully with the State to map out ways to enforce child 
support so that children of the reservation can be supported. 
We are working with Washington State and the Washington State 
Supreme Court to establish agreements so that we give full 
faith and credit to tribal court orders. We are working in 
virtually every area for natural resources to have an ability 
and to work with the State of Washington so that we can provide 
protection to those resources that are on the reservation.
    So in virtually every area where the tribe lost 
jurisdiction under Public Law 280, the State of Washington and 
Lummi are willing to work and negotiate to give that 
jurisdiction and that authority back to the tribe.
    The Chairman. May I ask the Chief of Police a few 
questions? In the year 2001, last year, how many incidents 
would you say that your police department responded to?
    Mr. James. In 2001, we responded to just a little over 
4,700 incidents for service.
    The Chairman. And of these incidents, how many involved 
non-Indians?
    Mr. James. My best guess would be between probably 30 
percent to 35 percent of them.
    The Chairman. Would your nation face any civil liability if 
a non-Indian is injured while being detained or arrested by the 
Lummi Nation?
    Ms. Pouley. That would actually be an issue or question for 
the court system. We have as part of our jurisdiction the 
ability to provide due process to all members of the 
reservation. If a police officer in fact was found to have 
violated some responsibility to a citizen, the tribal court has 
both the responsibility and the authority to be able to resolve 
those disputes between non-Indians and tribal police.
    The Chairman. The Vice Chairman spoke of terrorism, and 
your reservation includes coastline, I believe, of about 12 
miles. Do you have any sort of security along that stretch?
    Mr. James. The security that we would be able to--the 
minimum security that we do have is our natural resource 
enforcement officers who do patrol the waters of Puget Sound 
and around our areas, and we do cover a majority of a day, as 
far as security, on the water.
    The Chairman. Do you have any sort of assistance or advice 
from the Federal Government?
    Mr. James. Like I said, we meet with the FBI probably at 
least once or twice a week, and when issues do come up like 
that, we do get advice from them and work closely with them to 
resolve issues that do come up like that.
    The Chairman. We have been advised that there are tribes 
who have entered into agreements with their respective States 
just like you have, but ever since the Supreme Court decision 
in Nevada v. Hicks was decided that they need not honor these 
agreements. Is that widespread in the United States?
    Mr. Hillaire. Yes; we have not heard entirely, but it is 
our intention to go back to these local agencies and sit down 
with them and really just clarify what we are trying to do 
here, outside of what is the best way to afford safety for all 
citizens within the boundaries of our reservation, to make sure 
that every citizen, Indian and non-Indian can feel that way. 
That is our intent going forward. We have not gotten anything 
adverse back from the county government, city governments 
surrounding our reservation, or the State at this time.
    The Chairman. So the State of Washington is willing to 
honor the agreement they have entered into with you, 
notwithstanding the Nevada decision?
    Ms. Pouley. At this point in time, the way we have worked 
out full faith and credit with both the Washington State 
Supreme Court and the local Whatcom County Court systems, we 
still are engaged in an ongoing dialog for how to best solve 
problems in Indian country. The county courts are sort of in 
the position that local solutions to local problems are better, 
and that tribal courts are better situated to deal with issues 
that arise in Indian country. The problem is, as you have so 
aptly stated in your opening remarks, is that now the Supreme 
Court says they do not have to do that.
    While Lummi is very, very fortunate to have good working 
relationships, lots of other tribes across the United States 
are not that fortunate. I have heard different individuals and 
attorneys speak at different gatherings of lawyers in the State 
of Washington where they believe that the Lummi Nation and all 
tribal courts may have no jurisdiction over non-Indians on the 
reservation--what a terrible, terrible message to send at a 
time when State and local governments really want to work with 
tribes to become part of the solution to the problems.
    The Chairman. Thank you very much.
    Mr. Vice Chairman.
    Senator Campbell. Thank you.
    You are right. That is a bad message to send because 
basically it tells the potential bad guys it is open season, 
you can do what you want--a clearly bad message.
    You mentioned, Gary, that the natural resources enforcement 
officers are the ones that really patrol your 12 miles of 
coastline. Do they have arrest authority and are they armed?
    Mr. James. Yes; they do. They have all the authority and 
have the same training as our regular law enforcement officers 
and all the officers in the State of Washington have. They have 
the same training.
    Senator Campbell. They do have.
    Mr. Hillaire, in your opening statement you said you 
anticipated and expected to be included in the buildup of 
homeland defense. Have you been, with any State or Federal or 
local officials?
    Mr. Hillaire. We did get invited to a meeting with Attorney 
General Ashcroft earlier in the year, but there has not been 
any contact since. We feel that is important that we do that. 
The protection services that we provide now are pertaining to 
natural resources, but being 15 minutes away from the border, I 
think we need to be included.
    Senator Campbell. So you have not gotten any direction at 
all, as many local communities have across America, about 
emergency preparation or anything of that nature that could be 
related to homeland defense?
    Mr. Hillaire. Just that initial meeting with the Attorney 
General.
    Senator Campbell. And, last question, your treaty of 1855, 
when your ancestors entered that treaty, was the withdrawal of 
any of the tribe's rights to govern or police your own lands 
included in that?
    Mr. Hillaire. No; it was not.
    Senator Campbell. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Senator Akaka.
    Senator Akaka. Thank you very much, Mr. Chairman.
    Your testimony requests congressional action, in 
consultation with the tribal governments. Your request is to 
address the erosion of tribal sovereignty. Have you developed a 
specific legislative recommendation and are those ready for the 
committee's consideration?
    Mr. Hillaire. We have been working real close with the 
Tribal Sovereignty Initiative team under NCAI. We have been 
submitting our position on this legislation through that body, 
but if requested by you, Senator, we would gladly do that for 
the committee.
    Senator Akaka. What has happened, what has been the impact 
of the Hicks decision in terms of real-life situations for law 
enforcement in the Lummi Nation?
    Mr. James. As far as State officers coming onto the 
reservation and enforcement--is that what you are asking? We 
have a very, very good relationship with Whatcom County which 
is the county that our reservation sits in. They respect our 
court system and come in and ask for our court's blessing 
before they come onto our reservation and serve their orders. 
They have been really good about doing that, so that has had 
very little impact on us--just because of the good relationship 
we do have with Whatcom County.
    Ms. Pouley. It does, Senator, if I could respond to that 
question, it has a huge impact, real-life impact in tribal 
court. I cannot tell you how heavy my heart is when I have an 
Indian person who is married to a non-Indian person, come into 
my court with a black eye and with her tooth knocked out, just 
to find out that that non-Indian is not a resident of the 
reservation, so the court does not have any jurisdiction over 
them. It is extremely difficult for tribal courts to be able to 
protect not only their own people, but all residents of the 
reservation. Imagine if coming to Washington, DC if you were 
going through a 25-mile per hour school zone and every time a 
Washington, DC officer stopped you, that you said, ``Oh, no, I 
am a citizen of the State of Washington, so I do not have to 
slow down.'' In Indian country, you do not have to slow down. 
So those are sort of the real life problems that I see as a 
tribal court judge every day.
    Senator Akaka. Thank you for your responses.
    Thank you, Mr. Chairman.
    The Chairman. But when you do have someone speeding in 
Lummi Nation, you can stop him, can't you?
    Mr. James. We do have an agreement with Whatcom County 
Sheriff's Office. We do have civil traffic jurisdiction over 
non-tribal members, and that process is that we are able to 
stop and detain and write out a citation and forward it on to 
the Sheriff's Office where they take action on the citation 
written by our officers.
    The Chairman. And does the Sheriff's Office follow through 
and provide justice as it should be done?
    Mr. James. As far as the civil traffic, I think to the best 
they can, yes they do.
    The Chairman. Would that procedure apply in all of the 
cases, including felonies?
    Mr. James. No; that only applies to civil traffic 
infractions. Anything criminal, we have to actually stop and 
detain the person and hold them for a Whatcom County deputy to 
come and respond.
    The Chairman. But you do have the right to detain?
    Mr. James. Yes; we do.
    The Chairman. I thank you all very much.
    Ms. Pouley. Thank you.
    The Chairman. And I can assure you that we are prepared to 
work with the National Congress of American Indians to come 
forth with something that should be a response to the Supreme 
Court.
    Our next witness is the U.S. Attorney for the city of 
Minneapolis, Thomas B. Heffelfinger, and the director of the 
U.S. Department of Justice, Office of Tribal Justice, Tracy 
Toulou.
    Mr. Heffelfinger.

