[Senate Hearing 110-136]
[From the U.S. Government Publishing Office]
S. Hrg. 110-136
LAW ENFORCEMENT IN INDIAN COUNTRY
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JUNE 21, 2007
__________
Printed for the use of the Committee on Indian Affairs
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36-303 PDF WASHINGTON DC: 2006
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Sara G. Garland, Majority Staff Director
David A. Mullon Jr. Minority Staff Director
C O N T E N T S
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Page
Hearing held on June 21, 2007.................................... 1
Statement of Senator Cantwell.................................... 40
Prepared statement........................................... 42
Statement of Senator Dorgan...................................... 1
Statement of Senator Murkowski................................... 3
Statement of Senator Tester...................................... 4
Witnesses
Clairmont, Bonnie, Victim Advocacy Program Specialist, Tribal Law
and Policy Institute........................................... 17
Prepared statement with attachment........................... 19
Dillon, Sr., Hon. Herman, Chairman, Puyallup Tribe of Indians;
accompanied by Lawrence W. LaPointe, Council Member............ 10
Prepared statement........................................... 12
Garcia, Hon. Joe A., President, National Congress of American
Indians; accompanied by John Dossett, General Counsel, NCAI.... 43
Prepared statement........................................... 45
Heffelfinger, Thomas B., Partner, Best and Flanagan LLP.......... 62
Prepared statement........................................... 65
Washburn, Kevin K., Associate Professor, University of Minnesota
Law School..................................................... 54
Prepared statement........................................... 56
Wells, Jr., Hon. Marcus D., Chairman, Three Affiliated Tribes of
the Fort Berthold Reservation; accompanied by Dawn Charging,
Director of Government Relations and Captain Hart, Law
Enforcement Director........................................... 5
Prepared statement with attachment........................... 8
Appendix
Lawrence, William J., Owner/Publisher, Native American Press/
Ojibwe News, Commentary from the June 1, 2007 Edition of the
Native American Press/Ojibwe News.............................. 94
McCollum, Betty, Member of Congress, letter with attachments,
dated May 22, 2007, to Assistant Attorney General Wan J. Kim... 89
Penney, Samuel N., Chairman, Nez Perce Tribal Executive
Committee, prepared statement.................................. 77
Smith, Dorothy and Henry, Joan, Qualla Women's Justice Alliance,
Joint prepared statement with attachments...................... 78
LAW ENFORCEMENT IN INDIAN COUNTRY
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THURSDAY, JUNE 21, 2007
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room
485, Senate Russell Building, Hon. Byron L. Dorgan, Chairman of
the Committee, presiding.
STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. The Committee will come to order.
We will begin the hearing this morning. This is the
Oversight Hearing on Law Enforcement in Indian Country. This is
a hearing at the Committee on Indian Affairs here in the U.S.
Senate. We wish all of you good morning and thank you for
joining us.
I will be joined by a number of my colleagues who are
detained briefly this morning, but they will be here shortly.
Before we begin today I want to take just a couple of
moments to remember our colleague, the late Senator Craig
Thomas. Senator Thomas sat to my right as Vice Chairman of this
Committee. In fact, just several weeks ago at one of these
hearings, Vice Chairman Thomas and I talked after the hearing.
I told him he looked terrific, and he said he felt terrific.
And he, as you know, since that time lost his battle with
cancer.
It is with a heavy heart that we continue our work here in
this Committee. Senator Craig Thomas was a friend of mine and a
friend of all members who served with him in the Senate. The
State of Wyoming has lost a wonderful native son, and this
Committee has lost someone who was dedicated to working on
these difficult and challenging issues. So I wanted to begin
this morning with just a moment of remembrance for a wonderful
United States Senator, Craig Thomas.
Let me begin, as I did previously, when Senator Thomas was
with us, by saying these challenges are daunting. We work
together and all members of this Committee have worked together
to deal with a range of issues that are very, very challenging
for us: housing, health care, and education on Indian
reservations. These are difficult challenges. Yet we must
address them and meet them.
One of those challenges that is especially challenging is
the issue of law enforcement. We want to hear from some very
important witnesses today about this issue of law enforcement.
Five weeks ago, we held an oversight hearing on law enforcement
in Indian Country; today we hold another. At the first hearing,
we heard from Federal agency representatives about the role
that each of them either plays or is supposed to play with
respect to law enforcement in Indian Country. During that
hearing, it became clear that law enforcement in Indian Country
is confusing, it is complex. We also learned that the Federal
agencies all too often are not coordinating between themselves
sufficiently or providing adequate resources to the Indian
reservations. And that is frustrating.
The purpose of today's hearing is to hear from tribal
representatives and from victims' advocates about the state of
law enforcement in Indian Country and to hear their
recommendations about what we need to do to address it. We will
hear from experts about potential solutions to the many, many
problems of current law enforcement on Indian reservations.
This issue is one that affects the lives of virtually every
American Indian, one that impacts the aspect of life on
reservations and one that just cries out for change. At a time
when violent crime rates have decreased nationally, Indian
reservations are experiencing a steady increase in violent
crime. American Indians and Alaska Natives are two and a half
times more likely to be victims of violent crime than a member
of the general public in this Country. The rate of violence for
Native youth between the ages of 12 and 17 is 65 percent
greater than the national rate for the general public.
American Indians and Alaska Native women are 2\1/2\ times
more likely to be raped or sexually assaulted than other women
in the United States. The situation has led residents of Indian
reservations to live often in fear. In 2004, 81 percent of
members of the Couer d'Alene Tribe did not feel safe in their
homes, they have told us. I could go on and on at length about
examples of the crisis, but I think it is sufficient to state
that the statistics are staggering, the current state of
affairs can merely be described as a national disgrace and one
that we must address.
The Federal Government, including the Federal courts, has
placed upon itself the burden to exercise the day to day law
enforcement authority over 55 million acres of Indian Country
lands. Yet our efforts to secure these lands can only be
described as shameful. We, the Federal Government and the
courts, have created a jurisdictional maze in Indian Country
that has resulted in a failed system that fails to protect
victims and communities.
I have a chart that shows the law enforcement jurisdiction
in Indian Country. It is confusing, it is an unbelievable maze.
It creates different approaches, dealing with the race of the
offender, the race of the victim, the severity of the crime,
whether the crime was committed on tribal land, tribal land in
a Public Law 280 State, or State land. And Indian Country is
the only place in the Nation where this is the case.
Let me give a recent example of how this jurisdictional
maze impacts victims. The Gallup Independent newspaper reported
yesterday about a situation where a Native woman who was raped
had to wait 3 years to have her case prosecuted. Native
American woman, raped, waited 3 years for prosecution of that
crime. The problem was that it was unclear whether the crime
was committed on tribal land or non-Indian land. The type of
land the crime was committed on determined whether the tribe,
the Federal Government or the State government had
jurisdiction. The Navajo Nation had to determine whether the
land was tribal trust land. Once it decided the land was not
tribal land, the tribe had to transfer the case to the State of
New Mexico. Once the State of New Mexico began prosecuting it,
it had been 3 years since the commission of the crime.
The problem of law enforcement, like many other problems in
Indian Country, is one that was created by the Federal
Government. It has existed for over a century. Trying to solve
it, along with all the other problems, is a daunting task. But
this Committee must begin to work with tribal leaders and work
with the Federal agencies to find a solution to these issues.
That is the purpose of this hearing, our second hearing on
Indian law enforcement.
To my colleagues, first of all, let me welcome Senator
Murkowski and Senator Tester. I began this morning commenting
on the fact that this was our first hearing without the
presence of our late colleague, Craig Thomas, and the work he
had done and the commitment that he had to addressing these
issues. I know that you both feel the same way. Let me call on
you for any opening comments, Senator Murkowski.
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I have to
admit, I feel a bit awkward sitting in this spot. This was
Craig's chair and I would sit right down there and I was quite
happy to do so.
I think we all acknowledge that our hearts have a hole in
them after his departure.
On Sunday, June 10th, the National Congress of American
Indians met in my hometown of Anchorage for their semi-annual
convention. At that time, it was an opportunity for many of us,
I spoke about the contributions of Senator Thomas. We could
probably devote an entire session to those contributions in the
Senate and in the other body, where he chaired the Subcommittee
on Native American Affairs. But if we were to do that, we
probably wouldn't get to our witnesses. I recognize that
President Garcia has devoted a portion of his prepared
testimony to speak as a tribute to our departed colleague. I
look forward to that.
Mr. Chairman, as you know, I had hoped at the weekend of
the convention there in Anchorage, the NCAI meeting, to conduct
a field hearing of this Committee on the issues that were
identified by the Amnesty International report on domestic
violence and sexual assault in Indian Country. But out of
respect for our departed colleague, we went ahead and canceled
that hearing, scheduled to actually take place on the date of
Senator Thomas' funeral. So we have not rescheduled that, but I
hope that we will do that in the very near future.
Passing references to the issue in a hearing focused on the
broader challenge of law enforcement in Indian Country really
don't do justice to this issue. The Amnesty International
report identified the shortcomings in the Indian Health
Services process for obtaining the forensic evidence necessary
to support prosecutions. This was news to me. I don't recall
that we ever heard from the Indian Health Service testifying to
that effect.
You mentioned the statistics as I was walking in, in terms
of the extremely high incidence of reported rapes, domestic
violence against Alaskan Indian women and Native American
women. I am told that nothing that we learned in the Amnesty
International report was new to any of those who work with
victims of domestic violence and sexual assault within Indian
Country. Truth be told, I have actually had some people say,
why is it that you are listening to the Amnesty International
report when we have been trying to send you the same message
for years? And I am not inclined to argue that point.
As I see it, the Amnesty International report was a wake-up
call that the Federal Government has not been listening
carefully enough to the advocates for our Native women. That is
wrong and it needs to change. Native women need to feel safe
and to be safe in their Native communities. Providing the
tribes with the law enforcement tools to protect our Native
women, holding the Federal Government to its trust
responsibility to apprehend and to prosecute those who commit
felonies in Indian Country, those are the keys to public safety
in Indian Country.
I haven't studied the chart here that you have given to me.
But I will tell you, my eyes swim as I look at the various
jurisdictional regimes there. And it is no wonder that there is
confusion, it is no wonder that there is under-reporting, it is
no wonder that we see the statistics that we do. I look forward
to the testimony from the witnesses this morning and again
appreciate your having the hearing this morning.
The Chairman. Senator Murkowski, thank you very much. I did
not indicate, and should have, that Senator Murkowski is the
Acting Vice Chair now of this Committee. I welcome her
participation as the Acting Vice Chair and I look forward very
much to working with her. Senator Murkowski, you have been one
of the most active members of this Committee, as has my
colleague, Senator Tester. I very much appreciate your work.
Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. There is little
that I can say more than what you and Senator Murkowski have
said about our colleague, Senator Thomas, and his departure
from this life. I will tell you that I had the opportunity and
privilege to be at Senator Thomas' funeral in Casper. It really
spoke to what kind of a man he was and what kind of a man we
knew, even though I had the opportunity to work with him for
only a little over 5 months. He was a stand-up guy that was
straight up and told you what he thought. I appreciate that
personally among people.
It was a nice funeral, as funerals go. It really did hit
home to me that somebody who really lived a pretty vigorous
life, he was a wrestler in college, high school, and in the
mornings when I worked out, oftentimes Senator Thomas was
there, over the last 5 months. So even though he knew he was
fighting leukemia, it was somewhat of a surprise to see him go
so quickly. He will be sorely missed on this Committee. As I
look at the pad and I see Byron Dorgan, Chairman and Craig
Thomas, Vice Chairman, it doesn't seem quite right that he is
not here.
With that, Mr. Chairman, I do want to address the issue of
violence in Indian Country, and I want to thank you for holding
this hearing. I want to thank the folks who are here today to
testify, taking time out of your busy schedules to come.
The crime rate, jurisdictional issues, economic challenges
all fit into what the crux of this problem is. I think the
offenses against women is truly troubling. There is also drug
problems and crimes that go along there, and the incidence of
murder and the frequency of those kinds of crimes is not
acceptable. I can tell you that in Montana, we have seven
reservations. I live within 25 miles of one of them myself.
And I can tell you, the jurisdictional issue is a big
issue. But probably a bigger issue than that is sheer numbers
of law enforcement people that are available. And I look
forward to hearing what the people who are here to testify here
today say about the challenges that they face and solutions to
those challenges. I appreciate your taking the time to be here.
Thank you, Mr. Chairman.
The Chairman. Senator Tester, thank you very much.
Our first panel today will include the Honorable Marcus
Wells, Jr., Chairman of the Three Affiliated Tribes in New
Town, North Dakota; the Honorable Herman Dillon, Sr., the
Chairman of the Puyallup Tribe of Tacoma, Washington, and he is
accompanied by Larry LaPointe, Council Member; Ms. Bonnie
Clairmont, Victim Advocacy Specialist, Tribal Law and Policy
Institute, St. Paul, Minnesota.
I appreciate very much all of you joining us today. We will
begin with Chairman Wells. Your formal statements will be made
a part of the record in their entirety, and you may summarize
if you please. Chairman Wells, why don't you proceed.
STATEMENT OF HON. MARCUS D. WELLS, JR., CHAIRMAN, THREE
AFFILIATED TRIBES OF THE FORT BERTHOLD
RESERVATION; ACCOMPANIED BY DAWN CHARGING,
DIRECTOR OF GOVERNMENT RELATIONS AND CAPTAIN HART, LAW
ENFORCEMENT DIRECTOR
Mr. Wells. Good morning, Senators, Chairman Dorgan, Members
of the Committee. My name is Marcus Dominic Wells, Jr., Ee-Ba-
Da-Gish, bald eagle and Moza, coyote. It is an honor to appear
before you this morning.
I represent the Mandan, Hidatsa and Arikara Nation, the
home of the Three Affiliated Tribes of Fort Berthold Indian
Reservation of North Dakota. Appearing as a witness before this
Committee, I humbly ask for your help.
In 1998, I ran for the Three Affiliated Tribes' business
council as a Four Bear Segment representative. Since that time,
I have served two terms where I have served on our seven-member
business council. Last November, I was elected Chairman of our
Tribe.
As each year passes, we have lost trust in the day to day
operations of our local and regional BIA law enforcement
offices, located in the Great Plains regional office of
Aberdeen, South Dakota. At one time, we had a close working
relationship with the BIA law enforcement. Today, we have lost
that partnership and the result is a lack of faith and trust in
BIA law enforcement.
I do not see open lines of communication between our tribal
government and the BIA law enforcement. On the Fort Berthold
Indian Reservation, BIA has a full-time staff of 10 officers.
Seven of the ten are field positions; three are continually
vacant and unfilled. On any given day, several BIA officers are
detailed to other reservations without any notification to our
tribal government or trial law enforcement.
Our reservation is split in half by the Missouri River and
the Garrison Dam. Fort Berthold has just under one million
acres of land. The average response time is 1 hour, depending
on which side of the reservation is in need.
In 1996, we applied for COPS-FAST Grant Monies and received
funding. We have developed a tribal police force. This funding
purchased vehicles and equipment and helped us train law
enforcement officers for the tribes. Today we have six full-
time tribal officers.
One would think dual forces, BIA and tribe, would work
together to protect our enrolled members and other citizens who
reside within the exterior boundaries of the Fort Berthold
Indian Reservation. But that is not the case. Since becoming
Chairman, I and our tribal council have begun to rebuild our
tribal programs and reformulate our tribal budgets. One of our
first priorities was to improve our tribal law enforcement
program.
We had lost the COPS-FAST grant from the Department of
Justice, and immediately needed to raise $600,000 to ensure
that our tribal police force had protection funds. This imposed
a great burden on our overall tribal budget, but it had to be
done, because our people's safety is my greatest concern as
Chairman.
I must make one important statement before I continue. We
have the deepest respect for the men and women who serve as
Indian law enforcement officers. Please do not think for a
moment that we disrespect the people who are tasked with
protecting our people. We have the deepest respect for their
work and for the jobs they do. Our problems stem from a lack of
good faith cooperation from District One Special Agent of the
Great Plains Area and higher levels within the Office of Law
Enforcement Services.
Many of our tribal officers are former career BIA officers.
But we are experiencing daily interference from BIA law
enforcement in our tribal police operations. For example, the
Acting BIA Chief of Fort Berthold failed to provide a sidearm
to our assistant criminal investigator and failed to respond
when I and our tribal police captain, Nelson Hart, called to
ask why the firearm was not provided. This unwise and
unreasonable BIA interference puts our tribal officers at risk
and endangers the people they are trying to protect. The local
BIA Acting Chief will not respond to our phone calls, and the
Great Plains Area Special Agent in Charge Office of Justice
Services District One. The BIA Great Plains Regional Office has
not responded to calls in any instance or in other instances.
In December, we notified District One BIA Great Plains
Regional Office Special Agent in Charge Elmer FourDance of our
desire to 638 contract our law enforcement division. According
to the Indian Self-Determination Act, the BIA has 90 days to
approve or decline the Tribe's contract proposal. We had
repeatedly requested technical assistance to complete the
contract in a timely manner, but never received a response from
BIA.
Then on the 89th day, Elmer FourDance arrived at Fort
Berthold and approached a member of the council to inform him
that the BIA had rejected the Tribe's contract proposal. He did
not follow the chain of command or offer to assist the tribe in
any manner. In fact, despite my repeated telephone calls, he
has never come to see me personally or talk to me since I have
been elected Chairman November 7th, 2006.
My phone is ringing off the hook with concerned parents and
tribal members. We have a growing meth problem. We have a
growing meth problem that is continually getting larger. We
have adolescent gang activities; reportedly two groups of 13 or
more youth are running wild, and vandalism and other related
violent activities.
My executive secretary's home was broken into. A television
was stolen and she discovered the kids at the end of her street
were the offenders. The BIA officers refused to take her
complaint. She went to our tribal criminal investigator and he
took her complaint, and he is investigating today.
A mother called me, her son's life was threatened by
another local teenager. The mother wanted protection for her
son. BIA did not respond to her calls. She did not hear from
them. Later, her son went on an errand to the local store,
where the boy who threatened to kill him showed up with a
knife. He defended himself with his bare hands and took away
the knife. When the BIA police arrived at his home later and
apprehended him, he is now serving time in jail.
Vandalism is out of control in our community and city
streets. Main Street, New Town has continually been the victim
of break-ins, the variety store, the liquor store and the smoke
shop have all been broken into. All of these stores are within
two city blocks of the BIA headquarters.
So you can see, there is not any respect for the BIA law
enforcement. When you call 9-1-1 in our community, the
dispatcher's first question is, are you an enrolled member. If
they say yes, they dispatch law enforcement. The response time
can be up to an hour.
Domestic violence is on the increase. Our tribal members
are intermarried and mixed with non-Indians. If an Indian woman
calls 9-1-1, BIA or tribal officers are dispatched. If a male
offender is a non-tribal member, they cannot remove that
individual without calling for city or county backup, because
of the Supreme Court Oliphant v. Squamish case in 1978.
One story comes to mind where one of our members called for
help. BIA responded and could not remove the non-Indian. The
county would not respond. Officers managed to control the
situation and left the residence. Hours later, the officer
responded a second time. Things had escalated. The woman, in
self-defense, had pulled a knife in an effort to protect
herself and her children. The BIA officer removed her and she
was booked for the offense. Her children were taken by social
services. Where is the justice?
You are familiar with the Amnesty International report
called the Maze of Justice, studied in 2005 and 2006. I am
standing here before you to ask you to hear our plea for help.
Our women are suffering under the injustice of law enforcement
and the judicial system. This is a very complex issue. Multi-
jurisdictional issues make law enforcement hard on a
reservation, as it is shared with non-Indian residents and
communities.
We supported State legislation that would recognize tribal
and BIA officers. It became a racial battle. Misinformation was
rampant. It did not take long to witness racism within the
halls of the North Dakota Assembly. Lack of understanding and
turf protection between governments, sheriffs, fraternal orders
of police, post board, threatened to kill legislation. A
watered-down version of the bill was passed, but only after
months of political wrangling. To date, we have not taken
action on the legislation, as our North Dakota Tribes were so
offended by the process.
If blood spills on our land, it is the same color
regardless of who is bleeding. Our officers have a difficult
job. I know you are listening to us. I humbly ask you to hear
our pleas.
Our issues have escalated to the level that we asked our
Congressional delegation to intervene. The letter of support
for our law enforcement, self-determination law enforcement
proposal was dated May 31st. To today's date, we have not been
contacted by District One.
We are paying a Washington, D.C. law firm to guide us
through the 638 process, money that our tribe should be
spending on health care for our elders, diabetes, education or
water development. I pray for each and every one of you so our
Creator will guide you to make the right decisions. Thank you.
[Phrase in native tongue.]
[The prepared statement of Mr. Wells follows:]
Prepared Statement of Marcus D. Wells, Jr., Chairman, Three Affiliated
Tribes of the Fort Berthold Reservation
Chairman Dorgan and Members of the Committee: Thank you for this
opportunity to provide further testimony with regard to the oversight
of law enforcement in Indian Country.
In my recent written submission to the Committee, I discussed the
catastrophic shortage of law enforcement personnel on our Reservation
and expressed the Three Affiliated Tribes' support for additional
resources to place officers where they are needed. We continue to
operate at only about 20 percent of necessary staff--just seven (7) BIA
law enforcement officers to cover a service area of one million acres.
Moreover, we have discovered that these officers also often detail off-
Reservation areas, meaning that there could be as few as five (5)
officers or less available to respond to police calls or emergency
situations.
To make matters worse, in several instances these BIA officers have
simply not responded with appropriate diligence. Recently, six (6) guns
and some body armor equipment were stolen from the home of one of the
Tribes' own law enforcement officers. The BIA responder took
statements, but the Tribes are unaware of any BIA follow-up on this
brazen and worrisome burglary. In contrast, just last Friday, an
individual made accusations that the same Tribal officer's dog had
bitten someone. Several BIA officers, along with other agents,
converged on the officer's home in response to the dog-bite allegation.
Also recently, a mother called BIA officers to inform them that some
individuals were threatening to kill her son, but there was no response
from BIA. Instead, BIA officers subsequently arrested the threatened
son himself. In another outrageous example, members of two gangs went
on a spree of theft and breaking car windows, and then ran down the
main street chasing children with an axe and a knife, just one block
from the BIA law enforcement headquarters. The BIA response in these
situations bears no relationship to the gravity of the underlying
circumstances. These kind of actions (or inaction) by the BIA undermine
our Tribal residents' faith in the ability of the justice system to
effectively meet our needs. Moreover, this state of affairs at Fort
Berthold most likely offers an accurate snapshot of the law enforcement
problems affecting all of Indian Country.
For these reasons and others, as I have testified previously, the
Tribes have determined that effective law enforcement services will be
best attained by having the Tribes themselves operate the law
enforcement program through a self-determination contract with the
Department of Interior pursuant to the Indian Self-Determination and
Education Assistance Act (ISDA), Pub.L. No. 93-638. However, from the
time we initially proposed to BIA to enter into negotiations for such a
contract, we have experienced a lack of communication and cooperation
from BIA officials. We requested certain technical assistance and
information from the BIA in order to put together a complete contract
package, but we received little or no help. We have still not received
the technical assistance we requested. This intransigence needs to be
overcome.
In fact, we have noticed a marked decrease in communication and
cooperation between the Tribes and the BIA's Aberdeen office since the
law enforcement program was moved to the Great Plains Regional Office
of Law Enforcement Services (OLES). While this change was meant to
improve the efficacy of law enforcement in Indian Country, it has
instead made it more difficult for tribes to communicate with the
appropriate BIA officials.
The Tribes have always supported the BIA's provision of law
enforcement services--including spending a good deal of our own Tribal
resources toward effective law enforcement. For example, we have
utilized $600,000 of Tribal funds for the COPS-FAST program, in hopes
of increasing the number of responders on our Reservation. However,
there are many barriers to overcome--including officer training and
cross-deputation with the Federal, state, and local governments. As I
mentioned previously to the Committee, more effort needs to be made to
ensure that state-run police academies and training programs are
certified to provide the necessary basic training for on-Reservation
officers. In addition, more work needs to be done to ensure that tribal
officers can be authorized to act effectively across Federal, state,
and local jurisdictional lines. At Fort Berthold, for example,
currently the Tribes would need to enter into cross-deputation
agreements with six different counties, in addition to the State of
North Dakota and the Federal Government.
I look forward to the opportunity to answer any questions the
Committee may have, as well as the opportunity to provide supplemental
written testimony based on today's discussion.
Attached letter
U.S. Senate
Washington DC, May 31, 2007
Hon. Marcus Wells, Jr.
Chairman,
Three Affiliated Tribes of the Fort Berthold Reservation,
New Town, ND
Dear Chairman Wells:
Thank you for contacting us regarding your request for technical
assistance in contracting law enforcement on the Fort Berthold
Reservation. Our staff has had several conversations with the Aberdeen
Bureau of Indian Affairs (BIA) office, Law Enforcement Division, about
your tribe's desire to contract the service under the Self-
Determination Act.
We understand that Elmer Four Dance personally delivered all of the
necessary documentation needed for the tribe to complete a contract
proposal and, once it is submitted, it will then be reviewed for
approval.
The BIA has told us personally that it is the agency's desire for
this to move ahead and they will provide as much help as possible to
see that it is successful. We are pleased to bring you this news and we
will continue to keep you updated upon receiving any new information
regarding this matter. Thank you.
Sincerely,
Byron L. Dorgan and Kent Conrad
The Chairman. Chairman Wells, thank you very much for your
testimony.
I did not mention that you are accompanied by Dawn
Charging, Director of Government Relations for your Tribe, and
Captain Hart, the Tribe's Law Enforcement Director. We
appreciate their being here as well.
Mr. Wells. Thank you, Chairman.
The Chairman. Next we will hear from the Honorable Herman
Dillon, Sr., the Chairman of the Puyallup Tribe of Tacoma,
Washington. Mr. Dillon, it is nice to see you again. Thank you
very much for being here.
STATEMENT OF HON. HERMAN DILLON, SR., CHAIRMAN,
PUYALLUP TRIBE OF INDIANS; ACCOMPANIED BY
LAWRENCE W. LaPOINTE, COUNCIL MEMBER
Mr. Dillon. Thank you, Senator, and thank you, Ms.
Murkowski and Mr. Tester, for allowing us to testify. It is an
honor and we are very pleased that you are willing to accept
what we have to say.
I am Herman Dillon, I am Chairman of the Puyallup Tribe of
Indians. With me today are my councilmen, Lawrence LaPointe;
behind me I have our Government Affairs Director, Rolean
Hargrove; Michael Bowechop is our Compliance Director and
Policy Analyst; and our legal attorney from here in the great
city of Washington, D.C., Addie Rolnick.
I would like to thank the Committee for asking me to
testify today on behalf of the Puyallup Tribe about law
enforcement needs in Indian Country. The Tribe was pleased to
have Chairman Dorgan visit the Puyallup Reservation recently to
see some of our needs first-hand. I would also especially like
to thank Senator Cantwell for inviting us. As the Senator from
Washington, she is all too familiar with the gang and drug
problems we are facing. She understands that these problems
affect all of us, Indians and non-Indians alike, and that we,
tribes, State and Federal Government, must cooperate in order
to find solutions. I thank her for working with us to do this.
The Puyallup Reservation is located within the urban
Seattle-Tacoma area in the State of Washington. Our reservation
is 18,061 acres and it encompasses most of the city of Tacoma.
The area is a checkerboard of tribal land, Indian-owned fee
land and non-Indian-owned fee land. Our reservation land
includes parts of six different municipalities: city of Tacoma,
city of Fife, city of Milton, city of Puyallup as well as
Edgewood and Federal Way.
The Puyallup Tribe also provides services for 3,680 tribal
members, and over 24,000 additional Native Americans from over
345 tribes and Alaska Native villages in our service area. We
share law enforcement authority with both the State and local
and Federal Governments. Because of the many governments that
are involved, because of the checkerboard nature of our land
and because the reservation touches many different local
jurisdictions, the answer to which government has jurisdiction
over a specific crime depends on who the defendant is, whether
the land is trust land and which local jurisdiction the land is
in.
We have 28 active gangs on the Puyallup Reservation. A few
of these gangs are Native gangs, the others are national gangs
with Native members. And still others are non-Native gangs on
or near the reservation. We have seen gang members as young as
8 years old. The gangs are involved in drug trafficking,
weapons sales, turf wars. I-5 runs through the Puyallup
Reservation and is known as a drug corridor. We have meth,
crack cocaine, oxycontin. Pierce County has at least 31 meth
labs, the most in the State. We have drive-by shootings on a
weekly basis, unfortunately.
Between December 2005 and March 2006, we had a particularly
brutal spell with 15 drive-by shootings on the reservation. Two
of our tribal members were killed, one of them Joseph Dillon,
my grandson, who was an innocent bystander. He didn't belong to
a gang. He was a graduate of our tribal high school. Just
before Christmas, a non-Native gang from the east side of
Tacoma fired several shots through the side of Joe's mother's
house. The shooters were probably after Joe's cousin, Donald
George-Oya. Donald, who dropped out of high school after 10th
grade, was affiliated with a gang called the Native Gangster
Crips. NGC was involved in a gang war with the Pirus, and the
drive-by was an act of revenge.
But as in the case in many drive-by shootings, the shooters
just aimed blindly into the house where they thought Donald
lived, and they fired. One shot hit Joe by mistake, killing
him.
At Joe's funeral, the police arrested his younger brother,
Dale Oya, in connection with an earlier shooting. Then just
weeks later, the Pirus found Donald riding his bike and fired
29 rounds into his body. In a matter of weeks, this family lost
three of its young men to gang warfare.
To expand on this further, I am going to turn this over to
Lawrence LaPointe at this point. Thank you.
Mr. LaPointe. Good morning, Mr. Chairman, Members of the
Committee.
What I have been asked to do is probably not in writing. In
September, the last weekend of September of last year, I was in
the front yard of my home. My grandchildren came over to visit,
as they do every Sunday. Approximately 3:30 to 4 o'clock in the
afternoon, there was a fistfight that broke out amongst two
different gang members. Some of them were my relatives and some
were neighborhood youth.
It wasn't 5 minutes later that gunshots rang out. I rushed
my grandchildren into my home, the oldest being eight and the
youngest being three. Nobody did anything, and I would like the
Committee to be aware that I am a veteran of Vietnam. What I
heard didn't sound good, and I remember those shots from when I
was over there.
But like I said, everybody in the whole neighborhood stood
as the shooters got in their car and left. And I walked over to
the young man that was shot in the leg, upper thigh, and it hit
his main artery in his thigh. I put pressure on it until the
paramedics came and the young man lived. Nobody was killed that
day. That was my intent, was not to see anybody die.
Fortunately, the wounds didn't take their lives. I think that
that's where the maze begins and the maze probably ends there.
The Tacoma Police Department, which we have a mutual aid
agreement with in regards to law enforcement services within
our very urban area, took the case. They went to prosecution
and one person is still in jail for attempted murder and two of
them released on lesser charges.
But I think that being a checkerboard reservation, like you
say in your earlier statement, where does law enforcement begin
for Indian Country and where does it end and who has
jurisdiction. There was another incident in October of 2006,
where somebody tried to break into my house. It was a young
man, he was high on drugs and drinking. And he didn't get in,
but he went to another door and broke in. Tribal law
enforcement came in, they tazed him five times before he
surrendered to them.
And it wasn't 2 weeks later, I received a call from the
Federal Bureau of Investigation because the young man was
charged with raping somebody two blocks away from me on trust
land. So I am purchasing my home, so it is still in fee land
until I request and go to trust. But where does it start and
where does it stop as far as jurisdiction and funding to
protect our citizens on our reservation?
[The prepared statement of Mr. Dillon follows:]
Prepared Statement of Hon. Herman Dillon, Sr., Chairman, Puyallup Tribe
of Indians
I would like to thank the Committee for asking me to testify today
on behalf of the Puyallup Tribe about law enforcement needs in Indian
country. The Tribe was pleased to have Chairman Dorgan visit the
Puyallup Reservation recently to see some of our needs firsthand. I
would also especially like to thank Senator Cantwell for inviting us.
As the Senator from Washington, she is all too familiar with the gang
and drug problems we are facing. She understands that these problems
affect all of us--Indians and non-Indians alike--and that we--tribes,
states and the Federal Government--must cooperate in order to find
solutions. I thank her for working with us to do this.
I. Law Enforcement in Indian Country
The need for basic law enforcement resources across Indian country
is severe. In 1997, the Department of Justice estimated that at least
2,000 additional officers were needed just to meet minimum safety
standards.\1\ This need has become even more pressing in recent years
because of increased methamphetamine use, production and trafficking on
reservations. Police officers working on reservations frequently patrol
alone because of personnel shortages. Understandably, newly-trained and
veteran officers often leave to take jobs that require less of a risk
to their personal safety, exacerbating officer shortages. Equipment
needs are equally significant. It is a vicious cycle--lack of funding
for even the most basic elements of a law enforcement program is part
of what contributes to the perception that reservations are ``lawless''
places. This perception is what makes our communities attractive to
drug dealers, which in turn increases the need for Federal resources.
---------------------------------------------------------------------------
\1\ U.S. Department of Justice, Report of the Executive Committee
for Indian Country Law Enforcement Improvements: Final Report to the
Attorney General and the Secretary of the Interior (October 31, 1997).
---------------------------------------------------------------------------
And law enforcement in Indian country is much more than police.
Tribes also operate court systems, detention facilities, drug treatment
services and other alternatives to detention. Many tribes have invested
in preventative programs, such as youth centers, youth activity
programs and drug education. As governments, we recognize our
responsibility for fostering positive change and rehabilitation, even
in our jails. More often than not, the inmates are people from our
community who will be returning to the community when they are
released, so we have a particular incentive to help them pursue
positive changes. Otherwise, we will be stuck in a cycle of arresting
and locking up our own people.
II. Puyallup Tribal Law Enforcement
The Puyallup Reservation is located in the urbanized Seattle-Tacoma
area of the State of Washington. Our 18,061-acre reservation
encompasses most of the city of Tacoma, but the area is a
``checkerboard'' of tribal land, Indian-owned fee land, and non-Indian
owned fee land. Our reservation land includes parts of six different
municipalities (Tacoma, Fife, Milton, Puyallup, Edgewood and Federal
Way). The Puyallup Tribe also provides services for 3,680 tribal
members and over 24,000 additional Native Americans from over 345
Tribes and Alaska Native villages in our service area.\2\ We share law
enforcement authority with both the state/local and Federal
Governments. Because so many governments are involved, because of the
checkerboard nature of our land, and because the reservation touches
many different local jurisdictions, the answer to which government has
jurisdiction over a specific crime depends on who the defendant is,
whether the land is trust land, and which local jurisdiction the land
is in.
---------------------------------------------------------------------------
\2\ The city of Tacoma has the sixth highest percentage among U.S.
cities of American Indians and Alaska Natives, 3.6 percent of the total
population.
---------------------------------------------------------------------------
Washington is a Public Law 280 state, which means the state
exercises some jurisdiction in Indian country, but the state's
jurisdiction is limited to a few specific subject areas.\3\ In addition
to those specific areas, the state has jurisdiction over crimes
committed by Indian people on non-trust land, and jurisdiction over all
crimes committed by non-Indians on the Reservation. Of course, this
does not mean that the Tribe has no law enforcement authority. PL-280
did not strip tribes of their inherent jurisdiction, so the Tribe
shares authority with the state over Indian people who commit crimes on
non-trust land and over Indian people on trust land in the subject
areas described above. The Tribe also continues to exercise broad
criminal jurisdiction--exclusive of the state--over Indian people on
trust land. Finally, the Federal Government has responsibility for law
enforcement on the reservation, particularly over major crimes
committed by Indian people.
---------------------------------------------------------------------------
\3\ In 1957, Washington elected to assume jurisdiction over Indian
Country within the state pursuant to the voluntary provision of Public
Law 280. 25 U.S.C. Sec. 1231. Washington assumed criminal and civil
jurisdiction only over eight specific subject areas--compulsory school
attendance, juvenile delinquency, public assistance, domestic
relations, mental illness, adoption, dependent children and certain
motor vehicle offenses. Wash. Rev. Code Sec. 37.12.010. It exercises
more extensive jurisdiction over some reservations pursuant to tribal
consent, see Wash. Rev. Code Sec. 37.12.021, but Puyallup is not one of
those tribes.
---------------------------------------------------------------------------
The Puyallup Nation Law Enforcement Division currently has 24
commissioned officers and three vacant positions. These officers are
charged with the service and protection of the Puyallup Reservation 7
days a week, 24 hours a day. Our officers are also responsible for
enforcing tribal hunting and fishing laws in our ``usual and
accustomed'' fishing areas off the reservation. For tribes in the
Northwest and other areas with treaty-protected off-reservation hunting
and fishing rights, enforcement of tribal hunting and fishing codes
consumes an enormous amount of tribal law enforcement resources.
We also have a tribal court and an adult detention facility. We
have an agreement with the county to house our juveniles in the county
juvenile facility. Our tribal court has full criminal jurisdiction over
Indian people, although under the Indian Civil Rights Act our court can
only sentence people to up to 1 year in jail and/or up to a $5,000
fine. The Puyallup tribal court regularly handles minor drug sales and
possession cases, some shootings, and other incidents. The United
States Attorney has jurisdiction over serious crimes committed by
Indians on the Reservation but, as I describe below, Federal
enforcement is very limited in practice. Instead, when more serious
incidents occur, tribal prosecutors sometimes elect to have the county
prosecute tribal members so that longer sentences can be imposed.
We operate our law enforcement department and our detention program
pursuant to a self-determination contract with the BIA. Puyallup has
also received COPS grant funding for several years. This funding has
been very important to our law enforcement program, especially for
purchasing new and updated equipment. However, the Committee should
understand how little money tribes actually receive from Federal
sources. Contract funding covers the salary for one police officer and
one detention officer. COPS funding helps us with equipment costs. But
the other 26 police officer positions and nine detention officer
positions are funded by the Tribe.
III. Gangs on the Puyallup Reservation
We have 28 active gangs on the Puyallup Reservation. A few of these
gangs are Native gangs, others are national gangs with Native members,
and still others are non-Native gangs that operate on or near the
Reservation. Many members are teenagers, but we have seen gang members
as young as 8 years old. These gangs are involved in drug trafficking,
weapons sales, and turfwars. I-5, which runs from Mexico through San
Diego and up the coast all the way to Canada, runs through the Puyallup
Reservation and is known as a drug corridor. We regularly encounter
methamphetamine, crack cocaine and Oxycontin. Pierce County is also
home to at least 31 meth labs--the highest in the state. We have drive-
by shootings on a weekly basis.
