[Senate Hearing 110-576]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-576
 
   TRIBAL COURTS AND THE ADMINISTRATION OF JUSTICE IN INDIAN COUNTRY

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 24, 2008

                               __________

         Printed for the use of the Committee on Indian Affairs



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                      COMMITTEE ON INDIAN AFFAIRS

                BYRON L. DORGAN, North Dakota, Chairman
                 LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii              JOHN BARRASSO, Wyoming
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
      Allison C. Binney, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 24, 2008....................................     1
Statement of Senator Barrasso....................................    87
Statement of Senator Cantwell....................................    93
    Prepared statement...........................................    93
Statement of Senator Dorgan......................................     1
Statement of Senator Murkowski...................................     3
Statement of Senator Tester......................................    88

                               Witnesses

Duran, Hon. Roman J., First Vice President, National American 
  Indian Court Judges Association................................     7
    Prepared statement with attachment...........................     9
Flies-Away, Hon. Joseph Thomas, Chief Judge, Hualapai Tribe......    20
    Prepared statement...........................................    22
Pouley, Hon. Theresa M., Judge, Tulalip Tribal Court; President, 
  Northwest Tribal Court Judges Association......................    26
    Prepared statement...........................................    28
Ragsdale, W. Patrick, Director, Office of Justice Services, 
  Bureau of Indian Affairs, U.S. Department of the Interior; 
  Accompanied by Joe Little, Associate Deputy Director, Office of 
  Justice Services, Division of Tribal Justice Support...........     4
    Prepared statement...........................................     6
Sahneyah, Dorma L., Chief Prosecutor, Hopi Tribe.................    36
    Prepared statement with attachments..........................    39

                                Appendix

A Comparison of State Low Level Felony Sentencing Authority by M. 
  Brent Leonhard and Cisco Minthorn..............................   102
Miller, Alberta Iron Cloud, Chief Prosecutor, Oglala Sioux Tribal 
  Court, prepared statement......................................   107
Patterson, Donnette J., Administrator, Yankton Sioux Tribal 
  Court, prepared statement......................................   112
Pearson, Hon. Myra, Chairwoman, Spirit Lake Tribe, prepared 
  statement......................................................   106
St. Clair, Hon. John, Chief Judge, Shoshone and Arapaho Tribal 
  Court
    Prepared statement with attachments..........................    97
    Response to written questions submitted by Hon. John Barrasso   101
Written Questions Submitted by Hon. Byron L. Dorgan and Hon. Lisa 

  Murkowski.................................................... 114-117


   TRIBAL COURTS AND THE ADMINISTRATION OF JUSTICE IN INDIAN COUNTRY

                              ----------                              


                        THURSDAY, JULY 24, 2008


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m. in room 
562, Dirksen Senate Office Building, Hon. Byron L. Dorgan, 
Chairman of the Committee, presiding.

          OPENING STATEMENT OF HON. BYRON L. DORGAN, 
                 U.S. SENATOR FROM NORTH DAKOTA

    The Chairman. We will call the hearing to order. My 
colleagues will be joining me shortly, but this is a hearing of 
the Indian Affairs Committee of the United States Senate.
    This morning, the Committee will examine tribal court 
systems and the administration of justice on Indian lands.
    In a spirit of independence this morning, I ordered that 
the drapes be opened finally in this Committee room. You are 
welcome. I get so weary of going to committee rooms in this 
United States Senate building, and not only this one, but the 
other buildings as well, and the drapes are closed and it is 
dark, and then they turn the television lights on. So we will 
see how long we get away with this. All right. Good.
    It is customary for our Committee to hear from the elected 
tribal leaders, but today we are going to hear for the first 
time in a while directly from the men and women who serve the 
tribal court systems as judges and prosecutors. I deeply 
appreciate their willingness to be with us. They get precious 
little attention. They work very hard trying to make a system 
work that is in many ways almost a dysfunctional system, but 
the men and women who are joining us today are people that do 
unbelievably important work on Indian reservations.
    Tribal courts are the frontline institutions for preserving 
the peace in Indian communities. They also help resolve civil 
disputes among community members and those doing business on 
Indian lands. To that end, a strong tribal court system is a 
proven factor in fostering economic development on Indian 
lands.
    Today, there are about 290 tribal district courts and more 
than 150 tribal appellate courts. Training and funding for 
tribal courts is vital to their success. But as we will hear 
this morning, funding shortfalls have limited the ability of 
tribal courts to fulfill their goals.
    For many tribes, Federal funding is the primary source of 
revenue for the court systems. That funding has not nearly kept 
pace with the increased number of court systems, their 
responsibilities, or for that matter, their growing technology 
needs. Last year, Congress appropriated $14.3 million to the 
Interior Department's Tribal Courts Program. This was the 
highest figure for the tribal courts in more than a decade. The 
President's budget proposes a $2 million cut to that program 
for Fiscal Year 2009.
    As I noted, the funding needs of tribal courts have further 
increased in recent years. One example is the significant 
amount of time, technology and resources that tribal courts 
will have to expend to comply with the Adam Walsh Child 
Protection and Safety Act, which this Committee examined last 
week.
    Another example of increased responsibility is the need to 
address increases in violent crime and the significant number 
of cases that fall through the cracks or are declined in the 
Federal system. The chart below shows that in the four years 
from 2004 to 2007, the United States Government declined to 
prosecute an average of 62 percent of reservation crimes. This 
means that nearly 75 percent of adult and child sex crimes and 
50 percent of reservation homicides, went unpunished in the 
Federal system.


    That is truly stunning to me to see these statistics. When 
declined in Federal court, the victims and the families of 
Indian Country then must turn to the tribal court systems to 
deliver justice. But current law limits the authority of tribal 
courts to sentence offenders to no more than one year in 
incarceration. One year for a rape or murder does not deter 
those crimes or provide any justice at all to these victims or 
to their families.
    For that reason, yesterday we introduced the Tribal Law and 
Order Act of 2008, with the support of the Vice Chair Murkowski 
and 11 other Senators. We have introduced legislation that we 
believe will begin to address this serious problem. Senators 
Domenici, Johnson, Cantwell, Smith, and Tester are from this 
Committee. Senators Biden, Baucus, Bingaman, Lieberman, Kyl, 
and Thune have all signed onto this bill.
    It takes initial steps at addressing the disjointed 
criminal justice system in Indian Country. The bill would 
enable tribal courts to sentence offenders up to three years in 
prison for violations of tribal law. If a tribe exercises the 
option to sentence an offense to more than one year, it must 
provide a public defender and must meet other requirements as 
well.
    Again, this is only an option. A tribe may choose to 
continue to act under current law. The bill also would 
reauthorize the tribal court programs within the Interior and 
the Justice programs. These reauthorizations have been waiting 
for a long, long time. They will help address some of the 
funding shortfalls that I have described.
    Let me just mention that in recent years, we have had 
hearings in which we have been told that some have targeted 
Indian Country as safe havens for crime, drug dealers, and 
others. It has led to a longstanding public safety crisis on 
many reservations, and the tribal court systems themselves are 
vital to trying to combat this problem.
    For that reason, the bill we have introduced seeks to 
empower the tribal court institutions, which are fundamental to 
the administration of justice on tribal lands.
    Again, I am proud that we were able to introduce a piece of 
legislation with very strong bipartisan support. I mentioned 
the staff, both the majority and the minority staff, who have 
worked on this a great deal. We consulted carefully all across 
the Country with Indian tribes, and we worked with local law 
enforcement officials, State law enforcement officials, and 
others in order to get to the point where we had bipartisan 
support to introduce this bill yesterday.
    It will be our hope to move the bill as quickly as we can. 
At least a part of the discussion of that will be here today 
with respect to the tribal court systems. We appreciate your 
being here.
    Let me call on the Vice Chair, Senator Murkowski.

               STATEMENT OF HON. LISA MURKOWSKI, 
                    U.S. SENATOR FROM ALASKA

    Senator Murkowski. Well, thank you, Mr. Chairman.
    I want to add just really my support and truly, I guess it 
is congratulations as we were able to introduce that 
legislation yesterday with really very strong bipartisan 
support. I think that is a very telling indicator of the 
commitment within this body to do something meaningful when it 
comes to law enforcement in Indian Country.
    So I was pleased to be part of that, and look forward to 
kind of this ongoing consultation which is what we do in this 
deliberative body.
    I want to thank the witnesses for your appearance here 
today. I know that some of you have come from some far away 
places, and we appreciate the effort that you have made to come 
here and share with us some of your input in this area. I 
appreciate the work that you do within the tribal courts. Your 
dedication to the general task of administering justice in the 
tribal, as well as the CFR courts throughout Indian Country, is 
greatly appreciated.
    We recognize very well that tribal court officials face 
some real challenges adjudicating the really heartbreaking 
stories of what we see, whether it is with child abuse, 
domestic violence, juvenile delinquency, the issues that come 
before you. We know that they are not easy for you. So again, 
we appreciate that.
    So many issues out there, so many things that you can point 
to and say, well, this is not working. We certainly look at the 
adequacy of the funding. We recognize that in many instances 
there just may be no place to incarcerate the dangerous 
offender.
    We often see that despite the best efforts of the tribal or 
the BIA law enforcement prosecutors, that there is an 
inadequate response from the Federal justice system as we 
attempt to deal with these serious felony crimes.
    Yesterday, certainly at the press conference and as the 
Chairman has led the debate on what we do with law enforcement 
in Indian Country, the five hearings that this Committee has 
held, we have heard incredible statistics about the various 
crime rates, the rates of sexual assault, violent crimes 
against women, against our children. It is appalling, and we 
recognize that the Federal Government has a responsibility to 
address these public safety concerns of Indian Country. It is 
something that we cannot turn our back on.
    So I look forward to hearing your comments this morning. I 
am certain that you will provide additional concerns to the 
Committee regarding the resources, the additional challenges 
that we face. But again, my thanks to you for your appearance 
here this morning and for the good work that you do.
    The Chairman. Senator Murkowski, thank you very much.
    We thank the witnesses for being here. We are going to 
begin today with Mr. Pat Ragsdale, the Director of the Office 
of Justice Services in the Bureau of Indian Affairs. He is 
accompanied by Mr. Joe Little, the Director of Office of 
Justice Services, the Division of Tribal Justice, at the 
Department of the Interior.
    Mr. Ragsdale, you may proceed.
    I would say to all of the witnesses that we will include 
your entire statements as a part of the permanent record. You 
may summarize.

 STATEMENT OF W. PATRICK RAGSDALE, DIRECTOR, OFFICE OF JUSTICE 
  SERVICES, BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
INTERIOR; ACCOMPANIED BY JOE LITTLE, ASSOCIATE DEPUTY DIRECTOR, 
 OFFICE OF JUSTICE SERVICES, DIVISION OF TRIBAL JUSTICE SUPPORT

    Mr. Ragsdale. Thank you, Mr. Chairman, and thank you, Madam 
Vice Chair.
    I will summarize my testimony. I need to note that there 
are a couple of errors in the testimony, in our formal 
statement, that I will try to correct here in my brief 
statement.
    The Bureau of Indian Affairs for fiscal year 2008 supports 
approximately 207 tribal court systems. In Fiscal Year 2008, 
Congress enacted $14.3 million for tribal courts. Additional 
funds in the amount of $11.5 million are provided in the 
allocations for the consolidated tribal government program and 
self-governance budgets, for a total allocation of about $26 
million to support tribal courts.
    On average, the Bureau funding accounts for only a modest 
amount of most tribal court operating budgets. The majority of 
tribal court budgets are funded with tribal monies and 
sometimes with various grants from other agencies such as the 
Department of Justice.
    The funds provided by the Bureau are administered though 
Public Law 93-638 contracts or self-governance compacts. These 
funds support both criminal and civil court systems, and in 
some areas such funding supports intertribal appellate court 
systems.
    When we indicated in our formal statement that we did not 
provide funding to Public Law 280 States, that is not correct. 
We do provide some funding to tribal court systems where Public 
Law 280 does apply.
    The Tribal Support Division, which is directed by Joe 
Little, who sits at my right, consists of five staff members 
dedicated to providing technical support, funding and training 
to tribal and CFR court systems nationwide. The division, with 
the assistance of contractors, has completed about 40 tribal 
court reviews in an attempt to ascertain tribal court needs and 
tribal judicial trends as they apply to sentencing, caseloads, 
types of crimes, et cetera.
    Based largely on these court reviews, the Bureau 
distributed over $2.4 million to tribal and CFR courts in 
Fiscal Year 2008 over and above the tribal court base funding. 
These funds are being used to cover everything from staffing to 
fireproof cabinets for storage of case files, to supplying new 
computers and software. The tribal courts are allowed maximum 
flexibility in allocation of these funds.
    The review of tribal courts also provides recommendations 
to the judges for improved or adjustments to ensure fair and 
impartial treatment of those coming before the court. We try to 
collaborate closely with the Department of Justice programs 
that also provide funds and support the tribal court systems.
    Currently, the Division of Tribal Justice Support within 
the Office of Justice Services is in discussions with the 
National Judicial College in Reno, Nevada to explore the 
possibility of developing and executing more types of on-site 
training for tribal judges and tribal court staff. Although the 
main request from tribal courts is operating funds, the next 
two main areas that tribal courts consistently seek assistance 
is in training for tribal judges and staff, and technical 
assistance in developing judicial administrative systems.
    Finally, we are working on developing a process to acquire 
data on tribal court activities such as extent of and types of 
caseloads, types of sentences, types of repeat offenses, et 
cetera.
    The Office of Justice and the Division of Tribal Justice 
Support is committed to helping tribal judicial systems 
maintain and advance the administration of justice in Indian 
Country.
    Thank you.
    [The prepared statement of Mr. Ragsdale follows:]

Prepared Statement of W. Patrick Ragsdale, Director, Office of Justice 
  Services, Bureau of Indian Affairs, U.S. Department of the Interior
    Mr. Chairman and Members of the Committee, I am pleased to provide 
testimony for the Department of the Interior, regarding Tribal Courts 
and concepts aimed toward improving and addressing Tribal Courts and 
the Administration of Justice in Indian Country.
    The Bureau of Indian Affairs (BIA) has a service population of 
about 1.6 million American Indians and Alaska Natives who belong to 562 
federally recognized tribes. Nationwide, there are over 200 tribal 
courts, but not all receive funding from the BIA. There are currently 
156 tribal courts and Code of Federal Regulations (CFR) court that are 
funded by the BIA through a budget line item known as Tribal Priority 
Allocation (TPA) funds. In fiscal year 2008 Congress enacted $14.3 
million for Tribal Courts of which $2.5 million was a Congressional 
increase over the President's Budget request.
    A majority of tribal courts' operating budgets are funded with 
tribal funds and various grants from other agencies, such as the 
Department of Justice (DOJ). The BIA funds that are provided are 
administered through P.L. 93-638 contracts or self governance compacts. 
The BIA funds provided support both criminal and civil court systems, 
and in some areas, the BIA funding supports inter-tribal appellate 
court systems. The BIA does not fund tribal courts that fall within 
P.L. 83-280 States.
    The Division of Tribal Justice Support (DTJS) is the office that 
oversees tribal and CFR courts funded by the BIA. The DTJS is located 
within the Office of Justice Services (OJS). Prior to 2006 the BIA 
dedicated one employee, on a part-time basis, to work with tribal 
courts within the Division of Tribal Services in the BIA. In 2006, this 
function of oversight of tribal and CFR courts that receive BIA funding 
was moved to the OJS and re-designated the Division of Tribal Justice 
Support and two full-time staff began developing the program. Currently 
the Division consists of five staff members dedicated to providing 
technical support, funding, and training to the tribal and CFR court 
systems, nationwide.
    The DTJS has completed over 40 tribal court reviews in an attempt 
to ascertain tribal court needs and tribal judicial trends. The reviews 
are conducted by independent contractors who assess the operations and 
administrative activities of the courts. The needs and trends may 
include how sentencing may apply based on the offense, current and 
backlogged case loads, types of crimes, etc. These court reviews were 
used in large part to assist the BIA to distribute over $2.4 million to 
tribal and CFR courts in fiscal year 2008 over and above tribal court 
base funding. These funds are used to cover everything from staffing to 
purchasing fire proof cabinets for storage of case files to supplying 
new computers and installing new software. The tribal courts are 
allowed maximum flexibility in the allocation of these funds.
    These reviews of tribal courts also provide recommendations, such 
as developing policies to account for and administer fines or ways to 
amend tribal constitutions to provide for separation of powers, to the 
tribal court judges, court administrators, and tribal councils on how 
court operations might be improved or adjusted to insure fair and 
impartial treatment of those appearing before the court. However, as 
extensions of sovereign tribal government, the tribal courts are free 
to follow or not follow the Bureau's recommendations. The Courts of 
Indian Offenses (CFR Courts) are less free to discard any 
recommendations since they are actually an extension of the BIA.
    Over the last two years the DTJS has developed a close working 
relationship with the DOJ in an attempt to collaborate with DOJ 
programs that also provide funds and support to tribal court systems. 
As the DTJS provides training and funding to the tribes, the DTJS will 
continue to work closely with the DOJ to minimize duplication of 
services while maximizing support activities to the tribal court 
systems through supplemental and joint initiatives.
    Currently, the DTJS is in discussions with the National Judicial 
College in Reno, Nevada to explore the possibility of developing and 
executing more on-site training for tribal judges and tribal court 
staff. Two of the main areas that tribal courts consistently seek 
assistance in is training for tribal judges and staff, and technical 
assistance in developing judicial administrative systems.
    Finally, the DTJS is working on developing a process to acquire 
data on tribal court activities such as the extent of and types of case 
loads, types of sentences, types of repeat offenses, etc. While some of 
these data are currently collected under P.L. 93-638 contracts at the 
local level, such information needs to be stored in one location to be 
analyzed and studied. Acquiring such data on a consistent basis and 
subjecting it to close analysis would assist the DTJS, the BIA and 
tribal courts in developing long range planning to better address 
tribal court needs and to track developing trends. The DTJS is 
committed to helping tribal and CFR court systems maintain and advance 
the administration of justice in Indian country.
    Mr. Chairman and members of the Committee, I thank you for 
providing the Department of Interior's Bureau of Indian Affairs the 
opportunity to comment on the issues related to Tribal Courts in Indian 
Country. We will continue to work closely with the Committee and your 
staff, tribal leaders, and our Federal partners. I will be happy to 
answer any further questions you may have.

    The Chairman. Mr. Ragsdale, thank you very much. We 
appreciate your testimony.
    Next, we will hear from the Honorable Roman Duran, First 
Vice President, National American Indian Court Judges 
Association, from Albuquerque, New Mexico.
    Mr. Duran, thank you for being here.