  STATEMENT OF THOMAS B. HEFFELFINGER, U.S. ATTORNEY, CITY OF 
                          MINNEAPOLIS

    Mr. Heffelfinger. Mr. Chairman, Mr. Vice Chairman, members 
and staff of the committee, my name is Tom Heffelfinger. I am 
the U.S. Attorney for the District of Minnesota, and chairman 
of the Attorney General's Advisory Committee, Subcommittee on 
Native American Issues.
    The purpose of our subcommittee is to develop policies 
pertaining to effective law enforcement in Indian country, and 
among the top priorities that we have identified are terrorism 
and violent crime in Indian country.
    The Federal Government bears a unique and crucial 
responsibility for addressing the problem of violent crime in 
this Nation's Indian communities. Since 1885, the U.S. 
attorneys, in collaboration with the various tribal governments 
have had primary responsibility for the prosecution of serious 
violent crime in Indian country, and that problem is a very 
significant one.
    As you noted, Mr. Chairman, in your opening remarks, Native 
Americans are victimized at a rate of 2.5 times the national 
average in this country. In some areas of Indian country, that 
victimization is even higher. For example, in my own State of 
Minnesota, the residents of the Red Lake Indian Nation are 
currently suffering a rash of violent homicides unprecedented 
in that community's history. In the past 7 months, there have 
been 5 homicides in a community of 5,000 people. If one applied 
that rate to the city of Minneapolis, our State's largest city, 
Minneapolis would have had 382 homicides in 7 months. In fact, 
there have been 21.
    The U.S. Attorney, the FBI, and the Government of Red Lake 
are working aggressively to solve this problem, but it is 
indicative of the fact that in some parts of Indian country 
violent crime is at an unprecedented high.
    In our attempts to respond to violent crime, prosecutors 
and investigators face a confusing and frequently uncertain set 
of laws and judicial decisions regarding jurisdiction. First, 
there is confusion regarding who has personal jurisdiction over 
the subject. If one looks, for example, at a comparison of the 
Major Crimes Act and the General Crimes Act, under the Major 
Crimes Act, the United States has jurisdiction to prosecute 
certain serious offenses. However, that jurisdiction only 
extends to prosecution of Indians. Under the General Crimes 
Act, the United States has jurisdiction to prosecute all 
Federal offenses. However, that does not apply to Indian on 
Indian crimes.
    In addition, there are a variety of statutes and decisions, 
some of which the chairman and vice chairman have already 
cited, that address situations such as who has jurisdiction 
when both the suspect and the victim are non-Indian; whether or 
not tribal courts have jurisdiction over non-member Indians or 
non-Indians; whether a person is an Indian for purposes of 
determination of jurisdiction; and whether or not jurisdiction 
is delegated to the State under laws such as Public Law 280.
    If this seems confusing, let me assure you from a 
prosecutor's perspective, it is. Even once you get past the 
question of personal jurisdiction, then one has to address 
whether or not the crime occurred in Indian country, although 
that term is defined by statute, I need to assure you that in a 
particular or individualized case, the resolution of that can 
and does tie up litigation for months and sometimes years.
    What all this means is that whenever a crime is committed 
in Indian country, in order to determine jurisdiction 
prosecutors must assess and investigators must investigate 
facts that would allow us to determine who has jurisdiction. 
This involves four factors: Whether the offense occurred within 
Indian country; whether the suspect is an Indian or a non-
Indian; whether the victim is an Indian or a non-Indian; and 
what is the nature of the offense.
    Depending on the answers to these questions, an offense can 
end up being prosecuted in tribal court, Federal Court, State 
Court or not at all. And when you have that kind of diversion 
and disparity, then you can end up with the kind of disparity 
in sentencing, which is one of the subject of the sentencing 
commission right now.
    In addition, only once these questions are answered can 
prosecutors and investigators turn to the important question of 
sufficiency of evidence and guilt versus innocence. This 
confusion generally does not exist in the State system, and 
this confusion must be remedied.
    Confusion over jurisdiction has another detrimental impact 
which was alluded to by the vice chairman, and that is homeland 
security. Now more than ever we are reliant upon cooperation 
between tribal, State and Federal authorities. Indian country 
is involved in the war on terrorism. More than 25 tribes govern 
land that is adjacent to borders, either directly or across the 
water. A conference was held by the border patrol earlier this 
year at which General Ashcroft ``recognized that local law 
enforcement agencies play a crucial role in securing our 
Nation's borders, and tribal law enforcement agencies are no 
exception.'' Tribal governments have enthusiastically assumed 
this responsibility and have expressed their desire to work 
with the United States to provide for that security, but 
cooperation between local, Federal, and tribal agents is what 
is necessary in order to assure that protection.
    Unfortunately, as the committee has already cited, there 
have been decisions that have undermined that cooperation in 
the recent past. The Hicks case, which the committee has 
already cited, has given law enforcement an opportunity at the 
local level, at least, to determine that they do not need that 
cooperation. So after years of coalition-building between State 
and tribal law enforcement officers, this interpretation has 
allowed for conflict between the agencies.
    Now more than ever, members of the committee, we need the 
jurisdictional clarity in order to allow us to do our multiple 
functions within the Department of Justice.
    Thank you for the opportunity to address the committee.
    [Prepared statement of Mr. Heffelfinger appears in 
appendix.]
    The Chairman. I thank you very much.
    May I now recognize Mr. Toulou.