Between December 2005 and March 1, 2006, we had a particularly
brutal spell, with 15 drive-by shootings on the Reservation. Two of our
tribal members were killed. One of them, Joseph Dillon, was not even
involved in gangs. He was a graduate of our tribal high school. Just
before Christmas, members of the East Side Pirus, a non-Native gang
from the East Side of Tacoma, fired several shots through the side of
Joe's mother's house. The shooters were probably after Joe's cousin,
Donald George-Oya. Donald, who dropped out of high school after 10th
grade, was affiliated with a gang called the Native Gangster Crips. NGC
was involved in a gang war with the Pirus, and the drive-by was an act
of revenge. But, as is the case in many drive-by shootings, the
shooters just aimed blindly into the house where they thought Donald
lived and fired. One shot hit Joe by mistake, killing him. At Joe's
funeral, the police arrested his younger brother, Dale Oya, in
connection with an earlier shooting. Then, just weeks later, the Pirus
found Donald riding his bike and fired 29 rounds into his body. In a
matter of weeks, this family lost three of its young men to gang
warfare.
The escalating violence is just a symptom of a gang problem that
now goes back three generations in our community, and we are worried
about what this means for our youth in the future. Nearly half of
Puyallup tribal members are 17 years old or younger, and one-third of
them are under 10 years old. As they grow up, our children are facing
many of the risk factors that we know can lead to gang involvement,
such as poverty (73 percent of students at our tribal school qualify
for free or reduced lunch), lack of education (the dropout rate for
Native students in Washington state is consistently twice that of all
students), and family instability (the number of dependency,
guardianship and family services cases at Puyallup more than doubled
between 2000 and 2006). \4\
---------------------------------------------------------------------------
\4\ In a report on youth gangs in Indian country, the Office of
Juvenile Justice and Delinquency Prevention found that social problems
in the community were the greatest contributor to growing gang problems
on reservations. Major, et al., Youth Gangs in Indian Country (OJJDP
Bulletin, March 2004), at 11.
---------------------------------------------------------------------------
The Puyallup Tribe has responded to the gang problem. We
established a Gang Task Force about 4 years ago comprised of the Tribal
Police Department, representatives from various Tribal Services
Divisions and community members. The Gang Task Force developed a
working definition of a street gang and a four-pronged approach to gang
prevention activities: (1) enforcement, (2) intelligence, (3)
education, and (4) physical-mental health. We believe this fourth prong
is often overlooked in other communities, and our police work closely
with our family and social services departments to ensure that we
address problems like substance abuse among our members.
The Tribe also pays each year to send its officers to receive
specialized gang training from the National Gang Crime Research Center.
In fact, Puyallup officers have recently become presenters at these
conferences, drawing on our experience to assist other jurisdictions
and partnering with the NGCRC to focus more on the needs of tribal
communities. Of course, such a major law enforcement undertaking will
require more officers, additional and continued training, specialized
equipment, and better detention facilities for adults and juveniles.
Right now, our police department could use an additional 3-4 officers
dedicated to gang issues, so that the informal gang operations unit can
focus on intelligence and tracking. We are doing what we can, but we
cannot afford to be shortchanged in law enforcement resources.
IV. Cooperation with State Law Enforcement
The Tribe works closely with state and local law enforcement
authorities. We recognize that in this day and age, such inter-
jurisdictional cooperation is essential. We are fortunate to have a
good working relationship with the state, county and city agencies. We
have had intergovernmental agreements with Pierce County and the city
of Tacoma for many years, and we recently entered into one with the
city of Fife. Our tribal police officers are cross-deputized, so that
we can arrest people under city or county jurisdiction, then turn them
over to the local authorities to be processed. Working together with
the state is especially important for us because much of the crime in
our community is perpetrated by non-Indian people. Of all arrests made
by Puyallup Tribal Police, over three-fourths are of non-Indian people.
Arrests of non-Indian people by tribal police increased 15 percent
between 2004 and 2006, while the number of arrests of Native people
decreased.
We are thankful that last summer, the Tacoma Police Department
established a gang response unit. They also have an officer
specifically assigned to tribal issues. The Puyallup Tribal Police
Department now meets monthly with the Tacoma Police to share
information. This kind of information-sharing is essential for gang
work because the gangs would use any lack of communication between
police departments to their advantage. We have also begun to work
cooperatively on ``gang emphasis patrols,'' in which officers saturate
an area known to have a lot of gang activity. Through these patrols, we
have already apprehended two of our three most wanted criminals and
confiscated a number of handguns.
In July 2006, Senator Cantwell convened a roundtable discussion
with tribal and local law enforcement agencies in order to discuss
resources and solutions. What they found was that the Puyallup Tribe
had the most highly developed gang response strategies of any of the
departments operating in the area. Our officers were often the first to
come into contact with gang members for low-level offenses. They are
also often the first responders to major gang-related crimes. Even more
importantly, many of our officers are members of the tribal community,
so they are familiar with young gang members and their families. This
familiarity helps our officers to be able to do more prevention and
intervention work, and it also helps with information-gathering. Our
local law enforcement agencies understand this, so we have been able to
forge a good working relationship in which the jurisdictions assist
each other in order to provide the best possible law enforcement
services.
V. Cooperation with Federal Law Enforcement Agencies
Legally, the Federal Government still has jurisdiction and law
enforcement responsibility on the Puyallup Reservation under the Major
Crimes Act. In addition, many of the gang and drug crimes we are
experiencing would be Federal offenses whether or not they were
committed on an Indian reservation. The gangs that are active on the
Reservation are mostly national gangs, including Crips, Bloods and
several major Asian and Hispanic gangs. Drug dealers come through the
Reservation as they transport drugs across state lines on I-5, also a
Federal crime. In particular, we depend on Federal assistance when a
major crime is committed by an Indian person because, although our
jurisdiction is exclusive of the state's, we do not always have all the
resources to investigate or the jurisdiction to impose long sentences.
Unfortunately, we get very little help from Federal Government. In
practice, the tribal police have to request Federal assistance each
time a serious case arises. We recently had a rape occur on trust land,
and our primary suspect was an Indian person. We asked the FBI to
investigate, but got no response initially. Tribal police had to do
almost all of the investigative work. When we had still heard nothing
from the FBI, we prepared to prosecute the suspect in tribal court,
despite our limited jurisdiction. The FBI finally responded after the
suspect had been in jail for 50 days--just 1 week before the deadline
for a speedy trial. At that point, their role was limited to reviewing
and reporting on the investigation already conducted by tribal police.
In another instance, a shooting occurred on trust property, and we
were unable to get a response from Federal officials. This put the
Tribe in a difficult position in terms of investigating the crime
because we do not have a Crime Scene Investigation unit. Fortunately,
we were able to borrow the city of Tacoma's unit in order to perform
the investigation. This example is emblematic of the level of basic law
enforcement assistance we generally get from the Federal Government.
Even though the Federal Government retains jurisdiction in name, it is
the state that we rely on in practice to support our efforts.
A major area of concern for the Puyallup Tribe is the ability of
tribes to work cooperatively with Federal law enforcement agencies.
This includes the BIA, but also the Federal Bureau of Investigation
(FBI), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
and the Drug Enforcement Administration (DEA). We are also concerned
that Federal crime legislation, especially laws relating to gangs and
drugs, should be developed in consultation with tribal governments. If
tribes are made active partners in law enforcement efforts, and if we
can access funding and assistance on at least the same level as other
governments, our police departments and courts will be much better
equipped to prevent these crimes and to go after these criminals.
VI. Funding
The Puyallup Tribe is in great need of a new detention center.
Until 2001, the Puyallup Tribe operated a regional detention facility,
providing detention services to many surrounding tribes on a contract
basis. Due to damages from the February 2001 Nisqually earthquake, we
have had to relocate to modular/temporary facilities, which were not
built to any Federal/state or tribal health or construction standards.
The modular units are far from secure, though. Since the relocation to
modular facilities, the Tribe's ability to effectively and safely
incarcerate detainees has been compromised due to the condition of the
temporary detention facilities. Last year, an inmate housed in one of
the modular units cut a hole in the floor and escaped.
In an effort to protect the safety and welfare of the Native
community the Puyallup Tribe has initiated the planning and development
of a Justice Center to be located on the reservation. The Justice
Center will provide necessary facilities for the delivery of law
enforcement and judicial services including a Tribal Court, Court
Clerk, Prosecution, Probation, Public Defender and Law Enforcement
services, including Police Headquarters and a 32-bed Adult Detention
facility. The Tribe has set aside tribal land for the new facility, but
we have been unable to get financial assistance for even the planning
stages of our new facility.
Of course, we understand that money is tight. Every year, we come
to Washington along with other tribal leaders to testify before the
House Appropriations Committee on funding needs for Indian country. For
at least the past 3 years, law enforcement has been one of the most--if
not the most--acute area of need. We have heard many other tribal
leaders testify that they are in desperate need of funding for police
and detention. The deplorable conditions existing in Indian Detention
facilities are documented in the September 2004 report issued by the
U.S. Department of Interior Inspector General's Office. \5\ What is
most frustrating, though, is being shuttled back and forth between
various governmental offices.
---------------------------------------------------------------------------
\5\ Office of Inspector General, U.S. Department of the Interior,
Neither Safe Nor Secure: An Assessment of Indian Detention Facilities,
Report No. 2004-I-0056 (September 2004).
---------------------------------------------------------------------------
We have approached both the BIA and the DOJ, but funding from both
Departments has been at record low levels for the past several years.
The agencies simply throw up their hands and tell us there is no more
money to construct detention facilities. This year, an increase was
proposed for yet another ``Initiative'' to improve Indian country law
enforcement, but the Administration apparently decided to balance this
cut by eliminating funding for all tribal justice programs--including
courts, detention and intervention programs--within the DOJ. It is
extremely difficult to chase scarce funding between two Federal
agencies which seem to have very little communication with each other,
and both of which avoid responsibility by pointing to the other one. We
do not believe these agencies--particularly the BIA--should be
permitted to abdicate their trust responsibility for Indian issues in
this way.
VII. Conclusion
We are very grateful to the Committee for turning its focus to the
issue of law enforcement in Indian country. Effectively fighting crime
in Indian country requires navigating a complex and shifting set of
jurisdictional rules. It means cooperating with state, local and
Federal law enforcement agencies. It also means weaving together a
patchwork of available sources of funding to create a stable funding
base. As you move forward with your investigation, we encourage you to
look at the following specific areas of concern:
Limited tribal jurisdiction over serious crimes;
Allocation of responsibility between the BIA and the DOJ for
Indian country law enforcement issues;
Barriers to cooperation between tribes and Federal law
enforcement agencies;
Lack of funding for related services, such as gang
prevention, youth intervention services, recreation, mental
health and substance abuse treatment--services that are also
essential to reducing crime.
______
Other supplementary information submitted by Mr. Dillon has
been retained in Committee files, some of which can be found
at:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Thank you very much for being with us. We
appreciate hearing from you the challenges you are facing. We
will have a chance to ask you questions.
I want to hear next from Ms. Bonnie Clairmont, who is a
Victim Advocacy Specialist, Tribal Law and Policy Institute in
St. Paul, Minnesota. Ms. Clairmont, thank you for joining us
and you may proceed.
STATEMENT OF BONNIE CLAIRMONT, VICTIM ADVOCACY PROGRAM
SPECIALIST, TRIBAL LAW AND POLICY INSTITUTE
Ms. Clairmont. Chairman Dorgan, Members of the Committee,
thank you for holding this hearing today and thank you for this
opportunity to testify.
My name is Bonnie Clairmont. I am from the HoChunk Nation,
originally from Wisconsin. Prior to my recent employment with
the Tribal Law and Policy Institute, I was an advocate for
battered and sexually assaulted women for over 25 years. One of
my roles as an advocate is to be the voice for women who have
been harmed by violence. I am honored to do that today on
behalf of Indian women who are being raped and murdered and
their experience with law enforcement as they seek safety and
justice.
I cited in the Amnesty International report, Maze of
Injustice, the failure to protect indigenous women from sexual
violence in the U.S.A. Native women are being raped at
disproportionately higher rates than any other race, as you
mentioned earlier, Senator Dorgan. It is difficult to know the
full prevalence and scope of sexual violence in Indian Country,
since there have been no comprehensive studies done. Still,
there are a vast majority of Indian women who don't report
their assaults to anyone, much less to law enforcement.
Within the Amnesty report, Indian women came forward to
tell their stories. They stood up and broke their silence,
taking huge risks to speak out about the many injustices they
are experiencing, and the insurmountable barriers they face
when seeking justice and safety.
In my 25 year career as an advocate, I have worked with
hundreds of Indian women who have been raped, battered and
family members of women who have been murdered. I bear witness
today to the huge barriers that Indian women face as they seek
justice and safety and healing. Many of these barriers are
being removed for victims in mainstream communities; yet that
is not the reality for Indian women who are sexually assaulted
in tribal communities. This needs to change, because in my
mind, these statistics are not just numbers. We must all be
outraged, appalled and spurred to action, because each of these
statistics represents a human being, someone's mother,
someone's daughter, someone's relative, partner or friend.
American Indian and Alaska Native women who are raped must
be afforded the same services as other women who have been
raped from the mainstream community. Yet that is not the
reality in Indian Country. Indian women who have been raped
need advocacy services. They need forensic rape exams in order
to gather important evidence for prosecution, to be examined by
nurses who are trained and who are sensitive to their needs, to
have emergency contraception to prevent pregnancy from rape.
They need prophylactic treatment to prevent the possible
transmission of sexually transmitted diseases. Yet there are
many Indian Health Service facilities that are not equipped to
provide these services, leaving American Indian and Alaska
Native women without needed services, or having to travel great
distances to obtain these needed services.
Moreover, leadership at the Indian Health Service has been
unable or unwilling to develop national standards and protocols
to its facilities on responding to sexual violence. This is
unacceptable. Indian women who have been raped have a right to
obtain safety and justice. Yet that is not the reality in
Indian Country, because in many tribal communities, there are
no tribally based law enforcement officers and existing
tribally based law enforcement agencies are under-resourced and
unable to provide appropriate response.
So American Indian and Alaska Natives must rely on law
enforcement officers outside of their communities, such as the
Bureau of Indian Affairs and the Federal Bureau of
Investigation authorities. Response time in many instances is
very slow. There is often a serious lack of cooperation and
collaboration and information sharing between these agencies
and tribal authorities and advocates. Consequently, there is a
serious lack of reporting of sexual assaults by Indian women.
Indian women don't report their assaults because they don't
trust law enforcement authorities. They fear retaliation, they
fear maltreatment by inadequately trained law enforcement
officers.
It is quite apparent that there is a desperate need for law
enforcement reform; a desperate need for sweeping changes to
law enforcement, policy and protocols. The Federal Government
should provide increased resources for law enforcement agencies
to provide immediate response to victims of sexual assault in
Indian Country. Law enforcement agencies, particularly those
Federal agencies such as the BIA and the FBI, should be
mandated to work in closer collaboration with tribal
governments, tribally based law enforcement agencies and
advocates through establishing cooperative agreements for the
sharing of information and working together to establish
coordinated community response teams.
I believe that many of these problems are not
insurmountable and can be ameliorated. I fully support and
agree with the recommendations as highlighted in the Amnesty
report. Some of those key recommendations would be to provide
increased funding for law enforcement on tribal lands and
ensure that in policy and practice, that all police officers
have the authority to take action in response to reports of
sexual violence, including rape within their jurisdiction and
apprehend the alleged perpetrators in order to transfer them to
the appropriate authorities for an investigation and
prosecution.
In particular, with sexual violence committed in Indian
Country and in Alaska Native Villages, tribal law enforcement
officials must be recognized as having authority to apprehend
both Native and non-Native suspects; provide increased funding
to the Indian Health Service and ensure that sexual assault
nurse examiner programs are prioritized and that standard
protocols are in place; provide increased funding for tribal
justice systems. The Department of Justice should also urgently
provide data on the extent to which Federal prosecutors are
prosecuting crimes of sexual violence in Indian Country. Ensure
increased funding for essential support services for Native
survivors of sexual violence.
Amnesty International is currently asking Congress to
undertake the following steps; in particular, to fully fund and
implement the Violence Against Women Act, and in particular,
Tribal Title IX, the first-ever effort within VAWA to fight
violence against Native American and Alaska Native women. This
includes a national baseline study on sexual violence against
Native women, a study on the incidence of injury from sexual
violence against Native women, and a tribal registry to track
sex offenders and orders for protection.
I and my sister advocates have worked long and hard to
raise awareness to the problem of sexual violence in our
communities; to create and improve services for victims of
sexual violence; and to mobilize our communities to protect
Indian women and to hold offenders accountable. Much of the
work of advocates throughout Indian Country started from our
kitchen tables and from our front porches and mostly with very
limited resources. I am proud of the work done by the many
Indian women advocates that have worked tirelessly to send a
resounding message that we are experiencing a national tragedy
in Indian Country. It is clear that our voices are being heard
with the passage of VAWA 05 Title IX.
Although funding is desperately needed, money alone will
not solve these problems. Last, improving policing alone will
not solve the problem. It is my hope that the Federal
Government, in close partnership with tribal governments, honor
their trust relationship to keep women safe; that they should
take steps to hold offenders accountable and to provide the
level of services needed by all victims of sexual violence and
those same services that are afforded to all victims from
mainstream communities. It must be made clear that sexual
violence in any form will not be tolerated and that victims
will be protected with the full force of the law.
Thank you.
[The prepared statement of Ms. Clairmont follows:]
Prepared Statement of Bonnie Clairmont, Victim Advocacy Program
Specialist, Tribal Law and Policy Institute
Chairman Dorgan, Members of the Committee: Thank you for holding
this hearing today and thank you for this opportunity to provide
testimony. My name is Bonnie Clairmont and I am from the HoChunk Nation
originally from Wisconsin. For the past 3 years, I have been employed
with the Tribal Law and Policy Institute as the Victim Advocacy Program
Specialist. I live in St. Paul, MN but my work involves training,
technical assistance and victim advocacy throughout Indian Country.
Prior to my employment with the Tribal Law and Policy Institute, I
was an advocate for battered and sexually assaulted women for over 25
years. Throughout my 25 year career, I was an advocate for victims of
sexual assault whose cases were being heard in state courts and working
with communities that were developing multidisciplinary response teams
and establishing or improving sexual assault protocol under state
jurisdiction. My work also includes working with a few tribal nations
starting to do similar work, that of creating multidisciplinary
response teams and to improve their response to victims of sexual
assault. One of my roles as an advocate is to be a voice for women who
have been harmed by violence and I am honored to do that today on
behalf of Indian women who are being raped and murdered. I want to
focus my comments on the role of law enforcement within the context of
sexual violence crimes committed against American Indian women based on
my advocacy work.
The Tribal Law and Policy Institute is a non profit organization
(see www.tlpi.org) is a Native owned and operated nonprofit
corporation, organized to design and develop education, research,
training and technical assistance programs which promote the
enhancement of justice in Indian Country and the health, well-being,
and culture of Native peoples. The vision of the Tribal Law and Policy
Institute (TLPI) is to empower Native communities to create and control
their own institutions for the benefit/welfare of all community members
now and for the future generations. The mission of TLPI is to embrace
and strengthen tribal sovereignty and justice while honoring community
values, protecting rights, and promoting well being.
In 2004, Amnesty International (AI) approached the TLPI seeking
technical assistance with Amnesty's planned study into the problem of
sexual violence against Native American and Alaska Native women. Over
the course of the last 3 years, TLPI has provided a range of technical
assistance services to AI on this study--including providing
background, providing resources, gathering information, establishing
contacts, setting up meetings with service providers, identifying
victim/survivors to interview and reviewing drafts and reports for
accuracy.
Most importantly, however, we took a lead role interviewing victim/
survivors. I have been the lead person in interviewing the victim/
survivors in two of the locations (Standing Rock and Oklahoma) in order
to maintain culturally appropriate and victim sensitive interviewing. I
was personally involved in interviews of more than 50 victim/survivor
interviews.
I would like to clarify two issues. First, Amnesty International
paid TLPI for all the time and travel costs associated with this
project and no Federal funds were used for this project. Second, I am
appearing today in my own capacity rather than on behalf of the Tribal
Law and Policy Institute.
We have been hearing the statistics that American Indian and Alaska
Native women are being raped, beaten, stalked and murdered at rates
higher than any other race. As cited in the Amnesty report, Maze of
Injustice, The Failure to Protect Indigenous Women from Sexual Violence
in the USA, the U.S. Department of Justice's own statistics indicate
that Native American and Alaska Native women are more than 2.5 times
more likely than other women in the U.S. to be raped. According to
these Department of Justice statistics, more than 1 in 3 Native
American and Alaska Native women will be raped at some point during
their lives and 86 percent of perpetrators of these crimes are non-
Native men. It is difficult to know the full prevalence and scope of
sexual violence in Indian Country since there have been no
comprehensive studies done. Based on my years of experience as an
advocate, I bear witness to the fact that the statistics reflected in
this report are grossly underestimated.
Amnesty International's research and report only validated what
Native American and Alaska Native women have known for a long time;
that sexual violence against women has reached epidemic proportions and
what is most troubling is that the vast majority of Indian women often
face insurmountable barriers to accessing services and realizing any
type of justice for the horrendous acts of violence they have
experienced. The Amnesty Report contains numerous stories of tragedy,
but woven throughout the report are stories of survival and stories of
hope. One by one, Indian women came forward to tell their stories, they
stood up and broke their silence, taking huge risks to speak out about
the many injustices they are experiencing, hoping that their stories,
their gifts of truth would create change for other Indian women who are
sexually assaulted, beaten and murdered and that they would find some
measure of justice by speaking out.
In my 25 year career as an advocate, I have worked with hundreds of
Indian women who've been raped, battered and family members of women
who've been murdered. I provided advocacy and support to victims of
sexual assault from all walks of life both Native and non-Native
because the crime of rape knows no racial or socioeconomic barriers. I
come here today to bear witness to the pain and suffering and
devastation caused by these horrific crimes. I bear witness to the huge
barriers that Indian women face as they seek justice, safety and
healing. Based on my experience of working within state courts and
working with multidisciplinary teams within these jurisdictions, many
of these barriers are being removed for victims in mainstream
communities, yet that is not the reality for Indian women who
experience sexual assault in tribal communities. This needs to change
because in my mind, these statistics are not just numbers. It is so
easy to become lulled into a state of apathy when we only see numbers.
I must constantly remind people, that we must be outraged, appalled and
spurred to action because each of these statistics represents a human
being, someone's mother, daughter, partner, relative, friend.
Sexual violence comes in many forms and regardless of whether the
type of sexual assault fits neatly into a criminal definition, the
effects of the choice that that offender made to violate someone, to
totally strip her of her decision-making powers, for a few minutes of
gaining some personal satisfaction for himself, can result in weeks,
months and often years of pain and suffering for the victim. Yet recent
statistics on the rate of prosecution of sexual assaults in Indian
Country indicate that offenders are being allowed to rape with
impunity. I cannot impress upon you enough, the devastating impact that
one experience of sexual violence can have on a person. Sexual violence
is much more than a physical assault and violation but extends to a
holistic impact affecting every aspect of that person's humanity
including her mind, her spirit and her body and the effects can remain
with the victim often for years. Indian women who've been raped must
not only experience one of the most humiliating, life altering traumas
that anyone can experience, but must also grapple with the negative
attitudes about rape, the lack of services available in many tribal
communities, the lack of appropriate response from service providers
such as within the Indian Health Service, and tribal, state and Federal
law enforcement authorities. It has been my experience that most women
from mainstream communities have access to these crucial services, but
that is not the reality for Indian women who've been sexually
assaulted.
I would like to describe a typical scenario that Indian women may
experience after a sexual assault. This woman has just experienced one
the most humiliating, life threatening crimes that anyone can
experience. She called law enforcement authorities--yet no one has
responded to her call, perhaps due to severely under-resourcing or poor
access to training. This may be due to law enforcement agencies lack of
collaboration and communication or their inability to establish clear
lines of authority and jurisdiction. She knows that with other calls,
generally it can often take days to get an officer to respond. After
much thought she has decided to set out to have a rape exam performed
because she's been told that's the only way the assault can be
investigated and her perpetrator can be prosecuted with the evidence
they will gather at the hospital. She's afraid that she may have
contracted a sexually transmitted infection or may have even gotten
pregnant from the rape. She either must ask someone to give her a ride,
or if she has a vehicle, it may not be very reliable. If she's
fortunate she may have someone such as a friend or relative, even
better an advocate accompanying her on this trip otherwise she is
driving alone to the hospital that may be as far as 100 miles away.
There she is, perhaps in a great deal of physical pain because Indian
women are more likely to suffer physical injury with the rape. She may
be in severe emotional distress, not fully comprehending the magnitude
of the sexual assault or what will happen to her in the future. She is
terrified, second guessing whether she should report her assault to law
enforcement authorities because her perpetrator threatened her with
further harm if she did. Yet despite her efforts to seek services that
most women in mainstream communities are able to receive, it is quite
likely that she will be turned away at the end of her journey, or will
be referred to another facility because this Indian Health Service
facility does not have a rape kit or anyone who can administer the
exam. For those few Indian women who are fortunate enough to have a
rape exam done, and to have their assaults investigated, they many
never see their cases prosecuted or even receive any communication on
the status of their cases or whether the suspect was arrested or not.
Yet they see their rapist go free. He may pass by her house on a daily
basis. He may be bragging about his exploits, alleging that she asked
for it and deserved it. These are the stories that I have heard all too
often, to which I bring testimony.
American Indian and Alaska Native women who are sexually assaulted
have rights and needs that must be met. American Indian and Alaska
Native women need services, need the help of advocates yet there are
still many reservations and tribal communities where there are no
advocacy services. American Indian and Alaska Native women who are
raped must be afforded the same services as other women who've been
raped from the mainstream community. Yet that is not the reality in
Indian Country. Indian women who've been raped need forensic rape
exams. They need to be examined by nurses who are trained and who are
sensitive to their needs. Indian women need to have emergency
contraception to prevent pregnancy from the rape. Indian women need
prophylactic treatment to prevent the possible transmission of sexually
transmitted diseases. Yet there are many Indian Health Services
facilities that are not equipped to provide these services. Many do not
have the necessary kits. Many of them do not have trained nurses or
physicians to administer the kits and still more do not provide the
emergency contraception and STI treatment that are needed by any woman
who's been raped. Indian women must be afforded the same services that
I know women from the mainstream society are receiving. That is not the
reality for Indian women seeking emergency medical treatment following
a sexual assault. Moreover, leadership at the Indian Health Service has
been unable or unwilling to develop national standards or guidelines to
its facilities on responding to sexual violence. This is unacceptable.
Indian women who've been raped have a right to safety and justice.
The only way most Indian women feel they can find justice is by turning
to law enforcement. Yet that is not the reality in Indian Country
because in many tribal communities, there are no tribally based law
enforcement officers so they must rely on law enforcement officers
outside of their community such as the Bureau of Indian Affairs police,
state or local law enforcement agencies or the Federal Bureau of
Investigation authorities. The response time in most instances, is very
slow. There is often a serious lack of cooperation and collaboration
between these agencies and tribal authorities and advocates.
Consequently, there is a serious lack of reporting of sexual assaults
perpetrated on Indian women. Indian women do not report their assaults
for many reasons. One of the reasons that Indian women who've been
raped don't report their assaults is because they don't trust law
enforcement authorities. They have heard the horror stories that they
may be blamed, not taken seriously. They are criticized for reporting
and then recanting their stories. They are questioned inappropriately
leaving the woman feeling responsible for the crime rather than being
seen as a legitimate victim of a crime.
There is a lack of awareness as to why sexual violence happens in
tribal communities. The problem of sexual violence against Indian women
is not simply caused by the ``meth'' problem in Indian Country. Indeed
it may have some impact on the problem of violence against Indian women
but the problem of violence against Indian women has been a pervasive
problem in tribal communities for many years prior to the increasing
prevalence of this drug and it's associated problems. Alcohol has
always been the drug of choice to facilitate rape and the drug most
commonly associated with sexual violence.
Indian women also report that even if they do report their assault
to law enforcement, nothing will happen especially if the perpetrator
is a non-Native perpetrator or if the perpetrator is an acquaintance or
husband. There is an apparent lack of trust in tribal, state and
Federal law enforcement authorities. A woman must be able to trust law
enforcement, to be willing to cooperate with them, and many of these
officials have not earned the trust. So today, I also carry the message
that healing is very difficult to achieve if victims do not feel safe
or if they do not experience some measure of justice.
It is quite apparent that there is a desperate need for law
enforcement reform, desperate need for sweeping changes to law
enforcement policy and protocols, increased resources for law
enforcement to increase the response needed to these crimes and last
but not least, all law enforcement agencies, particularly those Federal
agencies such as the Bureau of Indian Affairs law enforcement agencies
and the Federal Bureau of Investigations should be mandated to work in
closer collaboration with tribal governments, tribally based law
enforcement officials, advocates, through establishing cooperative
agreements for the sharing of information, working together to
establish coordinated community response teams. There is a clear lack
of effective collaboration between tribal authorities and their federal
partners. Even if tribal authorities want to prosecute many of these
perpetrators, they are unable to do so. As cited in the Amnesty report,
the Violence Against Women Act called for coordinated, community
responses to domestic violence, sexual assault, and stalking crimes. It
is quite evident that coordinated community response is the best
approach for achieving lasting and effective results. Strong
partnerships and vigorous coordination must be present at the Federal,
state, local and tribal levels in order for real change to occur.
I believe that many of these problems are not insurmountable and
can be ameliorated. I fully support and agree with the recommendations
in the Amnesty report which are summarized as follows:
Key Recommendations
Provide Additional Resources for Standing Rock Initiatives
The Federal Government should provide funds immediately for
the Standing Rock Tribe to support its shelter for survivors of
sexual violence on the Reservation.
The Federal Government should ensure that there is
additional funding to support the increased capacity of
shelters throughout North and South Dakota that provide
services to Indian women.
The Federal Government should allocate long term and
sustained funds to the Standing Rock Police Department,
including funds to increase staffing.
Law enforcement response to women who are survivors of
sexual violence must be improved urgently (see below).
Develop Comprehensive Plans of Action to Stop Violence Against
Indigenous Women
Federal and state governments should consult and cooperate
with Indigenous nations and Indigenous women to institute plans
of action to stop violence against Indigenous women.
Federal, state and tribal authorities should, in
consultation with Indigenous peoples, collect and publish
detailed and comprehensive data on rape and other sexual
violence that shows the Indigenous or other status of victims
and perpetrators and the localities where such offences take
place, the number of cases referred for prosecution, the number
declined by prosecutors and the reasons why.
Ensure Appropriate, Effective Policing
Federal authorities must take urgent steps to make available
adequate resources to police forces in Indian and Alaska Native
villages. Particular attention should be paid to improving
coverage in rural areas with poor transport and communications
infrastructure.
Law enforcement agencies should recognize in policy and
practice that all police officers have the authority to take
action in response to reports of sexual violence, including
rape, within their jurisdiction and to apprehend the alleged
perpetrators in order to transfer them to the appropriate
authorities for investigation and prosecution. In particular,
where sexual violence is committed in Indian Country and in
Alaska Native villages, tribal law enforcement officials must
be recognized as having authority to apprehend both Native and
non-Native suspects.
In order to fulfil their responsibilities effectively, all
police forces should work closely with Indigenous women's
organizations to develop and implement appropriate
investigation protocols for dealing with cases of sexual
violence.
Ensure Access to Sexual Assault Forensic Examinations
Law enforcement agencies and health service providers should
ensure that all Indigenous women survivors of sexual violence
have access to adequate and timely sexual assault forensic
examinations without charge to the survivor and at a facility
within a reasonable distance.
The Federal Government should permanently increase funding
for the Indian Health Service to improve and further develop
facilities and services, and increase permanent staffing in
both urban and rural areas in order to ensure adequate levels
of medical attention.
The Indian Health Service and other health service providers
should develop standardized policies and protocols, which are
made publicly available and posted within health facilities in
view of the public, on responding to reports of sexual
violence.
The Indian Health Service and other health service providers
should prioritize the creation of sexual assault nurse examiner
programs and explore other ways of addressing the shortage and
retention of qualified Sexual Assault Nurse Examiners.
Ensure That Prosecution and Judicial Practices Deliver Justice
Prosecutors should vigorously prosecute cases of sexual
violence against Indigenous women and should be sufficiently
resourced to ensure that the cases are treated with the
appropriate priority and processes without undue delay. Any
decision not to proceed with a case, together with the
rationale for the decision, should be promptly communicated to
the survivor of sexual violence and any other prosecutor with
jurisdiction.
U.S. Congress should recognize that tribal authorities have
jurisdiction over all offenders who commit crimes on tribal
land, regardless of their Indigenous or other identity and the
authority to impose sentences commensurate with the crime that
are consistent with international human rights standards.
Federal authorities should make available the necessary
funding and resources to tribal governments to develop and
maintain tribal courts and legal systems which comply with
international human rights standards.
Ensure Availability of Support Services for Survivors
All governments should support and ensure adequate funding
for support services, including shelters, for American Indian
and Alaska Native survivors of sexual violence.
Urge the U.S. Congress to Provide Adequate Funding
Amnesty International is currently asking Congress to undertake the
following important steps:
Fully fund and implement the Violence Against Women Act--and
in particular Tribal Title (Title IX), the first-ever effort
within VAWA to fight violence against Native American and
Alaska Native women. This includes a national baseline study on
sexual violence against Native women, a study on the incidence
of injury from sexual violence against Native women and a
Tribal Registry to track sex offenders and orders of
protection.
Increase funding for the Indian Health Service (IHS) and IHS
contract facilities. Such moneys should be used to increase the
number of Sexual Assault Nurse Examiners so that survivors may
receive timely forensic medical examinations, at no charge,
following sexual assault. Furthermore, the IHS should ensure
that appropriate protocols are in place for the treatment of
survivors of sexual violence.
I, and my sister advocates, have worked long and hard to raise
awareness to the problem of sexual violence in our communities, to
create and improve services for victims of sexual violence, to mobilize
our communities to protect Indian women and to hold offenders
accountable. Much of the work of advocates throughout Indian Country
started from our kitchen tables and front porches and mostly with very
limited resources. I am proud of the work done by the many Indian women
advocates that have worked tirelessly to send a resounding message that
Indian women are experiencing a national tragedy. It is clear that
those voices have been heard with the passage of VAWA 05 Title IX
(Tribal Programs).
The Violence Against Women Act has improved Federal, state, and
local responses to sexual assault however much remains to be done in
order to more fully address the crisis that is occurring in Indian
Country and addressing the needs of victims of sexual violence and
their families. While the VAWA initiated progress in strengthening the
criminal justice system's response to sexual violence, it's clear that
major service, funding and policy gaps still exist in Indian Country.
Although funding is desperately needed, money alone will not solve
these problems.
Lastly, improving policing alone will not solve the problem. It is
my hope that the Federal Government in close partnership with tribal
governments, should take steps to hold offenders accountable and to
provide the level of services needed by all victims of sexual violence
and those same services that are afforded to victims from the
mainstream community. It must be made clear that sexual violence in any
form, will not be tolerated, and that victims will be protected with
the full force of the law.
For more specific information on the Amnesty International report
``Maze of Injustice: The failure to protect Indigenous women from
sexual violence in the USA'', I have attached Amnesty International
testimony (by Carol Pollack, Researcher for Amnesty International
U.S.A.) from a June 1, 2007 U.S. House of Representatives Field Hearing
of the Committee on Natural Resources, Office of Indian Affairs. I ask
that this attachment be made part of the official record on this
hearing of the U.S. Senate Committee on Indian Affairs.
Attachment--``The Needs and Challenges of Tribal Law Enforcement on
Indian Reservations'' by Carol Pollack, Researcher for Amnesty
International U.S.A.
Introduction
Madame Chairwoman and Members of the Committee, thank you for
inviting Amnesty International to testify on an issue that
significantly impacts the human rights of American Indian and Alaska
Native women. I would like to submit my full statement for the record.
I will focus my remarks on the findings of Amnesty International's
recent report ``Maze of Injustice: The failure to protect Indigenous
women from sexual violence in the USA''.
Amnesty International is a worldwide human rights movement with
more than 2.2 million members and supporters in more than 150 countries
and territories. Amnesty International's vision is for every person to
enjoy all of the human rights enshrined in the Universal Declaration of
Human Rights and other international human rights standards. Amnesty
International's mission is to conduct research and take action to
prevent and end grave abuses of all human rights. Amnesty International
is independent of any government, political ideology, economic interest
or religion. The organization is funded by individual members; no funds
are sought or accepted from governments for investigating and
campaigning against human rights abuses.
``Maze of Injustice'' Report
On April 24, 2007, Amnesty International released the findings of
over 2 years of investigation into the problem of sexual violence
against Native American and Alaska Native Women. The report is part of
a worldwide campaign to Stop Violence against Women launched by Amnesty
International in March 2004. Since then AI has published reports on
aspects of violence against women in 40 countries.
Amnesty International launched an investigation after learning that
U.S. Department of Justice's own statistics indicate that Native
American and Alaska Native women are more than 2.5 times more likely
than other women in the U.S. to be raped. According to Department of
Justice statistics, more than 1 in 3 Native American and Alaska Native
women will be raped at some point during their lives and 86 percent of
perpetrators of these crimes are non-Native men.
Amnesty International's report examines some of the reasons why
Indigenous women in the U.S. are at such risk of sexual violence and
why survivors are so frequently denied justice. The report is based on
research carried out during 2005 and 2006 in consultation with Native
American and Alaska Native individuals. In the course of this research,
Amnesty International interviewed survivors of sexual violence and
their families, activists, support workers, service providers, and
health workers. Amnesty International also interviewed officials across
the U.S., including tribal, state and Federal law enforcement officials
and prosecutors, as well as tribal judges. Amnesty International also
met representatives from the Federal agencies which share
responsibility with tribal authorities for addressing or responding to
crimes in Indian Country.
Amnesty International conducted detailed research in three
locations with different policing and judicial arrangements: the State
of Oklahoma, the State of Alaska, and the Standing Rock Reservation in
North and South Dakota. While this report presents a national overview
of sexual violence against Indigenous women, it primarily presents our
specific findings in these key areas of research.
Each location was selected for its specific jurisdictional
characteristics. Oklahoma is composed for the most part of parcels of
tribal lands intersected by state land where tribal, state or Federal
authorities may have jurisdiction. In Alaska, Federal authorities have
transferred their jurisdiction to state authorities so that only tribal
and state authorities have jurisdiction. The Standing Rock Reservation
illustrates the challenges involved in policing a vast, rural
reservation where tribal and Federal authorities have jurisdiction.
The Standing Rock Reservation (also known as the Standing Rock
Lakota/Dakota Reservation) straddles the border of North and South
Dakota and covers an area of 2.3 million acres (approximately
9,312km\2\). Some 9,000 people live on the Reservation, about 60
percent of whom are Native American. The Standing Rock Tribal Council
is the tribal government and the Standing Rock Police Department (SRPD)
is operated by the BIA. The Standing Rock Tribe has a tribal court,
which hears civil and criminal complaints.