         STATEMENT OF HON. ROMAN J. DURAN, FIRST VICE 
  PRESIDENT, NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION

    Mr. Duran. Thank you. Thank you, Chairman Dorgan and Madam 
Vice Chair Murkowski. With all due respect, if I could speak in 
my native language for a brief period here. [Phrase in native 
tongue.]
    Again, Chairman Dorgan, Madam Vice Chair Murkowski, on 
behalf of the National American Indian Court Judges 
Association, I respectfully thank the Senate Committee on 
Indian Affairs and staffer John Harte for the opportunity to 
present both oral and written testimony on the Tribal Law and 
Order Act of 2008.
    My name is Roman Duran. I am an enrolled member of the 
Pueblo of Tesuque located in New Mexico, and also a member of 
the Hopi Tribe of Arizona. I currently sit as an Associate 
Judge for the Jicarilla Apache Nation Court in Dulce, New 
Mexico.
    NAICJA is comprised of tribal judges, peacemakers and 
tribal justice adjudicators representing approximately 350 
tribal justice systems throughout the Nation. It is important 
to note that tribal courts differ greatly from that of their 
Federal and State counterparts in that each tribe to a certain 
degree operates on a theocratic form of government, such that 
there is no separation of church and state, whereby custom and 
tradition is the choice of law on a consistent and daily basis.
    NAICJA has consistently been the main voice for tribal 
justice systems in promoting tribal judicial independence and 
continued development, education, training and funding of such 
systems. Of the 565 federally recognized tribes, approximately 
291 have an established tribal justice system or dispute 
resolution forum, ranging from a highly sophisticated judicial 
system to the newer systems with minimal experience in the 
administration of justice.
    Tribal courts agonize over the very same issues that State 
and Federal courts confront in a criminal context, such as 
assault and battery, child sexual abuse, alcohol and substance 
abuse, gang violence, violence against women, and now 
methamphetamines, along with the social ills that are left in 
its wake.
    If tribal courts were not functioning, the respective 
Federal and State court systems would be overwhelmed with the 
caseload, which we unofficially estimate at around 1.6 million 
cases per year, which I am sure the Federal and State courts 
would not want, especially given the traditional and customary 
laws that lay the foundation for tribal statutory and common 
laws.
    Lack of adequate funding for tribal court systems threatens 
the excellence of tribal justice systems. If adequately funded, 
it will directly reduce the number of appeals being filed in 
the Federal courts. On average, small tribal judicial systems 
handle 250 to 1,500 cases per year, whereas medium to large 
tribal justice systems handle over 1,500 to 20,000 cases per 
year. With a disproportionate funding of tribal justice 
systems, a medium to large justice system may have one judge 
handling a caseload of up to 5,000 cases a year at a median 
salary of $40,000 per year.
    The fallacy contained herein is that the Federal and State 
courts are adequately funded, yet scrutinize the ability of 
tribal court judges in their decision-making. However, tribal 
court judges maintain excellence in applying tradition and 
customs in their respective courts, while being under-funded.
    Although the crime rate continues to increase in Indian 
Country, tribal court systems have been able to make do with 
little funding, resulting in the creation of alternatives to 
sentencing, which did not sit well with some non-tribal law 
enforcement agencies and departments. Correctional facilities 
are a great need throughout Indian Country, but are useless if 
there are no funds for construction and operation, including 
adequate funding for the entire justice system, for law 
enforcement, prosecution, public defenders, probation, parole 
and treatment providers.
    The number and complexity of tribal civil caseloads has 
also increased, including cases involving non-Indians, non-
Indian business entities, and corporations, which is attributed 
to Indian gaming and economic development in Indian Country. 
NAICJA is of the opinion that the majority of non-Indian 
parties approve of the tribal court process.
    The assault of critics that feel there is no due process 
for criminal defendants in tribal courts is a fallacy. Again, a 
well-funded justice system will result in the excellence of 
such justice systems, affording individuals their rights and 
protections within those systems.
    In addition, Congress must ensure equitable funding of all 
tribal justice systems, including Public Law 280 tribes.
    In conclusion, tribal justice systems are the primary and 
most appropriate institutions for maintaining order in tribal 
communities. NAICJA fully supports the proposed Tribal Law and 
Order Act of 2008 which will promote for the base funding of 
tribal courts and ensure the identified departments and 
agencies are held accountable in fulfilling the United States' 
trust responsibility for maintaining excellence in the tribal 
justice systems throughout Indian Country. Attached are 
NAICJA's comments regarding the proposed Tribal Law and Order 
Act of 2008.
    Once again, thank you for the opportunity to present the 
concerns of the tribal justice systems and needs of Indian 
Country. I am happy to answer any questions that you may have.
    [The prepared statement of Mr. Duran follows:]

   Prepared Statement of Hon. Roman J. Duran, First Vice President, 
           National American Indian Court Judges Association
    Chairman Dorgan, Vice Chairwoman Murkowski, and distinguished 
members of the Committee, on behalf of the National American Indian 
Court Judges Association (NAICJA), I respectfully thank the Senate 
Committee on Indian Affairs, and staffer John Harte for the opportunity 
to present both oral and written testimony on this most important and 
critical Indian legislation, the ``Tribal Law and Order Act of 2008''. 
My name is Roman Duran; I am an enrolled member of the Pueblo of 
Tesuque located in New Mexico, and also a member of the Hopi Tribe of 
Arizona. I have been a Tribal Court Judge for the last 11 years and 
currently sit as an Associate Judge for the Jicarilla Apache Nation in 
Northern New Mexico.
National American Indian Court Judges Association
    In 1969, NAICJA was established by a small group of tribal court 
judges who met at the University of New Mexico Law School; which 
incorporated as a voluntary non-profit national membership association, 
and is representative of current and former tribal court judges 
throughout the United States. NAICJA now represents approximately 350 
tribal justice systems nationwide, with a track record of providing 
quality training and technical assistance services for tribal justice 
systems.
    In 1969 NAICJA established a mission to strengthen and enhance 
tribal justice systems through a variety of strategies and services 
including training, education, and technical assistance; such mission 
is in line with each tribal government sovereign status of self-
governance. It is important to note that tribal courts differ greatly 
from that of their federal and state counter parts, in that, each tribe 
to a certain degree operates on a theocratic form of government; such 
that there is no separation of ``Church'' and ``State'', whereby custom 
and tradition is the choice of law on a consistent and daily basis. For 
over thirty-nine years, NAICJA has directly and indirectly supported 
each tribal justice system, and continues to meet its mission.
    NAICJA's goals are to: (1) foster the continued development, 
enrichment and funding of tribal justice systems as a visible exercise 
of tribal sovereignty and self-government; (2) to provide continuing 
education for tribal judges and tribal justice systems personnel in 
order to enhance the operation of the tribal judiciary; (3) to further 
the public knowledge and understanding of tribal justice systems; (4) 
to establish and maintain a forum for the dissemination of information 
concerning issues impacting tribal justice systems; (5) to encourage 
and assist tribal officials to support educational programs that serve 
the members of the NAICJA: (6) to conduct research and educational 
activities that promote the affairs and achieve the mission of the 
Association; and (7) to secure financial assistance and support for the 
advancement of NAICJA activities and objectives.
    NAICJA is and has been the only national tribal court membership 
association to provide expert and qualified testimony regarding the 
passage of such legislation. This is evidenced in NAICJA's consistent 
record of providing direct testimony and support for the Indian Tribal 
Justice Act (Public Law 103-176, December 3, 1993), the Indian Tribal 
Justice Technical and Legal Assistance Act of 2000 (Public Law 106-559, 
December 21, 2000), the ongoing Bureau of Indian Affairs funding for 
Tribal Courts under the Tribal Priority Allocations (Public Law 93-
638), and all Department of Justice grant funding.
    NAICJA has been the only entity to coordinate the first true cross-
court cultural exchange between tribal courts and the U.S. Supreme 
court, dubbed the ``Summer 2001 Study Tour of Native American Tribal 
Courts.'' The Tour had the honor of Justice Sandra Day O'Connor and 
Justice Stephen Breyer visiting and observing proceedings in the 
Spokane Tribal Court, and the Navajo Nation Court, culminating with a 
symposium at the National Judicial College, Reno, Nevada. Such events 
are also replicated in various forms in states with numerous tribal 
governments, such as the New Mexico Tribal & State Judicial Consortium, 
the Wisconsin Tribal and State Judges Association, and the Arizona 
Tribal, State & Federal Forum, to name a few.
Importance of Tribal Courts
    Of the 565 federally recognized tribes and Alaska Native Villages 
in the United States, approximately 291 have an established tribal 
justice system or some level of tribal dispute resolution forum. Tribal 
courts have a variety of tribal dispute resolution forums ranging from 
highly sophisticated judicial systems modeled after the American 
jurisprudence system to the newer systems with minimal experience in 
the administration of justice. The jurisdiction and authority applied 
by each tribe is distinctly unique to that tribe. Now more than anytime 
in their history, tribes and their tribal courts are challenged to 
maintain their judicial and tribal sovereignty in a manner that will 
pass legal scrutiny by the federal judicial system.
    Tribal courts play a vital and key role in the jurisdictional maze 
among the federal and state judicial systems, constituting the third 
sovereign, as Supreme Court Justice Sandra Day O'Connor eloquently 
stated, ``Today, in the United States, we have three types of sovereign 
entities--the Federal Government, the States, and the Indian Tribes. 
Each of the three sovereigns has its own judicial system, and each 
plays an important role in the administration of justice in this 
country.'' (O'Connor, Lessons from the Third Sovereign: Indian Tribal 
Courts, 33 TULSA L. J. 1, 1 (1997). Justice O'Connor recognized the 
unique status of tribal sovereignty and more importantly, the 
recognition of tribal justice systems which ultimately have the 
responsibility of interpreting that sovereign status. Such support and 
recognition for tribal courts must continue at all levels of the 
federal, state and tribal governments, to ensure equitable 
administration of justice.
    ``Tribal courts constitute the frontline tribal institutions that 
most often confront issues of self-determination and sovereignty, while 
at the same time they are charged with providing reliable and equitable 
adjudication in the many and increasingly diverse matters that come 
before them. In addition, they constitute a key tribal entity for 
advancing and protecting the rights of self-government. . . . Tribal 
courts are of growing significance in Indian Country.'' (Frank 
Pommersheim, Braid of Feathers: American Indian Law and Contemporary 
Tribal Law 57 (1995)). Tribal justice systems are the primary and most 
appropriate institutions for maintaining order in tribal communities. 
Attorney General Reno acknowledged that, ``With adequate resources and 
training, they are most capable of crime prevention and peacekeeping'' 
(A Federal Commitment to Tribal Justice Systems, 79 Judicature No. 7, 
November/December 1995, p. 114). It is her view that ``fulfilling the 
Federal Government's trust responsibility to Indian nations means not 
only adequate federal law enforcement in Indian Country, but 
enhancement of tribal justice systems as well.'' Id.
    Tribal courts agonize over the very same issues state and federal 
courts confront in the criminal context, such as, assault and battery, 
predatory crimes, hate crimes, child sexual abuse, alcohol and 
substance abuse, gang violence, violence against women, and now 
methamphetamine along with the social ills that are left in its wake. 
These courts, however, while striving to address these complex issues 
with far fewer financial resources than their federal and state 
counterparts must also ``strive to respond competently and creatively 
to federal and state pressures coming from the outside, and to cultural 
values and imperatives from within.'' (Pommersheim, ``Tribal Courts: 
Providers of Justice and Protectors of Sovereignty,'' 79 Judicature No. 
7, November/December 1995, p. 111). Judicial training that addresses 
the present imperatives posed by the public safety crisis in Indian 
Country, while also being culturally sensitive, is essential for tribal 
courts to be effective in deterring crime in their communities.
    There is no federally supported institution to provide on-going, 
accessible tribal judicial training or to develop court resource 
materials and management tools, similar to that of the Federal Judicial 
Center, the National Judicial College or the National Center for State 
Courts. Even though NAICJA annually sponsors the National Tribal 
Judicial Conference, the three-day conference cannot provide the in-
depth extensive judicial training necessary to make tribal justice 
systems strong and effective arms of tribal government.
    In 1991 the United States Commission on Civil Rights issued its 
Report on the Indian Civil Rights Act, 25 U.S.C. Sec. 1301 et seq. and 
found that the United States Government failed to provide proper 
funding for the operation and development of tribal judicial systems, 
particularly in light of the imposed requirements of the Indian Civil 
Rights Act. Finding that the Federal Government had not lived up to its 
trust obligations to tribal governments, particularly the tribal 
courts, the Commission urged Congress to continue to promote the 
authority of tribal courts, advocate for increased tribal court funding 
and to work toward strengthening tribal forums. It was not until nine 
years later, in 2000, that a federal grant was awarded to NAICJA to 
establish a clearinghouse and a resource center to meet the technical 
assistance needs of tribal judicial systems.
National Tribal Justice Resource Center
    NAICJA, through its National Tribal Justice Resource Center, 
(NTJRC) funded by the Department of Justice's Bureau of Justice 
Assistance's Tribal Court Assistance Program, (TCAP) has established a 
clearinghouse and an Internet website (www.ntjrc.org) that has become 
the primary dissemination mechanism addressing the technical assistance 
needs of tribal justice systems throughout the nation. (2009 award is 
currently pending.) NAICJA, through its Resource Center provides 
technical assistance and training through a strategy of collaboration 
and communication by implementing a clearinghouse function for Native 
American and Alaska Native tribal judicial systems that enhances their 
development and continued successful improvement to deliver justice in 
their respective communities.
    NAICJA, along with the NTJRC staff, successfully works with other 
national Indian organizations such as the Native American Rights Fund, 
the National Congress of American Indians, and its technical assistance 
partner notably, the Tribal Judicial Institute, Tribal Law and Policy 
Institute, Fox Valley Technical College and the National Tribal 
Judicial College to carry out its mission and goals successfully. The 
Center recently relocated is office to Albuquerque, NM in July, 2008, 
to better serve the needs of tribal courts throughout Indian Country.
Inadequate Support of Tribal Justice Systems
    During the initial hearings on the Indian Tribal Justice Act of 
1993, NAICJA provided both written and oral testimony for the full base 
funding of $50 million per year for tribal courts, unfortunately 
appropriations were never made to the base funding. A Tribal Court 
Survey was conducted by the American Indian Law Center and issued a 
written report in May 2000, which provided a cost analysis and set a 
base funding level for the then existing Tribal Courts, however, not 
one penny was appropriated under the Indian Tribal Justice Act, as the 
Department of Interior and Office of Management & Budget did not 
approve the report prior to its release.
Inadequate Funding of Tribal Justice Systems
    There is no question that tribal justice systems are, and 
historically have been under-funded. The 1991 United States Civil 
Rights Commission found that ``the failure of the United States 
government to provide proper funding for the operation of tribal 
judicial systems . . . has continued for more than 20 years.'' The 
Indian Civil Rights Act: A Report of the United States Civil Rights 
Commission, June 1991, p. 71. The Commission also noted that 
``[f]unding for tribal judicial systems may be further hampered in some 
instances by the pressures of competing priorities within a tribe.'' 
Moreover, they opined that ``If the United States Government is to live 
up to its trust obligations, it must assist tribal governments in their 
development . . . '' Almost ten years ago, the Commission ``strongly 
support[ed] the pending and proposed congressional initiatives to 
authorize funding of tribal courts in an amount equal to that of an 
equivalent State court'' and was ``hopeful that this increased funding 
[would] allow for much needed increases in salaries for judges, the 
retention of law clerks for tribal judges, the funding of public 
defenders/defense counsel, and increased access to legal authorities.''
    As indicated by the Civil Rights Commission, the critical financial 
need of tribal courts has been well documented and ultimately led to 
the passage of the Indian Tribal Justice Act, 25 U.S.C. Sec. 3601 et 
seq. (the ``Act''). Congress found that ``[T]ribal justice systems are 
an essential part of tribal governments and serve as important forums 
for ensuring public health, safety and the political integrity of 
tribal governments.'' 25 U.S.C. Sec. 3601(5). Affirming the findings of 
the Civil Rights Commission, Congress further found that ``tribal 
justice systems are inadequately funded, and the lack of adequate 
funding impairs their operation.'' 25 U.S.C. Sec. 3601(8). In order to 
remedy this lack of funding, the Act authorized appropriation base 
funding support for tribal justice systems in the amount of $50,000,000 
for each of the fiscal years 1994 through 2000. 25 U.S.C. Sec. 3621(b). 
An additional $500,000 for each of the same fiscal years was authorized 
to be appropriated for the administration of Tribal Judicial 
Conferences for the ``development, enhancement and continuing operation 
of tribal justice systems . . . '' 25 U.S.C. Sec. 3614.
Functionality of Tribal Justice Systems
    Ironically, Associate Justice Anthony M. Kennedy, having appeared 
before the Senate Committee on the Judiciary, for a Hearing on Judicial 
Security and Independence, on February 14, 2007 stated,

        ``[J]udicial independence is just like separation of powers and 
        checks and balances. Those phrases do not appear in the 
        Constitution. They are part of the constitutional dynamic that 
        we use. They are part of the constitutional custom, part of the 
        constitutional tradition that we have.
        Judicial independence is sometimes overused by judges. Just 
        because you can't get a few more volumes in your library 
        doesn't mean judicial independence is under attack. It's 
        unfortunate if we over-use the term, because it is essential as 
        a principle to establish the idea that the rule of law depends 
        on an independent judiciary, or else you have the rule of 
        power, not the rule of law.
        The raw fact is that the congressional policy with reference to 
        judicial compensation is threatening the excellence of our 
        judiciary. Judicial independence presumes an excellent 
        judiciary.''

    Justice Kennedy was speaking during the Federal Courts budget 
hearings and pay raises for federal court judges, and the need to 
sustain a financially healthy judiciary thereby maintaining a well 
trained and competent judiciary. The truth of the matter is that the 
tribal court systems are facing the very same issues Justice Kennedy 
pointed out. Lack of adequate funding for tribal court systems also 
``threatens the excellence'' of tribal justice systems; properly 
trained and qualified tribal court judges may have a direct result in 
reducing the number of appeals being filed in the federal courts and 
state courts, and reduce the tension and scrutiny by the federal and 
state courts. The irony contained herein is that federal and state 
courts are adequately funded yet scrutinize the ability of the tribal 
court judges in their decision making. Nonetheless tribal court judges 
maintain excellence in applying traditions and customs in their 
respective court while maintaining their judicial independence in light 
of being under-funded. The second irony is that the lack of adequate 
funding of tribal justice systems creates the rule of power, and 
hinders the rule of law and tribal judicial independence.
    If tribal courts were not functioning, the respective federal and 
state court systems would be overwhelmed with the case load which would 
unofficially estimate around 1.6 million cases per year. Which I'm sure 
the federal and state courts would not want, especially given the 
traditional and customary laws that lay the foundation for tribal 
statutory and common laws.
    On average, small tribal judicial systems handle 250 to 1,500 cases 
per year, whereas medium to large tribal justice systems handle over 
1,500 to 20,000 cases per year. With the disproportionate funding of 
tribal justice systems, a medium to large justice system may have one 
judge handling a case load of 3,000 to 5,000 cases a year, at a median 
salary of $40,000.00.