  STATEMENT OF TRACY TOULOU, DIRECTOR, DEPARTMENT OF JUSTICE, 
                    OFFICE OF TRIBAL JUSTICE

    Mr. Toulou. Thank you.
    Mr. Chairman, Mr. Vice Chairman, my name is Tracy Toulou 
and I am the director of the Office of Tribal Justice in the 
Department of Justice. Thank you for the opportunity to appear 
before you here today.
    The Office of Tribal Justice spends a significant amount of 
time studying and addressing issues related to tribal law 
enforcement. My office serves to coordinate and focus the 
Department's policies and positions on American Indian and 
Alaska Native issues, and maintain liaison with federally 
recognized Indian tribes, particularly in the area of law 
enforcement.
    In addition, we work closely with the U.S. Attorneys' 
offices that prosecute violent crime in Indian country. We also 
regularly communicate with tribal police departments, the FBI, 
the BIA, and other Federal law enforcement agencies operating 
in and around Indian country. Most recently, we have been 
working with the U.S. Border Patrol on Native American border 
security issues. In my experience as an assistant U.S. attorney 
in the State of Montana, I prosecuted major crimes acts 
violations on a number of reservations, as well as assisted the 
Northern Cheyenne Tribe in the development of a comprehensive 
law enforcement program.
    Today, I would like to focus on three issues--first, the 
problem of violent crime in Indian country; second, the 
challenges facing tribal law enforcement; and third, issues 
that may result from Nevada v. Hicks.
    First, the Department of Justice Bureau of Justice 
Statistics reports entitled American Indians and Crime and 
Violent Victimization and Race reveal that American Indians 
experience higher rates of violent crime than any other group. 
In November of last year, Attorney General Ashcroft remarked 
that these reports show American Indians are victims of violent 
crime at rates more than twice the national average, far 
exceeding any other ethnic group. Nearly one out of every four 
Native Americans between the ages of 18 and 24 is a victim of 
violent crime--the highest per capita rate of violence of any 
racial group considered by age. This accounts for nearly 10 
percent of the violent crimes prosecuted by the Department of 
Justice. Indians fall victim to violent crime at about two-
times the rates of African Americans, 2\1/2\ times the rates 
sustained by Caucasians, and 4\1/2\ times that experienced by 
Asian Americans.
    Of particular concern is the problem of domestic violence 
and crimes against Indian women, which tragically exist to a 
high degree in Indian country. A recent National Institute of 
Justice survey revealed that one in three Native women reports 
being raped in her lifetime. That is one in three. American 
Indian females were victimized by an intimate partner at rates 
higher than any other group. That is 23 per 1,000 American 
Indian females as compared to 11 per 1,000 African American 
females, 8 per 1,000 white females, and 2 per 1,000 Asian 
American females--a substantial difference.
    Now, I want to turn to Indian country law enforcement. As 
you know, tribal governments have limited law enforcement 
resources for addressing the high rates of crime in many 
reservation communities. Law enforcement in Indian country is 
generally either provided by local, tribal law enforcement, or 
BIA. The typical department serves an area the size of the 
State of Delaware, but with a population of only 10,000. It is 
often patrolled by no more than three police officers at one 
time, and sometimes as few as one officer.
    In 1997, the Department reported that Indian country was 
served by only one-half as many police officers per capita as 
similarly situated rural communities. This provided the needed 
impetus for a significant increase in Department of Justice and 
BIA funding for tribal law enforcement. Since 1999, the Tribal 
Resources Grant Program within the Community Oriented Policing 
Services, COPS, program has provided targeted resources for 
tribal departments to hire officers or acquire critical 
equipment. Last summer, the Attorney General and the COPS 
office announced grants totaling $33.7 million which were 
awarded to 105 police departments in 23 States.
    The efforts of the Department of Justice and tribal police 
departments are beginning to show results. Between 1998 and 
2001, the number of inmates in custody at tribal facilities 
grew by 29 percent. The increase in tribal jail population 
would appear to be closely related to the law enforcement 
resources made available to tribes through the COPS program.
    Finally, I know the committee is interested in the impact 
of the Supreme Court decision in Nevada v. Hicks on Indian 
country law enforcement. As with any single decision which 
moves the state of the law in a new direction, the Hicks 
decision cannot and does not cover every factual scenario that 
may be encountered by law enforcement. Until there are 
additional decisions or statutory clarification, there will be 
varying interpretations of the scope of this decision.
    In the meantime, I am concerned that this ambiguity may 
become a source of tension between State and tribal law 
enforcement in some areas. Briefly, in some parts of the 
country, we have seen State law enforcement officers 
interpreting this case as a basis to assert jurisdiction over 
Indians who are on reservation lands. In at least one case, 
this has resulted in a confrontation between tribal and State 
law enforcement officers on Indian lands. These types of 
situations have the potential to become highly charged and 
obviously should be avoided. Our office works closely with the 
Department's Community Relations Service to mediate these 
conflicts. Further, we advocate and assist in the development 
of cross-deputization agreements and other types of cooperative 
agreements to foster better relations between tribal and State 
law enforcement communities.
    In short, today's tribal governments face serious 
challenges in the area of law enforcement. The Department of 
Justice Office of Tribal Justice is working closely with tribal 
governments to assist in addressing high violent crime rates, 
limited law enforcement resources, and the unique challenges of 
Indian country jurisdiction.
    Thank you for the opportunity to appear today. I would be 
happy to answer any questions you may have.
    [Prepared statement of Mr. Toulou appears in appendix.]
    The Chairman. Mr. Toulou, would you describe the present 
situation as a result of the Supreme Court decision as a crisis 
or an emergency?
    Mr. Toulou. In Nevada v. Hicks? I do not know if at this 
point in time if I would say a crisis occurred. I think the 
potential for very serious ramifications exists.
    The Chairman. But you would agree that something has to be 
done?
    Mr. Toulou. I would say that we need some further 
interpretation or we are going to have some bad situations 
potentially occurring, yes, sir.
    The Chairman. Mr. U.S. Attorney, the Lummi Nation has 
advised us that the local FBI agents recently informed their 
tribal law enforcement officers that resources that were 