Amnesty International is indebted to all the survivors of sexual
violence who courageously came forward to share their stories and to
those who provided support to survivors before and after they spoke
with Amnesty International and to the Native American and Alaska Native
organizations, experts and individuals who provided advice and guidance
on research methodology and on the report itself. Amnesty International
hopes that ``Maze of Injustice'' can contribute to and support the work
of the many Native American and Alaska Native women's organizations and
activists who have been at the forefront of efforts to protect and
serve women.
This report attempts to represent the stories of survivors of
sexual violence; their perspectives must inform all actions taken to
end violence against Indigenous women. The report presents and
references their statements. For example:
One Native American woman living on the Standing Rock
Reservation told Amnesty International that in September 2005
her partner raped her and beat her so severely that she had to
be hospitalized. He was released on bond and an arrest warrant
was issued after he failed to appear in court. However, SRPD
officers did not arrest him. One morning she woke up to find
him standing by her couch looking at her.--Interview (name
withheld), February 2006
High Levels of Sexual Violence
Amnesty International's research confirmed what Native American and
Alaska Native advocates have long known: that sexual violence against
women from Indian nations is at epidemic proportions and that Indian
women face considerable barriers to accessing justice. Native American
and Alaska Native women may never get a police response, may never have
access to a sexual assault forensic examination and, even if they do,
they may never see their case prosecuted. As a result of barriers
including a complex jurisdictional maze and a chronic lack of resources
for law enforcement and health services, perpetrators are not being
brought to justice.
Amnesty International's interviews suggest that available
statistics on sexual violence greatly underestimate the severity of the
problem and fail to paint a comprehensive picture of the abuses. No
statistics exist specifically on sexual violence in Indian Country;
more data is urgently needed to establish the prevalence against
Indigenous women.
One support worker in Oklahoma told AI that only 3 of her 77 active
cases of sexual and domestic violence involving Native American women
were reported to the police. A medical professional responsible for
post-mortem examinations of victims of rape and murder in Alaska told
AI that Alaska Native women comprised almost 80 percent of confirmed
cases in the state since 1991.
According to FBI figures, in 2005 South Dakota had the fourth
highest rate of ``forcible rapes'' of women of any U.S. state.
Interviews with survivors of sexual violence, activists and support
workers on the Standing Rock Reservation indicate that rates of sexual
violence are extremely high. Many women interviewed by Amnesty
International on the Standing Rock Reservation could not think of a
single Native American woman within their community who had not been
subjected to sexual violence, and many survivors reportedly experienced
sexual violence several times in their lives by different perpetrators.
There were also several reports of gang rapes and Amnesty International
was told of 5 rapes which took place over 1 week in September 2005.
High levels of sexual violence on the Standing Rock Reservation
take place in a context of high rates of poverty and crime. South
Dakota has the highest poverty rate for Native American women in the
USA with 45.3 percent living in poverty. Crime rates on the Reservation
often exceed those of its surrounding areas.
Amnesty International documented many incidents of sexual violence
against American Indian and Alaska Native women however the great
majority of stories remain untold. Violence against women is
characteristically underreported due to fear of retaliation and a lack
of confidence that reports will be taken seriously. Historical
relations between Indigenous women and government agencies also affect
the level of reporting sexual violence.
There are more than 550 federally recognized American Indian and
Alaska Native tribes in the United States. Federally recognized Indian
tribes are sovereign under U.S. law, with jurisdiction over their
citizens and land and maintaining government-to-government
relationships with each other and with the U.S. Government. The unique
legal relationship of the United States to Indian tribes creates a
Federal trust responsibility to assist tribal governments in
safeguarding the lives of Indian women.
The welfare and safety of American Indian and Alaska Native women,
as citizens of sovereign tribal nations, are directly linked to the
authority and capacity of their nations to address sexual violence.
However, the Federal Government has steadily eroded tribal government
authority and chronically underfunded those law enforcement agencies
and service providers that should protect Indigenous women from sexual
violence.
Issues of Jurisdiction
Amnesty International received numerous reports that complicated
jurisdictional issues can significantly delay the process of
investigating and prosecuting crimes of sexual violence. The Federal
Government has created a complex maze of tribal, state and Federal law
that has the effect of denying justice to victims of sexual violence
and allowing perpetrators to evade prosecution.
Three main factors determine where jurisdictional authority lies:
whether the victim is a member of a federally recognized Indian tribe
or not; whether the accused is a member of a federally recognized
Indian tribe or not; and whether the alleged offence took place on
tribal land or not. The answers to these questions are often not self-
evident. However, this information determines whether tribal, state or
Federal authorities have jurisdiction to investigate and prosecute the
crime. Jurisdiction of these different authorities often overlaps,
resulting in confusion and uncertainty.
Tribal and Federal authorities have concurrent jurisdiction on all
Standing Rock Reservation lands over crimes where the suspected
perpetrator is American Indian. In instances in which the suspected
perpetrator is non-Indian, Federal officials have exclusive
jurisdiction. Neither North nor South Dakota state police have
jurisdiction over sexual violence against Native American women on the
Standing Rock Reservation. State police do however have jurisdiction
over crimes of sexual violence committed on tribal land in instances
where the victim and the perpetrator are both non-Indian. The
jurisdictional challenges differ in Alaska and in Oklahoma.
As recorded by Andrea Smith, University of Michigan, Assistant
Professor of Native Studies Jodi Rave, ``South Dakota Tribal-City
Police Department a National Model for Handling Domestic Abuse,'' The
Missoulian, September 24, 2006: ``[N]on-Native perpetrators often seek
out a reservation place because they know they can inflict violence
without much happening to them.''
Amnesty International is concerned that jurisdictional issues not
only cause confusion and uncertainty for survivors of sexual violence,
but also result in uneven and inconsistent access to justice and
accountability. This leaves victims without legal protection or redress
and allows impunity for the perpetrators, especially non-Indian
offenders who commit crimes on tribal land.
According to a state prosecutor in South Dakota, the confusing and
complicated jurisdiction over crime on and around reservations in South
Dakota, means that some crimes just ``fall through the cracks.''
Amnesty International also received reports that perpetrators seek to
evade law enforcement by fleeing to another jurisdiction.
Flights by criminal occur in both directions--away from and to
tribal land. Walworth County Sheriff Duane Mohr stated the problem with
this as follows in the Rapid City Journal, December 21, 2005: ``It's
only about a mile from town to the bridge. Once they cross the bridge
[to the Standing Rock Reservation], there's not much we can do. . .
We've had people actually stop after they've crossed and laugh at us.
We couldn't do anything.''
Some tribal, state and federal law enforcement agencies address the
jurisdictional complexities by entering into cooperation agreements.
These may take the form of cross-deputization agreements, which allow
law enforcement officials to respond to crimes that would otherwise be
outside their jurisdiction. A second form of agreement addresses
extradition in situations in which a perpetrator seeks to escape
prosecution by fleeing to another jurisdiction. Across the U.S.,
experiences of such inter-agency cooperation agreements vary greatly.
Where they are entered into on the basis of mutual respect, cooperation
agreements can have the potential to smooth jurisdictional
uncertainties and allow improved access to justice for victims of
sexual violence.
In Standing Rock, the SRPD and some state agencies have explored
cooperation through cross-deputization agreements that empower SRPD
officers to arrest and detain individuals for crimes committed on state
land and enable state police officers to arrest individuals for crimes
committed by Native Americans on tribal land.
Problems of Policing
Amnesty International found that police response to sexual violence
against American Indian and Alaska Native women at all levels is
inadequate. Although jurisdictional issues present some of the biggest
problems in law enforcement response, other factors also have a
significant impact including lack of resources and lack of
communication with survivors.
Lack of Resources: Delays and Failure to Respond
Law enforcement in Indian Country and Alaska Native villages is
chronically underfunded. The U.S. Departments of Justice and Interior
have both confirmed that there is inadequate law enforcement in Indian
Country and identified underfunding as a central cause. According to
the U.S. Department of Justice, tribes only have between 55 and 75
percent of the law enforcement resources available to comparable non-
Native rural communities. AI also found that a very small number of
officers usually cover large territories and face difficult decisions
about how to prioritize their initial responses.
The Standing Rock Police Department in February 2006 consisted of 6
or 7 patrol officers to patrol 2.3 million acres of land, with only 2
officers usually on duty during the day. Amnesty International
documented lengthy delays in responding to reports of sexual violence
against Indigenous women. Women on the reservation who report sexual
violence often have to wait for hours or even days before receiving a
response from the police department, if they receive a response at all.
``It feels as though the reservation has become lawless''--
Roundtable interview, Standing Rock Reservation (name withheld)
February 22, 2006
Sometimes suspects are not arrested for weeks or months after an
arrest warrant has been issued. Amnesty International was told that on
the Standing Rock Reservation there are on average 600-700 outstanding
tribal court warrants for arrest of individuals charged with criminal
offences. Failure to apprehend suspects in cases of sexual violence can
put survivors at risk, especially where the alleged perpetrator is an
acquaintance or intimate partner and there is a threat of retaliation.
The Standing Rock Police Department was selected, together with the
law enforcement departments of 24 additional tribal nations, to receive
an annual base increase in Federal funding of law enforcement services.
The SRPD began receiving an additional US$250,000 per year starting in
2006. However, according to the Chief of Police the funds will be
needed primarily to fill vacancies in the existing police force, rather
than increasing the number of law enforcement officers on the
reservation.
Amnesty International found that FBI involvement in investigations
of reports of sexual violence against Indigenous women is rare and even
in those cases that are pursued by the FBI, there can be lengthy delays
before investigations start.
Amnesty International's research also revealed a worrying lack of
communication by all levels of law enforcement with survivors. In a
number of cases, survivors were not informed about the status of
investigations, the results of sexual assault forensic examinations,
the arrest or failure to arrest the suspect, or the status of the case
before tribal, Federal or state courts.
The mother of a survivor of sexual violence from the Standing
Rock Reservation told Amnesty International how she returned
home in September 2005 to find her 16-year-old daughter lying
half-naked and unconscious on the floor. She took her daughter
to the hospital in Mobridge, South Dakota, where a sexual
assault forensic examination was performed. She described how
the suspected perpetrator, fled to Rapid City, South Dakota,
which is outside the jurisdiction of the SRPD. He returned to
the Reservation in early 2006 and was held by police for 10
days, although both mother and daughter only discovered this
when they rang the SRPD to ask about the status of the case.
They found out that the suspect was to go before a tribal
court, but the mother told Amnesty International that to get
this information, she had to go to Fort Yates and ask them in
person. She told Amnesty International that she hoped that the
case would be referred to the Federal authorities because this
would mean a lengthier sentence for the perpetrator. She said
that, months after the attack, a Federal Bureau of
Investigation (FBI) officer and a BIA Special Investigator
arrived unannounced. As the daughter was not home at the time,
the mother told them where to find her. However, she never
heard from them again. Federal prosecutors did eventually pick
up the case and in December 2006 the perpetrator entered into a
plea bargain and was awaiting sentencing at the time this
report was written.--Interview with mother of survivor (name
withheld)
Training
Amnesty International is concerned that Federal, state and tribal
training programs for law enforcement officials may not include
adequate or sufficiently in-depth components on responding to rape and
other forms of sexual violence, on issues surrounding jurisdiction and
on knowledge of cultural norms and practices. As a result officers
often do not respond effectively and are not equipped with the
necessary skills to deal with crimes of sexual violence.
Amnesty International received reports that small law enforcement
agencies with few resources have considerable difficulty freeing up
officers to attend training courses. An officer in the SRPD reported
that training on interviewing survivors of sexual violence is not
available unless it is hosted or paid for by another organization. He
noted that, given the limited number of officers on the force, the SRPD
cannot provide them all with training opportunities.
Inadequate Forensic Examinations and Related Health Services
An important part of any police investigation of sexual violence
involves the collection of forensic evidence. Such evidence can be
crucial for a successful prosecution. The evidence is gathered through
a sexual violence forensic examination, sometimes using tools known as
a ``rape kit''. The examination is performed by a health professional
and involves the collection of physical evidence from a victim of
sexual violence and an examination of any injuries that may have been
sustained. Samples collected in the evidence kit include vaginal, anal
and oral swabs, finger-nail clippings, clothing and hair. All victims
of sexual violence should be offered a forensic examination, regardless
of whether or not they have decided to report the case to the police.
In its National Protocol for Sexual Assault Medical Forensic
Examinations, the U.S. Department of Justice recommends that victims
should be allowed to undergo the examination whether or not they
formally report the crime.
Law Enforcement Officials
As the first to respond to reports of a crime, law enforcement
officials should ensure that women can get to a hospital or clinic
where their injuries can be assessed and the forensic examination can
be done. This is particularly important where women have to travel long
distances to access a medical facility and may not have any way of
getting there themselves, including in Standing Rock. Once a sexual
assault forensic examination has been completed, law enforcement
authorities are responsible for storing the evidence gathered and
having it processed and analyzed by laboratories.
In some cases, law enforcement have mishandled evidence from
forensic examinations from health care providers, including through
improper storage and loss or destruction of evidence before forensic
analysis had been carried out.
Amnesty International found that the provision of sexual assault
forensic examinations and related health services to American Indian
and Alaska Native women varies considerably from place to place.
Survivors of sexual violence are not guaranteed access to adequate and
timely sexual assault forensic examinations--critical evidence in a
prosecution. Often this is the result of the U.S. government's severe
under-funding of the Indian Health Service (IHS), the principal
provider of health services for American Indian and Alaska Native
peoples.
Health Service Providers
It is essential that health service facilities have the staff,
resources and expertise to ensure the accurate, sensitive and
confidential collection of evidence in cases of sexual violence and for
the secure storage of this evidence until it is handed over to law
enforcement officials.
The IHS facilities suffer from under-staffing, a high turnover, and
a lack of personnel trained to provide emergency services to survivors
of sexual violence. Amnesty International found that the IHS has not
prioritized the implementation of programs involving sexual assault
nurse examiners (SANEs)--registered nurses with advanced education and
clinical preparation in forensic examination of victims of sexual
violence--throughout its facilities. Although there are no figures on
how many IHS hospitals have SANE programs, officials indicated to AI
that fewer than 1O had implemented such programs. Moreover, according
to a study performed by the Native American Women's Health Education
Resource Center, 44 percent of IHS facilities lack personnel trained to
provide emergency services in the event of sexual violence.
Reports to Amnesty International indicate that many IHS facilities
lack clear protocols for treating victims of sexual violence and do not
consistently provide survivors with a forensic sexual assault
examination. IHS officials told Amnesty International that the agency
had posted detailed protocols online. However, these protocols are not
mandatory and a 2005 survey of facilities by the Native American
Women's Health Education Resource Center found that 30 percent of
responding facilities did not have a protocol in place for emergency
services in cases of sexual violence. Of the facilities nationwide that
reported having a protocol, 56 percent indicated that the protocol was
posted and accessible to staff members.
Amnesty International is also concerned that survivors have
sometimes been required to bear the cost of an examination or of
traveling long distances to health facilities. Women who have been
raped on the Standing Rock Reservation may need to travel for over an
hour to get to the IHS hospital in Fort Yates. Once there, they may
discover that there is no one on staff who is able to conduct a sexual
assault forensic examination. In 2006 the hospital employed one woman
doctor who undertook most of the examinations. According to a Fort
Yates IHS health professional, ``most male doctors don't feel trained
and don't want to go to court. So they will send rape cases to Bismarck
for examination there.'' According to the practitioner, only one third
of the women referred from Fort Yates on Standing Rock to the medical
facility 80 miles away in Bismarck actually receive an examination.
Some women do not make the journey to Bismarck and those that do may
face lengthy delays and leave without an examination.
Although IHS services are free, if an American Indian woman has to
go to a non-IHS hospital for an examination, she may be charged by that
facility. The IHS has a reimbursement policy, but it is complex and
survivors may not be aware of it. In some cases the IHS has reportedly
failed or refused to pay for forensic examinations at outside
facilities. This can be a significant obstacle. Survivors of sexual
violence in the southern portion of the Standing Rock Reservation are
much closer to Mobridge Regional Hospital than Fort Yates, but because
the former is not part of the IHS it may require payment. For women
dealing with the trauma of very recent sexual violence, concerns about
being required to travel further or to pay can be a serious
disincentive to undergoing a forensic examination.
Barriers to Prosecution
A Native American woman in 2003 accepted a ride home from two
white men who raped and beat her, then threw her off of a
bridge. She sustained serious injuries, but survived. The case
went to trial in a state court but the jurors were unable to
agree on whether the suspects were guilty. A juror who was
asked why replied: ``She was just another drunk Indian.'' The
case was retried and resulted in a 60-year sentence for the
primary perpetrator, who had reportedly previously raped at
least four other women, and a 10-year sentence for the second
perpetrator.
Despite the high levels of sexual violence, Amnesty International
found that prosecutions for crimes of sexual violence against
Indigenous women are rare in Federal, state and tribal courts,
resulting in impunity for perpetrators. The lack of comprehensive and
centralized data collection by tribal, state and Federal agencies
renders it impossible to obtain accurate information about prosecution
rates. However, survivors of sexual abuse, activists, support workers
and officials reported that prosecutions for sexual assault are rare in
Federal, state and tribal courts.
Tribal courts are the most appropriate for adjudicating cases that
arise on tribal land. However, the U.S. Federal Government has
interfered with the ability of tribal justice systems to respond to
crimes of sexual violence by underfunding tribal justice systems,
prohibiting tribal courts from prosecuting non-Indian or non-Alaska
Native suspects and limiting tribal court custodial sentencing to only
1 year per offense.
Given the inadequate rate of Federal and state prosecutions of
sexual assault cases, some tribal courts prosecute sexual assault cases
despite this sentencing limitation to hold offenders accountable. Some
tribal prosecuting authorities charge suspected perpetrators with
multiple offenses, which provides the possibility of imposing
consecutive sentences; others work with criminal sanctions other than
imprisonment, including restitution, community service and probation.
At the Federal level, crimes on the Standing Rock Reservation may
be prosecuted by U.S. Attorneys located in Aberdeen or Bismarck.
However, Amnesty International's research suggests that there is a
failure at the Federal level to pursue cases of sexual violence against
Indigenous women. Prosecutors have broad discretion in deciding which
cases to prosecute, and decisions not to prosecute are rarely reviewed.
From October 1, 2002 to September 30, 2003, Federal prosecutors
declined to prosecute 60.3 percent of the sexual violence cases filed
in the United States. Only 27 of the 475 cases they declined were
prosecuted in other courts. Because data on sexual violence
specifically from Indian Country is not compiled, this statistic
includes all cases involving Indigenous and non-Native victims.
However, these numbers provide some indication of the extent to which
these crimes go unpunished. Significantly, between 2000 and 2003, the
BIA was consistently among the investigating agencies with the highest
percentage of cases declined by Federal prosecutors. It is not possible
to establish how many of these cases submitted by the BIA involved
sexual violence. The U.S. Justice Department does not publish
statistics on the extent to which it prosecutes crimes of rape against
Indian women so it is impossible to know the true extent to which it is
failing to prosecute these serious crimes.
One of the research challenges faced by Amnesty International was
in relation to gathering data related to Federal prosecution rates of
crimes of sexual violence that take place in Indian Country. Amnesty
International sent questionnaires to the 93 individual U.S. Attorneys,
who prosecute crimes within Indian Country at the Federal level,
seeking information on prosecution rates for crimes of sexual violence
committed against Indigenous women. Amnesty International was informed
by the Executive Office of U.S. Attorneys that individual U.S.
attorneys would not be permitted to participate in the survey. The
Executive Office of U.S. Attorneys told Amnesty International that data
collected is not broken down into specific offense categories, such as
sexual assault crimes. The Executive Office for U.S. Attorneys did
provide Amnesty International with a list of some of the cases of
sexual violence arising in Indian Country that had been prosecuted in
recent years. Of the 84 cases provided, only 20 involved adult women.
The remaining cases mostly involved children. In the cases listed,
prosecutions for sexual violence against adult Native American women
took place in only 8 of the 93 districts. Given the lack of
comprehensive data, Amnesty International was unable to establish the
extent to which crimes of sexual violence against Indigenous women are
prosecuted by Federal authorities.
At the state level, sexual violence crimes carried out in areas
bordering the Standing Rock Reservation may be prosecuted by state's
attorneys in neighboring counties in North or South Dakota. Many Native
Americans from Standing Rock indicated that cases in general involving
Native American victims and non-Native perpetrators are not prosecuted
vigorously by state courts in North and South Dakota. A District
Attorney in a bordering county told Amnesty International that, in
South Dakota, insufficient funds can affect the number of cases
prosecuted. It would also appear that state attorneys receive little or
no training on prosecuting sexual violence and on cultural competency.
Indigenous survivors of sexual violence also face prejudice and
discrimination at all stages and levels of Federal and state
investigation and prosecution. Amnesty International is concerned that
this can influence decisions about whether to prosecute cases, how
prosecutors present survivors during trials, how juries are selected
and how they formulate their decisions.
Amnesty International received a number of reports that prosecutors
at all levels fail to provide information consistently to victims of
sexual violence about the progress of their cases. Survivors are
frequently not informed of whether their cases will proceed to trial.
Inadequate Resources for Indigenous Support Initiatives
Programs run by Native American and Alaska Native women are vital
in ensuring the protection and long-term support of Indigenous women
who have experienced sexual violence. However, lack of funding is a
widespread problem. Programs run by Indigenous women often operate with
a mix of Federal, state, and tribal funds, as well as private
donations. However such funding in often limited.
In 2005, the non-governmental organization South Dakota Coalition
against Domestic Violence and Sexual Assault contributed to the
founding of Pretty Bird Woman House, a domestic violence program on the
Standing Rock Reservation. The program, which is named after Ivy
Archambault (Pretty Bird Woman), a Standing Rock woman who was raped
and murdered in 2001, operates a shelter in a temporary location and
does not yet have funding for direct services for its clients, but
helps women to access services off the Reservation. Given the rates of
violence against women on the Standing Rock Reservation, it is
imperative that the Reservation have its own permanent shelter.
For women in or near the southern part of the Reservation, there
are two shelters available: the Sacred Heart Shelter on the Cheyenne
River Reservation, or Bridges Against Domestic Violence (BADV), which
is located in Mobridge, South Dakota and where up to 85 percent of
women using the shelters are Native American, mainly coming from the
Standing Rock Reservation. In March 2005, BADV held a conference
entitled ``Decide to End Sexual Violence.'' There were reports that
following the conference women on the Reservation showed increased
confidence in reporting. Amnesty International believes that public
outreach and education such as that undertaken by BADV is an important
element in creating an environment in which survivors feel able to
report sexual violence.
The Federal Government should provide funds immediately for the
Standing Rock Tribe to support its shelter for survivors of sexual
violence on the reservation. The government should ensure that there is
additional funding to support the increased capacity of shelters
throughout North and South Dakota that provide services to Indian
women.
An important achievement in the provision of culturally appropriate
support services to Native American and Alaska Native women has been
the formation of 16 tribal coalitions working against domestic and
sexual violence across the U.S. The specific activities of the
coalitions vary, but often include the provision of training to tribal
governments, law enforcement officials, prosecutors, health
professionals, support workers and activists. At national level,
organizations such as Sacred Circle and Clan Star provide national
leadership and policy guidance for Native women's organizations and
shelters.
International Law
Sexual violence against women is not only a criminal or social
issue; it is a human rights abuse. While the perpetrator is ultimately
responsible for his crime, authorities also bear a legal responsibility
to ensure protection of the rights and well-being of American Indian
and Alaska Native peoples. They are responsible as well if they fail to
prevent, investigate and address the crime appropriately.
The United States has ratified many of the key international human
rights treaties that guarantee Indigenous women's protection against
such abuses, including the right not to be tortured or ill-treated; the
right to liberty and security of the person; and the right to the
highest attainable standard of physical and mental health. All women
have the right to be safe and free from violence.
International law is clear: governments are obliged not only to
ensure that their own officials comply with human rights standards, but
also to adopt effective measures to guard against acts by private
individuals that result in human rights abuses. This duty--often termed
``due diligence''--means that states must take reasonable steps to
prevent human rights violations and, when they occur, use the means at
their disposal to carry out effective investigations, identify and
bring to justice those responsible, and ensure that the victim receives
adequate reparation. Amnesty International's research shows that the
United States is currently failing to act with due diligence to
prevent, investigate and punish sexual violence against Native American
and Alaska Native women. The erosion of tribal governmental authority
and resources to protect Indigenous women from crimes of sexual
violence is inconsistent with international standards on the rights of
Indigenous peoples.
The U.N. Declaration on the Rights of Indigenous Peoples, adopted
by the U.N. Human Rights Council in June 2006, elaborates minimum
standards for the recognition and protection of the rights of
Indigenous peoples in diverse contexts around the world. Provisions of
the Declaration include that Indigenous peoples have the right of self-
determination. By virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural
development (Article 3); that States shall take measures, in
conjunction with indigenous peoples, to ensure that indigenous women .
. . enjoy the full protection and guarantees against all forms of
violence and discrimination. (Article 22(2)); and the right of
Indigenous peoples ``to promote, develop and maintain their
institutional structures and their distinctive customs, spirituality,
traditions, procedures, practices and, where they exist, juridical
systems or customs, in accordance with international human rights
standards'' (Article 34).
Key Recommendations *
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* See Key Recommendations section of Ms. Clairmont's prepared
statement.
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We respectfully refer you to ``Maze of Injustice: The failure to
protect Indigenous women from sexual violence in the USA'' for more
detailed information and recommendations. Thank you for the opportunity
to testify on this important human rights topic.
The Chairman. Ms. Clairmont, thank you very much. We
appreciate your testimony.
The testimony given by all of you is in some ways very
depressing, because it describes a law enforcement that seems
broken, describes victims who are victimized by crime for which
there is not appropriate law enforcement follow-up.
Chairman Wells, you indicated that your tribal lands cover
1 million acres, you have 6 law enforcement officers and the
response time is generally about an hour, is that correct?
Mr. Wells. It depends on what side of the reservation the
incident happens. We had a case where a security officer for
the Mandaree segment was beaten up by two individuals. He had a
two-way radio and a flashlight, and it was night, of course. It
took an hour and a half for the police officer on duty, who was
a tribal COPS-FAST officer, to come from the White Shield
segment all the way around the reservation, which includes the
bridge, going through Four Bears Bridge, down to Mandaree, took
an hour and a half. And he basically had to not clean himself
up until he had photos taken. That night, the million acres was
being patrolled by one tribal COPS-FAST officer, a female. She
did the job that night.
The Chairman. You describe in your testimony the contacts
you have had with Bureau of Indian Affairs regional office, for
which there is no response. Is that common?
Mr. Wells. For Fort Berthold, I believe we have been
shorted when the line of authority for supervision was changed
in 1999 or so, from the line superintendent of the BIA being
the supervisor of the local police chief of the BIA, they
transferred it down to do the justice to Aberdeen area. Since
then, we have lost the communication connection. When that took
place, it eroded to basically blowing us off.
As the Chairman since November 7, 2006, I haven't had one
call, one visit in my office. I have called, written letters,
even on the 638 opportunity that was our last avenue to try to
make a difference on law enforcement. It was 8 years that I am
aware of that we held off doing a 638 process. And now we are
doing that, and we can't even get technical contact, whether by
phone or by mail.
I think on paper, they say they are doing what they are
supposed to. But in reality, they are just blowing us off.
The Chairman. We will probably talk to the Vice Chairman
because I think it might be useful for us to do a survey around
the Country of tribal leaders and tribal governments, to
evaluate their contacts with and the responses to the regional
Bureau of Indian Affairs offices. The fact is, we know from
history the BIA is an unbelievably bureaucratic system. And it
bothers me to hear that we have regional offices that don't
respond, even when we requested them to respond, they do not
respond adequately.
So I think it might be useful for us to do some sort of
evaluation around the Country of how these regional offices are
serving the interests.
Ms. Clairmont, are things getting better or are they
deteriorating with respect to the areas that you are working
in?
Ms. Clairmont. It is difficult to know. I can only base my
comments on anecdotal evidence and what I hear from victim
survivors that their reports are not being responded to
appropriately. Long delays, if they hear at all from law
enforcement. So I think it has been, the conditions have been
pretty poor all along. So it is difficult to gauge any kind of
improvement when that is all you hear.
The Chairman. This Committee really thanks you for your
work, for a lot of years of work on behalf of victims. That is
the Lord's work and thank you for doing it.
Ms. Clairmont. Thank you.
The Chairman. Chairman Dillon, the tribe that you chair,
that is an urban tribe, isn't it? It is Tacoma, Washington?
Mr. Dillon. Yes, sir. It is partly in the city of Tacoma,
partly in the city of Fife, as well as Milton and Edgewood.
The Chairman. Aside from the issue of lack of resources,
which is a big deal, what part of the problem with respect to
the justice that we attempt to achieve on Indian reservations,
what part of the problem is as a result of all these
jurisdictional issues?
Mr. Dillon. I think the biggest problem probably comes from
the lack of understanding and whose jurisdiction it is.
Although we do have a relationship with the city of Tacoma and
the County of Pierce, and we have just, I think, completed one
with the city of Fife, there is a failure of who is the correct
jurisdiction to enforce the law there. We helped solve part of
the problem, once we had finished the local agreement with the
city of Tacoma, we were having a very serious, well, it is
getting serious again, that was the drugs, tribal lands,
knowing that the city or county couldn't come in and assert
authority there. Once these agreements, inter-local agreements
had been completed, it did away somewhat on those areas. But
the gangs have continued to build and build, and they are back
on the reservation again.
It is the lack of, more the lack of understanding who has
the authority and who is willing to accept that authority.
The Chairman. I thank both you and Chairman Wells for
giving us a description of the challenges you are facing. Of
course, the purpose of our hearings are to try to find
responses and answers and to try to find solutions. We will be
hearing as well from Joe Garcia, the President of the National
Congress of American Indians, on the next panel and some others
as well.
We appreciate the recommendations that you have offered.
Mostly we thank you for being willing to come to Washington to
share with us the challenges that you find as tribal leaders.
We are very interested in trying to work through all of these
jurisdictional issues and trying to work through the issues of
providing adequate resources. Having one person providing law
enforcement for a million acres and having an hour and a half
response to a violent crime is just not acceptable. That is not
something that we should accept in this Country.
Yes, sir?
Mr. LaPointe. If I might add, Mr. Chairman, our law
enforcement and our court system do not have the ability to
prosecute beyond 365 days, which is the term on Native
reservations. And the streets, they argue with themselves. Our
law enforcement says, well, let city of Tacoma have it because
they have stronger laws than we do, they can convict and send
people to prison or treatment or whatever.
The Chairman. But that is a decision you have made at the
tribal level?
Mr. LaPointe. No, our chief of police made that decision.
The Chairman. But I am talking about the limitation of 1
year in jail and a $5,000 fine, which I understand is the
limitation on your court system.
Mr. LaPointe. Yes.
The Chairman. That is a judgment your tribe has made, or
would make, is that correct?
Mr. LaPointe. No, that is what Federal law allows us.
The Chairman. I see.
Senator Murkowski.
Senator Murkowski. Thank you, Mr. Chairman, and thank you
to all of you for your testimony, Chairman Dillon, Mr. LaPointe
and Chairman Wells, I recognize that it is one thing to come
and give testimony before a committee and speak technically.
But to appreciate the personal impact to your families that you
have seen, to hear your description of having to pull your
grandchildren out of the way of drive-by shootings, it makes it
even more real to those of us sitting up here on the dais. So I
appreciate the stories.
Chairman Wells, you made a statement, you said that when
somebody dials 9-1-1, the first question that is asked is, are
you a tribal member. Well, if you say no, what happens to that
call? Do they try to direct your call to the appropriate entity
that would then respond? Or do they hang up on you?
Mr. Wells. I believe it would go to the city police, that
is if it is within the confines of New Town, and then the city
police of Parshall.
Senator Murkowski. Would they transfer that call? I want to
make sure that they don't just hang up and say, well, you have
the wrong number.
Mr. Wells. I believe so. But we have intermarriages, where
non-Indian spouse and an Indian spouse, and it runs into really
a frustration and confusion. Then it is not easy for the
officers, any way you go. That maze that you had up there
earlier is what we endure.
But I believe the 9-1-1 system is good for the city of
Parshall and the city of New Town if it is a non-Indian. But if
it is a tribal member, they turn different ways.
Senator Murkowski. And again, the question is, whether or
not they attempt to assist you in going in the right direction
in terms of contacting the authorities there, so that you are
not just told, well, sorry, we can't help you. We want to know
that 9-1-1 is going to work whether you are a tribal member or
non-tribal member, whether it is an individual where the victim
is from a tribe or not from a tribe, you shouldn't have to sort
through the jurisdiction table before they send somebody to
help. It sounds like it is still pretty complicated.
Mr. Wells. Madam Vice Chair, I believe it is a 50-50. And
more or less less than 50 percent that you will be served.
Senator Murkowski. I see. Very disappointing.
Ms. Clairmont, I too want to thank you for your advocacy in
a very important area for many years. You do very good work and
we greatly appreciate it. I would like to think that one day
you can come back and report to this Committee that things are
improving and that we are making good, positive headway.
I want to ask you a couple of questions about the Amnesty
International report. They state in one of their conclusions
that the high rate of sexual violence against indigenous women
in the United States is directly linked to the failure of the
authorities to bring those responsible for these crimes to
justice. That is kind of their summation. You have indicated
that you are supportive of the report. But does this kind of
synthesize the problem in your opinion, that it is a failure of
the authorities to bring those responsible to justice?
Ms. Clairmont. I believe so, yes. I support that.
Senator Murkowski. Do we have statistics that indicate the
success in terms of convictions versus the number of sexual
incidents that are reported? Do we know how many cases are
actually brought through to conviction?
Ms. Clairmont. It is difficult for Amnesty International,
U.S.A. to obtain that information from the U.S. Attorney's
Office. They are unwilling to release those kinds of
statistics.
Senator Murkowski. I think those statistics would be
incredibly telling. If part of our problem here is under-
reporting because people, women do not believe that their case
is going to be pursued. And the statistics bear that out, that
you can report after being a victim and in fact nothing is
done, the case is dropped, the prosecutor just doesn't pay
attention to it or it doesn't even get to the prosecutor. That
in and of itself is very, very telling. So we would like to
work to better understand these statistics, because I think
they could be extremely important to us.
You mentioned in terms of the processes out there and the
report itself recommends that the law enforcement authorities
establish effective processes for responding to the reports.
You mentioned some kinds, I think you just used the word
national protocols. What do we need in order to make clear what
the process is or should be for responding to reports of sexual
violence? Have you attempted to define that or do you have some
suggestions for us in that area?
Ms. Clairmont. In mainstream community, there are teams
that are being organized called sexual assault response teams.
There are a few tribal communities that are attempting to do
the same, and they are finding it really difficult to work in
collaboration with their Federal partners in their
jurisdictions, because they are unwilling to come to the table.
And they cite many reasons for that. They say they are under-
resourced or under-staffed, have a huge caseload, all of the
excuses.
But it is difficult to really do extensive collaboration if
your partners are missing at the table. I feel that is one way
that we could improve the response from those agencies, is by
working in closer collaboration with tribal officials in a
coordinated response fashion.
Senator Murkowski. We have several SART units in Alaska,
working in Anchorage and a couple areas outside of Anchorage
that have proven to be very, very effective. As you know, our
incidence of sexual assault, domestic violence in the State,
Alaska Native women notwithstanding, is really very troubling.
So we have seen some good successes. I appreciate your pointing
that out as a model.
You also mentioned the training, the sexual assault nurse
examiners training. One of the things that I was quite
surprised to learn was that while we might tell our villages,
OK, this is what you need to do if there is a rape in your
village, but we don't have trained individuals to assist when a
victim comes into the clinic. Now, again, this is an issue
probably of funding. But it is also going to be imperative that
we have this training available, that we have the forensic kits
available. That was another astonishing fact, to realize that
we don't have the ability to help these women when they come
in, if we don't have the forensic kits.
Ms. Clairmont. Exactly.
Senator Murkowski. How bad of a problem is this? Is it
nationwide, around the reservations and up in my State as well?
Ms. Clairmont. That is my understanding. There was a survey
done by, it is a long title, the National American Indian
Women's Health Education Resource Center did a survey on Indian
Health Service facilities to see if they had protocol, if they
had kits available, if they had trained examiners. By and
large, those facilities that they surveyed said they either
didn't have protocol or they weren't aware of it or they had
protocol but hadn't had training on it or didn't have nurses
available to provide the exams and weren't aware of kits that
were available.
So that study is available. And we hear that over and over
again from Native women, that they have to travel, sometimes
100 miles or more, to be able to get to a facility in order to
have the rape exam done. And it is done, they may even be
charged because of the contractual agreements with Indian
Health Service, that they are going to be billed for that exam.
And that shouldn't happen. They should be able to receive rape
exams at no cost.
Senator Murkowski. It just seems to me that we have put so
many impediments in front of the victim. And it is no wonder
that you are not able to prosecute some of these cases, if in
fact we haven't been able to preserve the evidence, if we
haven't had the assistance of a trained sexual assault nurse
examiner. We are failing from the get-go in terms of being able
to respond to these women.
Again, I thank you for your advocacy and I look forward to
working with you on this issue.
Thank you, Mr. Chairman.
The Chairman. Thank you very much.
Senator Tester?
Senator Tester. Thank you, Mr. Chairman. Thank you all for
being here today. It goes without saying we really appreciate
your time and your testimony.
Chairman Wells, just so I can understand this, the BIA, you
spoke of their law enforcement in Indian Country where you are.
Are they the exclusive law enforcement provider for Native
Americans? Or are there other folks that are also responsible
for law enforcement? It is a question that I just simply don't
know the answer to.
Mr. Wells. Within the Tribe, we had an agreement with the
Department of Justice, with the grant, after 2 years of a
tribal COPS-FAST officer being on the grant, we would pick him
up 100 percent. Now, at $600,000, we can pick up to ten
officers.
Senator Tester. So who is then responsible? Does that still
fall under the BIA's responsibility? Or is it under your tribal
council's responsibility for that law enforcement? Who is the
oversight?
Mr. Wells. As the grant was written, we come up with a
memorandum of understanding to allow the BIA to have
supervision authority. In respect to the BIA, they did it for
many years as law enforcement goes. And we didn't 638 the
program, so we used the BIA as supervisor of our law
enforcement, who were hired by the Tribe's COPS grant.
Senator Tester. So the Tribe hires them through the grants
in this particular case?
Mr. Wells. Yes.
Senator Tester. And the BIA supervised them as they do
their current officer force?
Mr. Wells. Yes.