Setting Tribal Court Base Funding
    NAICJA along with various organizations and institutions have 
reinforced the Congressional findings under the initial Indian Tribal 
Justice Act on countless occasions. Such organizations and institutions 
includes: Law Schools, State Bar Associations (several of which have 
included a section on Federal Indian Law on their Bar Exams), tribal/
state/federal forums, Association of State Chief Justices, National 
Congress of American Indians, National Indian Child Welfare 
Association, National Judges organizations and associations, Federal 
Indian Bar Association etc. . . In addition various federal agencies, 
departments and programs have also confirmed the needs of tribal 
justice systems both directly and indirectly through their funding 
programs. Such as, the Department of Justice, Department of Interior, 
Department of Health and Human Services, Indian Health Services, Bureau 
of Justice, Bureau of Indian Affairs, Bureau of Justice Statistics, 
Office of Tribal Support, Office of Tribal Justice, Native American & 
Alaskan Natives Desk, Violence Against Women's Office, Substance Abuse 
& Mental Health Services Administration, Office of Juvenile Justice, 
Delinquency and Prevention, etc. . . These lists go on and on, 
unfortunately, they do not communicate with one another on a consistent 
and coordinated basis, which is part of the reason for piecemeal tribal 
justice systems.
    NAICJA provided this Committee written testimony on February 26, 
1992 projecting a one judge tribal court (which included a court clerk, 
secretary, law clerk, prosecutor and public defender with operating 
costs) budget at $290,000.00. (Statement of Judge Elbridge Coochise, 
President NAICJA, On the President's Budget for Indian Programs.) 
Noting that ``We (NAICJA) understand the funding caps imposed on the 
Appropriations Committees, however, the tribal courts have never been 
funded to a sufficient level to meet the needs of the tribes in 
providing judicial services. Only with sufficient financial resources 
can the tribes hope to make any real improvements. . .'' Additionally, 
NAICJA conducted two informal tribal court surveys in 1995 and 1998 as 
a direct result of the lack of efforts to implement the Indian Tribal 
Justice Act. Not surprisingly, the 1995 survey ``revealed an unmet need 
that exceeded the 1995 funding level for tribal courts by 215 
percent.'' (Written testimony of Jill E. Shibles, President, NAICJA, 
Committee of Indian Affairs, Tribal Justice Issues Hearing, June 3, 
1998.)
    The 1992 figure would have to be recalculated for inflation and 
cost of living, which could have it set at or near $500,000.00. The 
Final Report on the Survey of Tribal Justice Systems & Courts of Indian 
Offenses, (May 2000) proposed an annual budget for a one court judge at 
$200,000.00 per year (which only accounted for one judge and one court 
clerk, with a service population of 1,000 or less), and a budget of 
$350,000.00 per year for a two judge court (two judges and two clerks, 
with a service population above 1,000.) The Final Report did not budget 
for a fully functioning justice system, which gives a stark contrast in 
funding a fully functional justice system. A vital note to make here is 
that most tribal justice systems lack access to law libraries, legal 
authorities, internet access, and law clerks to provide the needed 
research in rendering decisions. Most tribal justice system budgets do 
not account for law clerks, and the BIA office of Tribal Justice 
Support budgets do not account for this need as well and/or provide 
technical assistance in this area.
    Then on December 3, 1994, Chief Judge, Carey Vicenti, Special 
Assistant for Tribal Justice Support, Office of the Assistant Secretary 
for Indian Affairs prepared a presentation on the Indian Tribal Justice 
Act; wherein a base funding formula was proposed, given the number of 
factors that gave rise to the needs of each specific tribal justice 
system at the point in time. Interestingly enough, Judge Vicenti noted, 
``[T]he perception of Tribal Courts as institutions solely responsible 
for the enforcement of criminal laws must be abandoned for a 
comprehensive vision of Tribal Courts and tribal justice systems as an 
essential component in the maintenance of social, economic, and 
political stability of tribal societies. With the enhancement of 
contemporary and traditional justice systems government stability will 
be guaranteed, community health will be strengthened, the atmosphere 
for economic growth will be improved, and the possibilities for the 
fulfillment of individual potential will become realized. '' (emphasis 
added)
    Since May of 2000, there have been no other comprehensive surveys 
of tribal justice systems having been conducted. The current tribal 
court surveys being conducted by the Bureau of Indian Affairs via and 
Independent Review Team is not a comprehensive survey, and does not 
take the comprehensive position that the Office of Tribal Justice 
Support had back in 1994. Therefore it is critical that Congress ensure 
for the consistent coordination of all key players in setting the 
measures to determine accountability and equity in the determination of 
base funding for tribal justice systems. Also that tribal justice 
systems have full inclusion and consultation on the setting of policy 
and procedures to carryout the Tribal Law and Order Act.

Issues Relative to the Tribal Law and Order Act
    Native American tribal courts must deal with a wide range of 
difficult criminal and civil justice problems on a daily basis, 
including the following:

   While the crime rate, especially the violent crime rate, has 
        been declining nationally, it has increased substantially in 
        Indian Country. Tribal court systems are grossly under-funded 
        to deal with these criminal justice problems. Resulting in the 
        creation of alternatives to sentencing, some of which do not 
        sit well with non-tribal law enforcement agencies and 
        departments.

   Dealing with the lack of correctional facilities to house 
        serious criminals when the Federal Government fails to 
        prosecute those cases. Even if the tribal courts are able to 
        impose long term sentences, there is a shortage of funds to 
        incarcerate these individuals. Increasing the sentencing 
        capabilities is only as good as there is funding for 
        incarceration, however, this is a political decision of the 
        tribal legislatures and the tribal sentencing statutes will 
        provide guidance to the tribal judges when imposing each 
        sentence.

   Number and complexity of tribal civil caseloads have also 
        been rapidly increasing. The number of cases involving non-
        Indians is also on the rise, and includes non-Indian business 
        entities and corporations; which is in direct response to 
        Indian Gaming and economic development in Indian Country. It is 
        the consensus of NAICJA that a majority of the non-Indian 
        parties approve of the tribal court process.

   Congress recognized this need when it enacted the Indian 
        Tribal Justice Act in 1993. Congress specifically found that 
        ``tribal justice systems are an essential part of tribal 
        governments and serve as important forums for ensuring public 
        health and safety and the political integrity of tribal 
        governments'' and ``tribal justice systems are inadequately 
        funded, and the lack of adequate funding impairs their 
        operation.'' There is a lack of a coordinated effort to pull 
        the resources needed to sustain healthy communities, when 
        various funding entities either duplicate services or are 
        territorial and fail to communicate. NAICAJ fully supports the 
        findings and recommendations of the Inter-Tribal Workgroup 
        comprised of the Navajo Nation, the Hopi Tribe, and the Fort 
        McDowell Yavapai Nation, in their holistic concept of 
        ``restorative justice.''

   The assault of critics that feel there is no or insufficient 
        due process for criminal defendant's in tribal courts since the 
        language contained in the Indian Civil Rights Act only requires 
        a lawyer at your own expense which is compounded with the lack 
        of funds for public defenders. Again, a well funded justice 
        system will result in the ``excellence'' of such justice 
        systems, affording individuals the rights and protections 
        within those systems.

   Since Congress enacted the Indian Tribal Justice Act, the 
        needs of tribal court systems have continued to increase, but 
        there has been no corresponding increase in funding for tribal 
        court systems. In fact, the Bureau of Indian Affairs funding 
        for tribal courts has been minimal at best, fluctuating up and 
        down since the Indian Tribal justice Act was enacted in 1993. 
        Moreover, there appears to be no direct funding, services and 
        technical assistance to PL-280 tribes. The PL-280 tribes must 
        be given the same respect and consideration for their justice 
        systems as non-PL-280 tribes. As they must handle the ill 
        social effects of the drug and alcohol problems that all tribal 
        jurisdictions face.

   Most importantly, if this bill is passed, Appropriations 
        must be made to carryout the intent of the bill. Fourteen years 
        has elapsed since the Indian Tribal Justice Act was passed and 
        has yet to be fully funded to ensure the minimal base funding 
        is made for tribal courts. The increased funding to law 
        enforcement will continue to create an additional case load to 
        tribal justice systems, and if this comprehensive bill is not 
        funded, the needs will only increase exponentially.

    As Attorney General Janet Reno stated in testimony before the 
Senate Indian Affairs Committee on, it is vital to ``better enable 
Indian tribal courts, historically under-funded and under-staffed, to 
meet the demands of burgeoning case loads.'' The Attorney General 
indicated that the ``lack of a system of graduated sanctions through 
tribal court, that stems from severely inadequate tribal justice 
support, directly contributes to the escalation of adult and juvenile 
criminal activity.''

Concept of Appointing Tribal Judges as ``Special Federal Magistrate 
        Judges''
    On February 20, 2008 NAICJA President Eugene Whitefish met with 
Attorney General Michael B. Mukasey, Gretchen C. F. Shappert, U.S. 
Attorney, Tracey Toulou, Director, Office of Tribal Justice, and along 
with several tribal leaders, to discuss the issues of law enforcement 
and crime in Indian Country. The issues presented in the ``Tribal Law 
and Order Act of 2008'' were addressed, and it was there that President 
Whitefish proposed the concept of ``cross-deputization'' of tribal 
court judges to serve as ``Special Federal Magistrate Judges'' to 
address several areas such as:

   Expediting the federal criminal investigations, arrests and 
        indictments of crimes occurring in Indian Country.

   Reducing the case load of the Federal Magistrate Judges 
        (reducing costs to create and establish new special division on 
        Indian Country) regarding the initial appearances, and 
        detention and probable cause hearings.

   Such as system would support the law enforcement and 
        prosecution of crimes committed in Indian Country as this Act 
        seeks to do, along with the supporting the notion of appointing 
        special prosecutors.

   Assist in the creation of educational and training 
        opportunities for both federal and tribal court personnel.

   Strengthen the tribal, state, and federal justice systems.

Conclusion
    Tribal justice systems are the primary and most appropriate 
institutions for maintaining order in tribal communities. They are the 
keystone to tribal economic development and self-sufficiency. Any 
serious attempt to fulfill the federal government's trust 
responsibility to Indian Nations must include increased funding and 
enhancement of tribal justice systems
    NAICJA fully supports the proposed ``Tribal Law and Order Act of 
2008,'' which is a reauthorization of the initial Indian Tribal Justice 
Act of 1993 and reauthorized under the Indian Tribal Justice Technical 
and Legal Assistance Act of 2000. The Act of 2008, if authorized, will 
provide for the base funding of Tribal Courts and ensure that the 
identified departments and agencies are held accountable in fulfilling 
the United States trust responsibility for maintaining ``excellence'' 
in the tribal justice systems throughout Indian Country. . Attached are 
NAICJA's comments regarding the proposed ``Tribal Law and Order Act of 
2008.'' (Attachement A)
    Once again, thank you for the opportunity to present the concerns 
of the tribal justice systems and needs of Indian Country. I am happy 
to answer any questions that you may have.
                                 ______
                                 
NAICJA ATTACHMENT: A
SECTION-BY-SECTION COMMENT ON THE TRIBAL LAW & ORDER ACT OF 2008
            title i. federal accountability and coordination
    Section 101. Office of Justice Services.--Section 101(a) would 
require the Interior Department's Office of Justice Services to hold 
timely consultations with tribal leaders, and to provide technical 
assistance and training to tribal police. This provision would also 
require the Office of Justice Services to submit annual spending and 
unmet needs reports to Congress. It would also require OJS to 
coordinate with the Department of Justice to develop a long term plan 
to address the tribal jails system.

    Section 101(b) would authorize BIA police to make warrantless 
arrests where the officer has probable cause to believe that a suspect 
committed any crime in Indian country. Current law limits warrantless 
arrests to felonies.

Comment
    While it is important to consult with tribal officials, it is 
equally important to consult with the appropriate tribal officials and 
that should be the justice system personnel as well. Judges, probation 
officers, police officers, court clerks, juvenile system personnel, and 
traditional justice system personnel should be consulted with by not 
only the DOI's BIA and Office of Justice Systems but by all federal 
agencies purporting to do business that directly or indirectly affect 
or impact any aspect of tribal justice systems that operate within 
Indian Country jurisdiction including especially those tribes who 
reside within the exterior boundaries of PL 280 States who share civil 
and criminal jurisdiction with the state. It is critical that such 
consultations are done on a consistent basis, along with identified 
liaison's to maintain open communications between all parties.
    It is important that all peace officers having jurisdiction within 
Indian Country be authorized to make a warrantless arrests based on 
probable cause and bring the offender to justice in both tribal and 
federal courts; and ensure that such authorizations are executed to 
established tribal, state and federal laws.

    Section 102. Declination Reports.--This section would require U.S. 
Attorneys to coordinate with tribal justice officials when declining to 
prosecute a reservation crime. It would also require U.S. Attorneys to 
maintain data on declinations, and report to Congress annually on 
declinations for each Federal District responsible for prosecuting 
crimes in Indian country.

    Section 103. Prosecution of Indian Country Crimes.--Section 103 
would clarify that U.S. Attorneys may appoint tribal prosecutors and 
other Indian law experts as special Assistant U.S. Attorneys to 
prosecute reservation crimes in federal court. This provision would 
encourage such appointments, and urge the U.S. Attorneys to coordinate 
with the Federal District and Magistrate courts when such appointments 
are made.
    This section would also define responsibilities of Assistant United 
States Attorneys serving as Tribal Liaisons. This section clarifies 
that Tribal Liaisons will coordinate prosecutions of reservation 
crimes, and be responsible for developing multi-disciplinary task 
forces, and communicating with tribal leaders and law enforcement 
officials.
    We believe the proposed the concept of ``cross-deputization or 
authorization'' of qualified tribal court judges to serve as ``Special 
Federal Magistrate Judges'' to prosecute persons violating federal 
criminal laws would belong in this section.

    Section 104. Department of Justice Agencies.--Section 104 would 
elevate the Department of Justice's Office of Tribal Justice within the 
Deputy Attorney General's office. It would also define OTJ's role to 
develop and direct the Department's Indian affairs policies, and 
coordinate and consult with tribal leaders on matters affecting their 
interests.
    This section would also establish an Office of Indian Country Crime 
within DOJ's Criminal Division. The Office would be responsible for 
developing policies to enhance prosecutions, and coordinating task 
forces to address Indian country crime.

Comment
    Section 102. No doubt these subsections recognize an important area 
of coordination or the lack of coordination between tribal justice 
systems and the federal justice system. Some U.S. Attorneys Offices 
have done a better job in recent years to cooperate in many Indian 
Country jurisdictions, however, as these sections point out, much more 
remains to be accomplished in improving the communication and 
coordination between the two law enforcements systems.
    While requiring declination reports brings some accountability to 
the problem of not prosecuting crimes occurring within Indian Country, 
it does not mandate that such prosecutions occur. Perhaps it is a 
subtle way of forcing U.S. Attorney's Offices to take a closer look at 
such prosecutions. Frequently, prosecutions are declined because of the 
lack of quality law enforcement investigations being conducted by 
tribal police or local BIA law enforcement officers as well as using 
tribal court prosecutions as a ``discovery'' device. (Other sections of 
this Act address that issue so I will not comment on that right now.) 
The time is takes to decide whether to prosecute needs to be addressed. 
Tribal prosecutors are asked if not required to wait for such decisions 
before they can prosecute, and, of course, this can result in seriously 
long delays which may affect constitutional rights of offenders. A time 
limit of 30 days or less should be required, and this time line should 
not operate to hold up tribal prosecutions. Double jeopardy is not a 
problem.
    Section 103 may help with the delays or lack of prosecutions, and 
it is welcomed if it proves to do so. We believe a few U.S. Attorney's 
Offices have implemented this kind of cooperation, and it has proved 
successful, at least on a limited scale, in New Mexico.
    Section 104 authorizes the elevation of the DOJ's Office of Tribal 
Justice and empowers it with several duties. We welcome and support the 
elevation and duties as outlined. However, the establishment of the 
Office of Indian Country Crime, which we also support, together with 
the elevation of the OTJ office requires a further coordination and 
delineation of roles and responsibility between these two offices, and 
the DOI's tribal law enforcement agency. Too often Indian Country has 
fallen between the cracks of turf wars between agencies pointing 
figures at each other. We need to ensure this does not happen.

            TITLE II. STATE ACCOUNTABILITY AND COORDINATION

    Section 201. Public Law 280.--Section 201 would amend Public Law 
280 to permit an Indian Tribe to request federal assistance in 
investigating and prosecuting reservation crimes, providing the United 
States with concurrent authority over reservation crimes.

    Section 202. Incentives for Tribal-State Cooperation.--Section 202 
would authorize the Attorney General to provide grants, technical, and 
other assistance to tribal, state, and local law enforcement agencies 
that have entered into cooperative law enforcement agreements to combat 
crime in Indian country and nearby communities.
Comment
    Perhaps the most critical and least understood sections, these two 
sections must be carefully considered so as not to be deemed any form 
of diminishment of tribal sovereignty. Section 201 increases the role 
and responsibility of the federal government in PL 280 tribes and 
states but should not become the reason for ``letting the Federal 
Government do it all.'' This would not be strengthening tribal 
sovereignty. The USAG should not be consulted as it would impliedly 
empower that office to say ``no'' and leave matters as they are in PL 
280 jurisdictions. We believe the language should be more directive in 
setting out the jurisdictional duties of the federal government. Again, 
funding becomes an issue as to the caseload of federal law enforcement 
agency. Cross-deputizing and bringing more tribal law enforcement 
personnel may better serve all jurisdictional interests. PL 280 tribes 
must be treated equally as a non-PL 280 tribes in all aspects of this 
Act. A tribe choosing not to exercise criminal jurisdiction should not 
be considered having a lower priority. Crime rates in these 
jurisdiction are sometimes higher due to the lack of prosecution by 
state authorities.
    We support and applaud the technical assistance and enforcement 
funding set forth in section 202, however, its make little or no 
mention of local federal enforcement agencies' roles in relation to 
these Cooperative Assistance Programs. While listing several 
requirements of the grants, it should also require which jurisdiction 
will actually prosecute or at least require a priority provision, if 
all three have jurisdiction. More than likely this decision will weigh 
the correctional (sentence severity) element heavily which may affect 
the tribes' decision to prosecute. In other words the jurisdiction with 
the more serious crime, i.e., one with the longer sentence will be 
utilized more than tribal prosecutions.

              TITLE III. EMPOWERING TRIBAL JUSTICE SYSTEMS

    Section 301. Empowering Tribal Law Enforcement Agencies.--Section 
301(a) would require Interior to permit greater flexibility in training 
for law enforcement officers serving Indian country, including 
permitting candidates to train at State and tribal academies, tribal 
colleges and other training centers that meet Peace Officer Standards 
and Training.