previously targeted to address organized crime on reservations 
are now being transferred to address national security matters. 
How much of the FBI's resources that were devoted to addressing 
issues in Indian country prior to September 11 are now being 
reallocated to address national security interests?
    Mr. Heffelfinger. Mr. Chairman, members of the committee, 
our committee has met with representatives of the FBI and have 
been assured by individuals as high as Director Mueller himself 
that he is maintaining his commitment to Indian country and 
that staffing levels of agents directed towards violent crime 
in Indian country will remain static. I commend Director 
Mueller for that recognition at a time when his resources are 
being stretched very thin.
    However, he also has advised us that there is significant 
discretion given to each special agent in charge to make 
permanent or temporary shifts within that special agent in 
charge's office to address local concerns. Issues of organized 
crime in Indian country may well, for example, I do not know 
the Washington situation, but may well be considered resources 
that are different from those that would be applied to violent 
crime. However, just looking at the numbers does not adequately 
address the problem of staffing of FBI agents, in particular 
BIA agents as well, in Indian country.
    One needs to also consider the impact of the nature of the 
work and the frequently remote locations upon those agents. 
Quite candidly, members of the committee, there is a 
significant risk of burn-out for those agents. If I could use 
my own reservation at Red Lake as an example, we have in our 
office determined that Red Lake represents approximately 25 
percent of the total cases we receive from the FBI, and yet 
that work is done on an annual basis by three agents. Those 
three agents are dealing with murder, sexual assault, and some 
of the most heart-wrenching cases a law enforcement officer can 
face.
    In addition, those agents have to travel five hours each 
way to get to court. We are quite frankly facing a serious 
problem with burn-out. I know in talking with Mr. Ecoffee from 
BIA that BIA faces the same challenges with agent burn-out. So 
when we consider staffing, we need to also consider what the 
impact of the nature of the work is and the need to be able to 
move those people around to protect, frankly, the mental health 
of those agents and their ability to do their job. But I do 
commend the FBI and I do commend BIA for maintaining their 
commitment to Indian country in this time where resources are 
diverted to other things.
    The Chairman. From your response, staffing is inadequate. 
Has your agency made an attempt to increase the funding?
    Mr. Heffelfinger. Frankly, unfortunately, Senator, the 
funding issues are not really within my purview. Our committee 
has focused on staffing, which is why we started out first of 
all to make sure we worked with the FBI to ensure that at least 
current levels would remain the same. I do know that the SACs 
around the country within the Bureau, I know that BIA and I 
know that the director are mindful of whether or not increases 
in staffing and funding will be necessary, and they may well 
be. Increases may be necessary in order to ensure that even if 
we keep the same levels of agents, that we are able to move 
those agents through there so that they are effectively being 
utilized, and so that they can be kept on the ground doing 
investigations instead of driving back and forth to court.
    The Chairman. You identified four factors that a prosecutor 
must resolve to determine jurisdiction, and that reaching this 
determination of criminal jurisdiction is a complex analysis of 
sometimes amorphous factors. Do those same four factors need to 
be resolved by law enforcement officers before they respond to 
a call for assistance?
    Mr. Heffelfinger. Mr. Chairman, members of the committee, 
in our experience an officer will respond to a crime as he or 
she should, to deal with the immediate public safety issue. 
However, almost immediately issues of jurisdiction become 
relevant. Instead of doing a follow-up investigation focus that 
would focus on issues like sufficiency of the evidence or guilt 
versus innocence, an agent will find himself focused on 
questions of whether or not the suspect is a member of the 
particular band or is an Indian; was the location of the crime 
within the confines of the reservation. These are not issues 
that a local law enforcement officer would face in responding 
to a murder in Minneapolis. So they become a distraction, if 
not at the initial response, prior to the issuance of an 
indictment or an information, and it becomes an incredible 
distraction and delay factor.
    The Chairman. In your experience in Minneapolis, do tribal, 
State, local and Federal law enforcement officers have the 
requisite knowledge and expertise to make these types of 
determinations?
    Mr. Heffelfinger. Mr. Chairman, members of the committee, 
within the FBI, yes, clearly the Minneapolis field office has 
the most agents of any field office assigned to Indian country, 
as that field office also covers the Dakotas. Minneapolis 
Police Department definitely not--they rarely deal with Indian 
communities. They deal frequently with urban Indian 
communities, but not with reservations. The local police 
offices that surround Indian country generally do not possess 
that requisite information.
    Minnesota is an unusual jurisdiction. We have 11 tribal 
communities, 9 of which are under Public Law 280, 2 of which 
are Federal. So in some jurisdictions, the local police simply 
do not care because they do no need to care. In the Federal 
jurisdiction areas, the local law enforcement agencies do not 
care because it is not their responsibility. As we attempt to 
develop the cooperation necessary to deal with increases in 
crime, we need to have that cooperation. So we are teaching 
local police about jurisdictional issues from the ground-floor 
up. So cooperation is essential at this time. It is why the 
Hicks case, for example, is so problematic.
    The Chairman. Both of you have suggested that there is 
confusion that should be clarified. Do you have any suggestions 
as to how this confusion can be clarified?
    Mr. Heffelfinger. I will go first if you want, Tracy, and 
then--Mr. Chairman, members of the committee, my comments are 
that the confusion needs to be addressed, and I would suggest, 
and my committee is willing to support your committee in any 
way we can, that your committee undertake a comprehensive 
review of issues of jurisdiction, as clarification would be 
extremely important.
    Of course, we will assist this committee if all you want to 
do is look at the Hicks case, but my concern is that just 
looking at the Hicks case will provide a solution or a fix to 
one part of the challenge, and not to the comprehensive 
challenge. There are no easy solutions to this issue because it 
requires a balancing of the interests of law enforcement, be 
that State or Federal, and tribal sovereignty, and State 
sovereignty. These are difficult issues. But what we need is a 