Senator Tester. So you really don't, I mean, if there are
problems and the BIA chooses not to work with you, which, if my
understanding is correct by your testimony, they aren't in
contact with you much at all at this point in time.
Mr. Wells. No.
Senator Tester. There is little opportunity for you to give
influence into law enforcement deficiencies.
Mr. Wells. Right. The 638 process was our last alternative.
We chose to try to work through the problems for eight long
years and it just didn't work. So out of reluctance, we are
638ing. But we are not going to 638 an under-funded program. We
are going to see what the dollars and the startup costs will be
and see if it is even going to be economical.
But in the end, we respect law enforcement 100 percent and
we support them. The differences, though, are major. I heard
earlier from Senator Murkowski, the Vice Chair, about the
issues of down home. I have down home stories, but I don't know
if you have enough time today, where a 16 year old juvenile,
all-State basketball player, was stopped for being after
curfew. BIA law enforcement officer thought that it was OK to
slam her into the ground and throw his knees into her ribs and
to bruise her face on the gravel. And it is all on the camera,
all these cop cars have cameras on the front.
A former chairman of our tribes, her daughter was man-
handled by a BIA officer in front of her own home when her son
was out after curfew. And that was a BIA officer, same officer.
So when you get into those issues, and then our tribal COPS-
FAST officer, a female, had to file a complaint against that
same officer for slamming her leg in the door of a BIA
investigation of a rape. And she is trying to advocate for the
victim and she is a tribal COPS-FAST. The BIA officer slams her
leg in the door three times. And she is in full uniform.
So those are the differences. And those are three internal
affairs reviews that we have submitted and have all heard in
front of a tribal business council on the record in minutes.
Senator Tester. So the question becomes, from an
accountability standpoint, doesn't the tribal council need to
be involved as far as the communication with the BIA, to
actually have the kind of law enforcement that you folks as the
tribal leaders, as the elected tribal leaders, this could apply
to any reservation in the Country, don't you need to have that
input as a matter of course in tribal law enforcement? And it
is not there?
Mr. Wells. Senator Tester, we are doing everything we can
to work through the chain of authority and we are here today
and I am glad I am here today, because I don't have to make any
of these stories up, these are actual first-hand accounts.
Senator Tester. Right. I am just trying to figure out how
we can, and I know that the BIA, I think they have a 70 percent
shortage in officers, I have read that somewhere, they need to
be bumped up. But by the same token, I think we don't have good
communication. I am not, by any means, blaming you for this, by
the way. When we don't have good communication so that the law
enforcement fits the needs of the leadership and the tribe,
then I think we have an inherent problem within the BIA that
Chairman Dorgan talked about being a bureaucratic nightmare.
Is that something that you see that could be helpful, if we
could do something to encourage communication?
Mr. Wells. I think if there was a solution, I heard Senator
Murkowski bring up, well, we are going to come up with some
solutions, I think if you put the supervision back into the
local superintendent of the agency you would have the first
step in the right direction.
Senator Tester. OK, good. Chairman Dillon, the gang
influences on your reservation is somewhat disturbing. How long
has that been around? Is that a recent occurrence?
Mr. Dillon. No, it has probably been for the last 20 years
or better.
Senator Tester. Is it getting progressively worse, or is it
static?
Mr. Dillon. Once again, it is getting worse, yes, with all
the meth labs and all the other drugs that are floating through
the reservation.
Senator Tester. So it goes without saying that it as the
gang influence gets worse, the drug problem gets worse and all
that?
Mr. Dillon. Definitely.
Senator Tester. OK. Unfortunate.
Bonnie, I just have a question. I was recently in Billings,
here about a month ago at the hospital down there and saw what
they had for collection and preservation of evidence when it
comes to rape victims in southern Montana. It is critically
important. I guess the question that I have is, that collection
and places for collection of evidence when you have a rape
case, to my understanding, there are not a lot of those places
around and there are even fewer people that can deal with
situations as horrible as this in a hospital surrounding.
It is your opinion that it is markedly worse as far as
facilities near Indian Country or in Indian Country? I will
give you an example. I live in rural north central Montana. It
would be a minimum of 75 miles if anybody got raped around my
small community. What I am saying is, is it worse in Indian
Country than it is in non-Indian Country? How can we solve
this? It seems to me that maybe we need to invest some
resources throughout the United States on this issue and maybe
have a certain amount of focus toward Indian Country. What is
your perspective on that?
Ms. Clairmont. Yes, I believe it is worse in Indian
Country. I have been doing an extensive amount of traveling
throughout Indian Country, providing training and technical to
tribal programs that are trying to improve their response to
violence against Indian women. By and large I have been hearing
that either those exams are just not available, they are not
available at their local Indian Health Service facility, they
have to travel a great distance out of the reservation to
receive those services.
There are very few, if you were to do a survey of all the
Indian Health Service hospitals, you will find that to be true,
that they don't have those available services.
Senator Tester. Thank you. I want to echo the comments of
the other members of the Committee, I appreciate your work. I
think we can only solve this problem with people like you on
the ground that are helping point out the deficiencies in the
programs.
Thank you all for being here. I have a lot more questions,
and we have another panel. We will continue to work to help
solve this problem. It is a big problem in Indian Country.
Thank you.
The Chairman. Thank you very much, Senator Tester.
We have been joined by Senator Cantwell, who I know had
other committees this morning. Senator Cantwell, Chairman
Dillon has testified with respect to the situation on his
reservation in the State of Washington.
STATEMENT OF HON. MARIA CANTWELL,
U.S. SENATOR FROM WASHINGTON
Senator Cantwell. Thank you, Mr. Chairman. Thank you for
holding this hearing. If I could submit a longer statement for
the record, I would appreciate that.
I am happy to see members of Indian Country from Washington
State testifying, because I think that helping to articulate
some of the challenges and facing both meth and domestic
violence issues on Indian reservations are part of our
challenge. Obviously the cooperation with other law enforcement
and access to resources, particularly, I think are one of the
stumbling blocks that we have today.
My understanding, Chairman Dillon, and maybe any of the
other panelists, is that with the Meth Action grants, Indian
Country is able to participate and receive benefits from the
Federal dollars that are now allocated to the States. Is that
correct?
Mr. Dillon. I believe so, yes.
Senator Cantwell. Have you worked with local law
enforcement in Washington State as part of that coalition?
Mr. Dillon. On that part of the program, I would refer to
Mr. LaPointe, who has been 100, 110 percent involved in this
whole program. Maybe he has an answer for that.
Mr. LaPointe. In response to your question, yes, our tribal
law enforcement has been working with other jurisdictions in
regard to COPS. We received a letter from the Department of
Justice in regard to COPS Meth funding. So we have applied for
that.
Senator Cantwell. So in the focus from Washington, D.C.
about how to increase dollars for meth funding, that would be a
continued avenue for Indian Country to participate in trying to
help solve local problems, that particular funding source?
Mr. LaPointe. Yes.
Senator Cantwell. As opposed to a specific program through
BIA?
Mr. LaPointe. BIA, like other panelists have testified, is
limited with its funding. What we see is diminished funding for
the Bureau as time goes on. Hopefully with new leadership in
the Senate, that will change.
Senator Cantwell. One aspect I think of the cooperation,
Mr. Chairman, that we have gotten out of the Meth Action
grants, in trying to get a comprehensive approach in Washington
State, is that we have gone from being second in the Nation
with the number of meth labs down to number six. We did that
because everybody cooperated together, both the prevention
community, the law enforcement community as well as the
treatment community. So I would hope that Indian Country would
be very active in participating in that coalition at the State
level.
In regard to violence against women, is that a problem on
the Puyallup Reservation as well?
Mr. LaPointe. I don't believe we have as many reports as
what others areas in the Country have. Before you arrived, I
explained an incident that happened at my house, a young man
tried to break into my house. He was high on drugs and
drinking. It was the middle of winter and he had no shirt or
shoes on. He had just come from another house that was on trust
property, and I didn't know that. Two weeks later, I received a
call from the FBI stating that they were charging him with
rape, that happened the same night. So I think there are a lot
of unreported incidents on our reservation.
Senator Cantwell. So you think some of the domestic
violence issues are inter-related with meth, is what you are
saying?
Mr. LaPointe. Yes.
Senator Cantwell. Would you say a high percentage, or you
don't know statistically?
Mr. LaPointe. I don't know.
Mr. Dillon. I think it would be mainly directed toward the
meth problems, as well as cocaine and all the other drugs that
people are using on or near the reservation. It does create
violence amongst a lot of people. I believe it has probably
increased the domestic violence more so than it has in past
years. So it is a big contributor.
Senator Cantwell. Do you think those in the reservation
community are aware of some of the treatment and prevention
programs?
Mr. Dillon. We try to make everybody as well aware as
possible through our tribal newspaper. We have ads there for
advocacy for domestic violence, for drugs. We have a treatment
center of our own that is up to full capacity all the time. But
in a lot of instances, we will refer them out to other agencies
where they can receive that help.
Senator Cantwell. Mr. Chairman, I know you want to get to
another panel as well. I think we need to make sure that Indian
Country is a full participant in a wide range of services. We
found out, and Washington State is working cooperatively with
all these communities, we reduced our target from being second
in the Nation with the number of meth labs down to number six.
Unfortunately, the number of deaths related to methamphetamine
are still increased during this time period. We saw that, while
law enforcement working together with the communities, were
able to actually zone in and target in rural communities where
these meth labs were, that what came back was a bigger, scarier
problem, the distribution from large organizations through the
gang communities of meth distribution. So we are seeing mobile
labs that are capable of moving quickly, located in almost in
apartment dwelling communities and then just vacated so they
can move quickly. And the large import from outside the United
States, but then being distributed.
So with 29 tribes in the Northwest, Indian Country needs to
be a vital part of that in both the aggressive activities in
law enforcement, but also in the prevention and awareness. So I
appreciate this hearing and bringing attention, and for the
Puyallup Tribe for being here at this hearing.
[The prepared statement of Senator Cantwell follows:]
Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
Thank you, Mr. Chairman. I appreciate your dedicated leadership of
this Committee and your attention to the pressing issue of law
enforcement in Indian Country.
Let me begin by welcoming the Honorable Herman Dillon, Sr.,
Chairman of the Puyallup Tribe of Indians in my state of Washington. I
thank him for making the 3,000 mile journey to our Nation's capitol in
order to share the successes and difficulties experienced by the
Puyallup. In addition, I would like to welcome Mr. Larry LaPointe,
Councilmember of the Puyallup Tribe who is here today accompanying
Chairman Dillon.
The city of Tacoma, located on the Puyallup Reservation, has been
battling an increasingly severe problem with gangs and meth. When I
convened a roundtable in Tacoma last July to discuss the issue, I was
pleased to learn about the Puyallup Nation Law Enforcement Division and
its advanced gang response strategies. Tribal law enforcement works
closely with local municipal, state and Federal law enforcement
agencies and tribal officers are many times the first on the scene when
a gang crime is reported. Many of the Puyallup's officers are tribal
members and know the young gang members with whom they come into
contact. This prior relationship makes it easier to intervene and help
prevent those young people from falling further into the cycle of gangs
and addiction. The relationship between Puyallup tribal officers and
young tribal members becoming involved in gangs is acknowledged by
surrounding state, Federal and local law enforcement agencies, who work
cooperatively with the Tribe and use their relationship with young
offenders as a tool in fighting and preventing gang violence in the
area. This cooperation serves as a prime example of how the many
entities with jurisdiction over law enforcement on Reservations can
work together and leverage their strengths and resources to combat the
epidemic of meth and gangs.
Even with this advanced response, however, the Puyallup Reservation
remains plagued by drugs being run from Mexico to Canada along I-5 and
the gang violence that accompanies those drugs. During a 3 month period
last year there were 15 drive-by shootings on the Reservation,
resulting in the death of two tribal members. The violence is
persistent. The Puyallup Reservation is over 18,000 acres and the Tribe
provides services for nearly 28,000 people, however they have only 24
commissioned officers and have had to leave 3 positions vacant.
Additional officers are desperately needed. Without additional funding,
their ability to continue the fight against gangs and meth will be
severely compromised.
In the midst of rapidly increasing issues with gang violence and
meth, the Administration has reportedly decided to cut funding for all
tribal justice programs within the Department of Justice. The courts
and detention centers funded by this money are necessary in the
administration of justice, and the intervention programs also funded
are a key component in preventing gang violence and addiction in the
first place. Tribal law enforcement officials are on the front lines of
the fight against meth and gangs but in order to effectively fight the
problem, they must be sufficiently funded. The Administration's
proposal to cut the DOJ programs providing much of this necessary
funding is unacceptable. To successfully fight the scourge of meth and
gangs affecting Native Americans, we must provide a stable source of
funding for tribal justice and other law enforcement and prevention
programs. I have fought in the past for this funding and will continue
fighting for it in the future. The Puyallup Tribe and the surrounding
law enforcement agencies provide an example of the cooperation
necessary to fight gangs and meth, but unless we support their
leadership through providing necessary funds, the violence on
reservations will continue.
Once again, my thanks to Chairman Dorgan for holding this hearing
today and to Chairman Dillon for his testimony.
The Chairman. Senator Cantwell, thank you very much.
We thank all four of you for joining us this morning, and
we appreciate the testimony you have given.
Mr. Dillon. We appreciate your having us here. Thank you
very much.
The Chairman. Thank you.
We will call the next witnesses. The Honorable Joe Garcia,
President of the National Congress of American Indians. He will
be accompanied by Mr. John Dossett, General Counsel of the
National Congress. Professor Kevin Washburn, Associate
Professor, University of Minnesota Law School, in Minneapolis,
Minnesota. And Mr. Thomas Heffelfinger, a partner at Best and
Flanagan in Minneapolis, former U.S. Attorney in Minneapolis,
Minnesota.
We welcome all of you. As you are getting settled, let me
say again that your entire statements presented today will be
part of the permanent record. We will ask that you summarize
your statements.
Mr. Garcia, we will begin with you. Let me again, as
always, thank you for your leadership and thank you for your
continuing counsel and thoughtful recommendations to this
Committee. You may proceed.
STATEMENT OF HON. JOE A. GARCIA, PRESIDENT, NATIONAL CONGRESS
OF AMERICAN INDIANS; ACCOMPANIED BY JOHN DOSSETT, GENERAL
COUNSEL, NCAI
Mr. Garcia. Good morning, everyone. It is always good to
see you, Senator Dorgan.
I bring you greetings from Pueblo Country out in New
Mexico, we are getting ready for our feast. So if you can come
down on Sunday, be sure to do that.
Honorable Chairman Dorgan and Members of the Committee,
Senator Murkowski, Senator Tester and Senator Cantwell, thank
you for being here. Thank you for the opportunity to testify
today.
At the outset, I would like to acknowledge also the loss of
the distinguished Senator from Wyoming, Craig Thomas, and thank
him and his family for so many contributions. We also dedicated
some time at the National Congress of American Indians session
in Anchorage, Alaska in memory of Mr. Thomas.
This is the second hearing on law enforcement in Indian
Country this year. You have heard a great deal about the
horrible crime rates. This is a matter of life and death. It is
time, it is well past time for Congress to take action.
I strongly and respectfully urge this Committee to write
legislation, work with the tribes to gain their support and
then pass legislation in this session of Congress. NCAI has
proposed solutions in four general areas. First, we need to
improve and hold accountable the Federal law enforcement
response at the Department of Justice. Indian communities are
completely dependent on the Department of Justice for
investigation and prosecution of major felonies. Violent crime
rates have been doubling and tripling on Indian lands, while
falling everywhere else.
We have serious concerns that the Department of Justice
leadership places no priority on addressing crime in Indian
Country, and is subject to no oversight or accountability. We
understand that Indian Country crimes are not the top
nationwide priority. But they should receive consistent
attention.
Congress should establish an office of assistant attorney
general for Indian law enforcement within the Department of
Justice. This position should be appointed by the President and
confirmed by the Senate to ensure leadership on Indian Country
crime and to serve as a point of contact for Congress and the
tribes.
Congress should require the DOJ to collect data on
referrals and declinations of prosecution by the U.S.
Attorneys' offices. The Senate Committee on Indian Affairs
should facilitate a meeting between Attorney General Alberto
Gonzalez and tribal leadership to develop an action plan for
internal reforms.
Second, we need to increase cooperation between tribal,
State and Federal law enforcement. We need incentives and
Federal leadership to increase cooperation between tribal,
State and Federal law enforcement. The Federal role could be
like the role that FEMA plays in facilitating emergency
response plans among State, local and tribal jurisdictions.
However, they must be implemented correctly.
Third, we need to reaffirm and support tribal government
authority to protect our communities. The Federal and State
Governments are not doing the job, and the Indian tribal
governments have no power to respond to anything but
misdemeanors committed by Indians.
Since the Oliphant decision in 1978, NCAI has urged
Congress to reaffirm tribal inherent criminal jurisdiction over
all persons within Indian Country. Indian tribal governments
are the only entities that have the interest and ability to
carry out law enforcement on Indian reservations.
We also agree with Amnesty International that it is a
fundamental violation of human rights to deprive Indian tribes,
Indian nations, of the ability to protect their community from
violent crime. We fully expect that Congress will come to
understand the wisdom of restoring tribal criminal
jurisdiction.
There are two specific areas that warrant immediate action
by Congress to restore tribal law enforcement where Federal and
State enforcement is failing completely: domestic violence and
minor crimes. Indian women are being assaulted by non-Indian
spouses and boyfriends and the Federal and State authorities
are not interested and not organized to handle domestic
violence. Congress should reaffirm tribal authority to
prosecute domestic violence crimes against non-Indians who are
married or co-habitating with an Indian family.
Jurisdiction is based on consent. By marrying and living in
the tribal community on tribal lands, a person consents to
tribal laws regulating domestic relations. In addition, the
lack of tribal jurisdiction for misdemeanors committed by non-
Indians creates enormous problems for law enforcement. Alcohol
and drug-related disturbances, traffic violations and gang
activity commonly involve both Indians and non-Indians. The
gaps in enforcement defeat community-based policing and create
disregard for law enforcement in Indian Country, as you have
heard testimony today.
Congress should expand tribal and Bureau of Indian Affairs
authority to cover misdemeanors and victimless crimes committed
by non-Indians. Congress should amend Public Law 280 to affirm
tribal concurrent jurisdiction and allow tribes to retrocede
State jurisdiction. Public Law 280 causes lawlessness on
reservations.
Fourth, we need to maximize the resources for law
enforcement. Basic law enforcement protection and services are
severely inadequate. To put it in perspective, Indian Country
law enforcement officers make up .004 percent of all law
enforcement in the United States. Yet they patrol 2 percent of
the land of the United States and 1 percent of the population.
Funding must be increased and streamlined for police, courts
and detention facilities.
Tribal courts are very important to ensuring a fair system.
Congress should develop a trial court setaside in the judiciary
appropriations bill.
In conclusion, taken together, these efforts will create a
new standard of tough law enforcement on Indian reservations
that will discourage criminal activity, elevate public safety
and greatly improve the daily lives of our community members.
Our goal is to send a new message that law will be rigorously
enforced and create a deterrent to crime on Indian lands.
We thank you in advance and look forward to starting our
efforts immediately. Thank you, Mr. Chairman and Members of the
Committee.
[The prepared statement of Mr. Garcia follows:]
Prepared Statement of Hon. Joe A. Garcia, President, National Congress
of American Indians
Honorable Chairman and Members of the Committee, thank you for the
opportunity to testify today. This is the first hearing of the
Committee since the loss of the distinguished Senator from Wyoming,
Craig Thomas. At NCAI, we greatly appreciated Senator Thomas's
constructive approach, his good will, and dedication to the betterment
of our country. The people of Wyoming were fortunate to have Senator
Thomas as their steward in the Senate. I want to acknowledge Senator
Thomas today and thank him and his family for his many contributions.
At the outset of my testimony, I am not going to recount the
problems facing law enforcement in Indian country. This is your second
hearing on the subject this year, and you have heard a great deal about
the horrible crime rates in Indian country, particularly violent crime,
violence against women and drug trafficking. We have this knowledge in
hand, and it is time for all of us to develop solutions and take
action. My testimony outlines a series of potential solutions. We urge
this Committee to write legislation, work with the tribes to gain their
insights and support, and then pass legislation in this session of
Congress.
Causes and Solutions for Law Enforcement Problems in Indian Country
The causes of the law enforcement problems can be boiled down to
four related elements, and our proposed solutions would address each of
these:
1) Criminal jurisdiction in Indian country is extremely complex
and responsibility is shared among Federal, tribal and state
authorities. This complexity requires a high degree of
commitment and cooperation from Federal and state officials
that is difficult to establish and maintain.
2) Federal and state authorities do not prioritize their role
in law enforcement on Indian reservations. The complexity of
jurisdiction makes it easy to avoid responsibilities and there
is no system of accountability.
3) Law enforcement in Indian country suffers greatly from lack
of resources--there are very significant needs in the
personnel, equipment, training and facilities that make up the
criminal justice system in policing, investigation,
prosecution, courts, and detention facilities.
4) All of these factors combine to create a perception problem
that encourages criminal activity and makes victims fearful in
assisting law enforcement or prosecution. Criminal activity is
encouraged when ``routine'' crimes such as domestic violence
and drug and alcohol offenses are unaddressed.
Our proposed solutions would:
A. Improve and measure the Federal law enforcement response;
B. Increase intergovernmental cooperation with state and local
law enforcement;
C. Enhance tribal law enforcement authority;
D. Maximize the use of available resources; and
E. Together these efforts will create a new standard of tough
law enforcement on Indian reservations that will discourage
criminal activity, elevate public safety, and greatly improve
the daily lives of crime victims and potential victims.
A. Improving the Federal Response to Crime on Tribal Land
Under the Major Crimes Act and other Federal laws, Indian
communities are completely dependent on the Department of Justice for
investigation and prosecution of violent crimes and other felonies
committed on Indian reservations. Despite these laws and the Federal
trust obligation to protect Indian communities, the violent crime rate
on Indian reservations is two and a half times the national average,
Indian women are victims of rape and sexual assault at three times the
national average, and tribes are faced with an epidemic of drug
trafficking in methamphetamines. These crime rates have been doubling
and tripling in Indian country while crime rates have been falling in
similarly low-income communities throughout the United States.
Something is seriously wrong with the Federal law enforcement response.
For many years, tribal leaders have raised the concern that the
U.S. Attorneys do not consider Indian country crimes to be an
enforcement priority. Although statistics are hard to find, we have
heard of unreleased internal reports that U.S. Attorneys decline to
prosecute as many as 85 percent of the felony cases referred by tribal
prosecutors. These concerns are reflected in the Amnesty International
Report ``Maze of Injustice'' that you heard about earlier today. The
lack of data and interest is also reflected in general law enforcement
reporting. Crime data is a fundamental tool of law enforcement, but for
decades the Bureau of Indian Affairs and the Department of Justice have
never been able to coordinate or accurately report on crime rates and
prosecution rates in Indian country, making it extremely difficult to
review their performance.
Some efforts have been made but with inconsistent results. Former
Attorney General Janet Reno created the Office of Tribal Justice, but
the status of this office has been diminished in recent years. Former
Attorney General John Ashcroft supported the district priorities of the
U.S. Attorneys, and under his leadership the Native American Issues
Subcommittee of the Advisory Committee to the Attorney General worked
to increase prosecutions and address problems with violent crime and
drug trafficking in Indian country. However, six of the members of the
Native American Issues Subcommittee were among those who were recently
replaced, including both the former Chair and Vice-Chairs Thomas
Heffelfinger and Margaret Chiara. Monica Goodling, former aide to
Attorney General Gonzales, stated in her House Judiciary Committee
testimony that Thomas Heffelfinger was replaced because he spent ``too
much time'' on the Native American Issues Subcommittee.
There is a serious concern that the Department of Justice central
office places no priority on addressing crime in Indian country, and is
subject to no oversight or accountability on its efforts or
performance. While we understand that Indian country crimes are not the
top priority of Justice, it should be subject to consistent and focused
attention. We would suggest the following reforms to improve the
performance of the Department of Justice on Indian country crime.
Establish an Office of Assistant Attorney General for Indian
Law Enforcement within the Department of Justice. This position
would be appointed by the President and confirmed by the Senate
to measure performance and ensure that the law enforcement
needs of Indian country receive requisite and focused
attention; to ensure that the various branches of the Justice
Department and other Departments coordinate on Indian country
law enforcement; and to serve as a point of contact and
information for Congress, the tribes and the public on matters
related to Indian country law enforcement.
Increase Congressional oversight of the Federal response to
crimes under the Major Crimes Act. As a first step, Congress
should require both the FBI and the Executive Office of U.S.
Attorneys to establish mechanisms for routinely collecting data
on how Indian country crimes are handled. In particular,
information should be collected and made available regarding
referrals and declinations by the U.S. Attorneys Offices. A
policy should be established that U.S. Attorneys will respond
in writing to tribal referrals for prosecution, that those
decisions will be available for numerical analysis, and that
tribes can appeal a declination directly to their district U.S.
Attorney.
Collect crime data. Congress should also require that the
Bureau of Indian Affairs and the Department of Justice devise a
``Tribal Category'' and coordinate to produce Indian country
crime data and statistics comparable to data collected from
state law enforcement by the Bureau of Justice Statistics.
Do not transfer functions. We do not support transferring
the law enforcement functions of the Bureau of Indian Affairs
to the Department of Justice. BIA Law Enforcement has for over
a hundred years conducted general community policing in Indian
country. The Department of Justice has no expertise in that
type of police work, but instead is focused on investigation
and prosecution of specific Federal crimes. The Department of
Justice has not adequately handled its current responsibilities
in Indian country, and tribes are very concerned that the
Indian policing funding would be redirected away from Indian
country law enforcement.
Allow for indictment without a grand jury. Amend Federal law
to mirror state law and allow for indictments without a grand
jury in criminal cases brought under the Major Crimes Act in
Indian Country. The grand jury requirement stands as a
significant hurdle to routine prosecution.
Codify the consultation requirement set forth in Executive
Order 13175 and expressly require the Attorney General to
consult with tribes on law enforcement issues.
Require specialized training. Require all Federal officers
working in Indian country (FBI, U.S. Marshalls, DEA, ATF,
Border Patrol, etc.) to receive specialized training about
Indian country law enforcement.
The Senate Committee on Indian Affairs should facilitate a
meeting between Attorney General Alberto Gonzales and tribal
leadership to hear our concerns about law enforcement and to
develop an action plan considering the following reforms:
-- Reestablish the policy to respect the law enforcement
priorities of the U.S. Attorneys districts, particularly those
districts that contain Indian country.
-- Elevate the Native American Issues Subcommittee to a seat
on the Advisory Committee to the Attorney General.
-- Return the Office of Tribal Justice to its former status
with direct access to the Attorney General.
-- Implement Title IX of the Violence Against Women Act of
2005 as required by statute and establish the guidelines,
tracking, resources, and research needed to address violence
against native women.
-- Establish a policy that U.S. Attorneys will respond in
writing to tribal referrals for prosecution, that those
decisions will be available for numerical analysis, and that
tribes can appeal directly to their district U.S. Attorney.
-- Support tribal prosecution of domestic violence and drug
crimes.
-- Establish a policy for cross-deputization of tribal
prosecutors as Special AUSA's.
-- Establish a policy that the FBI will tape all confessions.
-- Establish a policy that the U.S. Attorney will consult
with the Indian tribe before seeking the death penalty in any
capital case.
The Senate Committee on Indian Affairs, the House Resources
Committee and the Senate and House Judiciary Committees should
hold hearings soliciting testimony from the former and present
U.S. Attorneys who are members of the Native American Issues
Subcommittee, to request their views on criminal law
enforcement in Indian country.
B. Increasing Law Enforcement Coordination among Tribal, State and
Federal Law Enforcement Authorities
Congress should create incentives and programs to increase
cooperation between tribal, state and Federal law enforcement. There is
already a significant amount of cooperation in law enforcement between
tribes, states, and counties, and there are hundreds of cooperative law
enforcement agreements between tribes and their neighboring
jurisdictions. These agreements are grounded in the shared recognition
that tribes, states and counties can enhance their law enforcement
efforts working together. Although law enforcement cooperation is
common, it is not found everywhere. There are still a number of places
where cooperation is minimal, and the relationships are sometimes
antagonistic. In our experience, these poorer relationships are driven
by the long histories of disrespect and indifference that have existed
for many decades in the rural areas around some Indian reservations,
and by a lack of support for individuals who would choose to forge
stronger law enforcement ties.
NCAI maintains a partial repository of over a hundred law
enforcement cooperative agreements, which vary in their details but
typically contain a number of critical features. First, the agreements
provide for the deputization of tribal police officers who meet certain
minimum qualification and training requirements as state or county
officers, so that tribal police can enforce state criminal law within
Indian country. Far from treating tribes as unreliable partners in the
task of law enforcement, many states and counties have shared their
criminal enforcement authority with tribes in order to enhance their
ability to control crime. Recognition of these benefits is sufficiently
widespread that a number of states such as Arizona, New Mexico, Nevada
and North Carolina now provide for the deputization of tribal officers
by statute. See, e.g., Arizona Rev. Stat. Ann. Sec. 13-3874 (``While
engaged in the conduct of his employment any Indian police officer who
. . . meets the qualifications and training standards adopted pursuant
to section 41-1822 shall possess and exercise all law enforcement
powers of peace officers in this state).
Second, cooperative agreements often provide for the deputization
of state officers as tribal police officers so that the former can
enforce tribal laws. These provisions reflect recognition by the
parties involved that tribal criminal laws form an important part of
the law enforcement arsenal. Third, the agreements frequently address
the execution of search and arrest warrants within Indian country, and
contain a variety of cooperative approaches to these subjects. Fourth,
the parties to these agreements often pledge substantial help to each
other in carrying out their investigatory activities.
Through their cooperative agreements, tribes, states and counties
pledge to work together extensively on matters of criminal law
enforcement. They share authority, manpower, information and other
resources in their common fight against crime. ``Practice has found
that the relationship that arises from the joint training,
deputization, and working of tribal and non-tribal police officers
under a cross-deputization program can enhance the effectiveness of
enforcement.'' Western Association of Attorneys General, Indian Law
Deskbook at 413 (2d ed).
The benefits of cooperative agreements are sufficiently strong that
the Federal Government should encourage and provide incentives for the
development of law enforcement cooperation among states, counties and
tribes. The following are some suggestions for doing so.
Consult with tribal, state and local law enforcement
organizations to discuss best practices and ways to create
incentives for law enforcement cooperation.
Create incentives for states and counties for
intergovernmental cooperation on law enforcement. One method
could be to provide specific funding or grants for joint
tribal-state law enforcement efforts--for example funding for
cooperative work on drug trafficking or gang violence. Another
example can be found in the Federal laws that require state
governments to cooperate in the development of sex offender
registries. In these statutes, any state that fails to meet
certain goals will not receive 10 percent of the Federal funds
that would be allocated under the Omnibus Crime Control and
Safe Streets Act.
Federal law enforcement can facilitate state-tribal
cooperation. In the emergency response field, Federal officials
often bring together state, local and tribal officials to
engage in emergency response planning and exercises, and these
efforts assist greatly in building local government
cooperation. Federally-led drug enforcement task forces have
also been successful in integrating tribal and local police
efforts. Consider establishing a pilot project for FBI and U.S.
Attorneys to Develop ``Indian Country Community Law Enforcement
Response Plans'' with tribal and state/local law enforcement
agencies in targeted areas where cooperation is lacking.
Congress should ensure that Indian tribes have access to
Federal law enforcement data bases and interoperable
communications.
It is important that Congress provide sufficient resources
to accompany tribal responsibilities. State and local
governments are far more likely to seek cooperation when the
tribes have officers and resources to commit to the joint
efforts.
C. Enhancing Tribal Law Enforcement Authority
Criminal jurisdiction in Indian country is divided among Federal,
tribal, and state governments, depending on the location of the crime,
the type of crime, the race of the perpetrator, and the race of the
victim. The rules of jurisdiction were created over 200 years of
Congressional legislation and Supreme Court decisions--and are often
referred to as a ``jurisdictional maze.'' \1\ The following is a brief
timeline of the development of the jurisdictional rules.
\1\ See Robert N. Clinton, Criminal Jurisdiction Over Indian Lands:
A Journey through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 508-13
(1976)
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1790-1834--Indian Country Crimes Act--Also know as the ``General
Crimes Act,'' this statute extends the Federal criminal laws for
Federal enclaves to Indian country--but excludes crimes committed by
one Indian against another Indian, and crimes where an Indian has been
punished by the law of the tribe. The statute extends the
``Assimilative Crimes Act'' to Indian country, making state law crimes
punishable in Federal court.
1881--U.S. v. McBratney--Supreme Court finds that states have
exclusive jurisdiction over crimes committed in Indian country by one
non-Indian against another non-Indian. Ruling later expanded to
``victimless crimes'' like traffic offenses.
1885--Major Crimes Act--In the wake of the Supreme Court's decision
in Ex Parte Crow Dog, Congress passed the Major Crimes Act, making
Indians subject to Federal prosecution for a list of 7 major felonies--
expanded over time to the current list of 16.
1934--Indian Reorganization Act--This statute set the stage for
most BIA Courts of Indian Offenses to be replaced by tribal courts.
1953--Public Law 280--Congress delegated criminal and some civil
jurisdiction over Indian Country to several states (CA, MN, NE, OR, WI
and AK). The optional states (AZ, FL, ID, IA, MT, NV, ND, UT, and WA)
assumed all or part of the jurisdiction offered. Amended in 1968,
Pub.L. 280 permitted states to retrocede jurisdiction, and provided
that no states in the future could assume jurisdiction without tribal
consent. Tribes have concurrent jurisdiction.
1968--Indian Civil Rights Act--This statute codifies most of the
guarantees found in the Bill of Rights and applies them to tribes. In
addition, the law limits tribal court sentencing to a maximum to 1 year
in jail or a $5,000 fine.
1978--Oliphant v. Suquamish Tribe--Supreme Court held that tribes
do not have inherent criminal jurisdiction over non-Indians unless
specifically authorized by Congress. Santa Clara v. Martinez--Tribal
violations of the Indian Civil Rights Act may not be appealed to
Federal court except by write of habeas corpus. U.S. v. Wheeler--An
Indian tribe may punish a tribal member as an independent sovereign,
and not as an arm of the Federal Government.
1990--Duro v. Reina--Supreme Court finds that an Indian tribe may
not assert criminal jurisdiction over a nonmember Indian. Duro Fix--
Congress responds by amending the Indian Civil Rights Act to restore
and affirm tribal inherent jurisdiction over all Indians.
2004--U.S. v. Lara--The Supreme Court recently affirmed the Duro
Fix and the authority of Congress to restore tribal jurisdiction via
legislation--holding that separate tribal and Federal prosecutions do
not violate double jeopardy because a tribe is a separate sovereign.
The decision left open the possibility of further constitutional
challenges to jurisdiction over nonmember Indians on due process or
equal protection.
The complexity of the jurisdictional rules--evident in this time
line--creates significant impediments to law enforcement in Indian
country. Each criminal investigation involves a cumbersome procedure to
establish who has jurisdiction over the case according to the nature of
the offense committed, the identity of the offender, the identity of
the victim and the exact legal status of the land where the crime took
place. The first law enforcement officials called to the scene are
often tribal police or BIA officers, and these officers may initiate
investigation and/or detain a suspect. Then a decision has to be made
whether the crime is of the type warranting involvement by the FBI or
state law enforcement. These officers then decide whether to refer the
case to the U.S. Attorney's office or the local District Attorney.
Federal law enforcement is generally limited to only the most
serious crimes. If the offender is non-Indian the tribe has no
jurisdiction. Local and state law enforcement are often reluctant to
rely on tribal police investigations, subject to confusion over
jurisdiction, or simply have a lack of resources. Each of the three
sovereigns has less than full jurisdiction, and the consequent need for
multiple rounds of investigation often leads to a failure to act.
Overall, law enforcement in Indian country requires a degree of
cooperation and reliance between Federal, tribal and state law
enforcement that--while possible--is difficult to sustain on a broad
basis. All of these issues are compounded by a severe lack of resources
for law enforcement in Indian country.
The United States Department of Justice has testified to Congress
that jurisdictional complexity has made the investigation and
prosecution of criminal conduct in Indian Country very difficult and
that some violent crimes convictions are thrown into doubt,
recommending that the energy and resources spent on the jurisdictional
questions would be better spent on providing tangible public safety
benefits. \2\ A report of the Executive Committee for Indian Country
Law Enforcement Improvements of the U.S. Department of Justice
concluded that one of the major problems of law enforcement in Indian
Country is the poor coordination between law enforcement bodies caused
by the fragmentation of the criminal justice system. \3\
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\2\ Testimony of The Honorable Thomas B. Heffelfmger, U.S.
Attorney, Minneapolis, Oversight Hearing before the Senate Committee on
Indian Affairs on Contemporary Tribal Governments: Challenges in Law
Enforcement Related to the Rulings of the U.S. Supreme Court, July 11,
2002.
\3\ Report of the Executive Committee for Indian Country Law
Enforcement Improvements of the U.S. Department of Justice, October
1997, Executive Summary.
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The impediments to Indian country law enforcement are directly
reflected in crime rates. American Indians experience per capita rates
of violence that are much higher than those of the general population,
and 70 percent of American Indians who are the victims of violent
crimes are victimized by someone of a different race. \4\ In
particular, the rate of aggravated assault among American Indians and
Alaska Natives is roughly twice that of the country as a whole (600.2
per 100,000 versus 323.6 per 100,000). Indians are the victims of
violent crime at twice the rate of African-Americans, two and a half
times that of Caucasians, and four and a half times as often as Asian
Americans. \5\
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\4\ U.S. Department of Justice, Bureau of Justice Statistics,
American Indians and Crime, February 1999, VI, available at http://
www.ojp.usdoj.gov/bjs/pub/pdf/aic.pdf.
\5\ Bureau of Crime Statistics, U.S. Dept. of Justice, Violent
Victimization and Race, 1993-98, at 1 (NCJ 176354, 2001).
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Since the Oliphant decision in 1978, NCAI has urged Congress to
reaffirm tribal inherent criminal jurisdiction over all persons within
Indian country. An increasing number of prominent state and Federal law
enforcement officials support this view because Indian tribal
governments are the only entities that have a full and sustained
interest and ability to carry out law enforcement on Indian
reservations. We also agree with Amnesty International that it is a
fundamental violation of human rights to deprive Indian tribes of the
ability to protect their communities from violent crime. We fully
expect that Congress will come to understand the wisdom of restoring
tribal criminal jurisdiction, and look forward to engaging on the
related issues, including disparate tribal resources, and the need for
improvement of tribal courts and detention facilities.
However, there are also specific problems with law enforcement in
Indian country that warrant a close look by Congress to improve tribal
law enforcement in the areas where Federal and state enforcement is
least likely to succeed.