    Section 301(b) would enhance existing law to grant Special Law 
Enforcement Commissions to authorize tribal officers to enforce 
violations of federal law committed on Indian lands. It would require 
the BIA and DOJ to coordinate to provide trainings in Indian country to 
certify tribal officers, and add requirements to expedite the MOU 
process with the BIA.

    Section 302. Drug Enforcement in Indian Country.--Section 302 would 
authorize DOJ's Drug Enforcement Agency to provide technical and grant 
assistance to tribal police to address drug trafficking in Indian 
country. This provision would also require the DEA to place tribal law 
enforcement officials on the advisory panel to develop and coordinate 
educational programs to fight drug trafficking.

    Section 303. Access to National Crime Databases.--Section 304 would 
provide tribal law enforcement officers broader authority to access and 
input information into the National Crime Information Center and 
similar federal criminal databases. This provision would also direct 
the Attorney General to ensure that tribal officers meeting either 
state or federal standards would gain access to the databases. Tribal 
officers would be treated as federal officers for purposes of sanctions 
for misuse of the databases.

    Section 304. Tribal Court Sentencing.--This section would 
acknowledge the ability of tribal courts to sentence offenders for up 
to 3 years imprisonment, a $15,000 fine, or both, where the Tribe 
provides counsel for indigent defendants and meets other Constitutional 
due process standards. This provision would also permit tribal courts 
to sentence offenders to serve time in: (1) the tribal facility that 
meets minimum federal standards; (2) the nearest appropriate federal 
facility pursuant to an agreement with the summer education and 
activity programs for tribal youth; (2) to develop tribal juvenile 
codes; and (3) to construct halfway houses and detention centers for 
youth in tribal custody.

Comment
    Section 301 will help alleviate the shortages of law enforcement 
officers in Indian Country. We would, however, request, at the least, 
recognition of an Indian Preference law in the recruitment of 
candidates and the hiring of tribal and BIA law enforcement officers.

    301(e) (1)(B) is supportable in that it authorizes the Secretary of 
the Interior to utilize cooperative agreements with other federal 
agencies including tribes to assist with the enforcement of federal 
laws in Indian Country. The language in this subsection, referring to 
the laws of a tribe that authorizes the Secretary to enforce tribal law 
is confusing. Is this referring to cross-deputization agreement, a Code 
of Federal Regulation court or some other relationship between a tribe 
and Secretary? This needs to be clarified. It would also seem that the 
U.S. AG be authorized to inter into these types of agreements as well 
and create localized special commissions to perform regional trainings. 
After all, it will be the USAO's that will do the actual prosecution of 
crimes in Indian Country. (State Councils on Law Enforcement and 
Education Training centers (CLEET) may play a role here if federally 
funded.)

    Section 302 amend the current laws that centers on drug education 
and enforcement to include tribes. We support this and hope that 
additional funds earmarked for tribes will follow.

    Section 303 allows tribes access to national crime databases if 
they meet the requirement of the federal or state regulation. It is the 
language that requires state compliance that is troublesome here. The 
confidentiality and technical requirements are federally mandated and 
the states should not be involved in this access issue. Ownership we 
believe lies with the federal government and they and they alone should 
authorize access to these national databases.

    Section 304 is perhaps the most if not one of the most important 
sections of the Act. It amends the Indian Civil Rights Act by requiring 
tribes to provide a public defense for defendants charges with a higher 
level of crime. It does not define what a public defense is in regard 
to a licensed attorney or trained and certified lay public defender. It 
does define the level of a charge that would require such a defender; 
if the crime charged ``subjects a defendant to more than one year 
imprisonment for any single offense''. Unless funding is also provided 
for a public defense system, tribes would simply amend their sentencing 
laws to under one year. We think this needs to be re-considered 
especially in light of all the potential law enforcement activity 
authorized by this Act. Without adequate funding a public defender 
system, this section could prove most harmful.
    The sentencing aspects under this section addresses the dire need 
for correctional facilities in Indian Country. Due to the lack of funds 
many tribal or BIA correctional facilities lack the manpower and funds 
to operate in a constitutional manner. However, we believe that a BIA 
is not qualified to determine guidelines for correctional facilities 
and would prefer the Bureau of Prison or the American Correctional 
Association guidelines be made applicable. Moreover, private prisons 
may be an alternative that should be considered by tribes. We would 
recommend excluding the BIA in the MOU section dealing with the BOP.
    Section 305 established the Indian Law and Order Commission. We 
offer no comment on that concept. We believe federal dollars can be 
better expended in other areas.

                    TITLE IV. TRIBAL JUSTICE SYSTEMS

    Section 401. Indian Alcohol and Substance Abuse.--This section 
would reauthorize and amend the Indian Alcohol and Substance Abuse Act 
which provides grants: (1) for summer education and activity programs 
for tribal youth; (2) to develop tribal juvenile codes; and (3) to 
construct halfway houses and detention centers for youth in tribal 
custody.
    This provision would also direct the Substance Abuse and Mental 
Health Administration (SAMHSA) to take the lead role in interagency 
coordination on tribal substance abuse programs. It would also direct 
SAMHSA to establish an Office of Indian Alcohol and Substance Abuse, 
that would develop a framework for setting interagency communication 
goals, and provide technical assistance to tribal governments. 25 
U.S.C. Sec. Sec. 2401 et seq.

    Section 402. Tribal Courts Programs.--Section 402 would reauthorize 
the Indian Tribal Justice Support and Technical & Legal Assistance 
Acts, which provides funding for tribal court judicial personnel, 
public defenders, court facilities, development of records management 
systems, and other needs of tribal court systems.

    Section 403. Tribal COPS Program.--Section 403 would reauthorize 
and amend the Tribal Resources Grant Program within the Community 
Oriented Policing Services Office of DOJ. It would authorize long term 
funding for the hiring and retention of tribal law enforcement 
officers, and remove matching requirements.

    Section 404. DOJ Tribal Jails Program.--This section would 
reauthorize and amend the DOJ tribal jails construction program. It 
would authorize and encourage the construction of regional detention 
centers for long-term incarceration, and would require DOJ to consult 
with the Interior Department and tribal governments in development of a 
5-year plan for the construction, maintenance, and operation of tribal 
detention and alternative rehab centers.

    Section 405. Assistant Probation Officers.--Section 406 would 
authorize and encourage the Director of the Administrative Office of 
the United States Courts to appoint Indian country residents to serve 
as assistant probation and parole officers to monitor federal prisoners 
living on or reentering Indian lands. This provision would also 
encourage the Director to offer services at more convenient locations 
closer to Indian country.

    Section 406. Tribal Youth Program.--Section 407 would amend the 
Juvenile Justice and Delinquency Prevention Act by establishing a 
Tribal Youth Program in Title V, and authorizing the Director to 
provide grants to tribes to establish youth leadership programs, 
tutoring and remedial education, develop job training skills, and other 
activities aimed at reducing delinquency in tribal youth.
Comment
    Section 401 establishes, inte se, the Office of Indian Alcohol and 
Substance Abuse under SAMSHA. We generally support this office and it 
functions with regard to what SAMSHA does, however, we emphasize that 
the connection between tribal courts, its sentencing to treatment 
programs operated or funded by SAMSHA should be improved and 
coordinated with our Healing to Wellness or Drug Courts currently 
funded by DOJ's BJA. We believe there should be closer cooperation with 
law enforcement and SAMSHA tribal programs. Tribal probation officers 
should also be involved with these types of program and an emphasis 
should be placed on meth treatment programs. In this regard, BIA 
schools should actively engaged in drug prevention program during the 
school year as well as during the summer. Summer programs can be 
effective but are short term. We need these programs in our schools 
year round and beginning at an early age or grade. Holistic approaches 
involving entire families are recommended.
    Training law enforcement officers in drug interdiction techniques 
as well as investigation of drug related crimes is necessary as drug 
dealers have discovered Indian Country and they work the myriad of 
jurisdictional issues to their advantage.
    Section 402. NAICJA has been the recipient of BJA grant for several 
years under their Tribal Court Assistant Program. TCAP, as it is 
called, provides a few tribes each fiscal year with improvement grants 
for up to two years. This has been a successful program authorized 
under the Indian Tribal Justice; Technical and Legal Assistance Act. We 
welcome its reauthorization. This act directly impacts and affects 
tribal courts. It should be noted that there should be a commensurate 
rise in funding as funds increase for tribal law enforcement. Tribal 
courts have in the past not received commensurate funding and have 
become bogged down, overcrowding of jails has occurred, and tribal 
probation officers ratios, on average, are 1-150 offenders.
    DOJ has done as much as any agency in recent years with funds as 
little as $7-8 million dollars each year. This is hardly sufficient and 
woefully insufficient in relation to the funds and programs authorized 
by this Act. It is paramount and enough cannot be said that Congress 
should fund tribal courts improvement programs on a long term basis. 
Tribal courts are doing the best they can with what little funding they 
receive from their respective tribes and from the federal government 
but such funding is intermittent and does not lead to long term 
improvement. When federal funding ends so does the improvements gained 
in many instances. This needs to be looked at more closely and directly 
integrated in the Law and Order Act of 2008.
    Tribal courts need more funding and training opportunities and 
tribal councils must be required to give credibility to tribal court 
operations and judicial independence must be reinforced through federal 
funding incentives. DOJ views itself as more of a law enforcement 
agency than a judicial improvement agency. Agency personnel have a 
difficult time justifying tribal court enhancement programs as 
connected with law enforcement. Section 403 references the COPS program 
and DOJ's consisted effort to place the TCAP program under COPS is a 
prime example of this mentality. This needs to be addressed in this 
Act.
    Section 404 funds more jails in Indian Country. This assumes more 
jails are the answer. Traditional justice systems like peacemaking 
courts or healing to wellness courts have also proven to be effective 
alternatives to the criminalization process. The subsection allowing 
tribes to develop alternatives to incarceration should be prioritized. 
Prison bed space around the nation is at a premium and even more so in 
Indian Country. Tribes practically operate a criminal justice system 
without any jail space and have done so for years. As violent crimes 
increase, we call upon the USAO to prosecute these crimes and look for 
programs that effectively prevent violence in our communities. Drug 
interdiction should also help in this regard.
    Section 405 as it relates to increased funding for tribal probation 
officers is central to an effective tribal justice system but 
referencing only federal probationers is hardly the answer. This 
probation program should be made available to all probationers and 
parolees residing within Indian Country. Trained and well equipped 
tribal probation officers and assistants will help with reducing 
revocations especially where treatment programs are available and 
accessible.

 TITLE V. INDIAN COUNTRY CRIME DATA COLLECTION AND INFORMATION SHARING

    Section 501. Uniform Indian Country Crime Reporting.--Section 501 
would require all federal law enforcement officers responsible for 
investigating and enforcing crimes committed in Indian country to 
coordinate in the development of a uniform system of collecting and 
reporting such crimes, including if feasible, amending the Uniform 
Crime Reports monthly returns to acknowledge that crimes were committed 
in Indian country.

    Section 502. Tribal Data Collection Program.--This section would 
authorize and direct the Interior Department's Office of Justice 
Services, in coordination with the Department of Justice, to develop a 
program to aid tribal police departments to establish information 
systems to uniformly collect and analyze criminal data.

    Section 503. Tribal Criminal History Record Improvement Program.--
Section 503 would authorize the Director of the Bureau of Justice 
Assistance to provide criminal information system grants to Indian 
tribes to address multi-jurisdictional crimes and establish secure 
information sharing systems to enhance investigations and prosecutions.
Comment
    NAICJA supports the strategy behind these sections. Statistics of 
any sort is difficult to collect in any meaningful manner. Measuring 
the success or failure of programs requires an effective statistical 
reporting tool that is consistent from jurisdiction to jurisdiction.

    TITLE VI. DOMESTIC VIOLENCE AND SEXUAL ASSAULT ENFORCEMENT AND 
                               PREVENTION

    Section 601. Notification of Tribal Governments.--Section 601 would 
require the Director of the Bureau of Prisons and the Director of the 
Administrative office of the U.S. Courts to: (1) notify tribal justice 
officials when a person in federal custody will return or move to 
Indian country; and (2) register the offender according to the 
appropriate registry requirements.

    Section 602. Domestic and Sexual Violence Training.--Section 602 
would require the Office of Justice Services, in coordination with the 
Department of Justice, to develop specialized family violence training 
for all law enforcement officers and prosecutors responsible for 
investigating and prosecuting crimes of sexual violence in Indian 
country. This provision would also require Bureau of Indian Affairs and 
tribal criminal investigators to take annual sexual violence and 
evidence collection certification classes, and require the Bureau to 
make such trainings available to tribal law enforcement officials in 
Indian Country.

    Section 603. Testimony by Federal Employees.--Section 603 would 
require federal employees to testify in tribal court pursuant to 
request or subpoena on matters within the scope of their duties, unless 
their supervising officer finds that such testimony would violate 
Department police to maintain impartiality.

    Section 604. Coordination of Federal Agencies.--Section 604 would 
require the Bureau of Indian Affairs, the Indian Health Service, and 
the Department of Justice to coordinate to develop victims services, 
victim advocate training programs, and identify obstacles to 
prosecuting crimes of domestic violence and sexual assault.

    Section 605. Sexual Assault Protocol.--This section would require 
the Indian Health Service to establish standardized sexual assault 
protocol at tribal health facilities.

Comment
    All of these sections are designed to improve investigations that 
will allow appropriate prosecution by the USAOs and tribes. Training of 
peace officers is an important step in the right direction. Retention 
of such officers is also important. Tribes may not be able to afford to 
keep these highly trained officers. Funding programs must address these 
issues. Sex offenses require some form of medical evaluation or exams 
by trained and licensed personnel. Indian Health Service doctors and 
health care providers must be trained and willing and authorized to 
testify. It should not matter whether they get permission from 
supervisors. Permission denied is justice denied. This could be another 
barrier authorized by law for the lack of prosecutions. There is a need 
for such cooperation between law enforcement and health care providers 
and while the Act addresses such need it also creates a loop hole for 
adding to the problem.
    Again, thank you for the opportunity to comment on the proposed 
Act. NAICJA supports the Act and its principle to strengthen tribal 
sovereignty by strengthening tribal justice systems. NAICJA remains 
available to your questions.

    The Chairman. Judge Duran, thank you very much for your 
testimony.
    Next, we will have testimony from the Honorable Joseph 
Flies-Away, the Chief Judge at the Hualapai Tribe in Peach 
Springs, Arizona.
    Judge, you may proceed.

   STATEMENT OF HON. JOSEPH THOMAS FLIES-AWAY, CHIEF JUDGE, 
                         HUALAPAI TRIBE

    Mr. Flies-Away. Thank you. Good morning and thank you, Mr. 
Chairman and Madam Vice Chairperson.
    I am going to try to talk for five minutes, but it is very 
hard for me to do that, so I am going to do my very best 
because I am not used to that.
    But we are talking about tribal courts, and what I see in 
the tribal courts is that they are a critical component of 
tribal government. They have to be there, just like any 
conflict resolution system for any government all over the 
Country. We have to do dispute resolution and we have to work 
everyone in the government. It is not just the tribal court. 
There are police. There are probation officers. There are 
social workers. It is a system of a bunch of people and 
programs.
    So when we talk about funding, yes, tribal court needs 
funding, but there is a funding need throughout a government, 
community and nation-building issue.
    Tribal courts in their action actually express tribal 
sovereignty. It is a way for any nation to express their 
sovereignty, by being able to have a conflict resolution system 
for their people, just like the United States.
    It is also, as the Senator stated, a way to contribute to 
economic development, our economic possibility. When people 
want to come to the reservation and do business and there is a 
fair playing field to do so, then that is going to be a court, 
a good court is going to be a place where they can come and 
actually feel good and comfortable about doing business there.
    It is also a manifestation of tribal culture. Tribal 
culture can be saved in writing and common law, as some tribes 
are doing that in culture, writing the ways and practices into 
law. That is something that we try to do with the best of our 
ability.
    It also upholds and protects the constitutional rights of 
the people. We have constitutions and we have bill of rights 
sections, due process, and all of these different types of 
rights. It is the place where people, tribal members and 
persons, because the tribal constitution just doesn't take care 
of the tribal member. It is all the persons under the 
jurisdiction of the tribe, so it protects their rights.
    Now, about the funding. Tribal courts and the systems that 
are involved with it requires adequate funding and resources, 
facilities and programs. I was in a tribal court where I 
actually got electrocuted one time. I should have just fell 
over and maybe they would have gotten a new building, but there 
is a lot of need as far as facilities and as well as programs 
and staffing.
    Tribal courts necessitate consistently availability of 
detention and rehabilitation resources. We talked about 
detention. We have a juvenile detention facility that has been 
sitting empty at Hualapai for the past nine or so months and we 
don't have funds to operate it. Actually, kids have already 
broken into it. I talked to one of them. I said, you are so 
eager to get into there you are breaking into it. But it sits 
empty, and we need that facility open.
    A couple of comments about the Act. There is section 303, 
the database.
    The Chairman. Judge Flies-Away, would you just tell us how 
large that facility is?
    Mr. Flies-Away. It is a 40-bed facility.
    The Chairman. Forty beds. Thank you.
    Mr. Flies-Away. About $7 million, and $4 million of it came 
from the tribe itself. I am not sure if that is the exact 
number, but I think so.
    Section 303, the database, council members have had a 
concern about how that database is to be used if tribal law 
enforcement puts the information in, and how is it to be used 
by the other jurisdictions. I used to be a tribal council 
member myself, so we have a concern about sharing information 
with other jurisdictions and how that might be done.
    The 304 sentencing, I like that, three years/$15,000. The 
only issue with that is the capacity. If we don't have 
detention facilities to put people in, then how are we going to 
do that? It takes a lot of money for that. But I like that. It 
is going up. We can do more with that.
    Section 603, I have a beef with this one, well, not with 
this, but I will tell you.
    The testifying of Federal employees, I had once asked a BIA 
detention officer to do something. He was supposed to bring 
over a defendant. He did not do so, so I ordered and order to 
show cause on him. He got your attorney, the Solicitor General, 
to write me a letter, threaten me with arrest for getting in 
the way of his job. I wasn't calling him to testify on 
anything. I was calling him to come to order to show cause why 
he did not bring over a person, doing his job as a BIA 
employee. I should have told these guys. But you know, but I 
got a letter from the Solicitor. You will be arrested if you 
interfere with the Federal officer. And I go, oh, my goodness.
    On the IHS side, I asked a health nurse to come in and help 
create a plan for a minor child. He needed help and she 
wouldn't come because of the same, I can't remember, section 45 
CFR Part 2. They keep Federal employees from testifying in 
tribal court. Hopefully, there could be an amendment of section 
603.
    There is a lot more things to say about this issue, but I 
am glad that I was able to say these few things.
    Thank you.
    [The prepared statement of Mr. Flies-Away follows:]