review of this issue from a comprehensive perspective, and not 
just an isolated Hicks fix.
    The Chairman. I look forward to working with you and your 
organization. Do you have anything prepared at this moment that 
you can share with us that we can look at?
    Mr. Heffelfinger. We have not, your honor--I'm sorry--it is 
my court background--Mr. Chairman, no, we have only as you know 
been in place for about 9 months now, but we are prepared to 
address this issue. Clearly, jurisdictional issues are one of 
our five priorities.
    The Chairman. Mr. Toulou.
    Mr. Toulou. As Mr. Heffelfinger said, it is a very complex 
issue. We have looked at it within the Department, but I do not 
think we have reached any agreement as to where things should 
go. I think what is important preliminarily as we hear from 
tribal leaders and tribal law enforcement, and understand their 
perception and where they would like to see to go with this. 
Obviously, the committee is in a better position to do that 
than the Department. We do look forward to any comments we get 
from tribal leaders. We would be happy to help in any way we 
can and answer any written questions on this issue, but we are 
still in the formulation basis. It is a very complex and 
comprehensive issue, but there needs to be clarification, 
without a doubt.
    The Chairman. On the matter that was brought up by the vice 
chairman, as a result of Supreme Court decisions, Indian law 
enforcement officials cannot exercise criminal jurisdiction 
over non-Indians. Now, the Department of Justice wants Indian 
law enforcement people to get involved in anti-terrorist 
activities, and most of the terrorists, I presume, are going to 
be non-Indians. What can be done to have the Indians play an 
effective role under those rules?
    Mr. Heffelfinger. Mr. Chairman, members of the committee, 
this is an area where joint powers arrangements, cross-
deputization and general cooperation are the only solution. One 
has to respect tribal sovereignty, at the same time there needs 
to be collaboration between the Border Patrol, the local 
sheriff's offices, and tribal law enforcement. My expectation 
is, because I know that the tribal leadership nationwide is 
committed to this problem, as are members of the Department of 
Justice and other agencies, as are the sheriffs, to the extent 
that we have impediments to cooperation, and that is the 
fundamental concern as I see it, to the Hicks case--as long as 
we have impediments to that, we will have a difficult time 
achieving effective cooperation.
    I cite my own State as an example. I have a tribe, the 
Grand Portage Band of Ojibwa, which borders the Canadian 
border. They are a Public Law 280. That requires cooperation 
between the State and the tribe. I also have the Red Lake Band 
of Ojibwa, which borders on Canada. That is a Federal 
reservation. That requires collaboration between the Border 
Patrol and the tribal police.
    These are the kinds of diversity of issues that require 
that we cannot--there is no one single solution, but we have to 
develop a pattern of cooperation across Indian country and 
across the United States. The law must foster that.
    The Chairman. I gather from your response you think the 
impediments should be taken away.
    Mr. Heffelfinger. Mr. Chairman, members of the committee, 
as the committee considers solutions to this jurisdictional 
issue, I am confident that the solutions will address some of 
those impediments.
    The Chairman. I have a few more questions, but Mr. Vice 
Chairman?
    Senator Campbell. Thank you, Mr. Chairman.
    Let me start, Mr. Heffelfinger, maybe by asking you 
somewhat of a loaded question, because I have a pretty strong 
opinion on it. I live in Colorado, but if I go to California, I 
cannot vote in California. I do not pay taxes in California, 
but I am still in California therefore I am subject to 
California laws. If I go to a different city, I am subject to 
local ordinances. If I go to a foreign country, same thing. If 
I go to France I am not French, don't pay taxes, don't do 
anything there except visit. If I break the law, I am going to 
be subject to French justice.
    So it seems to me it is really out of kilter that we should 
not expect the same kind of framework if non-Indians come onto 
the reservation. Tribes are pretty much semi-autonomous, as 
States are and as local jurisdictions are, and everybody knows 
you cannot go to a different city or a different State and get 
away with breaking the law. Basically what we have is a system 
in which the word is out that people can get off the hook, so 
to speak, if they are not Indian and they do something on 
Indian land.
    Are there any other jurisdictions that you know in the 
United States where the same kind of logic applies? Most 
jurisdictions are based on geography. They do not care what 
color you are. You come in that jurisdiction and you break the 
law, that is it. The only one I know of is Indian reservations, 
and that is based on racial background more than geographic 
area. Is there anything other than that, like military bases--
are they similar?
    Mr. Heffelfinger. Mr. Vice Chairman, Mr. Chairman, off the 
top of my head, no. I cannot think of one. Even on military 
bases and the like, the statutes and the law are quite clear as 
to where our jurisdiction lies, and it is based on a geographic 
assessment of the boundaries and the confines of a military 
reserve.
    Mr. Vice Chairman, your question sort of underlies, and 
some of the parts of your question, underlies some of the 
challenges faced in Indian country, some of the inconsistencies 
and confusion associated with establishing jurisdiction in 
Indian country. In part the reason that I urge the committee to 
seek a solution to this confusion is that the confusion is not 
doing a service to anybody. It is not doing a service clearly 
to the tribes, as there is violent crime, and confusion creates 
a difficulty in solving that problem. It is also not doing any 
favors to the non-Indians who may wish to visit Indian country, 
as they have the same interest in safety; 10 days ago I was in 
the Navajo Nation as a visitor, and I had the same expectations 
of safety and security as a visitor to that community as did 
the people who live there. So I think the resolution of the 
confusion is in the Nation's best interest.
    Senator Campbell. If an Indian person from one reservation 
is visiting another reservation, he can be arrested by the 
tribal police, I guess, for committing a crime. Is that 
correct?
    Mr. Heffelfinger. That is my understanding.
    Senator Campbell. Where is the line? For instance, there 
are some Indian people who are not a federally recognized or 
State recognized tribe, or they were terminated in the 1950's 
and they have not been reinstated, or something of that nature. 
Therefore, they do not have a census number, or they do not 
have some kind of identifying factor. How is that filtered 
through?
    Mr. Heffelfinger. Mr. Vice Chairman, Mr. Chairman, as I 
indicated in my earlier remarks, one of the issues we have to 
address is whether or not an individual is considered an Indian 