Domestic Violence and Violence Against Women and Children
There are enormous difficulties in dealing with law enforcement in
Indian country on issues of domestic violence and violence among
intimate partners. Indian women are being assaulted and raped by non-
Indian family members--spouses, boyfriends and fathers--and the Federal
authorities are not interested and not organized to deal with domestic
violence situations. Statistics on the rape and assault of American
Indian and Alaska Native women are shocking and have been widely
publicized. One in three American Indian and Alaska Native women will
be raped in her lifetime. But the nature of this is less well-
understood. Indian women were victimized by an intimate partner at
rates higher than those for all other females (Whites at 8.1 per 1,000;
Indians at 23.2 per 1,000). \6\ The most notable characteristic is the
identity of the assailant. Approximately 9 in 10 American Indian
victims of rape or assault were estimated to have assailants who were
non-Indian. \7\ Among American Indian victims of violence, 75 percent
of the intimate victimization and 25 percent of the family
victimization involved an offender of a different race.
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\6\ Tjaden, Patricia, and Nancy Thoennes, Full Report of the
Prevalence, Incidents, and Consequences of Violence Against Women,
Findings from the Violence Against Women Survey, Washington, DC;
National Institute of Justice, November 2000, NCJ 183781, p.22.
\7\ Lawrence A. Greenfeld and Steven K. Smith, American Indians and
Crime, U.S. Department of Justice Bureau of Crime and Statistics, 1999.
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The Ninth Circuit Gender Bias Task Force report acknowledges that
``[j]urisdictional complexities, geographic isolation, and
institutional resistance impede effective protection of women subjected
to violence within Indian country.'' \8\ It further notes that although
Federal jurisdiction is technically available in some districts over
spouse abuse, such prosecutions are rare. It concludes that crimes
against women are under-prosecuted in Indian country as the
difficulties of prosecution in general, coupled with traditions of non-
involvement by law enforcement officials in spousal abuse, make Federal
and state enforcement more difficult. The Gender Bias Task Force Report
recognized that calling for greater enforcement by the Federal law
enforcement agencies is inadequate in the case of violence against
women in Indian country.
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\8\ The Effects of Gender in the Federal Courts: The Final Report
of the Ninth Circuit Gender Bias Task Force: The Quality of Justice, 67
S. Cal. L. Rev. 745 (1994), at 906.
Reaffirm tribal authority to prosecute domestic violence
crimes against non-Indians who are members of an Indian family.
Such authority might be limited to certain classes of persons,
such as persons who are married to or co-habitate with a tribal
member in Indian country, or persons who violate a protective
order. Jurisdiction could be predicated on implied or explicit
consent--i.e. by marrying and living in the tribal community on
tribal land, a person consents to tribal laws for the purpose
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of regulating domestic relations.
Extend Tribal sentencing limitations under the Indian Civil
Rights Act to provide for appropriate sentences for more
serious offenders. In the original 1968 law, tribal sentencing
authority was limited to 6 months or $500. In 1986, the
authority was expanded to 1 year or $5,000. A 2003 report of
the Native American Advisory Group to the U.S. Sentencing
Guidelines Commission points out the disparity between tribal
sentencing authority and the sentences that are imposed by the
Federal Government for crimes committed under the Major Crimes
Act. Assaults comprise the greatest percentage of crimes
prosecuted under the Major Crimes Act, and the average Federal
sentence for Indians prosecuted for assault is 3 years. Because
U.S. Attorneys rarely prosecute any crime in Indian country
that is not a very significant assault, there is a large gap
between the maximum sentencing authority of tribes and the
average sentence for the least serious crime that is prosecuted
by the Federal Government. Many crimes of domestic violence
fall into this gap.
The issue of increasing sentencing authority raises a concern
about the relationship to Federal prosecution declinations,
because Federal prosecutors often decline prosecution when they
feel the tribe could impose a remedy. Most tribes do not have
the resources or facilities for long term incarceration and
need the Federal Government to continue to prosecute major
crimes.
Amend the Adam Walsh Act to expand tribal governments'
ability to participate in the national sex offender registry
system and remove the unnecessary infringement on tribal
authority included in Section 127. Unfortunately, rather than
help unravel the jurisdictional maze, Congress has recently
added another layer of confusion to the system with the passage
of the Adam Walsh Act. Under Section 127 of the Adam Walsh Act,
Indian tribes who wish to participate in the national sex
offender registration system as a registration jurisdiction
must indicate their intent to do so before July 27, 2007. If a
tribe fails to make such an election before the deadline, the
authority under the law is delegated to the state. This
represents a dramatic departure from the current scheme of
criminal jurisdiction in Indian country. Section 127 of the
Adam Walsh Act has the potential to effect a dramatic expansion
of the scope of state jurisdiction in Indian Country over a
narrow class of crimes and will undoubtedly create years of
confusion among law enforcement agencies on the ground. It also
threatens to destabilize countless carefully negotiated cross-
jurisdictional collaborative agreements. This provision was
added by the Department of Justice at the 11th hour with no
tribal consultation.
Tribes strongly support the tracking of sex offenders. Congress
needs to remove the July 27, 2007 deadline and allow tribes to
participate at any time after that date. PL 280 jurisdiction
tribes should also be able to participate, and Congress should
remove the provision delegating tribal and Federal criminal
authority to the states. Congress also needs to fund the
National Tribal Sex Offender Registry that was authorized in
the Violence Against Women Act in 2005.
Misdemeanors and Victimless Crimes Committed by Non-Indians
The general lack of tribal jurisdiction for misdemeanors committed
by non-Indians creates significant problems for law enforcement.
Alcohol and drug related disturbances, traffic violations, domestic
violence and gang activity commonly involve both Indians and non-
Indians. The absence of tribal jurisdiction to deal effectively with
non-Indians creates a perception that the likelihood of being caught
and punished is low, and encourages a disregard for tribal law
enforcement. This problem is compounded by the status of ``victimless''
crimes--those committed on the reservation by a non-Indian that do not
actually involve harm or threat to the person or property of an Indian.
Neither the tribe nor the Federal Government has jurisdiction over
victimless crimes, only the state. As a result, most routine disorderly
conduct, traffic violations, gambling offenses and other moral offenses
committed by non-Indians within Indian country are exclusively within
the jurisdiction of the state and receive little enforcement attention.
These gaps in tribal and Federal jurisdiction defeat community-based
policing initiatives and create disorder and disregard for law
enforcement in Indian country. \9\
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\9\ Testimony of John St. Claire, Chief Judge, Shoshone and Arapaho
Tribal Court, Wind River Indian Reservation, Senate Committee on Indian
Affairs, February 27, 2002.
In consultation with tribes, expand tribal and Bureau of
Indian Affairs authority to cover a broader range of ``non-
major'' crimes as well as misdemeanors and ``victimless''
crimes committed by non-Indians. This could be done in two
ways. First, directly authorize tribes to prosecute
misdemeanors. Second, the Bureau of Indian Affairs could be
authorized to develop regulations governing misdemeanors and
minor crimes committed by both Indians and non-Indians in a
manner similar to the National Park Service. See 16 U.S.C.
Sec. 1c and also the current regulations governing Indian
offenses at 25 C.F.R. Part 11. Legislation and regulations
would need to be carefully crafted not to overly ``Federalize''
misdemeanor crimes that have normally been committed to tribal
government enforcement, perhaps through establishment of
Federal-tribal agreements that would protect tribal law
enforcement. Public Law 638 contracting could playa role, as
well as an option for express consent to tribal court
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jurisdiction in lieu of Federal prosecution.
Amend the ICRA to remove the overly burdensome jury trial
requirement. The ICRA requires Indian tribes to provide juries
to anyone accused of an offense punishable by imprisonment. The
Federal Constitution only recognizes such a right for persons
subject to a term of imprisonment for ``serious offenses,''
which primarily refers to non-petty offenses, or those offenses
which carry a prison term of greater than 6 months.
Amend Public Law 280 to affirm tribal concurrent
jurisdiction and allow tribes to retrocede. Under Public Law
280, state and local law enforcement has displaced Federal
enforcement and assumed full or partial jurisdiction over
crimes committed within Indian Country in certain states and on
certain reservations. Tribal opposition to Pub.L. 280 has
focused on the law's failure to recognize tribal sovereignty
and the lack of consent of the affected tribes. States have
focused on the failure of the Act to provide Federal funding an
unfunded mandate on lands that are not taxable. Even though
tribes retain concurrent jurisdiction, the Federal Government
has viewed Pub.L. 280 as an excuse to cut off tribal financial
and technical assistance for law enforcement. The law has
contributed to mistrust and hostility between state and tribal
officials on many reservations. A common tribal perception is
that state law enforcement refuses or delays when the tribe
asks for assistance, but vigorously asserts their authority
when the tribe does not want them to intervene. Professor
Carole Goldberg has made a compelling case that the law has
worsened the problem of lawlessness on reservations \10\:
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\10\ Carole Goldberg-Ambrose, Planting Tail Feathers: Tribal
Survival and Public Law 280 (UCLA American Indian Law Studies Center,
1997), p. 12.
Public Law 280 has itself become the source of lawlessness on
reservation. Two different and distinct varieties of
lawlessness are discernible. First, jurisdictional vacuums or
gaps have been created, often precipitating the use of self-
help remedies that border on or erupt into violence. Sometimes
these gaps exist because no government has authority. Sometimes
they arise because the government(s) that may have authority in
theory have no institutional support or incentive for the
exercise of that authority. Second, where state law enforcement
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does intervene, gross abuses of authority are not uncommon.
National and Tribal Community Homeland Security
The Department of Homeland Security is responsible for assessing
the Nation's vulnerabilities related to terrorism, natural disasters
and other major public safety matters. Tribal governments are partners
and stakeholders in the national homeland security strategy. Tribal law
enforcement agencies evaluate vulnerabilities, collect information,
provide surveillance and respond and coordinate with Federal, state,
local and private entities in the event of a terrorism or related event
as required by Homeland Security Presidential Directives. Federal
preparedness funding is shared with state governments but not directly
with tribal governments for national homeland security purposes. The
national preparedness goals will fall short unless tribal governments
are provided direct funding by the Congress and the administration for
planning, training, exercises, interoperability and equipment
acquisition for major events as well as capacity building for
prevention activities such as information gathering, detection,
deterrence, and collaboration related to terrorist attacks.
D. Maximizing the Use of Available Resources
NCAI has long advocated for increased funding for law enforcement
in Indian country because of the public safety crisis. Basic law
enforcement protection and services are severely inadequate for most of
Indian country. For example, a recent Bureau of Indian Affairs analysis
indicates that in BIA Law Enforcement, 1,153 officers are needed but it
has only 358. The gap is 795 officers (69 percent unmet need). In
Tribal Law Enforcement--3,256 officers are needed but tribes have only
2,197. The gap is 1,059 officers (33 percent unmet need). Total need is
1,854 law enforcement officers. To put this in perspective, these 2,555
Indian country law enforcement officers make up about 0.004 percent of
the total of 675,734 state, city and county law enforcement officers in
the United States, yet they patrol approximately 2 percent of the
landmass of the United States and 1 percent of the population.
Increasing law enforcement funding is a top priority. In addition,
there are several things that Congress can do to maximize the use of
existing resources.
Authorize BIA police departments to apply for Federal law
enforcement grants with tribal approval. Currently direct
service BIA police departments are at a disadvantage from
tribal police departments. Tribal police departments can apply
for Department of Justice grants, HUD grants, and a series of
other grants that enable them to access increased funds for
personnel and equipment.
Authorize a tribal courts set-aside in the Judiciary
appropriations bill. The Federal courts are funded separately
under Judiciary appropriations. Tribal courts could be included
in this funding source as a way to relieve the pressure on the
Interior budget, and increase support for the Judiciary budget.
Consolidate and streamline Federal law enforcement funding
sources to tribes. Amend grant programs to require Federal
agencies to provide maximum flexibility to tribal governments
in program administration.
Reauthorize the Indian Tribal Justice Act.
Restore COPS program funding.
Eliminate pass-through funding from states in Federal
programs. Indian tribes are separate sovereigns with a direct
relationship with the Federal Government recognized in treaties
and the Constitution. Unlike cities and counties, tribes are
not a subset of a state government. Because of the separate
status of tribal governments, in most states the state
government does not readily share sources with tribes and it is
very difficult for tribes to receive a fair allocation of
program funding.
A Tribal Government Enhancement Fund should be established
for the development of tribal law enforcement and courts.
E. Creating a New Standard of Tough Law Enforcement in Indian Country
Law enforcement has been the leading concern of tribal leaders
throughout the country for at least the last 5 years that priorities
have been measured by the BIA Budget Advisory Committee, and probably
for much longer. NCAI strongly encourages Congress to take action on
all of the fronts that we have identified above. Taken together--an
improvement in the Federal response, an increase in state-tribal
cooperation, enhancements to tribal authority, and maximizing law
enforcement resources--we can dramatically change the environment for
criminal activity on Indian reservations. Our goal is a short term
clampdown that will send a new message to the criminal element that law
will be vigorously enforced, and thereby create a deterrent to crime on
Indian lands. This effort will bring great benefits to Indian
communities and our neighbors in public safety, but also in health,
productivity, economic development, and the well-being of our people.
We thank you in advance, and look forward to starting our joint efforts
immediately.
The Chairman. President Garcia, thank you very much. We
appreciate your testimony, as always, and we appreciate your
recommendations and suggestions.
Next we will hear from Professor Kevin Washburn. Kevin is
an Associate Professor at the University of Minnesota and has
testified previously before this Committee. We welcome you
again. You may proceed.
STATEMENT OF KEVIN K. WASHBURN, ASSOCIATE PROFESSOR, UNIVERSITY
OF MINNESOTA LAW SCHOOL
Mr. Washburn. Police officers are sometimes called the thin
blue line that protects the ordinary citizen from crime. The
problem is that in Indian Country, it is a dotted line. The
thin blue line in Indian Country is a dotted line. We need to
fill in those gaps. It is crucial.
How did we get to this situation where we have such dotted
lines? Part of it appears on the chart that Chairman Dorgan has
shown. We have a very complicated system that developed over a
long period of time.
One thing that is a fact about that chart, though, is
tribes are often secondary. Tribes are not the primary
providers of law enforcement in Indian Country. They share that
responsibility with the BIA, they share it with States. But the
problem is that BIA, and the United States in general, has
other priorities besides Indian Country.
Only the tribe is primarily concerned for the Indian
reservation. The tribe is the government that is concerned most
with what is going on in an Indian reservation. If we make it a
State responsibility under Public Law 280, or we make it a
Federal responsibility under the Indian Country system, we have
taken the responsibility for the problem away from the
government that has the most serious interest in correcting the
problem. So that is a fundamental problem, and we are not going
to get anything corrected, ultimately, until we make sure that
tribal governments have primacy on these issues. Anything else,
I think, is a half solution or a partial solution.
Now, we have talked a fair bit about the wonderful Amnesty
International report that has really shed a lot of light on
these issues. But there has also been an interesting series in
the Wall Street Journal recently. Any problem that has both the
attention of Amnesty International and the Wall Street Journal
ought to be something that we can come together on and achieve
solutions. It is on both sides of the aisle, if you will. So I
hope that we can do that. I think there is time, there is an
ability to take action here if we have those kinds of disparate
interests concerned about this issue.
One of the problems, I think, with having the BIA or having
Public Law 280 States involved in these problems is the problem
that Senator Tester mentioned, it is that accountability gap.
Tribal governments are the people that are most responsible to
crime victims and offenders on reservations. They live there.
And they suffer under those crimes. BIA officials don't
necessarily live there. It is just one of the other
reservations they have to cover. So there is an accountability
gap.
One thing we can do to solve that gap is to increase
cooperation. It doesn't have to be the case that when you call
up 9-1-1, they say, ``are you a member or a non-member?''
Through cross-deputization agreements, we can insure that it
doesn't matter whether you are a member of the tribe or not. If
the tribal police are cross-deputized with State authority and
vice versa, State officers with tribal authority, then they can
respond to a 9-1-1 call wherever it happens.
Let me tell you, the person dialing 9-1-1 doesn't care who
responds. They need action and they need it quick. So those are
the people we really need to be serving, and you, as the
Government, have the responsibility to provide that. I hope you
will work to do that.
When I was first asked to testify, what came to mind to me
was a brief chance encounter I had with Rudy Guiliani when he
was Mayor of New York City and I was an AUSA, about 10 years
ago, an assistant U.S. attorney prosecuting violent crimes in
Indian Country. He was basking in the glow of tremendous
success in New York City in lowering the crime rate. The crime
rate had been falling throughout the 1990s and he was taking
credit for that. He had several initiatives that he said caused
that.
One of them was his COMPSTAT program, where he got together
all the information on a minute by minute basis, all over New
York City, and it was all fed into a central computer. And
whenever crime rose in one neighborhood, he would send police
officers there immediately. He had it very well coordinated,
and police officers would pounce where there was a criminal
problem. I said, well, you have had great success, Mayor
Guiliani, how could we bring that kind of success to Indian
Country? And he thought about it for a while, and he said,
well, you know, your problem is you have a whole bunch of
different jurisdictions out there and you need someone with
unilateral authority and control. I have that in New York City.
No one could have that in Indian Country in many places.
And I think he is right in some ways. He had established
this wonderful system of coordination within New York City. But
I thought about what he had said again just a couple of years
later on 9/11. And in the aftermath of 9/11 what we saw was
these firemen that were trying to save lives, and they couldn't
even communicate with one another, because the technology
wasn't there to help them cooperate and coordinate.
So while he had developed a wonderful system for law
enforcement, he had failed in this other key area of public
safety. It illustrates the necessity of good cooperation, the
need for really good cooperation. I have to say, when I asked
him, how do we apply his law enforcement system to Indian
Country, he kind of shrugged and said, good luck, kid. You
don't have that kind of authority.
So let me say, I am not endorsing Guiliani right now.
[Laughter.]
Mr. Washburn. But he had wrestled with the problem, I
guess.
There are lots of good instances of cooperation in Indian
Country, cross-deputization agreements. Interestingly, NCAI has
cataloged a lot of those agreements, and they are available on
NCAI's website. Well, NCAI is a non- governmental organization.
It would be far better if someone at the Department of Justice
was going to each county that has an Indian reservation and
saying, why aren't you agreeing, why aren't you entering cross-
deputization agreements? It would be far better if a United
States Senator or a U.S. Senate committee were asking counties
those kinds of questions and ensuring that cooperation. And
maybe, maybe providing some sort of incentives for better
cooperation, encouraging people to get together.
Now, cops on the ground tend to work very well together. At
higher levels, agencies sometimes collide, especially when they
are State versus Federal versus Tribal. We have to work through
those differences, we have to get good cooperation in Indian
Country. So if I leave here with one thought, it is that we
have to really facilitate greater cooperation between State and
Federal law enforcement and tribal law enforcement, who need to
be primary on these issues.
Thank you for having me here today.
[The prepared statement of Mr. Washburn follows:]
Prepared Statement of Kevin K. Washburn, Associate Professor,
University of Minnesota Law School
Thank you for inviting me to appear before the Committee again.
It seems disingenuous to describe law enforcement and public safety
in Indian Country as an urgent crisis because it has been a serious
problem not just for years, but for decades. I know that this Committee
understands the importance of this issue and I applaud you for taking
up the issue today and providing an important forum for discussion and,
hopefully, for action.
Some facts related to Indian country are muddy, but this one is
clear: the models of criminal justice that are responsible for poor
public safety in Indian country have emasculated tribal governmental
systems and made state and the Federal officials the primary providers
of public safety in Indian country. State, county and Federal
Governments have competing priorities that distract them from the
importance of public safety on Indian reservations. Tribal governments
are the only governments that are singularly concerned about the
quality of life on reservations. Until tribal governments are restored
to a central role and made primarily responsible for assuring safety on
Indian reservations, we are likely to see continued problems.
Redressing the serious public safety problems on Indian reservations
will not be fully successful until the entire system is reconfigured to
give tribal governments primacy over reservation communities. Both
tribal self-governance and public safety are better served when tribes
exercise a central role in providing public safety and criminal justice
on Indian reservations.
Restoring the law enforcement powers of tribal government is a
difficult political challenge. Not only are state and the Federal
officials likely to object to transferring power to tribes, but tribal
leaders are unlikely to come to you to clamor for more authority. It
may not be fruitful politically for a tribal leader to say to Congress,
``I would like to have greater power to lock up my own people.''
Moreover, since public safety is perhaps the most dire social problem
on American Indian reservations, tribal leaders may not have adequate
resources to address the issue successfully. In such circumstances, a
tribal leader may think it irresponsible--and see no advantage
politically--in buying into almost certain failure. Moreover, it is
politically expedient for tribal leaders to have someone else to share
the blame. States and the Federal Government seem to be willing
villains. Other than an occasional embarrassing report, Federal and
state officials have little political accountability for the failure of
public safety on Indian reservations. Thus, though public safety can
improve only through greater tribal involvement, we should not expect
to see tribal leaders clamoring for greater public safety authority.
Though we must put tribal governments out front in addressing
public safety, it will not be an easy task. We cannot restore tribes
greater authority without also helping them obtain the necessary
resources to do the job. Because I recognize significant political
obstacles to wide-ranging restoration of tribal authority, I would like
to focus now on partial solutions or measures that might help improve
tribal safety that are nevertheless short of wholesale restoration of
tribal authority on Indian reservations. One of the best resources
tribal governments can have is cooperation. It is to this resource I
will now turn.
Partial Solutions/Improvements
If I leave you with one concrete idea here today, it should be the
notion that cooperation among existing law enforcement agencies across
all orders of government is crucial in dealing with violent crime in
Indian country. Criminal offenders do not respect jurisdictional
boundaries. Thus, any reform proposal ought to attempt to foster
cooperation among law enforcement agencies.
To illustrate my point, I ask you to indulge me a brief anecdote.
In 1998, when I was serving as an Assistant United States Attorney
prosecuting violent crimes in Indian country in New Mexico, I had a
chance encounter with Rudolph Giuliani who was then serving his second
term as Mayor of New York City. Giuliani had presided over a long and
steady period of decline in crime in New York, both as Mayor and,
before that, as United States Attorney, and he was basking in that
success.
In light of the fact that violent crime in Indian country had been
increasing steadily throughout the 1990s at the same time that it had
been decreasing throughout most of the rest of the country, I asked
Giuliani what strategies we might use in Indian country to achieve the
successes that New York had achieved in reducing violent crime.
Giuliani pondered the question for a moment. He noted that as Mayor
of New York City, he had full control over law enforcement through all
five boroughs, covering several million citizens. Combining computer
technology and improved crime reporting, his Comp-Stat system could
monitor the development of crime on a nearly instantaneous basis and
with such focus that it could detect crime problems on a block-by-block
basis. This information allowed New York City to deploy police officers
swiftly and efficiently to neighborhoods desperately in need of
attention and to move those resources again on the very next shift. He
made the New York City Police Department a model of responsiveness and
coordination.
When I asked Giuliani to bring that experience to bear on Indian
country, he correctly realized that such coordination was nearly
impossible across such vast expanses of land in Indian country
jurisdictions, where no one law enforcement agency has unilateral
authority and where police officers are spread very thin. Under such
circumstances, such coordination simply could not be achieved in the
way that it could under the Comp-Stat system and with a single chain of
command. He basically said, ``you have a terrific problem ahead of you,
kid,'' and wished me luck.
Giuliani's astute insight about the importance of coordination in
public safety came to mind again a couple of years later in the
aftermath of the World Trade Center disaster. On 9/11, when fire and
rescue personnel could not communicate with one another in the crucial
minutes before the towers fell, many lives were lost. In one tragic
event, it became clear that the tremendous coordination that Mayor
Giuliani had achieved in law enforcement had utterly eluded him in
another key area of public safety. It was an important lesson for him,
I am sure, and it is an important lesson for all of us.
Because law enforcement authority in Indian country is spread
across wide expanses of land and many orders of government (Federal,
state, tribal, county, and municipal), we will never be able to achieve
the level of coordination that Mayor Giuliani's police department
achieved in New York City. Indeed, our Federal system is designed to
spread out such authority among different orders of government. Given
limited resources and crisis conditions, however, we must strive to
avoid the lack of coordination that plagued the World Trade Center
disaster. We must recognize that no single law enforcement agency can
address crime alone. Thus, we must work to facilitate cooperation among
them.
One lesson is that law enforcement can be effective in achieving
public safety only if there is adequate cooperation between the key
actors. I offer the following observations.
I. Most of the Law Enforcement Successes in Indian Country Have Come
From
Careful and Effective Cooperation Between Law Enforcement
Authorities
Law enforcement works best when neither the offender, nor the law-
abiding citizen, can detect any gaps in coverage. When a potential
offender scans the landscape and considers whether to break the law, he
must see a unified front among law enforcement officials. To put it
another way, the thin blue line that protects the ordinary citizen from
the criminal element cannot be effective if it is a dotted line.
Most citizens in the United States do not care strongly who
responds to public safety crises, they just want to know that when they
dial 9-1-1, they will get the help that they need. It is the job of
government to ensure that kind of confidence. Especially in the many
rural districts that include Indian country, effective law enforcement
can be achieved only with close cooperation between governments.
The good news is that cooperation between law enforcement agencies
is occurring widely in Indian country. This Committee has heard ample
testimony of such cooperation, particularly in the methamphetamine
context, including tremendous successes at Wind River in Wyoming and
with my own tribe, the Chickasaw Nation, in Oklahoma. As tribal
organizations build capacity, they are working more and more with their
state and Federal counterparts.
In most of the states that have federally recognized Indian tribes,
tribal governments have entered agreements with states and/or counties
that facilitate cooperation. Many states and the Federal Government, of
course, also provide mechanisms for state-wide recognition of tribal
police as law enforcement officers. In other states, these agreements
are struck at the local level. These agreements span a range of law
enforcement activities, reflecting mutual aid efforts, cross-
deputization or cross-commission agreements, extradition, and other
cooperative action arrangements. They also sometimes address thorny
issues such as liability and sovereign immunity. And in addition to
normal law enforcement activity, the agreements also sometimes cover
the sharing of information between agencies, such as prior arrests,
traffic records, and other criminal history.
Effective cooperative agreements have the ability to simplify
complex questions, freeing law enforcement officers to focus on the
most important aspects of their jobs. The Committee is well aware of
the jurisdictional complexities of Indian country, and I will not
belabor them here, but police officers tend to be well-trained in the
police sciences, not in ethnology or land surveying. Cooperative
agreements tend to allow police officers to focus on public safety and
not on highly artificial and arcane legal issues, such as
jurisdictional boundary lines.
Still, though cooperation is occurring widely, it is not universal
by any means. In many jurisdictions, cooperation is not formalized.
II. Even Informal or de facto Cooperation Between Law Enforcement
Agencies Can Help Produce Law-abiding Behavior and Thus Serve
Public Safety
Even in the absence of formal agreements, the appearance of
cooperation and coordination between police officers can help to create
an effective public safety net. One of my colleagues, a law professor
who is a non-Indian, recendy illustrated this point well. While working
on the Navajo Reservation, she was stopped for driving in excess of the
speed limit on a lonely reservation highway. When she mentioned that
she was non-Indian and that the tribe might not have jurisdiction, the
tribal officer apparently offered to let her wait for a state trooper
and have her case adjudicated in the state system, with the attendant
delay and other ramifications that such action would entail. \1\ Under
such circumstances, the mere threat of cooperation between law
enforcement officials led the professor to see that objecting to tribal
authority would waste her time, would likely not be fruitful, and might
subject her to more severe traffic penalties. She accepted the citation
and opted for the tribal process.
---------------------------------------------------------------------------
\1\ I Bethany R. Berger, Justice and the Outsider: Jurisdiction
Over Nonmembers in Tribal Legal Systems, 37 ARIZ. ST. L. J. 1047, 1048-
49 & n. 7 (2005).
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One could easily imagine the same scenario involving a state
trooper and American Indian violators. Thus, even informal cooperation,
or the appearance of it, can help to assure offenders and non-offenders
alike that there is no prosecution-free zone in Indian country.
Whether it occurs formally or informally, cooperation often is the
norm in Indian country. Cops tend to be able to work with other cops,
especially at the street level, primarily because they share a common
enemy and they realize that the enemy is not other law enforcement
agents.
III. While Cooperation and Trust Between Law Enforcement Agencies Can
Improve Public Safety, Conflict and Lack of Cooperation Among
Such Agencies Can Only Undermine Public Safety
Street level police officers may have friendly rivalries with those
from other agencies, but they often work well together when responding
to a crime or undertaking an investigation. They know that crime
control and public safety can be achieved far more successfully when
law enforcement agencies work together. Sometimes, however, agencies
fail to cooperate. When this happens, public safety suffers.
Some recent events in my own state of Minnesota illustrate the
potential for trouble when law enforcement agencies fail to work
together. The Mille Lacs Band of Ojibwe Indians exercises some law
enforcement functions on its reservation. It also cooperates closely
with state and county officials who have law enforcement authority
under a 1953 Congressional statute called Public Law 280. In
circumstances in which county and tribal law enforcement share
authority within the same geographic space, cooperation is key. Indeed,
Mille Lacs County and the Mille Lacs Band entered into an agreement in
1998 that provides that each agency shall provide mutual assistance to
the other. The 1998 agreement also addresses other important issues,
such as how prosecutions will be commenced and how liability for law
enforcement torts will be allocated and waives tribal immunity for such
actions against the tribe to be tried in the same manner as for
municipalities within the state.
As a result of the agreement, tribal police officers have routinely
referred criminal activities to the County Attorney for state
prosecution. Since the Band employs 19 tribal police officers who are
certified law officers under state law, the Band is a significant
partner in providing public safety on the reservation. The Band spends
approximately $2 million a year on law enforcement activities and
provides a significant law enforcement presence in that part of the
County.
Recently, however, the relationship between the County and the Band
has deteriorated. The Mille Lacs County Attorney, who is responsible
for prosecuting the offenses that arise in Mille Lacs County, has
challenged the very existence of the Mille Lacs Reservation itself,
arguing that it was disestablished in the early 1900s. In a memo to
county employees last year, she ordered all employees to stop referring
to Indian land as ``reservation'' land. This assertion, which conflicts
with the County's own agreement with the tribe, caused an unnecessary
rift between the County and the Band. Apparently emboldened by the
County Attorney's actions, some of the worst prejudices of some members
of one of the local communities were on display at a summer parade
after news of the memo circulated. On that day, citizens lining the
parade route booed and made obscene gestures toward a float carrying
elderly American Indian war veterans.
To a criminal law professor, those boos sound an awful lot like the
fabric of the community tearing under the enormous weight of prejudice.
While booing elderly Indian veterans may be protected speech under the
First Amendment, it suggests trouble ahead to anyone concerned about
public safety. Imagine the public safety concerns that arise when a
crowd of people feel emboldened to express animus in a way that
violates our fundamental social norms of respect for the elderly and
honor for our Nation's war veterans. Will such people commit acts of
violence? If police are called out, will these prejudiced people
respect state-certified tribal police officers who are engaged in the
routine work of law enforcement in keeping peace?
It is the job of law enforcement officers to build cooperation, not
destroy it. Thus, the failure of the county attorney to work toward
trust and cooperation may have long term ramifications. This past
spring, another occurrence from the same locale stoked great mistrust
of the County Attorney by tribal members. In the course of attempting
to bring a prosecution for a minor offense, the County arrested a child
victim of an assault, only 11 years old, who was jailed overnight, and
required to appear in court the next day in an orange jail jumpsuit.
The incident drew howls of protest in the tribal community. The tribe
felt that the arrest of the child victim had the effect of victimizing
the child a second time. As a result, the County Attorney has largely
lost the confidence of a large number of the people that she is
intended to serve. These events raise an important question: what
happens when cooperation fails and law enforcement loses the trust of
the community it has been given the responsibility to serve?
IV. Cooperation Must Be Encouraged at Every Step of the Process. When
it Fails, Tribal Communities Must Have Alternative Options
Congress must work to provide incentives for cooperation among
state, Federal and tribal law enforcement agencies.
As the previous discussion indicates, however, cooperation may fall
short even when strong incentives already exist. Through cooperation,
the Mille Lacs County Attorney has 19 additional tribal police officers
at her disposal to maintain public safety and respond to crimes. This
is a tremendous incentive to cooperate. Yet, the County Attorney seems
to have worked to undermine that cooperation and made it difficult for
tribal law enforcement officials to work with the County.
In circumstances where positive incentives toward cooperation fail,
Congress should create an alternative approach, an escape valve, if you
will, for tribes. In Public Law 280 states, for example, Congress
should give tribes the full ability to opt out of state Public Law 280
jurisdiction in circumstances in which the tribes have lost confidence
in the state officials responsible for public safety. While tribes now
have a limited retrocession option, existing law requires states to
consent to the exercise of such an option. Giving the state the right
to veto a retrocession is ill-advised because it prevents the tribe
from going elsewhere if the state is not doing its job. The state ought
to have incentive to serve the tribe well.
A tribal option for retrocession, that is, a choice, would further
tribal self-government by putting key law enforcement questions in the
hands of the tribe and force the state to be responsive to the tribe if
it wishes to keep the tribe as a partner. It would also further public
safety because it would make the government accountable to the
community it is supposed to be serving. If a reservation community
believes that the state is doing a good job, then the state can
continue. But if the state is doing a poor job, then it can install a
Federal/tribal system in which tribal officials will be forced to
exercise greater accountability for public safety.
To address public safety, Congress should encourage the more robust
exercise of existing tribal criminal jurisdiction over misdemeanor
offenses by American Indians. Tribal governments are better situated
and more responsive to reservation communities. They are thus likely to
do a better job in addressing public safety than any Federal or state
officials can.
For a limited category of offenses, Congress should consider,
perhaps on a pilot basis, giving those responsible tribes that are
interested in participating a modicum of misdemeanor criminal authority
over non-Indians who commit crimes involving Indians on the
reservation. With appropriate safeguards, such jurisdiction could
resolve many of the continuing problems in Indian country by placing
control over law enforcement and criminal justice with the government
that is best situated--and best motivated--to address violent crimes
and minor narcotics offenses. Accepting the exercise of limited
criminal jurisdiction over non-Indians by tribal governments is a very
modest step toward addressing a public safety problem that has existed
for far too long.
A final word. Modern Federal policymakers have long been interested
in furthering tribal self-government because tribal governments are
better at providing services to tribal communities. If we wish to
promote public safety, it is hard to imagine a better way to do that
than by empowering the government that is most interested in providing
it. No government has a greater interest in reservation safety than the
government that calls the reservation home. Only the tribal government
is fully accountable to the reservation community that must live
without public safety.
Likewise, it is hard to imagine a subject more crucial to tribal
self-government than public safety. A community cannot effectively
exercise self-government when it cannot establish an environment in
which citizens can safely and vigorously engage in the activities of
governance. Effective tribal law enforcement is a key ingredient to
reservation public safety.
Scholars can quibble about whether tribal courts should be able to
try non-Indians, or whether state or Federal courts are fair or
effective, but unless we have adequate law enforcement in place, all
this quibbling is no more useful than re-arranging office chairs in the
World Trade Center on September 10, 2001. We do not need agreement on
all jurisdictional issues to create public safety in Indian country,
but we do need cooperation among those players whose task is to ensure
public safety. Those agencies that do not cooperate ought to be
strongly encouraged to do so. If they fail to improve, they should step
aside in favor of governments that are more interested in providing
public safety.
Thank you for asking me to appear here today.
Disclaimer: The comments expressed herein are solely those of the
author as an individual member of the academic community; the author
does not represent the University of Minnesota for purposes of this
testimony.
Bibliography
A bibliography of Professor Washburn's work in the area of criminal
justice in Indian country is set forth below, with brief abstracts of
each work:
American Indians, Crime, and the Law, 104 MICHIGAN LAW REVIEW 709
(2006). The Federal ``Indian country'' criminal justice regime, which
governs hundreds of Federal Indian reservations across the United
States, gives Federal prosecutors, Federal judges, and Federal juries
the important responsibility of providing criminal justice for serious
local crimes on Indian reservations and also for many less serious
offenses. Because Indian country offenses are, by definition, local
crimes with little national impact, this work is an unusual part of the
Federal docket. For a variety of reasons, related to history and
geography and other factors, Federal prosecutors and investigators face
numerous practical obstacles in performing their jobs in Indian
country. Likewise, because Federal grand juries and trial juries for
Indian country cases tend to be constituted from the general population
of a Federal judicial district rather than from within the boundaries
of the courts' Indian country jurisdiction, these juries fail to
represent fair cross-sections of the Indian country community. Such
juries cannot serve the community-representative functions envisioned
by the Constitution. As a result, Federal Indian country trials operate
in a manner inconsistent with basic American norms of criminal justice,
such as those set forth in the First and Sixth Amendments to the United
States Constitution. And Federal Indian country convictions therefore
lack important hallmarks of legitimacy and raise serious constitutional
concerns. According to this constitutional critique, the Federal
criminal justice system on Indian reservations should be reconceived to
give life to existing Federal constitutional norms or repealed in favor
of an approach more consistent with constitutional values and modern
Federal Indian policy. This article may also be viewed online at http:/
/ssrn.com/abstract=709383.
Federal Criminal Law and Tribal Self-Determination, 84 NORTH
CAROLINA LAW REVIEW 779 (2006). Under the rubric of ``tribal self-
determination,'' Federal policymakers have shifted Federal Governmental
power and control to tribal governments in nearly all areas of Indian
policy. Normatively, this shift reflects an enlightened view about the
role of Indian tribes in Indian policy. As a practical matter, it has
also improved services to Indians on reservations by placing functions
with tribal service providers who are more knowledgeable and more
accountable than their Federal counterparts. Despite choosing tribal
self-determination as the dominant theme of modern Federal Indian
policy, felony criminal justice on Indian reservations has been an
exclusive Federal responsibility, and a highly ineffective enterprise,
according to critics, because crime is worse for American Indians than
any other ethnic group. The failure to embrace self-determination in
Federal Indian country criminal justice is curious. Criminal law has a
central role in shaping and expressing community values and identity.
And a community that cannot create its own defmition of right and wrong
cannot be said in any meaningful sense to have achieved true self-
determination. Tracing the history of the century-old Indian Major
Crimes Act, it is clear that the Act's original purposes, increasing
Federal control and encouraging assimilation, lack legitimacy in the
modern era. As mainstream Federal Indian policy has become much more
enlightened, the Major Crimes Act has become an embarrassing
anachronism. Tribal self-determination strategies in criminal justice
might help tribes achieve true self-determination and help Indian
country recover from the current criminal justice crisis. This article
may be viewed at: http://ssrn.com/abstract=800828.