   Prepared Statement of Hon. Joseph Thomas Flies-Away, Chief Judge, 
                             Hualapai Tribe

    Mr. Chairperson, Madame Vice-Chairperson and Members of the 
Committee, Gamyu:je,
    I am honored to be invited to testify before the Senate Committee 
on Indian Affairs on Tribal Court Systems and the proposed Tribal Law 
and Order Act of 2008. Unfortunately, the timeframe for preparation did 
not give me the ability to fully articulate all of the prevalent issues 
that come to mind though I will attempt to address some of the most 
important issues as I and our Tribal Council sees them. Below I 
describe a few of these issues and comment briefly on specific sections 
of the Act.
    First however, let me let me briefly introduce myself to you. I am 
a Hualapai Tribal Member and the Chief Judge of the Hualapai Judiciary. 
I have served as a Tribal Council Member and Planner for my Tribe in 
recent years. I have also served as a judge for the past 12 years and 
in total sat in 9 tribal courts throughout Indian Country and serve 
currently as a pro tem judge, visiting judge, and appellate justice for 
various tribal courts as well as consult with tribes when I have time. 
I have been privileged to work with many other tribal courts throughout 
the country, including native villages of Alaska, to help develop their 
judicial systems and infrastructures, perform evaluations, draft and 
review codes, and provide other technical assistance to Courts and 
tribal government. I have also taught at the university level in 
Indigenous Community & Nation Building and Federal Indian Law. In my 
travels and efforts throughout Indian Country I see a strong commitment 
and dedication from tribes/villages to continue to rebuild their 
nations taking the best of their past and culture and mingling with the 
advantages and innovations of the present. I see indigenous peoples 
take what little resources they may have and make the best of it even 
though the community and nation building journey is difficult and 
frustrating much, if not all the time.
    Below is a short description of the topics that I believe are 
important for the Committee to hear and take into consideration in your 
legislating efforts. Unfortunately, as the time given to each witness 
for verbal testimony is only five (5) minutes, my comments to the 
Committee will be limited at that proceeding. I will do my best to 
articulate what I think is most important in the little time that I 
have. I imagine that there may be questions for the witnesses by the 
Senators on the Committee. With your questions I hope I will be able to 
stress other areas that require federal intervention and assistance 
that I do not mention in my direct comments and in this written 
testimony.
    As requested by Senator Dorgan the primary purpose for my testimony 
is to discuss Tribal Courts in general and comment on the proposed 
Tribal Law and Order Act of 2008. Below I highlight various issues 
regarding tribal courts that I think are relevant, which I have written 
about previously and discuss with tribal folks at every opportunity. I 
am sure you will hear similar remarks from the other witnesses who I am 
honored to be sitting before you today. Of course what our tribal 
leaders wanted me to emphasize up front is the need for more funding 
for tribal courts and the areas that support its work. Funds are 
required so that the need for culturally accordant conflict resolution 
for our Tribe and others can be accomplished more thoroughly and for 
benefit of those persons under our jurisdiction. The other issue my 
Council directed me to emphasize is the need for detention and 
rehabilitation resources that allow the Court to address the criminal 
and other negative behavior that hampers our Tribe's progress.
    My final statements here regard the proposed Tribal Law and Order 
Act of 2008. Below I have highlighted a few sections in the Bill that 
our Tribe and I both have questions and/or concerns.
    I will begin with general comments about Tribal Systems:
Tribal Court System (Tribal Justice System)

Critical Component of Tribal Government
    Tribal Courts and Tribal Court systems are critical components of 
tribal government. All governments must provide a means for conflict 
resolution for its polity, its people. Without such a forum disputes 
and disagreements of all sorts would negate the ability of the people 
to gather, ground, and grow (i.e. build and rebuild communities and 
nations). Prior to Anglo intervention in the Americas indigenous 
peoples practiced various forms of conflict and dispute resolution. 
While the practices may not have resembled those of Western Culture the 
ability of tribal members to participate in debate and defend their 
points of view was not just allowed, but expected (i.e. due process). 
Unfortunately, because tribal ways did not resemble European practices, 
they were thought to be savage, backward, and uncivilized. Suffice it 
to say the forums for indigenous people worked for native folks then as 
much as the methods worked for other peoples around the world.
    Tribal Courts/Systems currently are the tribal forums that attempt 
to resolve various controversy and conflict that Tribal peoples, our 
governments, and other persons face. Many systems rely on written law 
(constitutions and codes) to direct the settlement of disputes and 
conflicts. Others apply customary processes, procedures, and laws to 
address controversy. In all the tribes/villages that I have visited 
thus far their Tribal Court systems were thought to be critical to the 
success of their governmental function to serve the needs of the 
people. Or, if the systems were in development tribal staff and 
officials would state that they wanted their Court System to provide a 
fundamental service that would benefit the community/nation as a whole. 
As are many nations around the world, each tribal or village government 
is at a different period of development of a justice system. Some are 
quite advanced, while others are just beginning to develop a judicial 
system under the conditions and circumstances they may face in their 
part of the United States. Despite the various places these tribes may 
be in their development journey, they each need the resources, support, 
and encouragement to continue to develop the best practice judicial 
system they can to bolster their overall governing system.

Requires the Cooperation & Collaboration of Various Sectors 
        (Departments and Programs) of Tribal Government
    As a judicial system is an important and critical part of tribal 
government, it cannot function all alone and unto itself. A system to 
resolve conflict and dispute for any polity must include or collaborate 
with a number of various agencies, programs, and people of their 
government. A true full compliment of a judicial system, though to many 
it is not as clear, does not only consist of a judge, clerk, probation 
officer, jury members, advocates, and bailiff. To fully move towards 
resolution or conciliation of criminal, civil, juvenile, family, and 
other issues brought to Court there are many others who contribute to a 
beneficial end; to peace.
    This is not to say that Separation of Powers is not an important 
and necessary characteristic of good government. Separation of Power is 
essential to keep various branches of government from interfering with 
each others work. Nevertheless, there is considerable contribution and 
cooperation that must exist between the branches or departments that 
must be present in order for resolution/concord to be reached. 
Individual court users, practitioners, and staff including the 
citizenry of a nation must be trained and provided insight of how this 
separation works and how parts of government must also work together.

Expression and Exercise of Tribal Sovereignty
    The existence and administration of a Tribal Court--Judicial Branch 
is an expression and exercise of Tribal Sovereignty. As mentioned above 
the provision of conflict and dispute resolution is an important part 
of a government. Because conflict resolution is a necessary service 
that the Tribe must provide, the provision of such a service 
demonstrates the government's sovereign responsibility to address and 
fix its own problems, controversy, and other conflict. As a tribal 
court confronts conflict and listens to the parties regarding the 
issues raised it must develop a understanding and ruling of the law, 
wholly applicable to that matter and to that sovereign. The creation 
and development of law is unique to that nation. This practice 
contributes to the individuality and sovereignty of that nation. As a 
tribal court continues to resolve conflict, develop standards and 
precedent for litigants to apply, the more the Tribe is expressing and 
exercising its sovereignty.

Contributes to Economic Possibility
    Tribal Courts further support an environment of impartiality and 
fair play. In doing so individuals, corporations, and others believe 
they can safely engage in commerce and business with the Tribe and 
tribal members with the assurance that wrong doing can be challenged, 
addressed, and corrected. Economic development and possibility become 
more achievable when there is a forum for legitimate legal issues to be 
brought and remedies sought. Whether the matter concerns a promise/
contract issue of a small amount of money between tribal members or a 
multi million dollar claim between a corporation and vendor, Tribal 
Courts can provide a competent and transparent forum for resolution.
    Many tribes, however, are still developing Courts where business 
matters can be brought. Outside business entities are weary of tribal 
law and processes, which may not resemble a U.C.C. or other commercial 
code. Overtime, however, with greater resources and further 
development, tribal courts will provide the necessary components and 
legal procedures as does any state or federal court hearing such cases. 
Hopefully, however, Tribes will not adopt other jurisdiction's laws 
full sail without assuring its efficacy for their nation. Tribes who 
have developed in this area can be supportive and helpful to others in 
their development.

Manifestation of Tribal Culture (i.e. culturally accordant conflict 
        resolution/peacemaking)
    Tribal judicial systems can be fashioned into culturally accordant 
tribal institutions that reflect the culture and history of the tribal 
people it serves. Tribal Courts over the years have been grappling with 
the nature of the adversarial system that was more or less imposed upon 
them. While some tribes find the adversarial system adequate and 
useful, other tribes desire to develop courts that reflect more of a 
restorative nature that tribal people traditionally practiced. 
Unfortunately, because the adversarial system is deeply ingrained in 
tribal court personnel, as that is what they were taught, and 
`outsiders' bring to the Court, it is difficult for some to reclaim the 
traditional method and move forward with it. Some tribes, however, have 
been successful at this development and produced peacemaking processes 
or other traditional means of bringing people to peace, and the 
practices are greatly appreciated by their people as they feel familiar 
and are comfortable with it. Tribes must be allowed to develop these 
processes, perhaps allow for various tracks for court users to choose 
from so that the greatest appreciation can be solicited.

Uphold and Protect Constitutional Rights (including due process)
    Tribal Courts serve to uphold and defend the rights of all persons, 
not just members, who are within its jurisdiction. Individual rights as 
defined in tribal constitutions, codes, and federal statutes such as 
the Indian Civil Rights Act are best adjudicated in the Tribal forum 
where the tribal court judge can articulate what the law means in that 
jurisdiction. This is even a more important when the tribal judge is a 
member of the tribe who can also apply or be open to applying tribal 
custom and tradition.
    Tribes throughout the United States are actively pursuing or 
considering revising and amending their constitutions to articulate a 
more tribal perspective, rather than applying the constitutions that 
were basically written for them or modeled after BIA documents. What 
may be at issue as tribal courts continue to develop and revise their 
constitutions, are conflicts between rights as articulated in their 
constitutions and tribal government (and their subordinate entities) 
claims to sovereign immunity? If a tribal government does not afford 
due process to a person under their jurisdiction, and or change the law 
on an individual after the matter was brought to Court, when the 
Constitution articulates various rights, does sovereign immunity 
completely shield the Tribe from what might be illegal or 
unconstitutional conduct? These claims will be brought before tribal 
courts and have been slowing reaching the courts of late, and outcomes 
may be telling as to the future of tribal sovereignty.

Requires Adequate Funding & Resources (facilities & program support)
    All Tribal Courts, including the Hualapai Tribal Court, require the 
funding to fully meet the judicial needs of their constituents. While 
some tribes, such as Hualapai, have been able to put some of their own 
general funds into Court development, the amount is not enough to fully 
satisfy the need the growth the Tribe has had over the years. Hualapai, 
and I am sure others, require adequate facilities and space to perform 
its function and purpose for our people. Many tribal courts are housed 
in older buildings and required to hear cases in makeshift court rooms 
while at the same time endeavoring to demand the respect of Court users 
and others who come to Court. Offices are small and hearings sometimes 
must be held in them as there may be only be one court room. Funding 
issues, of course, are always an issue for tribal governments, but it 
appears that given judicial services is a primary and critical function 
of government that federal funding would rise to the level of support 
that such a need requires.

Necessitates Consistent Availability of Detention & Rehabilitation 
        Resources
    Lastly, more funds are required for both detention and 
rehabilitation resources. The Hualapai Tribe has put some of its own 
funding into building a state of the art juvenile detention facility 
only to have it sitting unused for almost a year. The BIA is unable to 
provide the funding for staffing and operating the facility and the 
Tribe cannot assume the responsibility alone. The Tribe initially 
intended to provide resources in the facility to address rehabilitation 
issues, however, again BIA funds do not serve this function and IHS is 
also unable to assist in the goals the Tribe set out to accomplish. 
Over time, perhaps, after many years of economic develop for us and 
others, the Tribe(s) may be able to cover various costs for this 
operation, however, at this very moment, the need is huge for our young 
people to be not only disciplined but provided the healing services 
they need to someday be positive contributors to our tribal society.

Other
    There is a Federal Law that prevents BIA & IHS employees from being 
brought to Tribal Court via a subpoena as well as denies the Court the 
ability to issue Order to Show Cause orders to BIA detention staff for 
failure to provide adequate detention services (see below).
Tribal Law and Order Act of 2008

Sec. 303--Access to National Criminal Information Databases
    While criminal data collection is important in order to analyze 
criminal behavior and trends, this act will allow tribal law 
enforcement officials to enter criminal data into a national data base, 
presumably regarding tribal members. One question is how will the 
criminal information be utilized by federal, state, and tribal 
jurisdictions? Will it be used to augment sentencing orders in each 
jurisdiction? Tribal leaders in the past have been wary of sharing 
criminal information as it is thought to infringe on tribal 
sovereignty. Do tribal leaders need to approve the sharing of 
information in a manner and form that they prefer or is the Federal 
Government to do so for them?

Sec. 304--Tribal Court Sentencing Authority
    Section 304 of the Act provides for increased Tribal Court 
sentencing authority for one charge from 1 year/$5,000.00 to 3 years/
$15,000.00. Though this provision to strengthen Tribal Court sentencing 
power is positive, capacity issues and shortfalls for most Tribal or 
BIA detention facilities must be addressed and remedied. Many Tribes 
simply do not have jails and rely on the BIA to provide detention 
services. The supply of bed space does not meet the demand, which 
creates an inconsistent detention system allowing for release of 
inmates for lack of space, medical ailments, and swapping of more 
dangerous inmates for lesser dangerous ones. The need for more 
detention funds (both facility construction and programmatic) is 
required. Not only must more detention facilities on tribal lands be 
constructed, Tribes must have resources to staff the jails and provide 
treatment (healing & restoration) to tribal inmates. Though the Act 
states the possibility of housing tribal inmates in Federal detention 
facilities, the preference for tribes may be to house their tribal and 
native community members in a tribal detention facility.

Sec. 603--Testimony by Federal Employees in Cases of Rape and Sexual 
        Assault
    Section 603 of the Act will allow federal employees in rape and 
sexual assault cases to testify in tribal court. The Hualapai Tribal 
Court has received two letters from both Bureau and IHS officials 
citing 45 C.F.R. Part 2, which states that federal employees are 
prohibited from giving testimony unless the appropriate Director 
approves. How does Section 603 mesh with 45 C.F.R. Part 2?
    A Hualapai Tribal Court Order to Show Cause on BIA Detention 
Supervisor for failure to assure that a Defendant (father) was 
transported to a custody Hearing, upon proper notice to him in the 
detention facility, caused a U.S. Solicitor to threaten the arrest of 
any Tribal Judge who interferes with the federal officer's duties. The 
Tribal Court merely issued the OSC to the BIA Supervisor for failure to 
perform his trust responsibility to the Tribe by bringing the inmate to 
Court.
    A Hualapai Tribal Court Order requesting the attendance of an IHS 
Community Health Nurse to a hearing to develop a service plan for a 
Child in Need of Care was denied as the Order needed to be approved by 
a senior official in the area. Again a letter to the Court citing 45 
C.F.R. Part 2 was sent to the Court stating the Nurse cannot provide 
testimony to the Court. The hearing, however, was scheduled only to 
solicit the input of service providers, include the Community Health 
Nurse, to develop a plan to provide services to the Minor Child and 
family to meet his needs. The Nurse was not requested to provide 
testimony to prove innocence or guilt in any way.
    If the Act is to promote cooperation between federal agencies and 
the Tribes, then this area must be reviewed so that the Tribal Court's 
request for federal assistance is honored and any trust responsibility 
honored.

    The Chairman. Judge, thank you very much.
    Next, we will hear from the Honorable Theresa Pouley, the 
President of the Northwest Tribal Court Judges Association in 
Tulalip, Washington, with the Tulalip Tribal Court.
    Judge, you may proceed.

  STATEMENT OF HON. THERESA M. POULEY, JUDGE, TULALIP TRIBAL 
  COURT; PRESIDENT, NORTHWEST TRIBAL COURT JUDGES ASSOCIATION

    Ms. Pouley. Good morning. Thank you for the opportunity to 
allow me to testify today.
    As a judge at Tulalip Tribal Court, Colville Tribal Court, 
Northwest Intertribal Court System, and also as the President 
of the Northwest Tribal Court Judges Association, we appreciate 
the attention of this Committee to tribal justice systems in 
Indian Country.
    Justice O'Connor and Janet Reno said that tribal courts are 
part of the mosaic of the justice system in the United States, 
and that they are uniquely situated to resolve problems in 
Indian Country.
    As tribal court judges in the Northwest, we are acutely 
aware of the violent crime rate. We are acutely aware that one 
in three Indian women will be raped in their lifetime. And 
Senators, we are poised with the proper funding and the proper 
authority to be able to take responsibility and make a 
difference in Indian Country.
    As President of the Northwest Tribal Court Judges 
Association, I am delighted to report that we hear over 10,000 
cases every year for the last five years. As a judge of the 
Northwest Intertribal Court System, we hear 2,400 cases a year. 
And as a judge of the Tulalip Tribal Court System, we heard 
1,100 cases last year.
    All of those cases were done in a very competent and 
professional manner. The six biggest tribes in the Northwest 
all have public defender services. Tulalip, Lummi, Colville, 
all provide public defender services on their own dime for 
indigent defendants. All of those courts have courts of 
appeals. The Colville Tribal Court of Appeals is a 
constitutional court with nine appointed justices. Each and 
every one of those courts in the last 30 years has come light-
years forward in being able to resolve issues in Indian 
Country.
    We certainly appreciate your support and your belief in 
tribal justice systems, but you should know that we have the 
ability to provide those solutions to those problems of crime 
in Indian Country if we are given both the funding and the 
tools.
    Tulalip Tribal Court is a perfect example of that. They 
retroceded their criminal jurisdiction from the State of 
Washington in 2001. By 2003, those cases, including criminal 
cases on the reservation, started being investigated by tribal 
police, prosecuted by tribal prosecutors, and entered tribal 
court systems.
    In five years, Tulalip Tribal Court has gone from what some 
characterized as a lawless reservation with rampant drug and 
alcohol deaths on our highways, to a very safe community. They 
did that to ensure the economic development of their community, 
but they also did that by prioritizing the tribal justice 
system.
    Although the Bureau of Indian Affairs gave us $30,000 last 
year to hear those 1,100 cases, Tulalip Tribal Court knows 
better. And the results are absolutely dramatic. In that five-
year period of time, every year since Tulalip Tribal Court has 
been hearing cases, violent crime has been substantially 
decreasing within the boundaries of the Tulalip Reservation. 
Tulalip Tribal Court was given the Harvard's Honoring Nations 
Award for a wellness court or drug court program that reduced 
recidivism in just a couple of years by 25 percent.
    We need stable funding to be able to address those issues. 
We also very much support the holistic and coordinated fashion 
in which this bill addresses the Department of Justice in 
making sure that they provide tribal officials with information 
regarding the declination of prosecution. When you combine that 
with an increase in tribal court jurisdiction, we are going to 
have the ability together to substantially change the face of 
Indian Country.
    Before I came here to testify, I was visiting with my 
husband about what that testimony might be. I said, and 
repeated to him, one in three Indian women are going to be 
raped in their lifetime. My 15-year-old daughter looked at me 
and said, Mom, is that true? And the look on her face said, 
Mom, am I the one or am I the three?
    This kind of concerted effort and this bill, and support of 
this bill, to allow tribal courts to answer that question for 
my daughter, help us fulfill an old Shenandoah proverb: It is 
no longer enough to cry peace. You have to act peace, live 
peace, and live in peace.
    We look forward to the opportunity of taking that 
responsibility and we are ready, Senator.
    [The prepared statement of Ms. Pouley follows:]