for purposes of jurisdiction. That requires us to assess issues 
such as whether or not the tribe that they are affiliated with 
is a recognized tribe. These are unique issues we do not face 
in any other situation.
    Senator Campbell. Another question--in most jurisdictions, 
law enforcement officers, even when they are off duty, they 
carry an ID, carry a gun, still retain some police authority. 
How are tribal police treated? Are they the same? I remember 
one reservation years and years ago--it has been about 20 years 
ago, it may have changed since then, or 25 years ago--but I was 
told by one former tribal policeman, he quit because he only 
had law enforcement authority when he was on duty. He would 
arrest someone, another tribal member, but when the guy bailed 
out or got out, he would wait for him when he got off duty, 
wait for the tribal policeman when he got off duty, and then 
assault him when he was off duty.
    Mr. Heffelfinger. Mr. Vice Chairman, Mr. Chairman, boy, you 
have raised a great question. I wish I had a simple answer for 
you. Clearly, if you are a post-certified law enforcement 
officer under State jurisdiction and you are off duty and you 
come across a crime, you have law enforcement authority. A 
tribal law enforcement officer on tribal land probably has the 
same right in tribal land, but I will tell you, I would not 
have the comfort that that law tribal law enforcement officer, 
if he or she leaves the reservation and goes into the 
neighboring community, non-Indian community, would have that 
same protection. That would be one of the issues one would try 
to address in a joint powers arrangement.
    Senator Campbell. Yes; speaking of homeland security, we 
have touched on that a couple of times, is there any plan to 
incorporate tribes into the border security and the so-called 
``seamless border''? I understand in the case of some tribes 
like the Tohono O'odham, that they are undermanned because--you 
know, I used to be a police training officer years ago in a 
police academy, so I know a little bit about it, a little bit 
about law enforcement, a little bit about drug movement. I have 
always been convinced that drugs move to the source of least 
resistance. If you have an increase of law enforcement, 
increase of surveillance in one area, they are going to find 
another place where there is less surveillance. I mean, it is 
commonsense.
    There seems to be a movement now, since we have more 
increased surveillance along our borders, and not so much on 
Indian reservations, that people who would elicit drug 
trafficking have moved more toward coming across Indian 
reservations where here is less surveillance. Do you have any 
comments about that? I understand that it is really taxing some 
tribes, so they are as a result unable to police some of the 
things they normally would do because they are trying to spend 
more time on the borders.
    Mr. Heffelfinger. Mr. Vice Chairman, Mr. Chairman, I know 
that first of all that experience varies around the country, 
but I know communities like the Tohono O'odham of which you 
have cited are facing that very problem. In connection with the 
seamless border issue, both the subcommittee I chair, but I 
think even ahead of me, because he has gotten an advance lead 
on this issue, is Mr. Toulou, the Department of Justice 
identified this issue very early after the 11th as one that 
needed addressing. It is one of our committee's priorities, but 
it is also I know a priority of the larger Department of 
Justice and of the Office of Tribal Justice. Maybe Mr. Toulou 
could address that.
    Mr. Toulou. Yes; the Department is mindful of these issues 
and we consider tribes as we formulate policy. We try to make 
sure in the short term as policy is being developed that tribes 
are included in any discussions we have, and as a first matter 
make sure that they are involved in any communications we have 
between law enforcement and...
    Senator Campbell. Well, you are having some discussion with 
them, but what direction are you giving them in regards to 
somebody that they may arrest--potential terrorists, maybe 
not--who are not Indian?
    Mr. Toulou. It depends on the law enforcement jurisdiction 
on the given reservation. What we have asked is that the Border 
Patrol regional office communicate with their local tribes and 
develop a protocol for use in that area. I believe that has 
happened in most situation. A number of the tribes do have 
jurisdiction. In some of the areas we have gone in working with 
the BIA to ensure that the officers on duty are cross-deputized 
under BIA jurisdiction. Of course, that is on an office-by-
officer basis and it is not a blanket arrangement. We try to 
patch the holes in security as we come across them.
    Senator Campbell. I see.
    Mr. Heffelfinger. Mr. Vice Chairman, may I address that 
question as well?
    Senator Campbell. Yes; please.
    Mr. Heffelfinger. The U.S. attorneys uniformly have been 
directed by the attorney general to engage in training of local 
law enforcement officers on issues of terrorism. In those of us 
who have Indian country that abuts the border, we have included 
tribal law enforcement in those trainings, and have also 
included the local sheriffs that may have responsibility in the 
Public Law 280, for example, areas in that training. But there 
still is much work that needs to be done, especially where 
joint powers arrangements or cross- deputization between the 
Border Patrol and tribal police needs to be completed.
    Senator Campbell. Thank you, Mr. Chairman, no further 
questions.
    Thank you.
    Mr. Heffelfinger. Thank you.
    The Chairman. Many State law enforcement agencies have 
concluded as a result of Supreme Court decisions that they no 
longer need to cooperate with tribal authorities when serving 
search warrants or arrest warrants in Indian country regarding 
crimes that took place off-reservation. What States have taken 
this position?
    Mr. Heffelfinger. I will let Mr. Toulou respond to that as 
well in a moment, but let me give you, from my committee's 
perspective, where we are seeing more of that. I think to some 
degree the Hicks decision has allowed that issue to become 
relevant in every State where there is some other irritant in 
the relationship between local law enforcement and the tribe. 
Let me use my State as an example, then I will get to the 
answer to your question more directly.
    In Minnesota there is a longstanding history between local 
law enforcement and tribal law enforcement and as a result we 
have longstanding cross-deputization and that type of thing. 
However, we have one reservation, as an example, where there is 
a dispute going on between the sheriff and the tribal 
government. The sheriff has canceled the joint powers 
arrangement and refuses to renegotiate. That is a symptom of a 
larger problem. My experience has been that the issues that you 
asked of Mr. Chairman are of greatest prevalence in those parts 
of the country where there is some other irritant in the 
relationship between the tribe and the local community.
    I do not think it is accidental that it is in California 
where we are seeing a lot of these issues arise. One must 