Tribal Self-Determination at the Crossroads, 38 CONNECTICUT LAW
REVIEW 777 (2006). The tribal self-determination initiative that began
transforming Federal Indian policy thirty years ago has reached a
crossroads. Despite its transformative effects on tribal governments
and the widespread belief that self-determination has been a successful
Federal approach to Indian affairs, no new self-determination
initiatives have occurred, at least at the Congressional level, in
several years. This Essay looks to the self-determination policy's past
for insight about its future and concludes that far more work needs to
be done to achieve tribal self-determination. Drawing on the author's
broader work, it argues that a fruitful subject for further work is in
the area of tribal criminal justice. This article may be viewed at:
http://ssrn.com/abstract=869848.
Tribal Courts and Federal Sentencing, 36 ARIZONA STATE LAW JOURNAL
403 (2004); 17 FEDERAL SENTENCING REPORTER 209 (2005). Under the
prevailing Federal sentencing guidelines, tribal convictions are
currently disregarded in Federal sentencing. This article argues that
the Sentencing Commission should trust misdemeanor convictions in
tribal courts at least as much as it trusts misdemeanor convictions
from state, county, and municipal courts. For a variety of
institutional reasons, tribal convictions could be considered to have
far greater legitimacy than Federal and state convictions. This article
cites a trend toward use of tribal court convictions by individual
Federal judges to grant upward departures in Federal criminal sentences
and argues that the Federal sentencing guidelines ought not treat
tribal courts like foreign courts. It explains the numerous
similarities between tribal courts and other American courts and argues
that tribal courts ought to be treated more like domestic courts. A
summary of the article appears as Reconsidering the Commission's
Treatment of Tribal Courts, 17 FEDERAL SENTENCING REPORTER 209 (2005),
and is followed by four separate comments on Professor Washburn's
argument by Federal judges William C. Canby, Jr., (9th Cir.), Bruce
Black (D. N.M.), Charles Kornmann (D. S.D.) and Federal Public Defender
Jon Sands (D. Ariz.). The summary version can be viewed at http://
ssrn.com/abstract=779624.
A Different Kind of Symmetry, 34 NEW MEXICO LAW REVIEW 263 (2004).
There is a national trend within state courts and legislatures toward
recognition of tribal criminal judgments of conviction in a variety of
contexts related to criminal law: State courts have relied on tribal
convictions for purposes of (1) assessment of an offender's general
criminal history in sentencing, (2) for use as a predicate offense for
prosecution for an aggravated offense, such as aggravated DWI or
domestic violence prosecutions, (3) for driver's license suspension or
revocation, (4) for treatment of a juvenile as an adult for purposes of
felony prosecution, and (5) for purposes of sex offender registration.
This article describes the implications of the increasing recognition
of tribal criminal convictions for tribal civil judgments. Given that
protections for liberty interests are constitutionally prioritized
higher than mere property interests, it follows that those states that
are willing to rely on tribal criminal convictions in subjecting
criminal defendants to greater jeopardy ought to be willing to extend
at least as much trust to civil judgments from tribal courts.
The Chairman. Professor Washburn, thank you very much.
Next we will hear from Thomas Heffelfinger, former U.S.
Attorney in Minneapolis, and now a partner at Best and
Flanagan. I might say to you, Mr. Heffelfinger, I believe you
were at a listening session I held in Minnesota with regional
tribes. Since that time, you have been the subject of some
comments here in the Congress as you might now, and I will ask
you a couple of questions about that. Monica Goodling, a former
aide to Attorney General Gonzales, testifying before the House
of Representatives, said that you were targeted for dismissal
as a U.S. Attorney because of your preoccupation with Indian
issues.
So as I introduce you, let me just tell you, if you were
focusing a substantial amount of time on what I think are
critical issues, I commend you, rather than threaten you with
dismissal. I will ask you some questions about that, I
appreciate your work and appreciate having seen you in
Minneapolis some months ago at the listening session.
You may proceed.
STATEMENT OF THOMAS B. HEFFELFINGER, PARTNER, BEST AND FLANAGAN
LLP
Mr. Heffelfinger. Thank you, Senator Dorgan and Members of
the Committee. Since you already have me off track----
[Laughter.]
Mr. Heffelfinger. --let me comment that it is actually
shameful and embarrassing for the Department of Justice if that
is in fact the official position of the Department, that
spending too much time on Indian issues should cause one to be
fired. I took that position before the Hennepin County Bar
Association the day after Ms. Goodling testified and received a
standing ovation. So I am confident that whatever her views are
and whatever the views are of the Department of Justice that
may have supported her on that issue that it is not shared by
the people of the United States.
I thank you very much for the opportunity to address the
Committee today. In addition to being U.S. Attorney in
Minnesota, and I guess that which got me in trouble with some
of the highers-up at the Department, was that I chaired for 5
years, almost 5 years, the Native American Issues Subcommittee.
In that capacity, I had opportunity to testify before this
Committee three times, twice in July of 2002 and July of 2003
on the issue of law enforcement in Indian Country.
I gave that testimony as a prosecutor, and I would urge the
Committee to look back at it. Because from my experience,
nothing has changed when it comes to the impact of this
confusing jurisdictional mess upon increasing the difficulty of
prosecutors doing their job. I am going to attempt to avoid
repeating my testimony from 2002 and 2003 and am confident that
the Committee can access it. I would call it to your attention
again.
In March of 2004, while chairing that committee, I had the
honor of participating in a listening session here in
Washington that was put together by NCAI on the issue of
criminal jurisdiction. A gentleman named Chairpah Matheson, who
was tribal council member in Coeur d'Alene, made the following
comment: ``How can tribes have sovereignty when they can't
protect their children and their women?'' I will never forget
that comment, because it goes to the heart of a governmental
obligation, whether it is Federal or tribal or what, to provide
public safety. There can be no higher responsibility for a
government.
As you stated, Senator, at the beginning of this hearing,
the Native American communities suffer disproportionately from
violent crime. What I have not heard, however, is that Native
American communities also suffer disproportionately by the
conviction of their members for crimes. In Minnesota, for
example, the Native American population represents 1 percent of
our State population. But, we are a predominantly Public Law
280 community, or State, and 7 percent of our State prison
population is Native American. The tragedy of this is that the
young people who will become the tribal leaders of the future
are growing up inside our criminal justice systems, either as
victims or witnesses or as defendants.
What motivated me during my years as a United States
Attorney was not only the tragedy of those facts but the fact
that this is a Federal problem. Unlike many other problems the
Senate faces where we are in partnership with the States, these
are Federal problems. The Federal Government has responsibility
for major crimes investigations, even Public Law 280 is a
creature of Federal law.
For the last 122 years of Supreme Court decisions and stop-
gap legislative actions, criminal jurisdiction in Indian
Country has become a mess. It is a patchwork quilt of decisions
and stop-gap legislation. Every time the Congress or the
Supreme Court either returns an opinion or passes a law, all it
does is add a box to that confusing chart that you have in
front of you of Indian Country criminal jurisdiction.
One hundred twenty-two years of court decisions and stop-
gap legislation has created this jurisdictional mess, a mess
which means law enforcement is more difficult, delay is normal,
respect for the law is deteriorated. The losers in that
situation are tribal governments and tribal people. If the
Federal Government is going to fulfill its trust obligation and
protect the people of Indian Country, it must clarify and
simplify in a comprehensive way Indian Country criminal
jurisdiction.
I would like to use the balance of my time to give a set of
recommendations, something I didn't have the opportunity to do
when I was speaking for DOJ. Now that I am a private citizen, I
am going to take advantage of it.
[Laughter.]
Mr. Heffelfinger. I suggest a two-part process, Senators.
The first part is short-term and the second is long-term.
Short-term, I suggest that two of the biggest problems of a law
enforcement nature facing Indian Country right now are drug
dealers, primarily in the area of methamphetamine, and domestic
abuse. Most abusers, 70 percent, as we know from the Amnesty
study are non-Indian. I suggest that Congress immediately look
at ways to empower tribal governments, tribal law enforcement
and tribal courts to deal with these two groups of outsiders
who are bringing misery into Indian Country.
Number two, as my friend, Kevin Washburn, has stated,
multi-jurisdictional task forces work. However, the confusing
criminal jurisdiction frequently makes those task forces either
impossible to form or impossible to keep in place. In many
reservations, and I will use the White Earth reservation in my
State, as an example, you have three different counties in
which the tribe exists and you have to have a multi-
jurisdictional with three counties and innumerable cities.
I would urge the Senate and the House, although I am not
speaking to the House, I guess, I would urge Congress to
empower these task forces. Yes, I am talking money. I am
talking money. Because that works. FBI Safe Trails task forces
have worked very, very well in those areas where they have been
started, largely because the FBI provides money to entice
participation from non-tribal law enforcement.
Number three short-term, establish family violence centers.
Everything that Senator Murkowski talked about and was
discussed earlier is true. Up in northwest Minnesota, if you
are a victim of child abuse or sexual assault, to get to a SANE
nurse or a trained physician in dealing with child abuse, you
have to drive to St. Paul, which is a four and a half hour
drive.
What we established in Minnesota while I was U.S. Attorney
are family violence centers to focus on child abuse, sexual
assault, domestic violence. These are related law enforcement
disciplines. They are also related medical disciplines. We have
trained doctors and nurses to treat those three kinds of
victims within half an hour of each of the reservations. They
serve non-Indian communities as well, because rural America
faces similar problems with lack of resource.
Finally, in the long term, the body of Indian Country
criminal jurisdiction law has never been comprehensively
studied. It is going to take leadership with clout to achieve a
comprehensive change. The Department of Justice cannot do this.
Quite frankly, it lacks the structure and the resolve to take
the leadership in a comprehensive change in this area of
jurisdiction.
I am making a recommendation which I will admit I am
reluctant to make. I am suggesting that Congress establish a
criminal justice commission to develop reforms that will give
us a comprehensively new body of criminal law in Indian
Country. Now, I am reluctant, because the idea of a commission
scares the daylights out of me. It is another group of meetings
and a bunch of paperwork that sits in a basement somewhere.
But I am also convinced that without the clout of Congress
standing over a commission, holding it to deadlines, providing
it with resources and staff, without that type of leadership,
we will never achieve a comprehensive improvement in the
quality of public safety in Indian Country and the quality of
criminal law in Indian Country. Without that comprehensive
change, we are merely adding band-aids and we are not going to
bring about a long-term change in the quality of life and fight
against crime in Indian Country.
Thank you.
[The prepared statement of Mr. Heffelfinger follows:]
Prepared Statement of Thomas B. Heffelfinger, Partner, Best and
Flanagan LLP
Mr. Chairman and Members of the Committee, my name is Thomas B.
Heffelfinger and I am a partner with the law firm of Best and Flanagan
LLP in Minneapolis where, among other things, I represent tribal
communities. From 2001 to March 2006, I was United States Attorney for
the District of Minnesota and also the Chair of the Department's Native
American Issues Subcommittee (NAIS). In that capacity, I had the honor
of testifying before this Committee three times, twice on issues
related to criminal jurisdiction in Indian Country.
In March 2004, as Chair of NAIS, I had the privilege to participate
in a listening session put together by the National Congress of
American Indians (NCAI) with tribal leaders from around the country on
the issues of criminal jurisdiction in Indian Country. At that meeting,
Chairpah Matheson, Tribal Councilmember of Coeur d'Alene Tribe of
Idaho, asked: ``How can tribes have sovereignty when they can't protect
their children and their women?'' Mr. Matheson's quotation is
incredibly compelling. Is there a higher priority for any sovereign
government--Federal, state, tribal or local--than protecting the
physical safety of its people?
Mr. Matheson's concerns are very real. In a Coeur d'Alene Tribal
survey conducted only months before our March 2004 meeting, 81 percent
of Coeur d'Alene members did not feel safe in their own homes.
Nationally, Native Americans continue to be victimized by crime at a
rate two and one-half times the national average. Native American
children suffer from neglect and abuse at a rate three times the
national average. Native American women, the most heavily victimized
segment of our nation, are victimized by sexual assault and domestic
violence at a rate more than three times the national average. This was
confirmed only recently by the findings of an Amnesty International
study.
To add to this concern with victimization, the perpetrators in
these reservation crimes are largely Native American, meaning that a
disproportionate number of Native Americans are going to prison. For
example, in Minnesota, when nine of eleven tribes are Public Law 280
(PL 280) (state jurisdiction) tribes, the Native American state prison
population is seven times the state general population.
This is a tragedy; these victims, these defendants, are the tribal
leaders of tomorrow.
This is also a Federal problem. These tribal members live either on
reservations for which the Federal Government has jurisdiction for
major crimes or they live on reservations for which the state has
jurisdiction pursuant to PL 280, which is itself a Federal law .
Federal Indian law is a result of 122 years of Supreme Court
decisions and congressional actions; there has been no comprehensive
plan for Indian Country criminal law and it is a patchwork quilt of
decisions and stop-gap legislation that few understand. Every action of
Congress or the Supreme Court only makes the law of Federal criminal
jurisdiction more complicated and more difficult to understand and use.
Since 1885, when Congress passed the Major Crimes Act, \1\ the U.S.
Government has had primary responsibility for the investigation and
prosecution of serious violent crime in Indian Country, such as murder,
manslaughter, kidnapping, arson, burglary, robbery, and child sexual
abuse. However, Federal jurisdiction under this statute is limited to
the prosecution of Indians only. The Indian Country Crimes Act, \2\
which is also known as the General Crimes Act, gives the United States
jurisdiction to prosecute all Federal offenses in Indian Country except
when the suspect and the victim are both Indian, where the suspect has
already been convicted in tribal court or in the case of offenses where
exclusive jurisdiction over an offense has been retained by the tribe
by way of treaty.
---------------------------------------------------------------------------
\1\ Now codified at 18 U.S.C. Sec. 1153.
\2\ 18 U.S.C. Sec. 1152.
---------------------------------------------------------------------------
The U.S. Supreme Court has held that where the suspect and the
victim are both non-Indian, then the state court has exclusive criminal
jurisdiction. \3\ Under the Indian Civil Rights Act, tribal courts have
criminal jurisdiction over non-member Indians; \4\ however, tribal
court sentences are limited to misdemeanor punishments. \5\ In the 1978
decision of Oliphant v. Suquamish Tribe, \6\ the United States Supreme
Court decided that tribal courts could not exercise criminal
jurisdiction over non-Indians.
---------------------------------------------------------------------------
\3\ Draper v. United States, 164 U.S. 240 (1896); United States v.
McBratney, 104 U.S. 621 (1882).
\4\ 25 U.S.C. Sec. 1301(2) & (4).
\5\ 25 U.S.C. Sec. 1302(7).
\6\ 435 U.S. 191 (1978).
---------------------------------------------------------------------------
The Oliphant decision in particular has had a profoundly
detrimental impact upon public safety in Indian Country because it
limits the authority of local tribal law enforcement in the event a
non-Indian is suspected of committing a crime in Indian Country. This
is an everyday challenge when police are responding to domestic
violence, as 70 percent of domestic assaults upon Native Americans are
committed by non-Indians. In response to Oliphant's constraints, some
tribal law enforcement agencies have obtained ``cross-commissions''
from state, local or Federal authorities to expand their authority to
arrest non-Indian criminal suspects under state or Federal law.
However, such cooperative arrangements are not made in many
jurisdictions due to various factors, including local political issues
and concerns over liability. As a result, effective law enforcement
over non-Indians who commit crimes in Indian Country is not consistent
from reservation to reservation.
Confusion over criminal jurisdiction for criminal offenses
committed in Indian Country is very real and has a significant,
negative impact upon the ability of law enforcement and prosecutors to
protect the public. Whenever a violent crime occurs in Indian Country,
in order to determine jurisdiction, prosecutors are forced to make a
determination concerning who has jurisdiction by answering four
questions:
(1) whether the offense occurred within ``Indian Country;''
(2) whether the suspect is an Indian or a non-Indian;
(3) whether the victim is an Indian or a non-Indian; and
(4) what the nature of the offense is.
Depending on the answers to these questions, an offense may end up
being prosecuted in tribal court, Federal court, state court or not at
all.
Determining whether or not the offense occurred in Indian Country
is not a simple question. Although ``Indian Country'' is defined as
land that is either: (1) within a reservation; (2) within a dependent
Indian community; or (3) an allotment, \7\ litigation over whether or
not a particular crime scene is within Indian Country can tie up
litigation for years. For example, the Indian Country status of certain
lands within the Uintah & Ouray Ute Tribe's reservation in Utah took
approximately 25 years to litigate, \8\ throwing many convictions of
violent criminals into doubt until it was eventually resolved in a
manner supporting the convictions. \9\
---------------------------------------------------------------------------
\7\ 18 U.S.C. Sec. 1151.
\8\ Ute Indian Tribe v. Utah, 114F.3d 1513 (lOth Cir. 1997), cert.
denied, Duchesne County v. Ute Indian Tribe, 522 U.S. 1107 (1998),
applying the decision of Hagen v. Utah, 510 U.S. 399 (1994), reh.
Denied, 511 U.S. 1047 (1994).
\9\ U.S. v. Cuch, 79 F.3d 987 (10th Cir. 1996).
---------------------------------------------------------------------------
Another complicating factor is the fact that both the Federal Major
Crimes Act and the General Crime Act require proof of ``Indian'' race
of either the victim, the offender or both. Nevertheless, ``Indian'' is
not defined in Title 18. At least one Federal circuit, the Tenth, now
requires the government to prove the non-Indian status of either the
victim or the defendant in order to establish jurisdiction under the
General Crimes Act. U.S. v. Prentiss, 273 F.3d 1277 (10th Cir. 2001).
Why is race a required element for public safety in Indian Country? The
only area of Federal criminal jurisprudence where race is an essential
element is in the area of Indian criminal law.
Answering these questions adds to the delay, complexity and
difficulty of the investigation and prosecution. Only after these
questions are answered can a prosecutor turn to the more important
questions of sufficiency of the evidence and guilt or innocence. This
confusion over jurisdiction generally does not exist in consideration
of jurisdiction in most state and Federal violent criminal cases where
jurisdiction/venue are determined by the geographic position of the
crime scene.
Jurisdictional confusion has an additional detrimental impact upon
a factor crucial to protecting public safety in Indian Country:
cooperation between tribal, state and Federal law enforcement. Because
of the isolated nature of most reservations, the time and distances
required to respond and the scarcity of resources, multi-jurisdictional
law enforcement cooperation is essential. Unfortunately, confusion over
jurisdiction all too often results in ``turf battles'' or, even worse,
unwillingness to assume responsibility. The losers in these disputes
are the victims.
One hundred and twenty-plus years of court decisions and stop-gap
legislation have created a jurisdictional mess, which means that law
enforcement is difficult, delay is normal and respect for law
enforcement and judicial process is low. The losers are the people of
Indian Country.
If the Federal Government is going to fulfill its trust obligations
and protect the people of Indian Country, we must clarify and simplify
Indian Country criminal jurisdiction. This effort must respect and
protect tribal sovereignty. This effort must be comprehensive and look
at all of Indian Country criminal jurisdiction. It requires a ``step
back'' and new look at how to address Indian Country criminal
jurisdiction. Reliance on individual judicial decisions and stop-gap
legislative ``fixes'' will not improve the quality of law enforcement
in Indian Country.
Senators, in 2002 and 2003, as a government representative, I also
recommended to you the need for a comprehensive clarification and
simplification of Indian Country criminal jurisdiction. As a government
representative, I did not suggest to you how to accomplish such a
clarification of the law. Now I am a private citizen and am free to
make a suggestion.
I believe that the Congress should adopt a two-part strategy to
enhance law enforcement capacity and reform criminal jurisdiction in
Indian Country: a short-term strategy and a long-term strategy.
In the short term, I suggest Congress focus on two to three
specific improvements which, although not comprehensive, could achieve
immediate results in crucial areas of public safety in Indian Country.
Based on my experience, I would suggest three short-term strategies:
1. A limited Oliphant fix which would establish tribal
jurisdiction over non-Indian offenders accused of domestic
violence, child abuse or drug dealing in Indian Country. These
are all areas in which recent experience has shown that a
disproportionate number of offenders are non-Indian and are
committing such crimes with little accountability. These are
also the types of crimes in which tribal law enforcement and
judicial resources could be highly effective.
2. Congress should incentivize the creation of multi-
jurisdictional law enforcement programs, such as task forces
and cross-deputization agreements. These incentives, largely
financial, could cover equipment, overtime, salaries, etc.,
which would encourage tribal and non-tribal law enforcement to
collaborate and overcome logistical and historic barriers.
3. Financially and legally support the creation of regional,
multi-jurisdictional Family Advocacy Centers to serve both
tribal communities and neighboring non-Indian rural
communities. Family Advocacy Centers, like the Family Advocacy
Center of Northern Minnesota in Bemidji, serve the victims of
child abuse, adult sexual assault and domestic violence
generally through medical-based services. The response to these
types of crimes involves similar, but not identical, protocol.
Tribal and rural communities cannot afford separate centers for
each type of crime; nor can each community in a region afford
one. Regional Centers provide victims with prompt medical and
law enforcement attention. The focus on medical care allows for
the immediate commencement of the physical and mental healing
process for the victim, thereby helping break the generational
cycle of violence that occurs in these types of crimes.
The long-term strategy should focus on a comprehensive
clarification and simplification of criminal jurisdiction in Indian
Country. Clarifying a body of law that has never been comprehensively
studied and clarified will not be an easy task. It will take leadership
with ``clout,'' both here in Washington and in Indian Country. Quite
frankly, the Department of Justice lacks the structure and the resolve
in this area to provide that leadership. I have thought about this for
more than 5 years and am convinced there is only one option: Congress
must establish a Congressional Indian Country Criminal Jurisdiction
Commission (``Commission'') to study the issues and report back to
Congress. With Congress' leadership, the Commission will have clout.
With a broad-based membership--tribal representatives, prosecutors,
defense lawyers, judges, professors and other interested parties--it is
very possible to develop a body of law that will be accepted by all
interested groups and will remove confusion and improve public safety.
I was initially reluctant to recommend yet another Commission whose
work might disappear into the vast mountain of paper generated by the
Federal Government. But I have become convinced that only a
Congressionally supervised and monitored group of experts and
interested individuals can realistically meet this challenge. This
Commission will require funding to cover travel expenses so that all
members will be able to fully participate. It will require
Congressional staff support, not only for administrative assistance,
but also to keep Congress fully informed. And, it will require regular
reports to Congress in order to keep the Commission on task.
The Commission's mission should be broad and all jurisdiction-
related issues should be ``on the table'' in order to achieve a
comprehensive clarification of the law. The issues could include:
Is jurisdiction based on geography? What is the definition
of Indian Country?
What role, if any, should race play?
What do we do with the Major Crimes Act and the General
Crimes Act? Should jurisdiction be based on a list of crimes?
What do we do with PL 280 and other specific grants of
jurisdiction to states?
How do we deal with non-Indians on non-Indian crimes on the
reservation?
Should there be an establishment of tribal jurisdiction over
non-Indians? (I am among those who believe that a broad
``Oliphant fix'' is ultimately essential to improving public
safety in Indian Country. However, such a broad fix must be
part of a larger, comprehensive clarification of the law.)
In clarifying and simplifying criminal jurisdiction, will it
be necessary to expand the civil rights of those appearing
before tribal courts; e.g., right to indigent counsel, right to
jury pool which is a true cross-section of the entire
community, right to appeal beyond tribal review?
How do we deal with the financial and resource impact of re-
adjusting responsibility; e.g., burdens on tribal, state and
Federal law enforcement and judiciary?
While I was in the Department of Justice, I attempted to establish
a task force to accomplish the clarification and simplification I now
suggest. For a variety of reasons, I was unsuccessful. That experience
convinced me that without Congressional leadership, there will be no
comprehensive reform of Indian Country criminal jurisdiction. Unless we
achieve such a comprehensive clarification and simplification, we will
not be able to significantly improve our ability to protect the people
of Indian Country from serious crimes. Continued isolated judicial
decisions and legislative ``fixes'' simply will not do the job. The
combination of short-term and long-term strategies will provide
immediate help in areas where it is desperately needed and future
broad-based improvements in public safety in Indian Country.
The Chairman. Mr. Heffelfinger, thank you very much for
your testimony.
I say as one member of this Committee, now as Chairman,
that I am frankly weary of hearings to hear about the problems.
I very much appreciate all of you today who have not only
described the problems, but said, here are some of the things
that we should and must do to begin to address them. I
mentioned before the things that I have seen and the
circumstances of the devastating crime and the victims that
come from that crime on Indian reservations. It is almost
unbelievable to me. Yet nothing ever seems to happen except we
have hearings and talk about it.
I hope, and Senator Murkowski and I and Senator Tester and
other members of the Committee, we are going to make every
effort to develop new initiatives, new initiatives with the
recommendations that you and others have given us to try to
address these issues. It is just almost unbelievable what we
are hearing and seeing and things aren't getting better. It is
up to us. As you indicated, it is a Federal responsibility.
When a young 3 year old girl is put in a foster home with no
investigation about whether that home is a safe place and a
drunken party ensues and the young girl has her nose broken and
arm broken and hair pulled out by the roots, that 3 year old
girl was injured because one case worker was working 150 cases
and never checked to see where that 3 year old girl was being
placed. It is our responsibility. And it goes on and on and on.
We must, it seems to me, find a way to begin moving well
beyond the hearing stages here and developing initiatives and
pushing them. I think in some ways, the catalyst of the Amnesty
International report ought to wake everybody up to say, you
can't let this continue, this must stop. I very much appreciate
the testimony that you have given us.
I am not going to focus on this, but I am going to ask you
one question about the Justice Department. Because these
problems have existed over different Administrations, over a
long period of time. But when I hear someone come to the
Congress to say that a U.S. Attorney was threatened to be fired
or was on a list to be fired because he or she spent too much
time working on Native American issues, I worry about that. I
notice that either four of the eight or five of the eight U.S.
Attorneys who were in fact replaced were on the committee, the
committee that you were on, dealing with Native Americans.
Is that purely coincidence? If what the testimony said, is
they worried about you because you spent too much time worrying
about law enforcement issues on Indian reservations. Do you
have any speculation about whether some who did get fired lost
their jobs because of that?
Mr. Heffelfinger. Senator, members of the Committee, it is
true that five of the eight who were fired, including Margaret
Chiara, who replaced me as chair, were on the Native American
Issues Subcommittee. But more importantly, they were actually
leaders on that committee.
One of the reasons that we did spend a lot of time on
Native American issues while I chaired it is that we took the
consultation requirement very seriously. All of our meetings
but one, the organizational meeting, were on Indian
reservations. And every one of our meetings, we had five of
them, four of the five were hosted by four of those people who
were fired: Iglesias, Charlton, McKay and Bogden. It is also
true that Native American issues are viewed within the
Department of Justice as ``local'' issues. When there is a
conflict between local issues and issues that are considered
more of a national priority, there is disagreement between main
Justice and the field.
I can tell you that all of those five people were zealous
advocates in their own districts for improving public safety in
Indian Country and improving Indian Country's role in our
broader homeland security infrastructure.
As to the specific reasoning why individuals were put on
that list, I think you will have to ask Kyle Sampson. But it is
not a mere coincidence that five of eight were leaders amongst
Native American prosecutors.
The Chairman. I will not ask further about that, except to
say this. I think, the word used is appropriate, I think this
is shameful. If in fact anyone in any Administration in the
Justice Department is spending time being critical of or
threatening to fire U.S. Attorneys because they are spending
substantial amounts of time dealing with some of the most
gripping and difficult law enforcement issues we face in this
Country, crimes committed against a population that is
increasingly victimized, shame on those people who believe that
it is not appropriate to spend substantial amounts of time on
that.
I think there are three things here, and again, I hope to
work with my colleague, the Vice Chair, Senator Murkowski and
Senator Tester and others on developing an initiative that
really does move. One, we do need more funding. That is just a
fact. I understand funding isn't going to solve this problem by
itself. But we do need more funding. Second, you need a will.
You can have all the jurisdiction you want and all the
resources. If there is not the will to do the right thing and
to be aggressive and pursue the right policies, then nothing is
going to happen.
And third, you raised a question, Professor Washburn has
raised the question, third is the issue of reform. That deals
with the question of jurisdiction. President Garcia, this
jurisdictional issue is obviously very important. But the chart
that I put up at the front of this, about the jurisdiction, the
fractionalization of all this jurisdiction, we need to find our
way through this. Perhaps a commission is the right
recommendation. Some way or another, we need to redefine this
jurisdiction issue so that we have the opportunity to work on
law enforcement that is effective and that gets the job done.
I would like to hear your comments on that, then I am going
to turn to my two colleagues for questions and I will ask
further questions at the end. President Garcia?
Mr. Garcia. Yes, thank you, Mr. Chairman. I believe that if
you look at just the chart, that is only one piece of it. But
if you look at then the laws which drive the conditions that
exist, we have different, a diverse group of operations, if you
will, driven by legislation that was put forth in Congress. I
will cite a few of them.
Tribes and Indian nations operate in different senses. One
will be, if you are 280, if you exist in a 280 State, you have
a set of rules. If you are a BIA law enforcement with direct
services from BIA, you are in a different situation. And it
varies from region to region, depending on the efforts of the
Bureau itself.
The other difference is, if you are a 638 tribe, 638ing
your law enforcement, then you are in a different arena in how
you function and how you operate. Then there is the self-
governance tribe, who have probably a better chance of
developing their law enforcement accordingly. But the barrier
there is the funding and the understanding from the funding
agencies and it is not really Department of Interior, because
the funding actually comes from the President and from the
budget committees in Congress.
So when you add all those things, you end up with a result
that looks like that. So I think the solution then is, we need
to be sure that those root causes are looked at before we just
proceed. Because if don't do that, there will be more solutions
that are piecemeal and that will never, ever get to the heart
of the problem. So I think it will take a lot more minds and a
lot more concerted effort between Congress, the tribal entities
themselves and then those Federal agencies or entities that
have, are shareholders or stakeholders in the effort.
But we must do it now. I support the commission. But I
think we need to go beyond the commission, because those steps
need to happen immediately and the commission would have its
own course of tasks that would be issued to it. But I believe
that is the only way we are going to find solutions. It will
take a lot more than what we are doing now, Senator.
The Chairman. We are scheduled to have a series of votes
beginning in about 15 minutes. I want to call on my colleagues
for inquiry, so that we are able to ask questions prior to
those votes. Senator Murkowski.
Senator Murkowski. Thank you. I truly appreciate not only
the testimony but as the Chairman has indicated, your
solutions, your proposed solutions, to hear the resolutions
that came from NCAI and President Garcia, I truly appreciate
your leadership with that in identifying some specifics.
Professor Washburn, you have said if we leave with nothing
else from this hearing other than this push for greater
cooperation, greater collaboration, that is the message here.
And Mr. Heffelfinger, I truly appreciate your very specific and
very concrete proposals, the suggestion for a criminal justice
commission.
In the State of Alaska, we commissioned our own rural
justice commission study, a several year effort. I will tell
you, I am a little disappointed that we are not seeing more
concrete results, more action as a consequence of that study.
We have identified the problem, we have identified some
proposed solutions and those proposed solutions, quite
honestly, all involve funding.
We are in the same position as we kind of hear this
morning. The question is, how many Amnesty International
reports, how many reports from how many commissions do we have
to receive before we have that action plan? In the meantime,
you still have an Indian Health Service facilities that don't
have forensic rape kits, that don't have the sexual assault
nurse examiners. And we just kind of let the problems be swept
under the rug. Then that situation gets worse, the gang
activity gets worse. And we say, gosh, we need to do more.
Well, there needs to be that concrete action plan. And the
proposal from you, Mr. President Garcia, that you basically
convened some kind of a summit with the Department of Justice
to say, OK, how do we get off center with this. But from what I
hear with the background on Department of Justice, perhaps, we
don't have the support coming out from Justice. Usually people
are dismissed because they are not doing enough in a certain
area instead of doing too much. These are bad signs for us,
very, very bad signs.
Let me ask you, Mr. Heffelfinger, based on your experience
at DOJ and recognizing Professor Washburn's suggestion here
that we have to have greater cooperation and collaboration and
President Garcia's proposal that we convene something with DOJ,
can we do it? Would it work?
Mr. Heffelfinger. Senator Murkowski, I fully endorse
Professor Washburn's plan. There is no doubt that cooperative
law enforcement is the most immediate and productive way to
address a wide variety of crimes in Indian Country. The DOJ can
take leadership in that through the Office of Tribal Justice
and through the U.S. Attorneys if properly motivated to do so.
But ultimately, it comes down to this: you have a few
sheriffs who may not be that interested in working with the
adjoining reservation or the adjoining tribal police. There may
not be the level of respect between the two pools of law
enforcement officers. So, when you have confusing jurisdiction,
it is easy to hide behind that. You say, well, if I am not in
charge and I can't be in charge, then I don't want to get
involved.
So what Congress could do, however, is to incentivize those
reluctant law enforcement partners to enter into these
cooperative task forces through funding. The funding may be
limited solely to hardware like vehicles and radios and
overtime reimbursement. But that kind of funding in tight
funding times, which we have in law enforcement generally, is
the kind of incentivization that gets you past reluctance based
on jurisdiction and lack of familiarity.
Senator Murkowski. Let me ask you one more question, and
this is a follow-on from my question to Ms. Clairmont. How many
cases are actually prosecuted, as opposed to the sexual assault
cases that are reported. There was an article in the Wall
Street Journal that cited some DOJ statistics, that provided
that only 30 percent of the crimes occurring on tribal lands
referred to the U.S. Attorneys' offices were prosecuted. This
is compared to 56 percent for all other cases.
Do these statistics sound about right based on what you
understand, and can you explain the reason for the disparity?
What happens? Why are these statistics so skewed?
Mr. Heffelfinger. First of all, I really can't comment on
the statistics, other than to say that, to some degree that
depends on the nature of the crime that is alleged. Frequently
assaults and homicides, I am sure, my experience, the solution
rate is on a parity with what it would be in a non-tribal
community.
I think there is some truth in the area of sexual assault
and child abuse. That is exactly why I recommended to you as
one of my proposed specific solutions is the establishment of
family violence centers.
The United States Attorneys' offices have one standard of
evidence that they need to follow. Federal courts don't have a
lower standard of evidence, a lower standard of proof when it
comes to a crime on a reservation as compared to a crime out of
Minneapolis or somewhere else. So what we have found, in areas
of child abuse and sexual assault in particular, is that the
kind of medical care and evidence gathering from SANE nurses,
from trained physicians in the area of child abuse simply were
not available to isolated tribal communities. Rather than drive
a young child abuse victim 5 hours each way to St. Paul to see
a trained physician, we built a center in Bemidji, which is a
half an hour from the reservation border. It now serves 3
reservations and 17 non-Indian counties. We trained a SANE
nurse, we have trained a doctor to deal with child abuse.
Now we are dealing with the medical impact on that child.
We are trying to break the generational cycle of violence, but
more importantly, or as importantly, those doctors and those
nurses now develop the evidence that is necessary to
successfully prosecute those very difficult cases. If there is
a gap in the statistics regarding charging and successful
prosecution, I can't address all the issues, but I know that is
one of the solutions: give Indian Country the resources it
needs so that those cases can be effectively prosecuted and
investigated.
Senator Murkowski. I appreciate that. Do you know how many
family violence centers we have established? Not enough,
really.
Mr. Heffelfinger. The one in Bemidji may be the first.
Senator Murkowski. Really?
Mr. Heffelfinger. Because what we have done is taken three
types of crime that generally have had separate standalone
kinds of advocacy groups and put them under one heading. And
number two, we made it medical based, not social services
based. And the focus of that center, I am very proud of it, the
focus of that center is to try to break the generational cycle
of violence, so that you treat the victim's mental and physical
health as the first priority. Evidence gathering, et cetera,
becomes second.
Senator Murkowski. We might have more than we think,
because we have one in Alaska, in Sitka. So between Sitka and
Bemidji, there is a lot of room to add some more.
Mr. Heffelfinger. I heard there might be one in the upper
peninsula in Michigan as well. But they are few and far
between.
Senator Murkowski. Thank you. Thank you all.
The Chairman. Senator Tester.
Senator Tester. It goes without saying, I want to thank
each and every one of you for being here, taking time out of
your schedule. I appreciate your comments.
Before I get into my question, I do have to say something
so I don't forget. I want to thank you, Mr. Heffelfinger, for
your service as U.S. Attorney. I think that just by your
comments and your answers to questions, you bring a certain
level of reality and common sense to the job. I think it is
unfortunate what has transpired over the last few months.
That being said, you folks are all, Mr. Washburn, you
talked about unilateral law enforcement, how it would be nice,
with your discussions with the mayor, which brings me to a
question that we probably could spend the rest of the day on,
maybe the rest of the week. That is Native American
sovereignty, something that I believe in very strongly myself.
The question is, that being important on one level, is
somewhat of an inhibitor on another level, in both directions,
I might add. And how, as concisely as you can, like I say, we
could spend days on this, but how can we overcome that kind of
a situation, where we have inherent sovereignty in Indian
Country, and so that becomes a jurisdictional issue there?
Anybody can start, it doesn't matter. We can go from left to
right.
Mr. Garcia. I can speak for Okhay Owingeh, that is formerly
San Juan Pueblo. I served as Governor for three terms, at
least. We had some situations with non-Indians coming up on our
lands. I made a pledge to my community when I was appointed
that I would protect the well-being of our tribal members and
any other members that exist or set forth on the tribal land
base.
We tested the system. We said the law basically says, we
have no jurisdiction over non-Indians. But we didn't sit still
for that. If anybody came on our lands, we tested the system
and we took hold of them and we turned them over to proper
authorities. I think that is using your sovereignty to protect
your people.
So if we can continue to do that, if it became a question
of the people that were taken in, if they filed a lawsuit, I
don't know where it would have gone, Senator. So I think we may
have taken a chance, but we were looking for the well-being of
our people. That in itself is what we are deterred to by a 280
State, the Public Law 280, and then other jurisdictional
questions.
Senator Tester. Professor, if they have a cooperative
agreement, does that help withhold their ability and--I know
you can't prevent lawsuits--but give them better standing in
court?
Mr. Washburn. Absolutely. Tribal sovereignty is an
opportunity, it is not an obstacle. It doubles our number of
governments out there that can address problems if we
recognized tribal sovereignty. For a tribe to cross-deputize
State police officers so that they can enforce tribal laws and
come on the reservation is an act of tribal sovereignty. So I
certainly don't see tribal sovereignty as an obstacle. I think
whenever we have a crime that crosses State boundaries, a crime
that crosses from Montana into North Dakota, we don't sway,
well, maybe we should get rid of Montana and annex it to North
Dakota so there is no jurisdictional problem.
Senator Tester. Some would say that.
[Laughter.]
The Chairman. Your time is up, Senator.
[Laughter.]
Mr. Washburn. So this is something we deal with all the
time in the United States with the Federal system. So I think
we can deal with it with the cooperative agreements.