  Prepared Statement of Hon. Theresa M. Pouley, Judge, Tulalip Tribal 
      Court; President, Northwest Tribal Court Judges Association

    Mr. Chairman and members of the Committee, I appreciate the 
opportunity to provide testimony on the vital role that tribal courts 
play in the effective administration of justice in Indian Country. I 
speak from my experience as a long time Judge serving tribes in the 
Northwest and the President of the Northwest Tribal Court Judges 
Association. Currently, I serve as a judge in the Tulalip Tribal Court 
and the Northwest Inter-Tribal Court System (NICS) and an Associate 
Justice of the Colville Court of Appeals. The tribes I have had the 
honor to serve in Washington State range from urban to rural, and vary 
in size from small communities with a greatly diminished land base to 
tribes with expansive reservations. Although the governmental services 
and needs vary for these tribes, I have found they all share a core 
commitment to fairness and justice for their communities. No government 
has a greater stake in effective criminal justice systems in Indian 
Country then the tribes themselves.
    A quality justice system is a central component of the right of a 
people to make their own laws and be ruled by them. Congress has 
expressly recognized the importance of tribal courts in enacting the 
Indian Tribal Justice Act, (ITJA), 25 USC Sec. 3601 et. seq., ``to 
assist in the development of tribal justice systems.'' S. Rep. No. 103-
88, 1993 WL 304728 at 1 (July 15, 1993). In enacting this law, Congress 
recognized that ``tribal justice systems are an essential part of 
tribal governments and serve as important forums for ensuring public 
health and safety and the political integrity of tribal governments.''
    The findings of Congress, however, are often at odds with the 
actions, or inaction, of federal agencies vested with a trust 
obligation to provide public safety in Indian Country. While the Indian 
Tribal Justice Support Act promised $58 million for tribal court 
systems per year, tribal courts have yet to see any funding under this 
Act. The vast majority of tribes continue to struggle to meet basic 
public safety needs based on lack of federal support. The ITJA did 
result in the creation of the 2000 Report of Tribal Justice Systems 
prepared for the Bureau of Indian Affairs. The report confirmed the 
competency of tribal courts, found that tribal justice systems are 
severely underfunded, and recommended base funding levels for tribal 
courts.
    Although the Federal Government has fallen far short in addressing 
the critical public safety problems in Indian Country, Tulalip and 
other Indian tribes fortunate enough in recent years to raise revenues 
through gaming and new business enterprises have started taking on the 
primary role of law enforcement on the Reservation. Since taking on 
this responsibility, Tulalip and other Northwest Tribes have seen crime 
rates begin to drop, and the quality of life on the Reservation 
improve. Taking a lead role in criminal justice has gone hand in hand 
with steady gains in economic development and employment opportunities 
on the Reservation. Tulalip recognizes, however, that these gains are 
fragile, without reliable funding sources that traditionally fund 
government justice systems.
    The Tulalip Tribes, NICS and the Northwest Tribal Court Judges 
support provisions in the proposed Tribal Law and Order Act of 2008 
which seek to hold the Federal Government more accountable for 
addressing the serious crime problems in Indian Country. The Tribes 
believes that the Federal Government must do a better job of supporting 
and empowering tribal justice systems. Toward this end, we strongly 
support the extension of criminal sentencing authority as necessary in 
certain cases to protect the Reservation community from dangerous 
offenders.
    I encourage the Committee to identify further measures to support 
and fund strong Tribal law enforcement and court operations. More 
direct funding to tribal courts is drastically needed. The Tulalip 
Tribes wholeheartedly supports the additional authorization of Tribal 
justice system funding that was recently added to S. 2731. In addition 
to federal funding, Congress has a role to play in authorizing an 
expansion of Tribal government taxing authority to raise revenues for 
tribal justice systems--justice systems that benefit both Indians and 
non-Indians who reside in and around Reservation communities.

The Tulalip Tribes
    The Tulalip Tribes consists of a confederation of several Coast 
Salish Tribes signatory to the 1855 Treaty of Point Elliott. The 
Tulalip peoples originally occupied a large area of western Washington 
that extended from the crest of the Cascade mountains to the islands of 
Washington's marine waters. Salmon have always been of central 
importance to Tulalip subsistence and culture, and many Tulalip 
families still depend on fishing for their livelihood.
    Today, the Tulalip community is located on a 22,000 acre 
Reservation bordering the Puget Sound 40 miles north of Seattle. This 
area has recently experienced rapid population growth and development. 
Tulalip has 4,000 enrolled members, but the majority of Reservation 
residents are non-Indian. This is due to a history of allotments on the 
Reservation, which resulted in most Reservation land falling out of 
tribal ownership. This created a checkerboard of Indian and non-Indian 
land ownership that is common to most Reservations in Washington State. 
The Tribe has in recent years re-acquired a great deal of its 
Reservation land, and today the Tribe or Tribal members hold 
approximately 60 percent of the Reservation lands with the balance held 
in non-Indian ownership.

Tulalip Justice System--Background
    The Tulalip Tribes is organized under a Constitution and Bylaws 
adopted by the Tribes and approved by the Secretary of Interior in 1936 
pursuant to the Indian Reorganization Act. The Tribe is governed by a 
seven member Board of Directors, who are elected to three year terms. 
The Tulalip Constitution provides authority for establishment of a 
tribal judiciary, empowering the Tribes governing body to provide for 
the maintenance of law and order and the administration of justice by 
establishing a court system.
    Despite the Federal Government's stated commitment under the Indian 
Reorganization Act to foster tribal self-determination, the goals of 
the policy went largely unfulfilled due to lack of federal support and 
little economic opportunity for tribal members residing on the 
Reservation. In the years following the IRA, there were simply no funds 
to carry out the basic functions of tribal self-government.

PL 280--State Assumption of Criminal Jurisdiction Not the Solution
    In order to address the problems associated with inadequate federal 
criminal justice resources, the Tulalip Tribes requested the State of 
Washington in 1958 to assume criminal jurisdiction under PL 280. 
However, Tulalip soon found out that State assumption of criminal 
jurisdiction was not an effective remedy for the public safety problem. 
The county failed to dedicate adequate police resources to the 
Reservation, in part because the county received no tax revenues from 
tribal trust lands. As a result, little improvement was made in crime 
rates or public safety on the Reservation.
    During this period of the 1950s through the mid 1990s, Tulalip was 
failing to provide the most basic of services to its community--police 
and criminal justice. The Reservation remained a difficult place to 
live, and job opportunities were limited. Law enforcement and criminal 
justice on the Reservation was at best inadequate, and at worst non-
existent. Older tribal members often speak of the harsh conditions on 
the Reservation during most of this time, when serious crimes such as 
murder, rape and aggravated assaults often went uninvestigated and 
perpetrators were not prosecuted or punished.
Building an Effective Tribal Justice System at Tulalip
    The Tulalip Tribal justice system has made great strides in the 
last decade. Tribal law enforcement has gone from a single part time 
officer to a full service police department of 47 officers and staff 
protecting the community seven days a week. The Tribal Court has 
evolved from part time operations in an old trailer to a large modular 
facility with two full service court rooms and a complement of court 
staff operating 5 days a week. Crime rates have dropped and the quality 
of life in the community is improving. The Tulalip Tribes has taken on 
this responsibility to build its own criminal justice system on the 
Reservation largely because the Federal Government has failed to 
fulfill its responsibility, and the state criminal authority proved 
ineffective.
    The Tribes recent success in criminal justice is attributable to 
two key factors--(1) retrocession of state criminal jurisdiction under 
PL 280, and (2) new tribal economic development on the Reservation 
generating much needed revenues and creating new jobs.

Retrocession--Tulalip Assuming Primary Law Enforcement Responsibilities
    The Tulalip Tribes began the process of seeking retrocession of 
State criminal jurisdiction in 1996. Navigating the retrocession 
process under current federal law proved to be an arduous task. Indian 
tribe's had not petitioned the Department of Interior for some time 
which meant that there were few in the Interior accustomed to the 
process of retrocession. Also during this time, as is true with the 
Justice Department's current opposition to S. 2731, the Tribes found 
out that the U.S. Attorneys Office in Seattle was not supportive of the 
Tribes request for retrocession because they perceived retrocession as 
adding responsibilities to that office and other federal law 
enforcement agencies. The Tribes held numerous meetings with Justice 
and argued persuasively that an increased tribal law enforcement 
presence would actually lower crime rates and eventually decrease the 
demand for federal law enforcement services. Gradually, the U.S. 
Attorney warmed to the idea and sent a letter of support to the 
Attorney General. With the Governors support and the letter of support 
from Justice, Tulalip officials were finally successful in obtaining 
retrocession of state criminal jurisdiction on the Reservation.
    After retrocession, the Tribes took on the responsibility of 
primary law enforcement on the Reservation. The Tulalip Police 
Department grew to a full service police department with 47 officers 
and staff. The department is currently headed by a police chief with 27 
years of experience. The Tribal police department responds to all 
police calls on the Reservation, from both the Indian and non-Indian 
community. Incidents range from simple misdemeanors to major crimes 
such as murder and rape. In 2006, the Tulalip Police Department 
responded to 13,493 distress calls.
    Last year, the State of Washington passed legislation which 
strengthened the agreement by authorizing statewide cross-commissioning 
of Tribal officers, providing Tribal officers meeting specific 
qualifications with Washington State peace officer arrest authority. 
Currently, 20 Tulalip officers, all with qualifications that meet or 
exceed that required of state officers, are cross commissioned as both 
Tribal and state officers. In addition, two Tulalip police officers 
hold federal law enforcement commissions. This cross-commissioning 
provides for seamless law enforcement arrest authority over crimes 
committed by all persons on the Tulalip Reservation.

Assumption of Primary Tribal Law Enforcement Coincides with Dramatic 
        Improvements in the Reservation Economy
    During the same period Tulalip assumed primary law enforcement 
authority, tribal economic development increased exponentially. It was 
during this period that the Tribes incorporated Quil Ceda Village to 
promote Reservation based business development, including a casino, 
retail outlet mall, and most recently, a brand new 400 room hotel. The 
success of Quil Ceda village has created thousands of new jobs, brought 
in millions of new visitors to the Reservation and much needed revenues 
to the Tribal government.
    It was these initial gains in Reservation economic development that 
provided funds to establish a police force and further develop the 
Tribal court system. Tribal leaders immediately recognized the 
important relationship between continuing successful economic 
development and a strong, quality justice system. The Tulalip Tribes 
recognized that to continue to be successful with growing the 
Reservation economy, the Tribes would need to invest in a first rate 
justice system. The type of crime that was rampant on the Reservation 
as recent as 10 years ago would need to improve if the Tribe was going 
to be successful in attracting visitors to its economic enterprises on 
the Reservation and lifting its membership out of poverty.
    Although the Tribes' new gaming revenues were in great demand to 
fund unmet housing, health care and education needs, the Tribe knew it 
could not neglect its justice system. The Tulalip Tribes have gradually 
increased its law enforcement and tribal justice system budget to more 
than five million dollars annually. These increases have come almost 
entirely from Tribal sources, with the Federal Government's share of 
the total budget declining.
    This Tribal investment in criminal justice is starting to pay off. 
Tulalip criminal statistics demonstrate improvements in law enforcement 
and the justice system are starting to lower crime rates:

                 TULALIP CRIMINAL STATISTICS 2003-2007 *
------------------------------------------------------------------------
            Year               2003     2004     2005     2006     2007
------------------------------------------------------------------------
Criminal filings                1172      679      563      493      435
------------------------------------------------------------------------
* The 2007 figure is through the 3rd quarter.

    The criminal statistics show a steady decline in crime from 2003 
thru 2007. In 2007, the number of infractions has almost doubled, from 
140 in 2006 to 260 in 2007. Thus, excluding traffic, criminal cases 
declined about 12 percent.

The Tulalip Tribal Court
    The Tulalip Tribes operates its court through a contract with the 
Northwest Intertribal Court System. The Tribal Court currently employs 
two full time Judges, utilizes multiple pro tem judges, and is staffed 
by a Court clerk supervising four court support staff. The Tulalip 
Court judges have distinguished backgrounds with decades of experience 
as jurists and as licensed attorneys practicing in tribal, state and 
federal courts.
    The Court operates under criminal and civil rules adopted by the 
Tribes governing body. Criminal laws are enforced under a comprehensive 
criminal code, and the Tribes regulates Reservation activities under 
environmental, fish & wildlife, land use, gaming and other regulatory 
codes. The Tribes also has enacted child dependency, domestic relations 
and employment codes that generate additional caseload for the Tribal 
Court. The Tribal Court adjudicates a wide variety of civil matters, 
from child dependency cases and domestic relation cases to complex 
civil torts between private litigants, involving both Indian and non-
Indian parties. Attorneys practicing before the Tulalip Tribal Court 
must pass a Tribal Bar exam and be licensed to practice in the Court.
    The Northwest Intertribal Court System: The Tulalip Tribes operates 
its court through The Northwest Intertribal Court System (NICS). NICS 
is a consortium of seven western Washington federally recognized tribes 
and is the oldest continually existing intertribal court system in the 
country. NICS serves as a cost-effective way for tribes to deliver high 
quality court services. Last year alone, seven NICS tribal member 
courts heard over 2,400 civil and criminal cases, including appeals. To 
meet the needs of member tribes, NICS maintains a roster of judges, 
including lawyers in private practice, law professors, and tribal court 
judges from non-NICS member Indian tribes. Appellate opinions issued by 
NICS administered courts are published in a NICS reporter.
    As the Tulalip government grew, NICS began to play a much larger 
role in the Tulalip community and government. Today NICS administers 
the Tulalip Tribal Courts, the Appellate Court, the Tulalip 
Prosecutor's Office and some probation services under a contract and 
budget supplied by the Tulalip Tribes. Tulalip appoints one member of 
the NICS Board of Directors and is the largest jurisdiction within the 
NICS system.
    One of the benefits Tulalip realizes in operating its court through 
this contract is that NICS provides the Tribal Court with structural 
separation from the Tribes elected political branch of government. 
Although judicial independence does not require an arrangement of this 
type, the Tulalip Tribes long time participation with NICS has worked 
well in developing a quality court system. The Tulalip Tribes prides 
itself on maintaining an independent judiciary providing for the 
impartial administration of justice on the Reservation.
    Tulalip Public Defender: In expanding its criminal justice system, 
the Tulalip Tribes quickly realized that many defendants could not 
afford criminal defense attorneys. The Tribal government made a 
decision that, although costly, it would provide defense counsel to 
Tribal members meeting low income thresholds. In order to meet this 
need, the Tulalip Tribes developed an institutional relationship with 
the University of Washington Law School to develop the Tribal Law 
Criminal Defense Clinic. Through the Clinic, the Tribes provides all 
indigent defendants with representation through clinic lawyers, and law 
students working under lawyer supervision. In addition, the Tulalip 
Tribes also provides attorneys to indigent parents in child dependency 
proceedings.
    Tulalip Appellate Court: The Tulalip law and order code provides 
for a right of appellate review for all criminal and civil cases. The 
Tulalip appellate judges, under contract with NICS, are paid by the 
Tulalip Tribes for their services on a case by case basis. Currently, 
there are seven appellate justices--they include distinguished law 
professors, lawyers and jurists, all with long experience in federal 
Indian law and tribal government. Decisions of the Tulalip Court of 
Appeals are published in the Indian Law Reporter and the NICS Reporter 
and are available to all litigants.
    Tulalip Corrections: With the expansion of the police department 
and the court system, Tulalip found it essential to address jail space 
needs. In 1994, the Tribes signed an Interlocal Agreement for Jail 
Services with Snohomish County which provided for the use of the County 
jail for the incarceration of Tulalip prisoners. The Tribes are 
currently exploring other options, including an intertribal facility to 
house tribal prisoners. Providing for an intertribal corrections 
facility would allow for more innovation in corrections programs, and 
would be more cost effective. As always, limited funding to operate a 
new facility is a major obstacle to meeting this need. Tulalip is 
supportive of provisions in the proposed Tribal Law and Order Act that 
will provide for greater support for construction and operation of 
detention facilities in Indian Country
    Healing-to-Wellness (Drug) Court: An integral part of the Tribes 
justice program involves rehabilitation programs designed to reduce 
recidivism. The Tribal government is uniquely suited to designing 
programs that work best in the Tribal community. These programs, 
however, again require new sources of funding, and the Tulalip Tribes 
strongly support re-authorization of federal programs which contribute 
to the funding of these valuable programs.
    In response to the growing problems of drug-related crimes, the 
Tribes established a Wellness Court, also known as a drug court. 
Typically, defendants must be charged with possessing or purchasing 
drugs; must not have a history of violent crime, or drug-trafficking 
arrest, or more than two previous non-drug felony convictions. Program 
participants must have regular drug tests and return to court 
regularly, often weekly, for a review of their progress. Participants 
also receive counseling, educational courses, and vocational services. 
The purpose of the Wellness Court is to approach crimes committed by 
the offender under the influence of drugs or alcohol in a holistic 
manner that supports and encourages traditional practices rather than 
punitively while ensuring that the offender is still held accountable. 
The Court's Alternative Sentencing approach was awarded the Harvard 
Honoring Nations Award presented by the Harvard Project on American 
Indian Economic Development in 2006 for demonstrating its excellence 
and innovation in addressing the combined problems of substance abuse 
and crime in the criminal justice system.