recognize that it is in California where tribal gaming is 
gaining a foothold for the first time. That does change the 
fundamental relationship between tribes and surrounding 
communities.
    In areas like Minnesota where tribal gaming has been 
established and is an accepted part of our State structure, 
these irritants do not exist and the relationships between the 
tribes and the surrounding governments has not been 
significantly affected, other than the one experience I 
mentioned.
    The Chairman. So there is no cut and dried answer.
    Mr. Heffelfinger. I do not think there is a cut and dried 
answer. I think one has to look at the underlying relationship 
between the tribes and the State.
    Mr. Toulou. I am not aware of any specific States that have 
taken that position. I think it is, as Mr. Heffelfinger said, 
it is in individual communities with individual law 
enforcement, usually at the county level, that we have heard 
about a conflict. If you look at those places that I am aware 
of, and it is mostly from press accounts that we are aware of 
these situations, they are places that have had problems in the 
past.
    The Chairman. At this hearing, the members of the panels 
have cited the horrendous statistics on spousal abuse and such. 
Do you think Congress should delegate criminal jurisdictional 
authority over non-Indians to tribal governments so that they 
can address these problems?
    Mr. Heffelfinger. Mr. Chairman and members of the 
committee, I think that is clearly an issue that this committee 
must address. Tribal governments have become much more engaged 
in the fabric of the States in which they are located, and 
tribal communities have done so. This means there is greater 
prevalent of non-Indians or non-tribal members living within 
tribal communities. It is impossible to address from any kind 
of comprehensive way, and I use the area of spousal abuse as an 
example, the need to stop that in order to break the 
generational cycle of violence. If we are going to address in a 
comprehensive way questions of violence in Indian country, we 
must not be hindered by our inability to prosecute one class of 
individual versus another. I would urge the committee to 
address this issue as part of a comprehensive solution, and we 
look forward to working with you on that.
    The Chairman. My final question--as Chairman of this 
committee and as a member of this committee over many years--
24, I believe--I have been honored by several nations with 
Indian names and honorary citizenship. Nations have the right 
to bestow citizenship on anyone they so desire, and even today 
certain nations have blood quantum requirements. What if a 
nation decided to make me a citizen? Am I looked upon as an 
Indian under your law?
    Mr. Heffelfinger. Mr. Chairman, clearly if you were to come 
under the scrutiny of the Department of Justice and the issue 
was ``are you an Indian,'' I would have to address that issue. 
I do not know that that is enough--the honorary membership.
    The Chairman. No; I am talking about real citizenship.
    Mr. Heffelfinger. I do not know the answer to that 
question, Mr. Chairman. It is an intriguing one.
    The Chairman. So I may not have the protection of 
citizenship.
    Mr. Heffelfinger. I simply do not know, and I would be 
happy to provide an answer to you, Mr. Chairman, in a written 
submission, to the extent that I can.
    The Chairman. Certain tribes have suggested that I become a 
citizen. That would be interesting, wouldn't it? [Laughter.]
    Mr. Heffelfinger. It would be very interesting.
    Senator Campbell. If I might ask, has that ever happened to 
your knowledge, or been tested in court? It has probably 
happened.
    Mr. Heffelfinger. Mr. Vice Chairman, Mr. Chairman, I know 
there are many tribes who have bestowed a membership either 
honorary or otherwise on people for a number of reasons. I do 
not know that it has been tested. I am not familiar with the 
case law, but I would be happy to research it, if you would 
like.
    Senator Campbell. If you would, yes, I would be interested 
in knowing that, too, because some tribes--well, even some 
tribes enrolled by blood quantum and some by lineal 
descendence, and so as an example in the Cherokees, you could 
be 1/160th by blood and still be enrolled as a member of that 
tribe as a blue-eyed blond or a redhead with freckles. It would 
be an interesting discussion about whose jurisdiction that 
redhead with freckles comes under if a law was broken, as a 
member. I mean, well--whether it is really based just on having 
a census number.
    I know people that were from Osage tribes as an example who 
have inherited head rights that have not--were not born there, 
their parents were not born there--it just came down through 
head rights. They could not even find where the Osage live on 
the map because they live in California, as their fathers and 
grandfathers and so on had. And yet they still have head rights 
and an enrollment number. So if they did stumble across the 
reservation where their ancestors came from, whether they also 
would be subject to tribal law because they have a census 
number, when they have never, and their parents and maybe their 
grandparents have never had any connection with the tribe. 
There are really huge areas of gray in this whole dialog, isn't 
there?
    Mr. Heffelfinger. Mr. Vice Chairman, as I believe this 
committee is aware, there is increasing attention being given 
to enrollment, for many, many reasons, including access to 
gaming dollars and the like. Tribes give great, great 
importance to that issue. I do believe that issues of 
enrollment and how that affects jurisdiction will only increase 
as we aggressively respond to the violent crime problem.
    I am going to ask Mr. Toulou, who I think can remedy some 
of my ignorance with a better understanding of some of the 
jurisdiction issues and may be able to give some light to your 
question about membership.
    Mr. Toulou. I would like to respond more fully after I have 
had a chance to look at it, but I know of situations such, and 
I am sure you are aware, too, of the Seminole free men who are 
tribal members, but a number of those individuals do not have, 
or at least initially when the rolls were put up, were alleged 
not to have Native American blood, but were nonetheless seen as 
members of the tribe. Most situations that I am familiar with 
dealing with, there is some blood quantum involved, and that is 
usually a requirement of membership. We would be happy to look 
further into the situation.
    Senator Campbell. Well, I am going to recommend to any 
tribe that gives Senator Inouye full adoption and tribal 
rights, that he also get dispensation with that membership. 
[Laughter.]
    Senator Campbell. Thank you.
    The Chairman. I thank you very much, sir.
    We do have questions. May we submit them to you?
    Mr. Heffelfinger. Absolutely, Mr. Chairman. Thank you.
    The Chairman. Thank you very much.
    And our final witness is the tribal chairman of the Bishop 
Reservation of Bishop, CA, Monty J. Bengochia. Welcome, sir.
    Mr. Bengochia. Thank you.
    The Chairman. Please proceed.