Senator Tester. Real quickly, how often do we get the kind
of cross-deputization, if that is the proper term, which it
probably isn't, between county government and Native American
government and vice versa?
Mr. Washburn. We get it a heck of a lot. On the National
Congress of American Indian website, they have a list of them.
So there are hundreds, hundreds of these agreements, maybe a
hundred, I don't want to overstate it. But it is not systematic
in any way. In some States, if you have a good county attorney
and a good sheriff who gets along well with his tribe, he will
do it and if the next guy that gets elected doesn't have that
same relationship, it deteriorates and falls apart. That is
what we have going on in Mille Lacs County right now. The
county attorney is just sort of mad about the existence of the
Mille Lacs Band of Ojibwa Indians and doesn't want to cooperate
that much.
Senator Tester. OK.
Mr. Heffelfinger, and I think Senator Murkowski probably
was on this course and I wasn't paying good enough attention,
so I apologize if it was. But you talked about two areas,
violent crimes, occurrence of, and conviction of crimes. You
were talking about the minor crimes. But as I look at it, if we
are talking conviction of crimes, are you talking about a lack
of conviction or over-conviction?
Mr. Heffelfinger. No, what I was commenting to Senator
Murkowski about, Senator Tester, is the fact that there is one
Federal legal standards for charging somebody with a crime and
for convicting them. It is not different in Minneapolis as
compared to Mille Lacs.
Some of the challenges that we have found, especially in
areas involving child abuse and sexual assault, dealt with the
fact that remote communities like the Red Lake Reservation,
where I had Federal jurisdiction as U.S. Attorney, did not have
available to it up until a year ago, about 2 years ago, a SANE-
trained nurse any closer than St. Paul, Minnesota, or a
physician trained to assess child abuse closer than St. Paul,
Minnesota. By getting that kind of expert assistance brought
close to the reservation, we have given the resources to Red
Lake to increase the referrals, in other words, the prosecution
and conviction of child abusers and rapists.
Senator Tester. Yes, but yet when you look at the prison
system, in Montana, for example, percentage-wise that are
incarcerated versus percentage-wise of the population, it is
probably six-fold.
Mr. Heffelfinger. Do you mean the Native American
population as--well, as I said, in Minnesota, it is seven-fold.
That is true. But that is all the more reason why I think a
reform of law enforcement, a reduction of the violent crime
rates in Indian Country is so important. One of the benefits of
that is reducing that rate of incarceration of Native
Americans.
Senator Tester. Very good. I also want to echo the comments
of my two comrades here. Very seldom do we get solutions, even
if they aren't good ones. And I am not saying these aren't.
Even though, the commission thing--but we have to get good
minds together. That is a fact. If we get good minds together
and represent the entities out there that are impacted, I think
we can do some good things from a jurisdictional standpoint.
Once again, I appreciate each and every one of your testimony.
Thank you for being here.
The Chairman. Again, let me thank the witnesses from this
panel and the previous panel. As I indicated, we intend to work
diligently on a set of initiatives to begin to address this
problem, both in the short term and also in the longer term.
The short-term needs, I believe, are urgent, however.
Because the Senate is going to begin votes in about 2
minutes, this Committee will adjourn.
[Whereupon, at 11:44 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Samuel N. Penney, Chairman, Nez Perce Tribal
Executive Committee
Honorable Chairman and Members of the Committee, thank you for the
opportunity to submit testimony on an issue that affects all of Indian
Country. The Nez Perce Tribal Executive Committee (NPTEC) would like to
offer our support of the suggestions made by the Honorable Joseph A.
Garcia, Professor Kevin K. Washburn, and Mr. Thomas B. Heffelfinger on
law enforcement in Indian Country. The Nez Perce Tribe urges this
Committee to draft legislation that addresses the jurisdictional gap
that exists in Indian Country, by working with the tribes to gain a
comprehensive approach that respects and protects tribal sovereignty,
and then to pass the legislation in this session of Congress.
In order for the Federal Government to fulfill its trust
obligations to tribes and to protect residents within Indian Country,
Congress must clarify the criminal jurisdiction in Indian Country for
all parties responsible for enforcement. Criminal jurisdiction in
Indian Country is extremely complex and the responsibility is shared
among Federal, tribal, and state authorities. Confusion over criminal
jurisdiction for criminal offenses committed in Indian Country has a
significant impact upon the ability of law enforcement and prosecutors
to protect the public. This complexity requires a high degree of
commitment and cooperation from Federal and state officials that is
difficult to establish and maintain. Political ideologies can also
adversely impact the precarious balance that is required to maintain
effective law enforcement throughout an area.
Under the Major Crimes Act, 18 D.S.C. Sec. 1153, and other Federal
laws, Indian communities are completely dependant on the Department of
Justice for investigation and prosecution of violent crimes and other
felonies committed on Indian reservations. Despite these laws and the
United States' trust obligations to protect Indian communities, the
violent crime rate in Indian Country is alarming and significantly
higher than the national average. Native American children suffer from
neglect and abuse three times more than the national average. According
to the Amnesty International Report ``Maze of Justice,'' Native
American and Alaska Native women are two and one-half times more likely
to be sexually assaulted than other women in the United States, and
Native Americans are victimized two and one-half times more than the
national average, although legislation such as the Violence Against
Women Act have been positive steps toward addressing such problems.
Many times, the Federal and state authorities do not prioritize
their role in law enforcement on Indian reservations and the complexity
of the jurisdictional issues makes it easy to avoid responsibilities
and results in a system of no accountability. Thus, the victims of the
crimes are often re-victimized by the system.
Unfortunately, the confusion over jurisdiction often results in
jurisdictional battles or an unwillingness to assume responsibility by
any party. For example, the Nez Perce Tribal Police recently responded
to a battery situation between an Indian and a non-Indian. The Supreme
Court, in Oliphant v. Suquamish Tribe, \1\ held that tribes do not have
inherent criminal jurisdiction over non-Indians, therefore the Nez
Perce Tribal Police called the County Police to charge the non-Indian
suspect. The County Police did not respond, and claimed that they did
not have jurisdiction because the incident occurred on Tribal trust
land. As a result, the non-Indian suspect was not charged, however, the
Indian suspect was charged. Situations such as this lead to neglect and
disregard for the law. The Nez Perce Tribal Police Chief, Leslie
Hendrick, said that non-Indians often make comments similar to ``you
can't touch me, I'm non-tribal,'' when she responds to calls that
involve non-Indians. This type of disrespect toward law enforcement
would be abated if the jurisdictional issues raised were adequately
addressed. In addition, the tribal law enforcement suffers greatly from
lack of resources. There is a significant shortage in the personnel,
equipment, training and facilities that make up the criminal justice
system in policing, investigation, prosecution, courts, and detention
facilities.
---------------------------------------------------------------------------
\1\ 435 U.S. 191 (1978).
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Each of these factors creates a perception problem that encourages
criminal activity and makes victims fearful in assisting law
enforcement in prosecution. Criminal activity is encouraged when
``routine'' crimes such as domestic violence and drug and alcohol
offenses are unaddressed. Congressional action to clarify jurisdiction
and to provide adequate funding is imperative to the reform of law
enforcement in Indian Country. The Nez Perce Tribe seeks to ensure
public safety in Indian Country and is thankful for the opportunity to
comment on this issue.
______
Joint prepared statement of Dorothy Smith and Joan Henry, Qualla
Women's Justice Alliance
I. Qualla Women's Justice Alliance Is a Grassroots Community Based
Organization That Is Dedicated to Ending Violence Against
Native
Women and Advocates for Systemic Governmental Reforms on the
Qualla Boundary
For almost a decade the Qualla Women's Justice Alliance (QWJA) has
advocated for the safety of women. It is a grassroots community based
organization of Cherokee women dedicated to ending domestic violence,
sexual assault and other forms of violence against women. The purpose
of the QWJA is to increase the safety of Cherokee women through
increased awareness and an enhanced response to domestic violence and
sexual assault within the reservation boundaries of the Eastern Band of
Cherokee Indians, properly known as Qualla Boundary. The Alliance does
not receive funding from any Federal or state governmental agency. The
Eastern Band of Cherokee Indians is a federally recognized Indian tribe
located within North Carolina.
Within the reservation of the Eastern Band of Cherokee Indians
(EBCI) domestic violence and sexual assault occur on a daily basis. The
Qualla Boundary is located in a rural southern Appalachian area with
one emergency shelter available to assist women and their children
fleeing domestic abuse on the main Reservation tract and another
shelter serving the Cherokee community located approximately seventy
miles away in the Snowbird Community of Graham County, North Carolina.
The Ernestine Walkingstick and Bonita Jumper Shelters (Shelters) are
operated by the EBCI and provide emergency crisis shelter and related
services. Victims of domestic violence and their children frequently
face the harsh reality of few services, little support, becoming
homeless, leaving their homeland or remaining with an abuser. Victims
of sexual assault frequently do not report the rape or rapist to
authorities because of the belief that nothing will be done and that
the offender will commit further violence in retaliation. We have been
in the beginning phases of providing sexual assault services within the
Qualla Boundary.
Traditionally, Cherokee women were respected and held rights to the
home and cultivation of the lands. The concept of a Cherokee woman
being disrespected, abused or homeless did not exist. Unfortunately,
this traditional belief system has eroded over time and domestic
violence and sexual assault is occurring within our Qualla Boundary
communities and homes. The erosion of the belief of respect for women
and intolerance of physical abuse perpetrated against women threatens
the safety and stability of the entire Eastern Cherokee Nation.
Recently, a young Cherokee mother after fleeing a situation of
abuse with her children lived in her car for several weeks. She and her
children used the bathroom facilities of the rest areas of the Great
Smoky Mountains National Park to bathe herself and children.
Fortunately, community resources came to her need for assistance. The
Park lies adjacent to the west of the Qualla Boundary. Women and their
children have sought refuge in the Park from their abusers.
Unfortunately, for the same reasons of remote isolation it has been the
witness to the abuse and murder of women. Many other examples of cases
of the young mother exist.
Traditionally Cherokee women were held sacred. Tilling of the land
was the realm of Cherokee women. Today, many Cherokee women maintain
title to their original family lands. These women will not leave their
homes and if the abuser will not leave, establishing safety for the
woman and her children is extremely complicated. In addition, there are
Cherokee women who do not have title to land or a home. In this
situation, the woman must find alternative housing on Qualla Boundary
or she is forced to relocate off the reservation. Many Cherokee women
faced with these limited options remain in an abusive situation. In
addition, there are women living on Qualla Boundary that have married a
member of the EBCI and choose not to relocate and remain in an abusive
situation. Frequently, the impetus for remaining on Qualla Boundary is
that the woman has children who are tribal members and prefer to remain
within their cultural homeland. Relocation off of the Qualla Boundary
frequently is not a viable solution for many Cherokee women. The
relationship of Cherokee women to the land is a complicated aspect that
is linked to the history of the Eastern Band of Cherokee Indians.
The Cherokee have lived in the southeastern United States and the
mountains of North Carolina since the end of the last ice age. During
the forced removal of the Cherokee to Okalahoma, commonly known as the
Trail of Tears, almost all of the estimated 17,000 Cherokee were
relocated to Okalahoma. In the winter of 1838-1839, approximately
14,000 Cherokee were marched 1,200 miles through Tennessee, Kentucky,
Illinois, Missouri, and Arkansas without adequate shelter or food. It
is estimated that 4,000 died from hunger, exposure and disease.
Fortunately, some Cherokee escaped removal to hide in the mountains of
North Carolina. The current members comprising EBCI are the direct
descendants of those that refused to be relocated. From the original
lands, that totaled over 250,000 square miles, the Eastern Cherokee
trust lands of Qualla Boundary now consists of approximately 56,000
acres.
In addition, to this distinct historical relationship to the land
known as Qualla Boundary other significant reasons prevent many
Cherokee women from leaving an abuser and relocating. Cultural,
familial, clan, Cherokee citizenship, and the complicated maze of
Tribal-Federal Indian Law are reasons women in situations of abuse
refuse to relocate off the Reservation. The details of these situations
are extremely complicated and difficult to address off the Qualla
Boundary. These and other reasons frequently result in those choosing
to relocate becoming isolated and further destabilized, often resulting
in a return to the abuser.
In 2005, domestic violence represented a significant portion of the
Eastern Band Cherokee Indians tribal justice services case load. A
total of 387 domestic violence cases were opened. Of this number 145
cases were civil and 242 were criminal. Most importantly, the actual
statistics do not reflect the true number of women that are abused each
year. Many survivors of domestic violence and sexual assault do not
report because they believe that nothing will be done.
The challenges described above are great and much work must be done
to create the cultural change needed to make our communities free from
domestic violence and sexual assault. The QWJA is committed to bringing
an end to such violence in our Cherokee communities and restoring
respect for women. The QWJA is concerned that developing a strategy
that will increase community awareness of domestic violence and sexual
assault within Cherokee communities will require the full participation
of tribal law enforcement services. Further, addressing violence
against Cherokee women requires a high level of accountability and
increased coordination between the Cherokee Indian Police Department
(CIPD) and Federal justice agencies to improve their response to
domestic violence and sexual assault.
The QWJA submits this testimony to provide written documentation to
the U.S. Senate Committee on Indian Affairs of the urgent need to
address the violence perpetrated against Cherokee women. It is the hope
of the QWJA that the testimony will provide an overview and insight to
the critical issues and questions essential to enhancing the safety of
Cherokee women. The QWJA testimony specifically outlines urgent issues,
questions and recommendations in the context of implementing Title IX.
Safety for Indian Women contained within the Violence Against Women Act
of 2005 (VAWA 05).
II. The Safety of Indian women Is Dependent Upon the Response of Indian
Nations and the Federal Government to Crimes of Domestic
Violence, Sexual Assault, Dating Violence and Stalking.
Consultation Between the Department of Justice and Indian
Nations is Essential to the
Development of Respectful Effective Coordination and Management
of Violent Crimes Against Native Women
Title IX. Section 903 of VAWA 2005, recognizes the importance of
government-to-government consultation. Section 903 directs the Attorney
General to use the consultation as an opportunity to solicit
recommendations from tribal governments on three topics:
Administering grant funds appropriated for tribal
governments and programs created to benefit tribal governments
by the original VAWA and subsequent legislation;
Enhancing the safety of Indian women from domestic violence,
dating violence, sexual assault, and stalking; and
Strengthening the Federal response to crimes of domestic
violence, dating violence, sexual assault, and stalking.
Annual consultation on a government-to-government basis is
essential to the successful implementation of the historic reforms
enacted by the U.S. Congress through VAWA 05 and Title IX.
The EBCI is recognized as a sovereign with authority over its
reservation properly known as the Qualla Boundary. It is responsible
for the safety and protection of women within Qualla Boundary. EBCI
emergency medical personnel, law enforcement services, prosecutors,
courts and services are charged with handling domestic violence and
sexual assault cases. The EBCI is directly responsible for holding
perpetrators of such crimes accountable. Implementation of VAWA 05, and
specifically Title IX provisions on Qualla Boundary must be done
through governmental consultation.
The unique legal relationship between the United States and Indian
Tribes creates a Federal responsibility in safeguarding the lives of
Native women. Native women are battered, raped and stalked at far
greater rates than any other group of women in the United States. The
Department of Justice estimates that:
more than 1 of 3, 34.1 percent, American Indian and Alaska
Native women will be raped in her lifetime and 3 of 4 will be
physically assaulted; \1\
---------------------------------------------------------------------------
\1\ Patricia Tjaden and Nancy Thoennes, U.S. Dep't. of Justice,
Full Report on the Prevalence, Incidence, and Consequences of Violence
Against Women (2000).
about 9 in 10 American Indian victims of rape or sexual
assault were estimated to have assailants who were white or
black; \2\ and
---------------------------------------------------------------------------
\2\ Lawrence A. Greenfeld and Steven K. Smith, U.S. Dep't. of
Justice, American Indians and Crime (1999).
17 percent of American Indian women, at least twice that of
other populations, are stalked each year. \3\
---------------------------------------------------------------------------
\3\ Stalking and Domestic Violence, May 2001 Report to Congress,
U.S. Dep't of Justice, Office of Justice Programs, NCJ 186157.
These statistics reflect the horrific levels of violence committed
on a daily basis against Native women. While compounded by many social
factors research links this level of violence to the vulnerabilities of
American Indian women as a population. The lack of jurisdiction of
Indian tribes over non-Indian perpetrators and the sentencing
limitation placed upon Indian tribes by Congress enhances the
vulnerability of Native women and the ability of predators to target
Native women as a population. This jurisdictional void furthers the
public perception that Native women do not have the same protections
that non-Indian women are entitled to receive.
Section 903, provides the opportunity for consistent consultation
on a government-to-government basis between the Department of Justice
and federally recognized Indian tribes. The staggering statistics of
violence against Native women requires that the highest levels of
government act in coordination to address the escalating crisis in the
lives of Native women. The prevalence and severity of violence would be
treated as an emergency if committed against any other population of
women. Given the crisis in the lives of Native women and the lack of
adequate resources \4\ more must be done at every level from funding
through the Office on Violence Against Women, handling of cases by the
FBI and United States Attorneys, and release of perpetrators by the
Bureau of Prisons to improve efforts to create a more responsive
criminal justice system. Federal agencies must work on a government-to-
government basis with Indian tribes, specifically tribal law
enforcement, to prosecute such crimes. This cannot be achieved without
formal consultation with Indian tribal governments.
---------------------------------------------------------------------------
\4\ See A Quiet Crisis: Federal Funding and Unmet Needs in Indian
Country, U.S. Comm. On Civ. Rights, available at http://www.usccr.gov/
pubs/na0703/na0204.pdf.
---------------------------------------------------------------------------
Questions:
Will a representative of the Senate Committee on Indian
Affairs observe the upcoming USDOJ--Tribal Governmental
consultation scheduled for September 19th, 2007 at the Sandia
Pueblo, New Mexico?
Will the Committee review the recommendations, questions and
concerns raised by Indian tribes during the upcoming 2008
annual consultation?
Will the Committee review the implementation, progress and
delays, of tribal provisions under the VAWA 2005?
Recommendations:
Set the date for the annual consultation no later than 9
months prior to the scheduling of the consultation.
Provide the opportunity for all tribal govemments to
participate in the preparatory calls to develop the agenda for
the consultation.
Issue the agenda no less than 2 months prior to the
consultation to allow for advance preparation of tribal
governmental representatives and to provide questions to the
Department on issues of concern to be addressed during the
Consultation.
Conduct the consultation on a government-to-government basis
with the elected leadership or designated representatives of
tribal government recognizing it is inappropriate to open a
governmental consultation to the public.
Release information regarding the allocation of tribal set-
aside funds prior to the consultation including the amounts of
FY07 tribal set-aside funds under each OVW VAWA grant program,
the amount expended, and information regarding the allocation
of any tribal set-aside funds to a non-tribal entity.
III. Research Is Necessary to Understand the Prevalence, Unique
Particularities and Estimated Cost of Crimes of Domestic
Violence,
Sexual Assault, Dating Violence and Stalking Occurring Against
Indian Women
To understand and address the crisis and threat of danger
confronting Indian women specialized research is needed. Every race-
based study that has been conducted consistently documents that
American Indian women are at the highest rate of risk for violent
victimization of any population of women within the United States. This
research is also true of violence committed against Cherokee women.
Unfortunately, while the Department of Justice has issued several
statistical reports on violence against women that were mandated by the
VAWA Acts of 1994 and 2000 it has not conducted a specialized study on
violence against Indian women. Research within these reports give
minimal attention to crimes of violence against American Indian and
Alaska Native women.
Title IX. Section 904 provides for the first time in United States
history the mandate to research crimes of domestic violence, sexual
assault, dating violence, stalking and murder of American Indian women.
The unique circumstances created by the jurisdictional void, rural
isolation, conflict between Indian tribes and states, and other social
factors require such research. It is important to note that violence
against Indian women occurs on a continuum of violence from simple
assault to murder.
Department of Justice research indicates that the vast majority of
Indian women victimized by such crimes knew their assailant.
Unfortunately this continuum in many cases has resulted in the deaths
of women. In addition, an increased number of American Indian women
reported missing raises the concern that these reports should be
investigated as homicide cases until the woman is located. A national
baseline study reviewing the crimes of domestic violence, dating
violence, sexual assault, stalking, and murder committed against Indian
women is essential to analyzing and creating safety in the lives of
Native women.
Of critical importance is the establishment of a task force, as
provided by Sec. 903(A), of representatives from national domestic
violence and sexual assault tribal organizations that have experience
in assisting Native women. While OVW issued a request and received
nominations for member of the taskforce no action has been taken to
implement the task force.
Question:
Will the Senate Committee on Indian Affairs inquire into the
status of implementing the statutorily mandated task force to
guide the national baseline study research project?
Recommendations:
Immediately establish, as provided by Section 904(a)(3), the
tribal task force from the nominations submitted to the Office
on Violence Against Women over a year ago to develop and guide
implementation of the study.
Support the full funding of the unfunded tribal research
section contained in VAWA 2005, Title IX. Safety for Indian
Women Act in the Senate FY 2008 Commerce, Justice, Science
Budget Request. A baseline study was authorized at $1,000,000
per year for 2 years.
Recognize that the Federal justice agencies failure to
adequately respond to domestic violence and sexual assault is
demonstrated in the distinction between women seeking medical
care at hospital emergency trauma centers and criminal cases
reported, charged and convicted by the United States Attorneys.
Recognize that to increase the response of tribal law
enforcement to crimes of domestic violence and sexual assault
of Indian women on Indian reservations requires understanding
the past and current failure to respond to such crimes.
IV. The Involvement of the Deputy Director for Tribal Affairs Within
the Office on Violence Against Women Is Critical to Effective
Coordination on a Governmental Basis With Indian Nations Any
Efforts To Improve the Response of Tribal Law Enforcement
Agencies to Crimes of
Domestic Violence and Sexual Assault
The unique governmental relationship between Indian tribes as the
United States is long established by the Constitution, Supreme Court
cases, Acts of Congress and Executives Orders of the President.
Congress recognized this unique governmental relationship within the
Violence Against Women Act by statutorily including tribal set-asides
within specific Titles and also defining Indian Tribes as eligible
applicants for other grant programs. The administration of funds under
these programs to tribal governments must be in the context of the long
history of Federal-tribal relations and law. The development of
policies and grant program guidelines according to state-based models
is not only inappropriate, but also, ineffective in the creation of an
enhanced response to domestic violence, sexual assault and stalking.
Recognizing this complex legal relationship is a necessary component in
the proper administration of tribal set-aside funds. It is also
essential in the development of model codes, protocols, public
education awareness materials, research, and training.
The QWJA understands that Federal Indian Law has far reaching
implications on the safety of Indian women and the ability of law
enforcement to appropriately and effectively respond to domestic
violence, sexual assault, abduction and homicides of Indian women. VAWA
2005 statutorily created a new position of Deputy Director for Tribal
Affairs within the Office on Violence Against Women to safeguard the
proper implementation of the tribal provisions contained in VAWA 2005.
Lorraine Edmo was hired as the first person to serve in this position.
QWJA is extremely pleased with the expeditious hiring of Ms. Edmo.
The newly created Deputy Director for Tribal Affairs is statutorily
created to fulfill responsibilities essential to enhancing the systemic
response of tribal and Federal agencies to domestic violence and sexual
assault. The position as described by statute is not primarily a grant
administration position, but is designed to fulfill an important policy
development role on such matters. The statute for example directs the
Deputy Director to: coordinate development of Federal policy,
protocols, and guidelines on matters relating to violence against
Indian women; advise the Director of the Office on Violence Against
Women concerning policies, legislation, implementation of laws, and
other issues relating to violence against Indian women; represent the
Office on Violence Against Women in the annual consultations under
section 903 of Title IX; provide technical assistance, coordination,
and support to other offices and bureaus in the Department of Justice
to develop policy and to enforce Federal laws relating to violence
against Indian women, including through litigation of civil and
criminal actions relating to those laws; maintain a liaison with the
judicial branches of Federal, State, and tribal governments on matters
relating to violence against Indian women; support enforcement of
tribal protection orders and implementation of full faith and credit
educational projects and commitee agreements between Indian tribes and
States; and ensure that adequate tribal technical assistance is made
available to Indian tribes, tribal courts, tribal organizations, and
tribal nonprofit organizations for all programs relating to violence
against Indian women. Clearly, the new Deputy position is a critical
link in the coordinated effort of Federal agencies to increase the law
enforcement response to domestic violence and sexual assault of Indian
women, specifically the FBI, BIA and United States Attorneys.
The QWJA would like to highlight several examples of the need for
increased coordination and urge the Committee to examine these areas.
First, the areas surrounding the issue of Federal-tribal concurrent
jurisdiction over violent crimes committed against Native women such as
sexual assault. The U.S. Department of Justice has general jurisdiction
over felony crimes \5\ by or against Indians in cases of sexual rape
assault. A coordinated tribal-Federal response is absolutely essential
because of the sentencing limitation placed upon tribal courts of
``imposing no more than 1 year per offense or $5,000 fine. \6\ This
sentencing limitation is inappropriate in cases of sexual assault. Thus
unless the rape is prosecuted by a U.S. Attorney the defendant is not
appropriately held accountable for the crime. Second, the areas
surrounding emergency medical care of sexual assault victims. The
primary healthcare agency handling rape trauma emergency is the Indian
Health Services of the Department of Health and Human Services. This
agency does not have a formal protocol for sexual assault or conducting
forensic sexual assault examinations. The lack of such a protocol is a
glaring and telling sign of the differential treatment Indian women
receive on reservations. The lack of such evidence in many sexual
assault cases hinders the role of law enforcement investigations and
convictions of perpetrators.
---------------------------------------------------------------------------
\5\ 18 U.S.C. Sec. 1152 and 1153 (2004).
\6\ 25 U.S.C. Sec. Sec. 1301-1303 (2000).
---------------------------------------------------------------------------
Increasing the response of tribal law enforcement to domestic
violence and sexual assault requires understanding the complexity of
the jurisdictional maze created by Federal Indian Law. The newly
statutorily created Deputy Director for Tribal Affairs must be involved
with any Federal initiatives to address and enhance the response of law
enforcement to crimes of domestic violence and sexual assault. Further,
the Tribal Unit administered by the Deputy to implement the tribal
policy initiatives and grant programs must be adequately staffed.
Failure to fully staff the Unit threatens the successful implementation
of the initiatives and grants programs. The authority, responsibilities
and expertise of the Deputy Director will be essential to the success
of tribal law enforcement initiatives to increase their response to
such crimes.
Questions:
Will the Senate Committee on Indian Affairs inquire why the
statutorily created position of the Deputy Director for Tribal
Affairs does not appear on the Office on Violence Against Women
organizational chart?
Will the Committee inquire into the adequate staffing of the
OVW Tribal Unit?
Will the Committee inquire why the Indian Health Services of
the Department of Health and Human Services does not have a
formal national protocol for responding to sexual assault and
conducting forensic sexual assault medical examinations?
Will the Committee request that the Indian Health Services
of the Department of Health and Human Services coordinate its
efforts with the Deputy Director for Tribal Affairs, OVW, to
develop a protocol for responding to sexual assault and
conducting forensic medical examinations?
Will the Committee request that the Department of Justice
involve the Deputy Director in any initiatives to enhance the
Department's response to domestic violence and sexual assault
of Indian women?
Recommendations:
Field hearings be immediately conducted on crimes of
domestic violence and sexual assault in coordination with the
OVW and involving the OVW, Deputy Director for Tribal Affairs,
Lorraine Edmo.
V. The Lack of Full Implementation of Title IX. Safety for Indian Women
Contained in the Violence Against Women Act of 2005 Hinders the
Response of Law Enforcement on Indian Reservations to Domestic
Violence and Sexual Assault
Passage of VAWA 2005, represents landmark legislation that aims to
protect victims of domestic violence, dating violence, sexual assault,
and stalking, yet, guidelines have not been issued on implementation of
key sections impacting tribal law enforcement. In addition, no training
or consultation has occurred between tribal and Federal law enforcement
agencies on coordinating efforts to implement the amendments to the
Federal criminal code.
V. A) VAWA SEC. 905(a). Tracking of Violence Against Indian Women
Section 905(a) amends the Federal code to require the Attorney
General to permit Indian law enforcement agencies, in cases of domestic
violence, dating violence, sexual assault, and stalking, to enter
information into, and obtain information from, Federal criminal
information data bases.
This amendment addresses a tremendous gap that reduces the ability
of tribal law enforcement to respond to domestic violence and sexual
assault on Indian reservations. Prior to the amendment tribal law
enforcement access to the Federal criminal data bases was dependent
upon access granted or denied by the state agency. The ability of
Indian tribes to enter information regarding order of protections and
convicted sex offenders is a matter of life or death. Access to the
Federal data bases is an officer safety issue and essential to the day-
to-day services provided to tribal communities. It is also a matter of
life and death for Indian women that have obtained an order of
protection or prosecuted their rapist to have that information
accessible to tribal law enforcement.
On January 5, 2006, President Bush signed VAWA into law. One year
and five months later no steps have been taken to implement this life-
saving provision enacted by Congress. Implementation of this provision
requires the Department of Justice to issue guidelines and a directive
to appropriate personnel to allow tribal law enforcement to access the
Federal criminal justice data bases.
The Section specifically provides:
(a) Access to Federal Criminal Information Data bases.--Section 534
of title 28, United States Code, is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following:
``(d) Indian Law Enforcement Agencies.--The Attorney General shall
permit Indian law enforcement agencies, in cases of domestic violence,
dating violence, sexual assault, and stalking, to enter information
into Federal criminal information data bases and to obtain information
from the data bases.''
Question:
Will the Committee request that the Department of Justice
release the process by which Indian law enforcement can enter
into and obtain from the Federal data bases information
regarding domestic violence, sexual assault, dating violence,
and stalking cases?
Recommendation:
Tribal governments be provided guidelines on the
implementation of this section to immediately enter and access
information regarding domestic violence, sexual assault, dating
violence, and stalking cases.
V. B) SEC. 908. Enhanced Criminal Law Resources
Sec. 908(a) amends the Federal criminal code to expand the Firearms
Possession Prohibition to include tribal law convictions. It amends the
Federal criminal code to include under the term ``misdemeanor crime of
domestic violence'' any offense that is a misdemeanor under Tribal law.
Prior to passage of this amendment perpetrators of domestic
violence convicted in tribal court could continue to possess firearms.
This important amendment by Congress recognizes the danger that Indian
women faced because of this legal loophole. Unfortunately, no training
or guidelines have been issued by the Department of Justice for
implementation of this life-saving provision.
The Section specifically provides:
(a) Firearms Possession Prohibitions.--Section 921 (33)(A)(i) of
title 18, United States Code, is amended to read: ``(i) is a
misdemeanor under Federal, State, or Tribal law; and''.
(b) Law Enforcement Authority.--Section 4(3) of the Indian Law
Enforcement Reform Act (25 U.S.C. 2803(3) is amended--
(1) in subparagraph (A), by striking ``or'';
(2) in subparagraph (B), by striking the semicolon and inserting,
``or''; and;
(3) by adding at the end the following:
``(C) the offense is a misdemeanor crime of domestic violence,
dating violence, stalking, or violation of a protection order and has,
as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon, committed by a current or former
spouse, parent, or guardian of the victim, by a person with whom the
victim shares a child in common, by a person who cohabitating with or
has cohabited with the victim as spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent or guardian of the
victim, and the employee has reasonable grounds to believe that the
person to be arrested has committed, or is committing the crime;''.
Question:
Will the Committee request that the Office on Violence
Against Women and appropriate components of the Department of
Justice conduct training on the amendment to the Firearms
Possession Prohibitions to include tribal court convictions
regarding domestic violence, dating violence, stalking, or
violation of a protection order?
Recommendation:
Training be developed and offered on the implementation of
this section to tribal governments, BIA, FBI and Offices of the
United States Attorneys.
V. C) SEC. 909. Domestic Assault by an Habitual Offender
Section 909 amends the Federal criminal code to create a new
Federal felony for habitual offenders of domestic violence and sexual
assault. It imposes criminal penalties upon any person who:
(1) commits a domestic assault within the special maritime and
territorial jurisdiction of the United States or Indian
country; and
(2) has a final conviction on at least two separate prior
occasions in Federal, state, or tribal court for offenses that
would be, if subject to Federal jurisdiction, an assault,
sexual abuse, or serious violent felony against a spouse or
intimate partner, or a domestic violence offense.
This Section was enacted by Congress to address the reality that
domestic violence is a pattern of violence that is repeated over time.
Domestic violence increases in frequency and also in the severity of
the violence committed by the abuser. The pattern of domestic violence
might begin at a misdemeanor level and escalate to a felony level of
violence. Tribal law enforcement report that domestic violence is one
of the largest categories of crime they respond to on Indian
reservations. Domestic violence, however, is rarely prosecuted by the
United States Attorneys Offices. One reason for the lack of prosecution
is that the single incident of domestic violence may not rise to the
requirements of a Federal felony. This amendment addresses this gap
between tribal and Federal law. This new law will allow United States
Attorneys to prosecute perpetrators of misdemeanor domestic violence
that are repeat offenders and have two prior conviction in tribal
court. It addresses an outstanding concern of tribal law enforcement,
prosecutors and courts that domestic violence perpetrators are not
being held accountable for violence committed against Indian women.
Unfortunately, no training or guidelines have been issued by the
Department of Justice on implementation of this very important Section
that directly impacts the safety of Indian women. Coordination of
investigation efforts between tribal and Federal law enforcement will
be essential to the successful prosecution of cases under this Section.
The Section specifically provides:
Chapter 7 of title 18, United States Code, is amended by adding at
the end the following:
``Sec. 117. Domestic assault by an habitual offender
``(a) In General.--Any person who commits a domestic assault within
the special maritime and territorial jurisdiction of the United States
or Indian country and who has a final conviction on at least 2 separate
prior occasions in Federal, State, or Indian tribal court proceedings
for offenses that would be, if subject to Federal jurisdiction--
``(1) any assault, sexual abuse, or serious violent felony against
a spouse or intimate partner; or
``(2) an offense under chapter 110A, shall be fined under this
title, imprisoned for a term of not more than 5 years, or both, except
that if substantial bodily injury results from violation under this
section, the offender shall be imprisoned for a term of not more than
10 years.
``(b) Domestic Assault Defined.--In this section, the term
`domestic assault' means an assault committed by a current or former
spouse, parent, child, or guardian of the victim, by a person with whom
the victim shares a child in common, by a person who is cohabitating
with or has cohabitated with the victim as a spouse, parent, child, or
guardian, or by a person similarly situated to a spouse, parent, child,
or guardian of the victim.''
Questions:
How will the Offices of the United States Attorneys track
offenders with multiple tribal, state and Federal convictions?
Will the Committee request that the Office on Violence
Against Women and appropriate components of the Department of
Justice conduct cross training of tribal and Federal justice
personnel responsible for handling domestic assault and sexual
assault cases under the new Domestic Assault by an Habitual
Offender Code?
Recommendations:
Tribal governments, BIA, FBI and Offices of the United
States Attorneys be provided training on the implementation of
the Domestic Assault by an Habitual Offender Section.
Tribal governments be provided guidelines on the
implementation of this section, specifically the standards and
process for referring Domestic Assault by an Habitual Offender
cases to Offices of the United States Attorneys.
V. D) SEC. 906. Grants to Indian Tribal Governments
The purpose of the single grant program is to enhance the response
of Indian tribal governments to address domestic violence, sexual
assault, dating violence, and stalking. The newly created Grants to
Indian Tribal Governments Program will:
1) increase access of Indian tribes to tribal set-aside funds
by streamlining the administration of the set-asides into one
program; and
2) allow tribal governments to design tribally based responses
to crimes of domestic violence, dating violence, sexual assault
and stalking reflective of their respective systems of tribal
governance, customs, and practices.
This new tribal grant program recognizes that Indian tribes are
under resourced and will provide basic funding for important tribal
justice programming. To successfully implement a coordinated
governmental response to such crimes law enforcement training is needed
at the tribal and Federal levels. Such training should be both tribally
relevant and locally accessible. Specifically, the training provided by
the Bureau of Indian Affairs, USDOI, should be reviewed and revised to
include responding to domestic violence and sexual assault cases.
In addition, addressing domestic violence and sexual assault
requires that Indian women have confidence that such crimes will be
taken seriously. In short, a common belief that nothing will be done if
you report a crime of sexual assault can only be changed if Federal
agencies change the pattern of not charging such cases. The standard
response of ``such cases are charged'' falls short in the face of
reality. The fact that the Department of Justice has never released the
number of sexual assault cases prosecuted of adult women adds weight to
the argument that nothing will be done. We acknowledge the attention
the Department has given to child sexual assault cases, however, Native
women experience multiple victimization from birth to death. Sexual
assault offenders prey on the most vulnerable populations and
unfortunately the lack of Federal prosecutions is well known.
Questions:
Will the Committee request that Bureau of Indian Affairs
coordinate with the Deputy Director for Tribal Affairs, OVW, to
develop, revise and expand training on domestic violence and
sexual assault and implement such training on a regional basis;
including the new amendments to the Federal Code contained in
the VAWA 2005?
Will the Committee request that Bureau of Indian Affairs
coordinate with the Deputy Director for Tribal Affairs, OVW, to
develop protocols for responding to domestic violence and
sexual assault cases?
Will the Committee request that the Department of Justice
release the number of sexual assault offenders of adult Indian
women charged and convicted by the Offices of United States
Attorney.
Recommendations:
The Bureau of Indian Affairs and Deputy Director for Tribal
Affairs, OVW, begin the development of training on domestic
violence and sexual assault and implement such training on a
regional basis; including the new amendments to the Federal
Code contained in the VAWA 2005.
The Bureau of Indian Affairs coordinate with the Deputy
Director for Tribal Affairs, OVW, to develop protocols for
responding to domestic violence and sexual assault cases.
The Department of Justice release the number of sexual
assault offenders of adult Indian women charged and convicted
by the Offices of United States Attorney.
VI. Adam Walsh Child Protection and Safety Act of 2006 Further
Complicates the Tribal-Federal Jurisdictional Maze That Hinders
the
Ability of EBCI Tribal Law Enforcement to Respond to Sexual
Assault of Indian Women
Over the last 10 years almost every study on the rate of sexual
assault which has included race or ethnicity as a factor have concluded
that American Indian and Alaska Native women suffer a rate of sexual
violence at least 2-3 times higher than any other group of women in the
United States. Tribal governments face numerous challenges in
responding to sexual violence including jurisdictional restrictions and
limited resources. One of the greatest barriers is a systemic failure
and a lack of immediate response to the sexual assault of Indian women.
The inaction of Federal and state government officials in the aftermath
of a sexual assault causes many women to feel unprotected and sends a
message to perpetrators that Native women are easy targets for sexual
victimization.