Federal Role in Indian Country Justice
    Despite the recent gains by Tulalip and other tribes in fighting 
crime, Indian tribes cannot solve the public safety problem on their 
own. Due to jurisdictional constraints, and lack of traditional funding 
sources, tribes must rely on the Federal Government to play an 
important role in addressing Reservation crime problems. Tribes rely on 
the Federal Government for prosecution of most, but not all, major 
crimes pursuant to 18 USC 1153. Tribes must also rely on 
federal and/or state prosecution of non-Indian criminal offenders on 
the Reservation.
    Indian Country continues to face a crisis of violent crime. A 
Bureau of Justice Statistics Report covering the period 1992-2002 found 
that American Indians are victims of violent crime at a rate more than 
twice that of the national population. ``American Indians and Crime.'' 
(U.S. DOJ Publication No. NCJ 203097).Washington, DC: U.S. Department 
of Justice (2004). According the DOJ-BJS report, American Indians 
experienced an estimated 1 violent crime for every 10 residents over 
age 12. The figures are even worse for Native American women, who are 
the victims of rape or sexual assault at a rate more than 2.5 times 
that of American women in general. The DOJ-BJS study concluded that 
34.1 percent of American Indian and Alaska Native women--more than one 
in three--will be raped in their lifetime. This level of violence 
against native women is tragic and unacceptable. The majority of 
perpetrators of violent crime against Indians were non-Indian. Because 
tribes have been stripped of jurisdiction over non-Indian offenders, 
tribes need the assistance of federal law enforcement. The Department 
of Justice must work cooperatively with Tribal law enforcement and 
dramatically step up its efforts to combat this crisis.
    Tulalip has shared in this experience of unacceptable levels of 
violent crime, and has worked hard to forge a relationship with federal 
law enforcement. In recent years, Tulalip has built a good relationship 
with the U.S. Attorneys Office on major crimes enforcement on the 
Tulalip Reservation. However, as president of the Northwest Tribal 
Court Judges Association, I know many Indian tribes do not share the 
same positive relationship with federal law enforcement. Tribes in more 
remote locations have experienced problems getting federal support and 
assistance in investigating and prosecuting crimes. These problems have 
worsened in recent years with the reallocation of federal law 
enforcement resources to foreign terrorism matters.
    We welcome and support the provisions of the proposed Tribal Law 
and Order Act which call for reporting by the FBI and Justice 
Department regarding Indian Country criminal investigations and 
prosecution declinations. We would urge the Committee, however to 
strengthen the bill by requiring the timely transmission of evidence 
and case files to tribal justice officials when a federal investigation 
is closed or case declined.
    Another important responsibility of the Federal Government in 
Indian Country is the provision of support for courts and justice 
systems through funding, technical assistance and training. It is in 
these areas that the Federal Government is falling woefully short of 
fulfilling its trust responsibility. Where tribal justice systems have 
been developed, the systems have been funded by the tribes themselves. 
These limited tribal funds are in great demands for other essential 
government functions such as health care and education, areas which are 
equally vital to improving crime rates in Indian Country. The current 
2008 budget for the Tulalip Tribal Court is over one million dollars 
(including prosecutorial services), of which $30,000 is funded by the 
Federal Government (3 percent). For the Tulalip police department, the 
annual budget is now 4.3 million, with only $212,000 coming from 
federal funds (5 percent).
    Because tribal justice systems are the most effective means of 
addressing the public safety problems on Reservations, federal funds 
used to support tribal justice systems are funds well spent. Tulalip 
has demonstrated that if sufficient resources are dedicated to tribal 
justice systems, real gains can be made in addressing the serious 
public safety problems in Indian Country. We urge the Committee to 
authorize increased federal funding to what works best--building 
quality tribal justice systems.
    Compounding the problem of lack of federal funding is the 
constraints on tribal governments raising revenues for public safety in 
the same manner as state and local governments--through taxation. 
Washington State funds public safety through taxes on retail sales, 
real property and business activity. On the Tulalip Reservation, (which 
contains many non-Indian residents and businesses), the Tribe is 
effectively precluded by recent Supreme Court decisions from imposing 
these same taxes to fund this basic government service.
    The Tulalip Tribes request that this Committee strengthen the 
proposed legislation by directing that the funding shortfalls for 
tribal criminal justice systems be examined and addressed. In addition, 
legislation should provide additional funding avenues for Tribal 
justice systems by removing impediments to tribal taxation of all 
persons and activities on Indian Reservations that reap the benefits of 
effective tribal justice systems.

Tribal Law and Order Act--Proposed Provisions for Expanding Criminal 
        Sentencing Authority of Tribal Courts
    The Tulalip Tribes strongly supports the proposed legislation's 
extension of tribal court sentencing authority from one to three years. 
At Tulalip, the Tribal Court is the primary forum for criminal 
prosecutions on the Reservation involving Indian offenders. The 
effective administration of justice benefits the entire Reservation 
community, both Indian and non-Indian. The Tribe's criminal justice 
system is often the first and last line of defense in protecting the 
community from violent offenders. Many serious crimes, including those 
involving dangerous offenders, end up falling to the tribal justice 
system for prosecution.
    Since September 11, 2001, federal resources have been reallocated. 
According to data released by this Committee, federal criminal 
investigations on Indian lands in Washington State declined by 55 
percent since 2001. This has left a gap not only in the prosecution of 
major crimes, but the serious crimes that fall into the gap between 
misdemeanors and Major Crimes Act felonies. The reality on the ground 
is that Tribal Courts are often responsible for prosecuting felony 
crimes.
    In sentencing serious criminal offenders, I have long been 
concerned that the one year sentencing limitation was placing the 
safety of the tribal community at risk. Although the need to impose 
longer sentences is not a common occurrence in my courtroom, in those 
situations where the court is faced with prosecuting serious violent 
crimes, it is important for the Tribal Court to have appropriate 
sentencing authority. During my tenure as a judge, I have presided over 
cases involving charges of rape, child sexual assault, drug 
trafficking, aggravated assault and serious domestic violence. 
Increasing sentencing to three years will provide Tribal Courts with 
the authority necessary to protect the Reservation community.
    I do not believe that Tribal Courts will need to use this authority 
often. At Tulalip, our focus has been on alternatives to incarceration 
aimed at promoting behavioral changes, healing and preventing 
recidivism. However, there are times when the Tribal Court is faced 
with violent offenders in which longer incarceration periods are 
necessary and vitally important.

Competency of Washington Tribal Courts and Response to the Concerns of 
        the Departments of Justice and Interior
    At the hearing last month on the draft Tribal Law and Order Act, 
representatives from the Departments of Justice and Interior expressed 
concerns to this Committee regarding the extension of tribal court 
sentencing authority. DOJ and BIA expressed concerns as to whether 
tribal courts would adequately protect the rights of criminal 
defendants. DOI expressed similar concerns, and also raised issues 
regarding increased costs of longer detentions and possibly an increase 
in habeas petitions.
    With regard to the rights of the accused, I can personally attest 
that all of the tribal courts that I have served as a judge, or 
practiced in as an advocate, have a strong commitment to protecting the 
rights of criminal defendant that is equal to that of the state and 
federal courts. Although tribal courts may differ in size and scope 
(some tribal governments rely on state rather than tribal criminal law 
enforcement), an ITJA survey published in 2000 reported that the vast 
majority of participating tribes had formal justice systems similar to 
state or federal court systems, and virtually all provided for 
appellate review. Washington State courts have adopted court rules 
which provide full faith and credit for Tribal Court judgments. 
Washington State Civil Rule 82.5
    All NICS member tribes have developed tribal codes. The NICS member 
tribal codes are publicly available from court clerks and law 
libraries. Many are also available on-line. Most of these tribes have 
comprehensive civil court procedural rules like those at Tulalip. In 
addition, the other large tribes in Washington State including 
Colville, Lummi, Puyallup and Swinomish operate their own sophisticated 
court systems complete with indigent public defense services and all 
utilize comprehensive Tribal codes and court rules. In one small NICS 
tribe, the tribal court held last month that the tribes' constitution 
required the appointment of public defenders for indigent defendants.
    Similarly, most Washington tribes have developed a court of 
appeals. NICS provides appellate services to all of its member tribes 
as well as to non-member tribes in Washington, Oregon and California. 
The Colville Confederated Tribes has a constitutionally established 
Court of Appeals and appoints nine justices to serve six year terms. 
All the opinions are available and are maintained by the Court.
    Tribal courts have now long been operating under the provisions of 
the Indian Civil Rights Act, which provides the same fundamental 
protections for the rights of the accused as the Bill of Rights 
provides under the U.S. Constitution. These substantive and procedural 
protections are embodied in the tribal criminal codes which incorporate 
the protection of defendant rights, including: the right to speedy 
trial, the right to a jury trial, the right to subpoena witnesses and 
evidence, the right to cross examination, the imposition of probable 
cause warrant requirements, and prohibitions on excessive bail, double 
jeopardy and compulsory self-incrimination. The Tulalip Tribes, as do 
most tribes in the northwest, also provides defendants with the right 
to seek habeas corpus relief in their Appellate Court.
    It is difficult to understand the objections of federal officials 
in increasing tribal court sentencing authority from one year to three 
years. The reality is that many Indian tribes have been prosecuting the 
great majority of criminal offenses on their reservations, including 
serious crimes, for many years now. Sentencing an individual to one 
year in jail is a serious deprivation of liberty, and as a Tribal Court 
Judge, I can tell you the court takes this responsibility very 
seriously. After years of adjudicating criminal cases, we have a 
demonstrated track record. In my years presiding as a judge in the 
Tulalip and Lummi Nation courts, and other Northwest Indian Tribal 
Courts, I am unaware of any habeas petitions being granted to Indians 
incarcerated as a result of Tribal prosecutions. Furthermore, the ICRA 
provides habeas relief in federal court which insures due process 
protections for criminal defendants. These are the same claims made by 
federal officials when Tulalip requested retrocession and the concerns 
have proven unfounded then and remain unfounded now.
    Although the commitment to protecting defendant rights is a shared 
value throughout Indian country, the ability to provide sufficient 
funding to justice systems varies greatly from tribe to tribe. I agree 
that the provision of criminal defense counsel to indigent defendants 
is an important aspect of prosecuting more serious crimes involving the 
potential for penalties that include extended incarceration. However, 
many Indian tribes have extremely limited governmental budgets and 
sufficient tribal funds are not always available for many essential 
government functions. While we do not object to the requirement to 
provide defense counsel as a condition to exercising longer sentencing 
authority, it is imperative for the Federal Government to provide a 
mechanism for funding this responsibility. If the serious public safety 
issues on many reservations are going to be addressed, the Federal 
Government must fulfill its trust obligation by providing funding, or 
funding mechanisms to provide for public defenders in Indian country.
    Finally, I feel it is important to respond to Department of Justice 
objections to provisions in the proposed legislation which would 
require additional Justice Department emphasis and accountability in 
Indian Country. Apparently, current Justice Department officials 
believe that the status quo is sufficient and that there is no need for 
improvements in federal justice efforts in Indian Country.
    The Department of Justice's own statistics demonstrate better than 
anything else the need for Congress to act to compel the Justice 
Department to re-prioritize its responsibilities to Indian Country. 
Despite statistic showing a crisis in violent crime rates, Justice 
Officials cited the filing in 2006 of 606 total cases in all of Indian 
Country as evidence that it was effectively fulfilling its criminal 
justice responsibilities. This number is unacceptable in the face of 
the staggering statistics of violent crime in Indian Country. 606 total 
criminal cases filed for all of Indian Country--covering over 562 
federally recognized tribes with a population of approximately 1.6 
million amounts to little more than one prosecution per tribe per year. 
Contrast the Justice Department's 606 criminal filings with the 493 
criminal cases filed in the Tulalip Tribal Court alone in 2006--a 
single reservation with a population under 4,000; or the 9,973 criminal 
cases filed in Seattle-King County Superior Court in 2006 (just south 
of the Tulalip with a population of 1.8 million).

The Need for Greater Federal Support and Funding for Tribal Courts
    The experience at Tulalip has demonstrated that, given adequate 
resources, tribal courts provide the most effective means of addressing 
the problem of crime in reservation communities. Tulalip has seen first 
hand the dramatic change in serious criminal behavior from a crisis 
situation a couple of decades ago to one in which crime are being 
steadily reduced. The difference has been the result of a comprehensive 
tribal police presence on the Reservation accompanied by an effective 
Tribal court justice system.
    Tulalip has been able to step forward and make a difference due to 
recent gains in economic development brought about by its gaming and 
business enterprises. However, these business revenues are subject to 
economic cycles and other factors outside the Tulalip Tribes control. A 
business downturn could easily put the Tribes public safety gains at 
risk. Like all Tribal governments, Tulalips' public safety 
infrastructure needs a reliable source of government revenue.
    The Tulalip Tribes urges this committee to enhance the Tribal Law 
and Order Act by not only authorizing an increase in sentencing 
authority, but by authorizing an increase in tribal justice system 
funding. No other governmental entity has a greater stake in reducing 
reservation crime than the tribal governments themselves. What tribal 
courts need to be successful is sufficient level of reliable support--
in terms of training, technical assistance, and funding. The recent 
funding authorizations for Tribal justice and law enforcement included 
in S. 2731 are a step in the right direction. I urge the Committee to 
press for passage of the tribal justice funding included in S. 2731 and 
continue to authorize greater investments in tribal courts as the most 
effective use of federal resources to combat the problem of crime in 
Indian Country.
    An increase in direct Tribal funding should be complemented by 
legislation that empowers tribal government to raise revenues 
themselves to meet their public safety needs. Recent Supreme Court 
cases which limit taxation powers of tribal governments create serious 
obstacles for tribes struggling to fund public safety needs. Taxation 
provides a steady and reliable source of revenue that is now 
effectively foreclosed to tribal governments due to land status and de 
facto limits on taxation of persons and businesses operating in Indian 
Country.
    I thank the Committee for this opportunity to provide testimony on 
these important issues of tribal criminal justice and I would be glad 
to provide additional information and assistance in support of the 
Committee's efforts to strengthen tribal justice systems throughout 
Indian Country.

 ADDITIONAL COMMENTS OF THE TULALIP TRIBES ON THE PROPOSED TRIBAL LAW 
                         AND ORDER ACT OF 2008

    FTCA Coverage for Tribal Law Enforcement.--This is an issue that 
has been in dispute in recent years, and several courts have found the 
FTCA did not cover tribal police for many law enforcement related 
torts, even though the tribal police departments at issue were 
operating under P.L. 638 contracts. 28 USC 2680 (h) provides that the 
FTCA covers assault, battery, false imprisonment, false arrest, abuse 
of process, or malicious prosecution of investigative or law 
enforcement officers of the United States.
    When a Federal Tort Claim is brought against a tribal police 
officer for assault, battery, false imprisonment, false arrest, abuse 
of process, or malicious prosecution, the United States currently 
points to 2680 (h) and says that tribal officers are not covered if 
they do not carry a commission from the BIA as a law enforcement 
officer under 25 CFR 12.21. This interpretation has left Tribal police 
department operating under 638 contracts without FTCA coverage for 
their tribal law enforcement officers.
    Insurance coverage and costs are major issues for tribal police 
departments. Insurance coverage is also important in securing cross-
deputization agreements with surrounding jurisdictions. The Tribal Law 
and Order Act presents an opportunity to clear up this problem by 
authorizing FTCA coverage for Tribal police officers operating under 
638 contracts. We propose the following amendment be added to the bill:
    Amending Indian Self-Determination and Education Assistance Act of 
Nov. 5, 1990 (codified at 25 USC 450f notes) by adding the following 
language:

        Provided further, that any tribal law enforcement officer 
        deemed to be covered under the Federal Tort Claims Act shall 
        not be excluded from coverage for assault, battery, false 
        imprisonment, false arrest, abuse of process, malicious 
        prosecution because of the lack of commission or other 
        appointment by the Bureau of Indian Affairs under 25 CFR 12.21 
        or other federal agency.

    Section 2. Purpose. We suggest that a reference be added that 
Tribal law enforcement is frequently responsible for responding to 
distress calls for both Indian and non-Indian residents of their 
reservations.
    Title I, Sec. 102. We support the provisions directing federal law 
enforcement and the U.S. Attorney to report to tribal justice officials 
with regard to termination of criminal investigations or declination of 
cases. We request that the language be amended to ensure that if a 
tribal justice officials request case files and evidence after a 
federal declination, that the transmission of such files be mandatory 
rather than permissive.
    Title II, Sec. 202. We support assistance and funding for inter-
governmental cooperative law enforcement agreements between tribes and 
other jurisdictions. We request that the authority for support and 
funding be revised to include support for implementation and 
development of existing joint programs, as well as for new programs. 
Tulalip has an existing program, but continuing assistance and funding 
is necessary to ensure the continued viability of its Tribal-County 
cooperative Law enforcement agreement program.
    Title III, Sec. 304. As explained above, the Tulalip Tribes 
supports the extension of Tribal Court Sentencing authority. We request 
that the legislation additionally include authorization for funding 
tribal public defender programs.
    Title IV, Sec. 401, 402, 403. The Tulalip Tribes support re-
authorization of provisions of the Indian Alcohol and Substance Abuse 
Prevention and Treatment Act of 1896, the Indian Tribal Justice Act, 
and the Tribes COPS program(Omnibus Crime Control and Safe Streets 
Act).
    Title IV, Sec. 404. We urge the Committee to authorize additional 
funding for construction and operation of tribal and inter-tribal 
regional detention facilities.
    Title IV, Sec. 406. Tribal juvenile justice is a huge unmet need 
that is unaddressed by this legislation. The Tulalip Tribes urges the 
Committee to add authorizations for federal support and funding of 
tribal juvenile justice systems. If congress is serious about reducing 
the serious public safety problems present on many reservations, it 
must invest in tribal juvenile justice programs.
    Title V, Sec. 502. The Tulalip Tribes supports improvement in 
Tribal data collection systems, which is a big need in Tribal justice 
systems today. We request, however, that the legislation add a 
requirement for the Office of Justice Services to consult with Tribes 
in advance as to the development of grant program requirements. In the 
past, certain grant program requirements, such as mandating the sharing 
of fingerprints with outside agencies, caused many tribes to forgo 
grant opportunities.

    The Chairman. Judge Pouley, thank you very much. Thank you 
for being with us.
    Let me mention that the Honorable John St. Clair, Chief 
Justice of the Eastern Shoshone and Northern Arapaho Tribal 
Court was scheduled to be a witness today. He is apparently in 
Cincinnati, Ohio, courtesy of the airlines. As you might know, 
very substantial storm systems came through and I think 
interrupted flight plans, so he is not able to be with us. But 
we appreciate his attempt to get here and we will include his 
statement as a part of the permanent record as well.
    Finally, we will hear from Ms. Dorma Sahneyah, who is the 
Tribal Prosecutor at the Hopi Tribe in Kykotsmovi, Arizona. You 
are the Tribal Prosecutor, and we appreciate your being here 
today. You may proceed.