   STATEMENT OF MONTY J. BENGOCHIA, TRIBAL CHAIRMAN, BISHOP 
                          RESERVATION

    Mr. Bengochia. Thank you for having me testify. For the 
record, I am a Northern Paiute, also known as the Potonowit 
Band of Paiute-Hoopa, Paiute-Hoopa-Numa from the Owens Valley, 
Eastern Central California, a small reservation of Penn-Daw on 
the map, probably about a 600-plus voting membership with a 
1,600-enrollment, headcount.
    We got from probably 2 million acres of ancestral homeland, 
we have been cut down to 875 acres through historical genocide 
and trauma. That is probably the primary reason why we are kind 
of helpless in the area of law enforcement, whereas in 
ancestral times and prehistoric times before our European 
relatives came over into our country, we took care of our own 
law enforcement, because we were sober people, honorable 
people. My ancestors, they worked hard. They knew how to work 
with nature, live with nature. It is from atrocities of history 
that have put us into this situation where we have got to be 
harassed and sometimes beating our women, touched by law 
officers, and not having the ability to make a change is kind 
of very disheartening.
    So I am glad I have got the opportunity to talk about some 
of that historical background that has put my people, my nation 
in this predicament, and hopefully find a solution to remedy 
this condition, not only for my tribe, but us Paiutes, we cover 
about Arizona, Northern Arizona, Utah, Southern Idaho, Southern 
Oregon, maybe one-half the State of Nevada, Eastern California, 
and we have our Mono Nation relatives on the west side of the 
Sierra Nevada Mountains.
    [Prepared statement of Mr. Bengochia appears in appendix.]
    The Chairman. You are here primarily because of a situation 
that occurred in March of 2000?
    Mr. Bengochia. Yes, when the Inyo County District Attorney 
and Sheriff came into our casino to obtain employee records 
that belonged to the tribe and proceeded with, I would say at 
gunpoint, to obtain those records and cut into our filing 
cabinets and took records not only of the three employees that 
they had a search warrant, but I think about 80 more that they 
took. From that result, we filed a lawsuit in the Federal 
Court, and lost at the District level, but appealed it and won 
at the Ninth Appellate.
    The Chairman. Before the county sheriff and the county 
officials entered the casino--cut the bolt and everything 
else--did they serve you with their warrant? Did they give you 
a paper?
    Mr. Bengochia. No--you mean a warrant to ask to get 
permission?
    The Chairman. To search.
    Mr. Bengochia. To search? I do not recollect that. I just 
remember that we were to get--I do not remember if it was 
paperwork, but I knew that they wanted to come in, and we told 
them if we get permission from the employees that it would be 
open. That is our policy that we operate on.
    The Chairman. Did the county officials damage your casino?
    Mr. Bengochia. No; not probably other than--I would say no.
    The Chairman. Have the county officials taken other actions 
that infringed upon your sovereignty?
    Mr. Bengochia. Besides the action that they took on that 
day?
    The Chairman. Or any other time?
    Mr. Bengochia. I guess in the sense that for the purpose of 
this hearing that they have--because of Public Law 280, it has 
been an invasive environment as a result of the county and 
State law preserves our--you know, physically present. To me, 
that is an invasion of our sovereignty.
    The Chairman. You have indicated in your testimony that 
members of your tribe do not do much drinking, and so you have 
problems with non-Indians who drink and drive and engage in 
drug abuse. Have your members been injured as a result?
    Mr. Bengochia. Have we been injured from the--you said that 
our testimony is indicative that we do not party?
    The Chairman. No, no--you frown upon it.
    Mr. Bengochia. Have we been injured from that lifestyle, 
that drug abuse--yes, sir.
    The Chairman. Do you have any established procedures to 
handle complaints of police misconduct?
    Mr. Bengochia. No; we did--I would not say it is 
established. It has been adopted through tribal ordinance, but 
we do--we have taken complaints from members who have been, who 
have waged a complaint and we have compiled it, and we did 
submit that to the State Attorney General Bill Lockyer over 1 
year ago, maybe 1\1/2\, and also to the sheriff's department, 
to the county sheriff. We have not received any kind of 
response from the county, and we did understand that they were 
to do an internal investigation and come up with findings of 
those allegations, and either deny them or discipline the 
officers or something, but to my knowledge nothing has been 
done.
    The Chairman. In your prior communication with the 
committee, you mentioned that there is a very sacred site at 
Casa Diablo--some rock sites--and they have been vandalized. 
Have you had Federal law enforcement agencies investigating 
this sacred site vandalism?
    Mr. Bengochia. I believe that particular tract of land is a 
reservation that was established in 1912 by President Taft and 
then revoked in 1932 by another President, by President Hoover. 
That land is currently under the jurisdiction or control of the 
Bureau of Land Management. I do believe that they have looked 
into the matter and are probably doing what they can with their 
limited financial resources and personnel.
    The Chairman. Thank you very much, Chief.
    Mr. Vice Chairman.
    Senator Campbell. Mr. Chairman, you are from Bishop, is 
that right?
    Mr. Bengochia. Yes; sir.
    Senator Campbell. When your police get a call--your police 
department receives an emergency call--do they ask the person 
calling if they are Indian or non-Indian?
    Mr. Bengochia. No, sir; I do not think so. They might----
    Senator Campbell. They just go ahead and respond?
    Mr. Bengochia. I would say yes.
    Senator Campbell. If they did respond and the people they 
respond to are non-Indian, do they then have an agreement with 
the local deputy sheriff through some cross-deputization or 
something to address the caller's concerns?
    Mr. Bengochia. No; on racial--no, sir.
    Senator Campbell. What is the nearest town to the 
reservation that is not within the boundaries of the 
reservation?
    Mr. Bengochia. Bishop, California is off the reservation. 
It is not on the reservation. We are probably a couple of miles 
from the town, from the main street.
    Senator Campbell. There are literally thousands of non-
Indians that visit Indian reservations every year, and a lot of 
reservations in fact have a pretty sizable population of non-
Indians. I happen to live at Southern Ute, which is a 
checkerboarded reservation out of the original something like 
600,000 acres that they got in the olden days, there were two 
times the Federal Government opened that reservation to 
homesteading because the Utes would not comply with some of the 
dictates of the Federal Government. So after that was open to 
homesteading, almost one-half of it was lost to private 
ownership. And so it is checkerboarded. You cannot tell who 
lives where unless you go into tribal headquarters and look at 
a map to see what land is owned by the tribe and what is not 
owned by the tribe. Is your reservation that way, too--
checkerboarded?
    Mr. Bengochia. No, sir; we are one----
    Senator Campbell. You are solid--you own the whole thing, 
pretty much, yes?
    Do you happen to know the percent of people that are on the 
reservation living there that are non-tribal members?
    Mr. Bengochia. I would guess 15 or 20 percent.
    Senator Campbell. And does the tribe provide any services 
at all to them?
    Mr. Bengochia. Sanitation services--that is about it.
    Senator Campbell. I think that I have no further questions, 
Mr. Chairman. Thank you.
    The Chairman. Mr. Chairman, I thank you very much for your 
assistance today. I would like to thank all of the witnesses 
who participated in this hearing. We will most certainly study 
the testimony and we hope to come up with something.
    With that, the hearing is adjourned.
    [Whereupon, at 12 noon, the committee was adjourned, to 
reconvene at the call of the Chair.]
=======================================================================


                            A P P E N D I X

                              ----------                              


              Additional Material Submitted for the Record

=======================================================================


[GRAPHIC] [TIFF OMITTED] 81151.001

[GRAPHIC] [TIFF OMITTED] 81151.002

[GRAPHIC] [TIFF OMITTED] 81151.003

[GRAPHIC] [TIFF OMITTED] 81151.004

[GRAPHIC] [TIFF OMITTED] 81151.005

[GRAPHIC] [TIFF OMITTED] 81151.006

[GRAPHIC] [TIFF OMITTED] 81151.007

[GRAPHIC] [TIFF OMITTED] 81151.008

[GRAPHIC] [TIFF OMITTED] 81151.009

[GRAPHIC] [TIFF OMITTED] 81151.010

[GRAPHIC] [TIFF OMITTED] 81151.011

[GRAPHIC] [TIFF OMITTED] 81151.012

[GRAPHIC] [TIFF OMITTED] 81151.013

[GRAPHIC] [TIFF OMITTED] 81151.014

[GRAPHIC] [TIFF OMITTED] 81151.015

[GRAPHIC] [TIFF OMITTED] 81151.016

[GRAPHIC] [TIFF OMITTED] 81151.017

[GRAPHIC] [TIFF OMITTED] 81151.018

[GRAPHIC] [TIFF OMITTED] 81151.019

[GRAPHIC] [TIFF OMITTED] 81151.020

[GRAPHIC] [TIFF OMITTED] 81151.021

[GRAPHIC] [TIFF OMITTED] 81151.022

[GRAPHIC] [TIFF OMITTED] 81151.023

[GRAPHIC] [TIFF OMITTED] 81151.024

[GRAPHIC] [TIFF OMITTED] 81151.025

[GRAPHIC] [TIFF OMITTED] 81151.026

[GRAPHIC] [TIFF OMITTED] 81151.027

[GRAPHIC] [TIFF OMITTED] 81151.028

[GRAPHIC] [TIFF OMITTED] 81151.029

[GRAPHIC] [TIFF OMITTED] 81151.030

[GRAPHIC] [TIFF OMITTED] 81151.031

[GRAPHIC] [TIFF OMITTED] 81151.032

[GRAPHIC] [TIFF OMITTED] 81151.033

[GRAPHIC] [TIFF OMITTED] 81151.034

                               