The Qualla Women's Justice Alliance respectfully requests the
Senate Committee on Indian Affairs review and take immediate action to
amend the Adam Walsh Child Protection and Safety Act of 2006. The Act
while intended to enhance monitoring of sex offenders only increases
the jurisdictional maze preventing tribal justice agencies from holding
sex offenders accountable within Qualla Boundary. It was enacted
without consultation with the EBCI, or any Indian tribe, and clearly
lacks any understanding of the unique legal circumstances impacting the
monitoring of sex offenders on tribal lands. The Act is written in a
way that will prevent the vast majority of tribal governments from
becoming registrant jurisdictions.
The EBCI passed Resolution No. 726 exercising the authority of the
Nation under the Act to participate in the National Registry and notify
the U.S. Attorney General of the intent of the Tribe to maintain its
own Sex Offender Registry Program. The Resolution (see attached) is
explicitly clear in expressing the concerns of the Nation about the Act
and its commitment to holding sex offenders accountable. It states,
``the future of the Eastern Band of Cherokee Indians rest in the
capacity of the tribe to preserve the safety, integrity and well-being
of its members, and the sovereign powers of the Tribe and its people,
especially the sacred status of Cherokee women and children, to live
free from or fear of sexual assault.''
The EBCI enacted this resolution despite a long list of unanswered
questions concerning implementation and administration of the new
National Registry due to an arbitrary deadline for Indian tribes to
opt-in by passage of a tribal resolution before July 27, 2007. This
deadline will prevent many Indian tribes from exercising their
authority under the Act. Tribes failing to submit a tribal resolution
and letter opting-in by the deadline will be treated as having
transferred their authority under the Act to the state. This transfer
of authority includes granting the state right of access to tribal
lands to enforce the Act. The QWJA expresses our concern that the Act
fails to recognize the authority of Indian tribes located in PL 280
jurisdictions and transferred the tribal authority under the Act to
state governments.
The VAWA 2005, Title IX, Sec. 905(b), created a Tribal Order of
Protection and Sex Offender Registry in consultation with and allowing
for the full participation of Indian tribes. Sex offenders typically
move from reservation to reservation. Having a national registry
available to all Indian tribes to enter and access information
regarding sex offenders is essential for tribal law enforcement to
monitor offenders on tribal land. The safety of Cherokee women is
directly linked to the ability of EBCI law enforcement to access
information regarding convicted sex offenders from tribal, state, and
Federal systems. It is reaching beyond the realm of reality to expect
that state governments will effectively monitor convicted sex offenders
on tribal lands.
Questions:
Will Department of Justice conduct consultation on the
monitoring of sex offenders within tribal jurisdiction occur?
Will consultation with Indian tribes on the implementation
of the Adam Wash Act be conducted?
How will Indian tribes implement the unfunded programmatic
mandates under the Adam Walsh Act?
Recommendations:
Remove the July 27, 2007 deadline established under the Act
for Indian tribes to opt-in and operate a sex offender
registry.
Allow all Indian tribes the option of participating in the
National Registry under the Act.
Remove the provisions delegating tribal authority to the
states.
Support the full funding of the National Tribal Sex Offender
Registry authorized under VAWA 2005 in the Senate FY 2008
Commerce, Justice Science Budget Request authorized at
$1,000,000 for each of Fiscal Years 2007 through 2011.
Consult with Indian Tribes on the monitoring of convicted
sex offenders within tribal jurisdiction.
Fund Indian Tribes to implement sex offender registries.
VII. Conclusion
Cherokee women historically were protected by what is known today
as the Blood Laws of the Cherokee. Today the Blood Laws may be
perceived as harsh and inhumane, however, the relatives within the clan
structure of the Cherokee Nation enforced strict social codes that
served to regulate unacceptable social behavior against women. James
Mooney, a 19th century anthropologist, wrote about an incident of
sexual assault. The story goes. . .there was once a society or clan of
priests who were given much latitude in their actions and behavior. The
Nation feared offending them, so no one challenged their actions. One
day, a young, married man went on a hunting party. While he was gone,
one of these priests became enamored of the young wife. Mooney writes,
the priest attacked her, ``bothering'' her to her great shame. Upon the
young man's return, and hearing of this offense he pulled the clans
together and lead a party to kill every priest in that clan,
essentially obliterating the clan from the earth. From then until now,
the Cherokee have never let one group of its People become so lofty in
societal stature. This is an example of an extreme measure and not all
offenses were settled so harshly. We share this history with Members of
the Committee as a statement that as a Nation our traditional morals
and beliefs protected the right of women to be honored and to live free
from the threat of violence. This example highlights that the code was
enforced at the individual level, as the individual's actions are
measured against the actions of the whole. One is never greater than
all. The thought of facing one's own mortality for bad behavior is a
powerful deterrent to bad behaviors such as the battering, rape,
torture and murder of women.
The Qualla Women's Justice Alliance expresses its heartfelt
appreciation to the U.S. Senate Committee on Indian Affairs. The very
lives of American Indian women rest in the authority and action you
take to end the violence committed on a daily and hourly basis against
American Indian and Alaska Native women. We offer our prayers and ask
that the Committee consider the concerns and questions outlined above
and act upon them expeditiously. We live in a wonderful time in which
we are hopeful that violence against Cherokee women will end and all
women will once again enjoy safety within Qualla Boundary and the
United States. We offer the Committee our future assistance and an open
invitation to visit us at Qualla Boundary.
Attachments
Passed--Cherokee Council House, Cherokee, North Carolina (November 4,
1999)--Resolution No. 68 (1999)
WHEREAS, approximately 4 million women are abused in their home
each year; and
WHEREAS, it is commonly known throughout Indian Country that 90
percent of Indian women in chemical dependency treatment are victims of
rape and childhood sexual abuse, and that an estimated 30 percent of
all rape victims are battered women, and 100 percent of all Indian
women in those treatment programs are victims of domestic violence; and
WHEREAS, the under reporting of the incidence of violence against
women cases on the Qualla Boundary is such that lives of Indian women
and children are at risk; and
WHEREAS, there is a need for community education and awareness of
these situations.
NOW, THEREFORE BE IT RESOLVED by the Eastern Band of Cherokee
Indians in Council assembled, at which a quorum is present, that in an
effort to end violence against EBCI Women, the Tribal Council hereby
recognizes the Qualla Women's Justice Alliance and sanctions their
efforts to end violence against women on the Qualla Boundary.
Passed--Cherokee Council House, Cherokee, North Carolina (March 1,
2007)--Resolution No. 726 (2007)
WHEREAS, the U.S. House of Representatives and Senate passed the
Adam Walsh Child Safety and Protection Act of 2006 (``the Act''); and
WHEREAS, the Act requires that federally recognized Indian Tribes
review the Act and exercise their powers of sovereignty and either
establish a Sex Offender Registry Program that complies with the terms
of the Act or in the alternative enter into a cooperative agreement
with the State within which the Tribe is located; and
WHEREAS, the failure of a Tribe to take any action will indicate to
the Federal Government that the Tribe desires the State to maintain and
manage the Sex Offender Registry Program and remove the Tribe from
monitoring sex offenders within their jurisdiction; and
WHEREAS, the time for exercising this notification has been set by
the Federal Government as occurring on July 27, 2007 and as of the date
of this resolution there has been no indication from the Eastern Band
of Cherokee Indians as to the intent of the Tribe regarding compliance
with and election under the Act; and
WHEREAS, the time for compliance with the Act is fast approaching
and failure of the Tribe to elect to implement the provisions of the
Act within the jurisdiction and control of the Tribe will result in the
State of North Carolina assuming permanent jurisdiction and control of
a Sex Offender Registry Program that may or may not consider or be
applicable to those offenders residing within the boundary of the
Tribe.
WHEREAS, the current tribal programs like Heart-to-Heart Child
Advocacy Center, Center For Family Services' Family Support, and the
tribal Domestic Violence program provide direct services to abused
children and children who witness violence, and, the Qualla Women
Justice Alliance, a grassroots community based group whose efforts to
end violence against women is recognized by Tribal Council in
Resolution No. 68 (1999), have expertise in their respective areas and
can provide input to the development of such a registry.
WHEREAS, it is estimated by the United States Department of Justice
that one of three American Indian women will be sexually assaulted in
their lifetime.
WHEREAS, sexual assault offenders frequently prey on their victims
and have a high rate of recidivism.
WHEREAS, the future of the Eastern Band of Cherokee Indians rest in
the capacity of the tribe to preserve the safety, integrity and well-
being of its members, and the sovereign powers of the Tribe and its
people, especially the sacred status of Cherokee women and children, to
live free from or fear of sexual assault.
WHEREAS, it is in the interest of the Eastern Band of Cherokee
Indians to be informed of and monitor the presence of registered sex
offenders residing, employed or attending school within Qualla Boundary
as required by the Act.
NOW THEREFORE BE IT RESOLVED, by the Eastern Band of Cherokee
Indians, in Annual Council assembled, at which a quorum is present,
that the Tribe shall establish and maintain a Sex Offender Registry
Program that is in compliance with the terms and requirements of the
Act.
BE IT FURTHER RESOLVED, that the Tribe shall notify the U.S.
Attorney General and any and all other appropriate agencies of the
intent of the Tribe to maintain its own Sex Offender Registry Program.
BE IT FURTHER RESOLVED, that representatives of the Heart-to-Heart
Child Advocacy Center, Cherokee Domestic Violence Program, Family
Support Services, and Qualla Women's Justice Alliance be involved with
the development and implementation of the Sex Offender Registry.
BE IT FURTHER RESOLVED that the Tribal Council and Chief shall
appropriate sufficient funds through grant applications or Tribal
budget to maintain the Sex Offender Registry.
BE IT FINALLY RESOLVED, that the Principal Chief shall carry out
the intent of this resolution.
______
U.S. House of Representatives
Washington DC, May 22, 2007
Assistant Attorney General Wan J. Kim,
Civil Rights Division,
U.S. Department of Justice,
Washington, DC.
Dear Mr. Assistant Attorney General:
I am writing to request a review by the Justice Department of a
matter involving the potential violation of the civil rights of an 11-
year-old American Indian child from Minnesota. The disturbing conduct
of Mille Lacs County with regard to this child's basic human and civil
rights merits a complete investigation by your office.
The attached media reports indicate the following:
On April 10, 2007, Mille Lacs County Attorney Jan Kolb had a
warrant for failure to appear as a witness issued against, then
arrested and detained, an 11-year-old child who was the victim of a
crime. The child was removed from Nay Ah Shing School on the Mille Lacs
Indian Reservation on April 10 by a tribal police officer who was
notified by the county that a warrant had been issued for ``contempt of
court.'' Up until the time of his incarceration the child had a
``perfect attendance record at school.''
Upon being transferred into the custody of Mille Lacs County, the
child was handcuffed, processed at the county jail, and transferred to
a juvenile detention facility several miles away, where he was detained
overnight. Prior to appearing in Mille Lacs County Court the following
day, the child was restrained with handcuffs, shackles, and forced to
wear a jail-orange jumpsuit. The 11-year-old was reportedly cooperative
throughout the process and made no attempt to resist. After waiting
over two hours in a holding cell with a 16-year-old juvenile and then
more time in a courtroom, the boy was sent home with the admonition to
make sure he was present at the next court date.
Mr. Kim, as you well know, Title 42, U.S.C., Section 14141 of the
Crime Control Act of 1994, authorizes the Attorney General to initiate
a civil action in any instances where there is ``reasonable cause to
believe'' that ``any governmental authority [is] engag[ing] in a
pattern or practice of conduct by law enforcement officers or by
officials or employees of any governmental agency with responsibility
for the administration of juvenile justice of the incarceration of
juveniles that deprives persons of rights, privileges, or immunities
secured or protected by the Constitution or laws of the United
States.'' (Title 42, U.S.C. Section 14141, Pattern and Practice)
In light of the fact that an 11-year-old Native American crime
victim has now been victimized again, this time by the criminal justice
system charged with defending his rights, I strongly encourage your
office to conduct a full investigation of the circumstances surrounding
this case. I view this incident as serious, as does Minnesota Governor
Tim Pawlenty who stated in the attached letter, ``the treatment of this
11-year-old boy raises significant concerns that warrant further
review.''
I appreciate your full consideration of this request.
Sincerely,
Betty McCollum,
Member of Congress.
Attachments
State of Minnesota Office of Governor Tim Pawlenty
Saint Paul, MN, May 15, 2007
Ms. Melanie Benjamin,
Chief Executive,
Mille Lacs Band of Ojibwe,
Onamia, MN.
Dear Chief Executive Benjamin:
Thank you for your letter regarding the treatment experienced by a
young witness who was taken into custody in Mille Lacs County. Based on
news accounts and information provided in your letter, I agree that the
treatment of this 11-year-old boy raises significant concerns that
warrant further review.
It is my understanding that the Attorney General's Office and the
Mille Lacs County Board of Commissioners have initiated investigations
into the conduct that occurred and the policies and procedures in place
in Mill Lacs County for taking witnesses and juveniles into custody. In
light of the pending investigations, it seems the best course of action
is to await the results of those investigations.
As you may be aware, the Governor's Office does not have any
authority in law to direct the action of individual counties, their
elected county officials, or their employees. Governors previously had
the authority to review conduct of county attorneys, but the
Legislature expressly removed that authority in the 1980s.
Assuming these investigations confirm problems in relation to the
treatment of juvenile witnesses and detainees, the County should
correct those problems quickly so that similar issues do not arise in
the future. Furthermore, if the investigations reveal problems in our
laws as they relate to the handling of juvenile witness, we would be
happy to review potential legislative changes with you, law enforcement
representatives, and other interested parties that would resolve those
problems.
In addition, your letter states that the child may have been
treated in a discriminatory manner due to his race. If the child's
family believes that the treatment he received was related to his race,
the Minnesota Department of Human Rights has the power and authority to
investigate charges of discrimination. The family can contact the
Department of Human Rights to obtain more information about filing a
complaint of discrimination.
Thank you for your concern regarding this matter. I am confident
the apparent problems will be fixed promptly. If they are not, we are
willing to pursue legislative action.
Sincerely,
Tim Pawlenty,
Governor.
______
Star Tribune, May 02, 2007
Boy, 11, Jailed and Shackled Even Though He Was Victim
the mille lacs band is asking the state to get answers from the county
about why it happened.
By Richard Meryhew
Tribal leaders for the Mille Lacs Band of Ojibwe are asking state
officials to investigate the handcuffing and shackling of an 11-year-
old band member who was detained by police last month after he failed
to appear in court to testify as a crime victim.
The boy, who had been assaulted by an older boy, was taken to Mille
Lacs County jail April 10, kept overnight in a juvenile detention
center and taken to the county courthouse the next morning handcuffed,
shackled and wearing an orange jail jumpsuit.
Mille Lacs Chief Executive Melanie Benjamin sent a letter Wednesday
to the state attorney general saying that the county's treatment of the
boy is ``inexcusable'' and violated his civil rights.
``Was there any common sense even considered by anybody making this
decision? '' she asked.
Mille Lacs County Attorney Jan Kolb said it's standard for everyone
taken into custody to wear hand and leg restraints and jail suits for
security reasons.
Kolb said that policy was put in place by county judges in 2004
because ``we had too many people getting away from the jailers as they
were going back to jail.''
Kolb said the courthouse is old and security is not up to date.
Sometimes, she said, defendants, particularly juveniles, would flee
while walking from the courthouse to the jail across the street.
``And if they were in plain clothes, they could blend in with
people [after running off],'' she said.
Rjay Brunkow, the band's attorney, said Wednesday that the tribe
has had trouble getting information from the county about the incident
because it involves a juvenile. However, he said the band has been told
that the 2004 order ``was the justification for the [11-year-old boy's]
treatment. Even if it was a judge's order,'' Brunkow said, ``I think
some more thought should have gone into it to prevent a situation like
this. And I'd be curious to see if a judge's order required handcuffs
and shackles and a jumpsuit. I can see if that was for a defendant, but
this particular boy was a victim of a crime.''
Brunkow said the boy's parents told him that they didn't want to
talk to reporters Wednesday.
September Assault
According to Benjamin, Brunkow and Kolb, the 11-year-old allegedly
was assaulted in September 2006 as he walked home from the Nay Ah Shing
School on the Mille Lacs Reservation. Kolb said a 13-year-old boy
kicked, punched and tripped the younger boy, pushing him to the ground.
Later that afternoon, the victim's mother, Kristie Davis-Deyhle,
confronted the 13-year-old and a friend, and allegedly ran them off the
road with her car, according to court records. She was later charged
with second-degree assault, a felony.
Kolb said that over the next several months the county sent five
letters to Davis-Deyhle and her son to keep them abreast of the 13-
year-old's case and to tell them that a failure to appear in court
could result in a warrant for their arrest. Kolb said she believes the
family received the letters because none were returned. What's more,
she said, the boy and his father, George Deyhle, showed up for the 13-
year-old's trial in February.
When the trial was postponed, Kolb said, one of her assistants
spoke with George Deyhle and told him that the family would be notified
about a new trial date. Kolb said another letter was sent to the family
confirming a trial date of March 29 and ``reminding them they were
still under the power of subpoena.''
When the boy and his mother failed to appear, warrants were issued
for their arrest. The trial has not been rescheduled.
Disputed Subpoena
Brunkow, the band's attorney, said the family was never personally
served with a subpoena nor did it receive one via certified mail. He
also said George Deyhle told him that he and his son were never told
they had to return to court.
Kolb said that's not true.
``It's our position they acknowledged receipt of that first
subpoena by showing up at the first court date,'' she said.
Kolb said Davis-Deyhle was arrested in early April for failing to
appear in court, but posted bail and was released.
On April 10, a day or two later, Brunkow said, the 11-year-old, who
had a perfect attendance record at school, was picked up at school by a
tribal police officer and transferred to the custody of Mille Lacs
County, where he was handcuffed and later transferred to a juvenile
safe house in St. Cloud for his protection.
The next morning, he was handcuffed, shackled, forced to wear an
orange jail jumpsuit and detained in a cell for 2 hours before
appearing in court, Benjamin said. Once there, a judge instructed him
to attend future court dates, Brunkow said.
No charge was filed against the boy.
``If you've arrested the mother, and gave her notice, why then do
you still need to arrest her son and hold him overnight and bring him
into court shackled and handcuffed?'' Brunkow asked. ``It seems to be
extremely heavy-handed discipline.''
Kolb, the county attorney, said arrest warrants also were issued
for two other witnesses to the alleged assault who did not show up for
the trial.
She said the 11-year-old boy also failed to appear in court on an
unrelated matter where he was victimized by another assailant.
``Our concern is that people keep not getting him to court and he
keeps getting victimized,'' Kolb said. ``At some point, we need to step
in as a county and state and protect this kid.''
Help Like Punishment
But Brunkow said the treatment in this case ``seems more like
punishment'' and ``as far from protection as you could possibly get.''
Benjamin also said the boy was one of two children taken to court
that day by authorities, but the only one who was handcuffed and
shackled. She said a girl, who was not a band member, was not detained.
``We need to find out what happened and why,'' she said.
Meanwhile, the Mille Lacs Band has placed the tribal police officer
who arrested the 11-year-old on paid administrative leave pending the
outcome of the investigation.
``It appears the officer did not mistreat the child and was
carrying out his legal obligations to serve what he thought was a valid
arrest warrant,'' Benjamin said in her letter.
______
Star Tribune, May 03, 2007
Experts Say Putting Shackles on Young Victim Is Policy Flaw
an overly broad plan that applies the same restraints to victims and
offenders is bound to create situations like that of an llold victim
from the mille lacs band, they said.
By Richard Meryhew
When Mille Lacs County judges issued an order 3 years ago requiring
everyone taken into custody by county officers to wear hand and leg
restraints, they did so with the hope of shoring up courthouse
security.
But it's likely the judges never envisioned a scenario like the one
that played out last month, when an 11-year-old boy from the Mille Lacs
Band of Ojibwe was handcuffed, shackled and held overnight for failing
to appear in court to testify as a crime victim.
Approved by Mille Lacs County Judges Steven Ruble and Michael Jesse
in September 2004, the policy states that prisoners escorted to and
from court be secured with handcuffs, waist restraints and leg irons.
``These procedures are for adults and juveniles charged with a
criminal offense,'' according to a memo to jail staff from Jerry Brown,
the assistant jail administrator.
But the judges' order said the policy applies to all ``custodial
defendants,'' and Mille Lacs County Attorney Jan Kolb said the 11-year-
old boy ``was most certainly in custody.''
The boy was picked up on a warrant for failing to appear in court.
He was not charged with a crime.
Ruble wouldn't comment on the recent incident or whether the policy
should be reexamined. But, he said, ``I think anybody can initiate
further review of the policy.''
Sheriff Brent Lindgren, who oversees security at the jail, did not
return phone calls Thursday.
``I've never heard of a policy like that,'' said Richard Frase, a
University of Minnesota law professor. ``It's so incredibly overbroad,
it's bound to produce problems like this. Anything you do that treats a
witness or victim with the identical severity to what you do to a
defendant has got to be questionable.''
Looking Into It
Two attorneys from the state attorney general's office traveled to
Mille Lacs County on Thursday to talk with tribal officials, county
officials and individuals involved in the case.
Mille Lacs Chief Executive Melanie Benjamin had sent a letter to
Attorney General Lori Swanson asking her to intervene. Swanson's office
needs to decide whether it has jurisdiction in the matter, according to
Brian Bergson, her chief spokesman.
``When we first heard of this, we thought: `How could this be? ' ''
said Rjay Brunkow, the attorney representing the Mille Lacs band. ``We
started calling around to county attorneys. . .and, to a person, every
county we talked with said, `Are you kidding me? ' ''
Hennepin County Attorney Mike Freeman said prosecuting cases where
victims or witnesses are unwilling to cooperate can be difficult.
``Somebody comes in and complains about an assault, the sheriff
investigates and the county attorney gets involved and we talk with the
victims,'' he said. ``And if they don't show up for trial, you have to
dismiss the case, and that gets real frustrating.''
However, Freeman added, ``I don't think the answer is arresting
kids and holding kids in a juvenile facility overnight and fitting them
in a jumpsuit. I think these things can be handled a little bit better,
frankly.''
Freeman said that the county could have set a hearing date,
notified the boy or his family a day ahead of time, then sent an
officer in an unmarked squad car to the boy's house or school to take
him to court.
Ruble, the Mille Lacs County judge, said the policy, created with
help from the sheriff's office, was implemented after ``a number of
people'' fled the courthouse in Milaca--an aging facility across the
street from the jail--while being transported to and from the jail.
In 2004, Ruble said a defendant pushed his attorney after a
hearing, running from the courthouse into a nearby alley. He was found
hiding behind a trash can about a block away.
The judge added that others have tried to flee while being taken
across the parking lot between the jail and courthouse.
Ruble said that from what he can tell, the policy has made a
difference. ``I haven't heard of anybody fleeing since we've instituted
the policy,'' he said.
Rural Setting Can Be Challenge
Chuck Samuelson, executive director of the American Civil Liberties
Union of Minnesota, said the organization sent letters Thursday to Gov.
Tim Pawlenty and Swanson asking them to investigate the matter ``to
make sure it doesn't happen again.''
Samuelson said that even if the Mille Lacs policy holds up to
scrutiny, ``It's just crazy. The boy already has been a victim once.''
Cass County Attorney Earl Maus said rural communities often have
more difficulties in maintaining security, in part because courthouses
and jails are small, and staff is limited.
``I know there are some problems there,'' Maus said. ``It's a
question of `Where's the line with the force? ' Certainly you don't
want to do anything that is excessive to anybody. You want to use
what's least restrictive, but still keep people safe.''
Frase, the university law professor, said that in many instances
juveniles are more vulnerable than adults and ``more likely to be
traumatized'' by being handcuffed or shackled.
``It did seem pretty excessive,'' he said of the Mille Lacs case.
``That's the problem with any kind of mandatory policy. But you can see
where they are coming from.''
``They just want to say there is no discretion here, no picking and
choosing, everybody gets treated the same way.''
______
U.S. Department of Justice Office of Legislative Affairs
July 11, 2007
Hon. Betty McCollum,
U.S. House of Representatives,
Washington, DC.
Dear Congresswoman McCollum
This responds to your letter, dated May 22, 2007, to Wan J. Kim,
Assistant Attorney General for the Civil Rights Division, concerning
your 11-year-old constituent in Mille Lacs County, Minnesota, who was
arrested and detained for failing to appear in court as a witness.
The Department of Justice's Civil Rights Division, Special
Litigation Section, has the authority to investigate law enforcement
agencies that may be engaging in a pattern or practice of conduct that
deprives persons of constitutional or other Federal rights, pursuant to
the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C.
Sec. 14141. The Section is further authorized under the Civil Rights of
Institutionalized Persons Act, 42 U.S.C. Sec. 1997, to investigate
systemic complaints concerning conditions in public institutions. These
institutions include prisons, jails, juvenile facilities, mental health
and retardation facilities, and publicly-operated nursing homes.
However, our statutory authority precludes us from taking action in
isolated incidents or actions involving a single individual.
Although we cannot pursue your constituent's individual allegations
of misconduct, we will evaluate the information you provided to
determine whether a ``pattern or practice'' investigation may be
warranted at this time. We will also keep the information on file and
will consider it, along with other available information, in
determining whether a pattern or practice investigation may be
warranted in the future. To that end, we encourage you to continue to
forward any additional information about these or any other
allegations, as we continue to look into this matter.
Thank you for bringing this matter to our attention. If we can be
of further assistance with this or any other matter, please do not
hesitate to contact this office.
Sincerely,
Brian A. Benczkowski
Principal Deputy Assistant Attorney General
______
Commentary From the June 1, 2007 Edition of the Native American Press/
Ojibwe News, Submitted by William J. Lawrence, Owner/Publisher
Federal Indian Policy Is the Problem not the Solution
Senator Byron Dorgan (D-ND) and Senator John McCain (R-AZ) this
week announced the passage in the Senate of S. 398, amendments to the
Indian Child Protection and Family Violence Prevention Act of 1990. The
bill, according to Senator Dorgan's testimony, is ``virtually identical
to legislation which the Senate adopted last year. . ..''
The Senator continued, ``The primary goals of that Act were to
reduce the incidence of child abuse, and mandate the reporting and
tracking of child abuse in Indian Country.'' Additionally the bill
authorizes ``a study to identify impediments to the reduction of child
abuse. . .as well as require[s] data collection and annual reporting to
Congress concerning child abuse. . ..''
According to a press release issued by Senator Dorgan's office, the
bill ``will provide treatment programs'' for victims. ``background
checks for employees who work with Indian children,'' as well as
``training in suicide prevention and treatment for professional staff
at. . .Indian Child Resources and Family Service Centers.'' The bill
will also ``involve FBI and Attorney General in. . .tracking of data
involving incidents of child abuse.''
Since many victims of child abuse attempt or succeed in suicide,
the bill includes a provision for assuring that trained behavioral
health professionals, particularly those who have training in suicide
prevention be on staff at Indian Child Resources and Family Service
Centers.
Late last month Amnesty International (AI) published a report: Maze
of Injustice: the failure to protect Indigenous women from sexual
violence in the USA. The press release announcing the report says,
statistically more than 1 in 3 native (meaning American Indian and
Alaska Native) women will be ``raped in their lifetimes.'' This figure
is 2.5 times more than the probability of this happening to U.S. women
in general.
Because of the magnitude ot the problem, AI asserts that this fact
amounts to more than a criminal or social issue, and that it
constitutes a human rights abuse.
AI contends that government figures ``grossly underestimate the''
incidence ``because many women are too fearful of inaction [on the part
of law enforcement officials] to report their cases.''
The report indicates that jurisdictional issues ``allow
perpetrators to rape with impunity.'' A support worker for Native
American survivors of sexual violence, is quoted in the report,
``Before asking `what happened,' police ask: `Was it in our
jurisdiction?' ''
Another support worker, in Oklahoma, told AI, ``When an emergency
call comes in, the sheriff will say `but this is Indian land.' Tribal
police will show up and say the reverse. Then, they just bicker and
don't do the job. Many times, this is what occurs.''
Law enforcement, according to AI, does not regard rape as a high
priority assignment. The mother of a victim, in seeking justice after
an assault on her daughter, was told her only recourse was through the
FBI, located 125 miles away. When she asked questions of an agent as to
what they were doing to apprehend the suspect, she was told, ``This
case isn't on the top of our list.''
Victims are often reluctant to report the assault because they know
from the experiences of other women that the assault will often not be
taken as a serious issue. An episode described in the report details
how a 16-year-old female from Grand Forks, North Dakota,
psychologically damaged by a sexual assault, stole a car. Her sentence
for this offense was greater than that given to the person who raped
her.
In addition, law enforcement personnel are frequently ignorant of
how to handle evidence and rape kits are frequently, and it's
suggested--conveniently, mishandled or lost, making it impossible for a
victim of sexual assault to prove her case.
Both the Senate Bill and the Amnesty International report are
important. These documents point out the problems that exist and
suggest solutions.
The AI report is especially valuable in its explicit information,
e.g. giving reasons why native women are at risk, stating why victims/
survivors of rape don't report the assault, why victims/survivors are
denied justice, and why perpetrators are not apprehended and punished.
However, in my view, the recommendations presented in these two
documents are not appropriate. The efforts are laudable, but (as my
friend Jody Crowe would ask) are they asking the right questions? Are
they proposing the right solutions? I think not.
The suggested remedies in both documents call for action at the
Federal level. With all due respect, how could anyone expect to turn to
the Federal Government for a solution when the Federal Government is
responsible for the situation in the first place.
In the case of the Senate bill, I believe there are already
mechanisms in place that will do what the bill is proposing. Both the
Senate bill and the AI report call for more money from a number of
different agencies--for health services, for education and training of
relevant personnel, more money for law enforcement, for cleaning up
jurisdictional problems, for new positions, for support of tribal
courts, etc.
How can anyone justify the appropriation of more money when the
Federal Government allocates $12 billion annually to at most 600,000
enrolled tribal members living on reservations? Add to that, these same
``needy'' people control a gaming industry that produces $23 billion a
year.
How much money is it going to take? But is that the right question?
Additionally, AI would like to see the Federal Government boost the
authority of tribal governments. This is a gross error in judgment.
The problem here lies with the on-going failure of Federal Indian
policy. It began in the 1700s and the tragedies that have resulted for
the Indian people, as a result of these policies, are still perfectly
visible today. The outward appearance has changed since earlier time,
but the effects are manifest today in modern form, and are just as
devastating.
Some of the more recent attempts by the Federal Government to
address the ``Indian problem'' have been the Indian Self-Determination
Act, the Indian Education Act, and the Indian Gaming Act.
Indians have been managing their own governmental affairs,
educational systems, health services, businesses and economic
development programs for over thirty years now as a result of these
acts and the results have been astonishingly ineffectual. Reservation
Indians today are further removed from self-sufficiency than they were
200 years ago.
It is probably true that many Indians want to be government
Indians, i.e. those who are satisfied to live on the government dole,
and that is unfortunate. Proportionally, I believe there are more such
persons today than there were when I was a boy.
Since the enactment of the Indian Self-Determination Act (ISDA),
the state of affairs on reservations has grown exponentially worse.
Self-determination has allowed tribal governments to control the
courts, the police force, economic development, jobs, services,
policies and procedures.
There is no separation of powers, no checks and balances against
misuse of authority. The executive branch, Tribal Council, holds all
powers. In third world nations this form of government is called
dictatorship. In America it is referred to as ``tribal sovereignty.''
The concept of tribal sovereignty is inherent in all these acts.
Because of this myth, despite being citizens of the United States as
well as tribal members, reservation residents are consistently denied
the protections and guarantees of the U.S. Constitution. Traditional
guarantees, protections and liberties apply to Native Americans only
when they live off reservation. Constitutional violations are prevalent
on reservation because tribes are not required to uphold individual
rights, and officials determine what rights the people will have.
Sovereignty is the Number One cause of corruption and poverty on
reservations. Dominant society erroneously thinks tribal sovereign
immunity is the right thing to do. Federal officials do the
ingratiating dance of publicly acknowledging ``the right'' of tribal
sovereignty, and, at the same time, continue the paternalistic
practices that have undermined legitimate law and order.
In addition to routinely suppressing human rights, corrupt tribal
officials take license to pay themselves and their political favorites
enormous salaries. There is a terrible disparity between the income of
elected officials and their appointees, who enjoy the privilege of high
position and pay based on political favoritism or family connection
while members live at subsistence or poverty level.
The problems so visible on the reservations--governmental, social
and familial dysfunction, poverty, alcohol and drug abuse, lack of
housing and employment, oppression, hopelessness and in general a lack
of basic necessities to meet human needs--are traceable back to Federal
Government policy and tribal sovereignty.
The litany of problems translates into the perfect formula to turn
people to crime, drugs and violence in protest of the perceived and
felt inequality. Drug use and traffic--and their partners, crime and
violence--are overwhelming Indian reservations everywhere.
The number of tribal individuals affected by fetal alcohol effects
is incredibly high and continues to rise. There are now three
generations of fetal impaired individuals living on reservations. This
fact contributes significantly to the over-all dysfunction of Indian
communities.
Ironically, the people that are trying to address these issues are
turning to the government for a solutiou when in fact that is the
source, the fountainhead, of the problems. In addition to the Indian
Self-Determination Act, the Indian Education Act, and the Indian Gaming
Act were enacted by the Federal Government. The effects of these two
acts have been as disastrous as was the Self-Determination Act.
Since the tribes have taken control of the education system, over
30 years ago, the situation has deteriorated visibly each decade.
School attendance, test scores and graduation rates are at all time
lows. A great number of those who do receive a high school diploma
receive what is essentially a worthless piece of paper stating the
student has completed an ``alternative'' school program.
Illiteracy is on the increase, children are not prepared to earn a
living and become responsible, productive members of society. This is
unavoidable given the fact that the numbers of special education kids,
including those with fetal alcohol effects (who unfortunately remain
largely undiagnosed), have increased to the point where they make up
anywhere from 50-100 percent of the school population.
At the same time, because of poor attendance, athletics and
extracurricular activities are decreasing, leading to a decline in
children's health. Obesity and diabetes are the result.
The Indian Gaming Act was intended to give Indian people the means
to create jobs and improve living standards. Part of the rationale for
approving the Act was the concept that jobs would increase self-
sufficiency and productivity. It would produce revenue that could be
used to support needed programs and services and tribes would begin to
pay their own way.
But that has not happened. Tribal gaming has improved life for an
elite few. For the majority of tribal members, things have not gotten
better. They have gotten progressively worse. The presence of a casino
has been demonstrated to be a magnet for criminal activity. Crime rates
in neighborhoods where a casino has opened have grown at a minimum by
10-12 percent.
Revenue from tribal gaming should be available to offset these
costs. Tribes should be capable of paying the costs associated with the
crime and violence that comes in the wake of a casino opening. But that
is far from actuality.
Gaming, like the other enactments, have contributed to making
matters worse.
The tribes under the authority extended by the Indian Self-
Determination Act administer Indian Health Service. Local agencies are
prone to exploitation by tribal officials. In a center located on a
local reservation, we've been told 17 members of the same family hold
jobs.
In addition to funds from the government through the Indian Health
Service, tribes receive money separately. This system has led to
duplication of services, mismanagement and fraud. It has not however
led to improved health conditions for tribal members.
When you look at the costs of drug abuse and treatment, the health
care issues associated with drug related violence, I concede that money
is an issue. It costs a great deal to rehabilitate drug users and
restore health to those banned through criminal activity. What is the
cost of transporting a victim who's experienced beating, shooting or
stabbing from the reservation to an urban hospital by helicopter for
emergency care?
What were the costs incurred as a result of the Red Lake School
shooting? No one has publicly asked the question, nor has anyone stated
the amount. The figure is, I'm sure, astronomical.
How much do the poor life style choices, made by Indians, cost in
terms of money, of discomfort, in lost productivity and missed chances
for a better life.
What are the costs of investigating, apprehending, prosecuting,
jailing and rehabilitating the 19 Red Lakers recently charged with drug
trafficking. And finally, how much harm (and how does that translate
into monetary values) has been caused our members and our children from
these 19 persons, and others, who made money by bringing drugs to the
reservation.
Revenue from tribal gaming should be available to offset these
costs. Tribes should be capable of paying the costs associated with the
crime and violence that comes in the wake of a casino opening. But that
is far from actuality.
The government's idea of managing Indian Affairs is primarily the
Bureau of Indian Affairs. Over the many years of its existence, BIA
officials and employees have built an elaborate structure to deal with
the various Indian problems as they arose. They are entrenched and
ineradicable. The Bureau now exists for its own benefit. It is run on
the basis of self-interest by civil servants whose careers have been
sustained by ``Indian problems.''
This feat was easy enough to accomplish because there is so much
confusion about what is going on. There are enumerable authorities,
each responsible for a whole spectrum of services and administrations.
There is confusion about how much is owed to the Indians and what the
burden of guilt should require in restitution.
The BIA is the epitome of self-interest and politics of the worst
sort. It is insensitive and unresponsive. In an example close to home,
over 600 lawful petitioners at Leech Lake submitted their case to the
BIA for an opinion. More than 18 months have passed and the BIA has yet
to deliver it.
Tribes are isolated by geography and by a lack of intelligent
attention and proper oversight by the relevant governmental agencies.
How could anyone expect law and order to prevail when the very
source--the Federal Government--is unresponsive, inattentive and inept.
The Indian Health Service (IHS) is culpable as well. Both agencies
use inflated numbers to justify their budgets and the number of jobs
authorized to each. They include Indians who live near reservations as
well as actual reservation residents. This practice creates a fiction
as to the monetary need of the actual number of persons eligible for
services.
Although fewer than 600,000 Indians live on America's reservations,
the BIA and IHS reported to Congress that they had service populations
of 1.5 million and 1.6 million respectively for their Fiscal Year 2006
budget justifications.
Our two starting points for this commentary, S. 398 and the Amnesty
International report, are correct in one fundamental way. Congress must
be forced to do something. Unfortunately, the solution to the problems
they expose does not lie in business-as-usual processes. The answer
lies in radically changing present policy.
Many Indians, including myself, believe the reservation system is
beyond salvage. Most Native Americans do not want to be wards of the
government, aka government Indians. They have demonstrated this fact by
going away to school and to decent jobs.
The failed principles and policies of the feds are responsible in
large part for the deplorable conditions that AI and the U.S. Senate
are hoping to address. To turn to the Federal Government for solutions
is simply a ridiculous premise.
PULL QUOTES: The [Amnesty International] report indicates that
jurisdictional issues ``allow perpetrators to rape with impunity.''
The problems arise from the on-going failure of Federal Indian
policy.
Sovereignty is the Number One cause of corruption and poverty on
reservations.
Tribal gaming has improved life for an elite few. For the majority
of tribal members, things have not gotten better.
Congress must be forced to do something different.