  STATEMENT OF DORMA L. SAHNEYAH, CHIEF PROSECUTOR, HOPI TRIBE

    Ms. Sahneyah. Thank you.
    Thank you, Chairman Dorgan and members of the Committee for 
taking the time to seriously consider the needs of tribal 
justice systems in Indian Country.
    My name is Dorma Sahneyah. I am an enrolled member of the 
Hopi Tribe in Arizona. I have a law degree from Arizona State 
University School of Law. I have served as Hopi Chief 
Prosecutor for the past 12 years.
    I represent a work group consisting of tribal government 
leaders, chief justices, judges, lawyers and behavioral health 
experts from the Hopi Tribe, Navajo Nation, Salt River Pima-
Maricopa Indian Community, Fort McDowell Yavapai Nation, and 
BIA Tribal Courts Program. Navajo Nation Chief Justice Herb 
Yazzie, Hopi Chairman Benjamin Nuvamsa, and Salt River 
President Diane Enos are the work group leaders.
    The work group submitted two memoranda to the Committee on 
April 21 and July 10. The first addresses what Indian justice 
is and what it needs. The second addresses interagency 
provisions to the Indian Alcohol and Substance Abuse Prevention 
and Treatment Act. Both memoranda will be included as addenda 
to my written statement.
    The core responsibilities of Indian justice are broader and 
more community-oriented than American justice. In addition to 
determining guilt and punishment, tribal courts have the 
responsibility for the overall well being of the entire 
community. As a result, Indian justice demands that offenders 
take personal responsibility.
    Indian justice is not soft on crime and does not exclude 
detention and penalty fines. The responsibility of bringing 
restoration to our communities is a vital duty. In all tribes, 
restoration generally requires that the offender be given real 
opportunity to make right the wrong, and to become a productive 
member of the community.
    Community participation should be a given. Salt River takes 
community inclusion seriously so as to have located their 
detention center in the heart of their community, both for 
community access and to maintain the sense of community 
membership in inmates.
    It is ironic that restoration under the American justice 
system is becoming increasingly important as an alternative to 
incarceration, while tribes, eager for legitimacy, have for 
years been taught to unlearn these core duties of Indian 
justice or address them outside of the tribal court system.
    Tribal courts generally are under-funded. Funding that is 
allocated for restoration programs is often given in piecemeal 
fashion through limited grants. Problem-solving courts which 
should be the pillar of American Indian justice systems are 
considered alternative programming. Rehabilitative sentencing 
tools have been in short supply. We need treatment resources 
and facilities for alcohol and substance abuse, behavioral 
health counseling, meaningful interagency collaboration, and 
the ability to control an offender's time in detention and 
rehabilitation, with the goal of full acceptance of personal 
responsibility for criminal behavior.
    Our court systems are the principal players in the process 
of achieving restoration. Yet, our judges are constrained by 
limits on sentencing authority and fear of overstepping roles 
defined for them according to modern court systems. These 
constraints stem largely from more than a century of being told 
what is right and what will best work in Indian Country by 
others who live lives far removed from Indian reservations and 
culture.
    Restoration responsibilities cannot be incorporated into 
core tribal court functions without adequate resources and 
personnel, facilities, and funding. We recommend that tribal 
interagency coordination and collaboration in Indian alcohol 
and substance abuse treatment be given full focus and 
encouragement. The approach so far has been to compartmentalize 
responsibilities and services, discourage resource and 
information sharing, yet require that services be somehow 
jointly applied. The Hopi Healing to Wellness Court lacks a 
Federal agency collaboration partly for this reason.
    We recommend first that a consistent framework be 
established for interagency coordination and collaboration, 
that justice and health consolidate their playing field in 
Indian Country, and that programs be fully funded.
    I understand that some recommendations of the work group 
have already been incorporated into the bill and that funding 
remains an issue. I would like to emphasize that our courts 
must be legitimate for our people. For many years, tribal court 
practitioners have strived to make tribal courts legitimate in 
the eyes of non-natives. Seemingly, no matter how dedicated 
tribal courts are to their function, they are doomed to being 
perceived as substandard, even when compared to local justice 
courts in some States like New York, where part-time plumbers 
and retirees who lack any understanding of law, have authority 
to sentence wrongdoers up to two years.
    Our judges receive compulsory ongoing training. Training is 
provided by tribal, State and Federal programs at the National 
Judicial College at the University of Nevada, which is 
affiliated with the American Bar Association. All Hopi Justices 
must be law school graduates. All Navajo Nation judges must be 
members of the Navajo Nation Bar.
    In our tribal courts, witnesses are sworn. Records of court 
proceedings are maintained and accessible to the public. 
Written, reasoned judgments must be produced for appeal 
purposes. And avenues exist for appeal in our appellate courts. 
Individuals in our respective courts are afforded all the basic 
rights guaranteed under the Indian Civil Rights Act. We give 
great weight to due process of law.
    Additionally, our courts strive to meet greater and more 
encompassing rights based on our own common values of 
fundamental fairness. I expect that persons with little or no 
knowledge of how tribal courts operate would be surprised at 
how similar tribal court procedures are to those of State and 
Federal courts.
    We acknowledge that much work lies ahead and we stand ready 
to continue to work closely with the Committee and staff.
    On behalf of the work group, thank you for the opportunity 
to testify today on these critically important issues. Thank 
you.
    [The prepared statement of Ms. Sahneyah follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    

    The Chairman. Thank you very much for your testimony.
    Mr. Ragsdale, let us first address this issue. Judge Flies-
Away has raised the issue of a detention facility in his State 
that has been vacant for--Judge Flies-Away, how long?
    Mr. Flies-Away. About nine months or so.
    The Chairman. So we have a detention facility that is, I 
assume, desperately needed.
    Mr. Ragsdale. Juvenile.
    The Chairman. A juvenile detention facility that has been 
vacant for nine months, brand new, sitting empty in a 
circumstance where they desperately need that facility. Tell me 
what is happening there.
    Mr. Ragsdale. Actually, it has been longer than nine 
months, Senator. It has been over a year. We have not been able 
to adequately staff that particular facility. Hualapai sits in 
a remote location in the State of Arizona and we have not been 
able to recruit qualified staff. Now, the tribe has recently 
within the last 30 to 60 days proposed to contract to do the 
service itself.
    The Chairman. Do you have money in that facility?
    Mr. Ragsdale. Yes, sir.
    The Chairman. How much?
    Mr. Ragsdale. We have money for operations that is for 
staffing, and we have money for operation and maintenance. I 
don't know what the number is.
    The Chairman. But the judge indicated they have put $4 
million into building this facility. My question is, does the 
Bureau of Indian Affairs have money in the construction of this 
facility?
    Mr. Ragsdale. No, sir. That was a Department of Justice 
grant funded facility, as were the 21 other facilities that are 
either under construction or have been constructed.
    The Chairman. And was the expectation when that facility 
was built that the Bureau of Indian Affairs would be 
participating in the staffing of it, judge?
    Mr. Flies-Away. The hope was that IHS and BIA would do it 
together and have it more of a restorative-type healing place, 
but then the funding doesn't do that.
    The Chairman. That is unbelievable to me. So we have a 
facility that would hold 43, 46 juveniles. We desperately need 
the beds in the facilities, and it is sitting there empty over 
a year. Is there some emergency action that we can take, or 
that you can take, to resolve this?
    Mr. Ragsdale. Well, the problem has not been the funding, 
although the tribe believes that the funding is too low for 
staffing, but nonetheless they have decided to contract the 
operation out. We have money for operation and maintenance. We 
have money for staffing. The difficulty in opening that 
particular facility is we have not been able to recruit the 
qualified staff. The tribe believes that they can, and we 
intend to provide them with all the assistance that we can do 
to make that operation successful.
    The Chairman. Judge, would you keep in touch with this 
Committee over the next two months? I want to try to find out 
how this works.
    Mr. Flies-Away. Yes, sir.
    The Chairman. Judge, I read last evening, I believe there 
was a story about your work. Was it The Wall Street Journal?
    Mr. Flies-Away. Yes.
    The Chairman. I read the story in The Wall Street Journal 
about your work, and they described essentially a day in the 
life of a tribal court judge. One of the things that occurred 
to me was you had people come in front of you, in many cases 
young people, apparently guilty of some very violent crimes, 
crimes perpetrated against mothers, sisters, brothers, 
strangers, assault and battery, very vigorous assault. And it 
appeared to me that they came to your court, in some cases they 
had been previously convicted of violent crimes against other 
people, and you didn't have a place to put them. I mean, you 
didn't have a cell to send these people to, particularly 
juveniles. Is that correct?
    Mr. Flies-Away. That is correct. We actually had a stabbing 
two weeks ago when I was here in D.C. and those individuals 
could not be taken because our juveniles have to go to Gallup, 
Tajique, or Globe, Arizona, which are five, six, seven hours 
away, and they will only take them on certain things, and the 
BIA can't transport them.
    I have many warrants for minors and adults and they are not 
served for the minors because they can't take them. This is 
funny. They say, well, we could do it next Tuesday, because 
they are going to do a transport. So we have to do our 
detention stuff on a schedule, so it doesn't work. But yes, it 
is not good, not good at all.
    The Chairman. You know, you heard in the opening statement, 
we have 50 percent of the murders committed on reservations are 
declined for prosecution by the U.S. Attorneys, 76 percent of 
rapes and sexual assaults are declined for prosecution by the 
Federal authorities.
    Now, I assume when there is declination on the part of the 
Federal authority, some of that comes to your tribal courts, 
Judge Pouley and Judge Duran and others. When that happens, you 
are limited at this point to imposing a one-year sentence on 
someone who committed a violent rape. You have an opportunity, 
I assume--and you can answer this--if there is a declination by 
U.S. Attorney on something that you think clearly needs to be 
prosecuted, let's say it is a murder or a violent rape, you can 
bring them into tribal court at that point if they are an 
Indian, Native American. And then the most significant sentence 
you can impose is one year incarceration. Is that correct, Ms. 
Pouley?
    Ms. Pouley. That is absolutely correct. And we actually do 
those cases, a number of them, every year, regardless of the 
seriousness of the crime, regardless of the injury, regardless 
of the fact that it is a rape of a child, we are absolutely 
limited to one year in jail as a maximum penalty.
    I wanted to address, though, Mr. Chairman, the concept that 
the Department of Justice would even provide tribes with 
information that they had declined prosecution. We are actually 
in a bit of a catch-22. We don't receive that information at 
all. So tribal prosecutors and tribal courts are left with 
trying to decide whether they should use their resources to 
prosecute without any information from the Department of 
Justice.
    The Chairman. Well, the legislation we introduced yesterday 
is going to change all of that. But as you all watch, you are a 
prosecutor and we have three tribal judges here, as you all 
watch this process, is it your impression that U.S. Attorneys' 
offices put this sort of in the back of their office? It is not 
front-shelf to try to go out to a reservation to determine what 
is our responsibility, what should we prosecute? What is your 
impression of the cooperation of the U.S. Attorneys' offices?
    Ms. Sahneyah. Well, the U.S. Attorney's office in Arizona 
is located in Phoenix. The Hopi reservation is a good five-hour 
drive from there. So you know, we are in a very remote area. 
And as Judge Pouley indicated, we don't share a lot of 
information. I have a jury trial that is scheduled on a murder, 
a homicide case on the end of this month, on the 30th. We just 
finished a trial on a juvenile who was convicted of homicide in 
our court. And like Judge Flies-Away said, we don't have any 
detention facility at all. What we are going to do with this 
juvenile in sentencing, we are going to have to come up with 
some alternative kinds of things. So we are having those kind 
of issues.
    The Chairman. Mr. Ragsdale, in Operation Dakota 
Peacekeeper, you have put some folks, 20 people, down into the 
Standing Rock Reservation. We have a violent crime rate that is 
five times the national average. I appreciate the work you have 
done. I know that my colleagues from North and South Dakota do 
as well. It is a 90-day proposition. I am going to do a hearing 
down on the Standing Rock Reservation August 4, or August 3 
perhaps, August 3. But I want to ask a question about that.
    You put in BIA folks down on the reservation. Let's assume 
that there is a crime they observe on the reservation and the 
tribal court is going to prosecute the crime. Can your BIA law 
enforcement official testify at the tribal court?
    Mr. Ragsdale. Yes, sir. And I have met with the tribal 
court officials at Standing Rock, and have assured them that 
even though many of the people are detailed from long 
distances, that if it is a serious case, we will make that 
officer available.
    The Chairman. Is that true across the Country? Or is it 
just true with respect to Operation Peacekeeper?
    Mr. Ragsdale. It should be true across the Country. I mean, 
our duties and responsibilities, whether it is a tribal police 
operation or a Federal police operation, are to honor the 
requests of the court. Now, there are maybe logistical or 
staffing problems involved in certain instances, but the 
instructions and the policy of the Bureau of Indian Affairs is 
that we are officers of the tribal court and unless there are 
unusual circumstances, we should obey the orders of the court 
and cooperate with them fully in the prosecution.
    The Chairman. There is no prohibition against a BIA law 
enforcement official testifying in a tribal court?
    Mr. Ragsdale. I have testified a number of times in tribal 
court, as well as BIA police officers do that routinely. Now, 
there are some circumstances that arise that there is a 
conflict with the court, and it is fairly unusual, but in those 
instances we consult with our attorneys and advise the court 
that there is an intrusion into the Federal duty responsibility 
and we cannot cooperate.
    The Chairman. Let me frame it another way. Is it your 
policy to cooperate with the tribal courts and testify when 
necessary?
    Mr. Ragsdale. Absolutely.
    The Chairman. And do the tribal judges experience that?
    Mr. Flies-Away. Well, let me just read you a letter from 
Solicitor Quinn from Arizona. Subpoenas or court orders 
requiring DOI employees to appear are controlled by 43 CFR 
2(H)2007ED. Forty-three CFR Section 2.81 provides that no 
officer or employee of the DOI may give testimony in any 
administrative or judicial proceeding relating to the business 
of the government without the permission of the head of the 
appropriate bureau or his designee.
    So, I mean there is a little bit of holding back.
    The Chairman. That would imply it is not routine, that they 
have to get special permission in order to testify.
    Mr. Flies-Away. Yes.
    The Chairman. Mr. Little or Mr. Ragsdale, is that your 
impression?
    Mr. Ragsdale. No. I don't think that is--we routinely 
testify in tribal courts throughout this land.
    The Chairman. Can we straighten this out?
    Mr. Ragsdale. I think that he may be referring to an 
administrative determination.
    Mr. Flies-Away. A judicial proceeding, it is not an 
administrative one.
    The Chairman. We need to resolve this, because if a 
solicitor is writing that, that is at odds with your testimony. 
I mean, this shouldn't be a question for us. We should be able 
to resolve it.
    Judge Pouley, did you have a response to that? Did you wish 
to comment on it?
    Ms. Pouley. I didn't in particular wish to comment, except 
to say that I know there have been problems with tribal courts 
in the State of Washington and the Northwest tribal courts to 
get Bureau of Indian Affairs officials to testify in tribal 
court, and we don't have any ability to enforce it.
    The Chairman. It shouldn't be a problem and you should be 
able to enforce it. In fact, the legislation we introduced 
yesterday will solve this problem. In the meantime, before this 
legislation is enacted, we really should resolve this.
    Mr. Little. I think, Mr. Chairman, we have two different 
issues here. In terms of the officers, they are always required 
to respond to the tribal courts issues and they generally do. 
In fact, in many instances the BIA officer is actually the 
prosecutor, where you don't have a tribal prosecutor to deal 
with the case.
    I think what the judge is referring to is that there is a 
written policy, at least from the solicitor's standpoint, in 
dealing with other Federal employee as witnesses, especially 
social workers, where they are being required to come into the 
court for different issues. Those are the ones that tend to 
have, I don't want to call it an exemption, but those are the 
ones that are saying without proper clearance they can't come 
before the court. I think it is a different issue with law 
enforcement.
    The Chairman. We will try to resolve that. We will ask our 
staff to try to figure out what is happening and try to resolve 
it. As I said, our legislation will resolve it for sure.
    Senator Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman. We both have 
had an opportunity to speak a little bit about the legislation, 
but as you point out, it is not enacted into law yet and so we 
are not operating under that.
    But Judge Flies-Away, you mention that it would be a good 
thing to allow for increased sentencing to three years, but if 
you don't have the detention facilities, then, as you 
indicated, Ms. Sahneyah, you have to be creative in looking at 
the alternatives.
    But what do you do? The situation that you mentioned was a 
juvenile and convicted of a homicide. What is your alternative 
with that young person? You don't have the bed space. You don't 
have the detention facility. One of the fixes, if you will, in 
our legislation allows for the tribes to send those that have 
been convicted to the U.S. Bureau of Prisons system. Well, that 
will help down the road, but what are you doing now?
    Ms. Sahneyah. What we are doing right now is we have sent 
an order, we have requested an order and the judge issued it to 
our Behavioral Health Department, looking at the background of 
this juvenile who has a lot of issues in his growing up years. 
We have gone toward a treatment-type of focus. We asked them to 
do assessments to see if we could actually place this juvenile 
into a treatment facility in lieu of detention, hoping that we 
could go ahead and start maybe some process of rehabilitation.
    Now, you know, that is better than nothing. He will be in 
some sort of a confined treatment facility where he would begin 
to address his issues, things like that.
    Senator Murkowski. What do some of the others of you do? 
Judge Pouley? Judge Duran? What have you had to do as you deal 
with the fact that you simply don't have the detention spaces 
available?
    Ms. Pouley. Tulalip has had the opportunity to utilize a 
couple of alternative sentencing mechanisms. So, for example, 
we can use electronic monitoring or home detention. We can 
exclude people from the boundaries of the reservation that pose 
a danger to our communities. Not for the serious, violent 
offenders, but because of the rampant rates of substance abuse 
in Indian Country, our goal really is to address the underlying 
issue that causes the criminal activity.
    So regular meeting with the judges, maybe coming to visit 
with the judge one time a week, to hold that offender 
immediately accountable, with short-term jail sentences instead 
of long-term jail sentences is really a solution. But there is 
a lot of sort of creative mechanisms, none of them really 
address the issue where you have serious, violent offenders 
that need to be incarcerated and punished.
    Senator Murkowski. Let me ask you, Mr. Ragsdale, you had 
mentioned in your comments that when it came to the BIA and the 
focus, you mentioned, first, funding, and then technical 
assistance and training. What kind of technical assistance and 
training to you make available to the tribal courts? We 
recognize that we have a serious problem with the funding 
component, but are there other things that you can be doing 
more of to help assist the tribal courts here?
    Mr. Ragsdale. Allow me to ask Mr. Little to address that 
because he is directly involved in it. But if I may, I would 
like to come back to the juvenile justice system. I can tell 
you first-hand as a former tribal police officer, the juvenile 
justice system in America is generally inadequate. If you take, 
first of all, a child under 18, if you are going to put them in 
a lock-down facility, the court first has to adjudicate whether 
or not they are going to be treated as an adult or as a 
juvenile. But there is generally across America a lack of 
adequate bed space and treatment for juveniles that have been 
adjudicated in court, whether it is a tribal court or a State 
court or Federal system. So it is a problem that we all share.
    What happens is the police officer, when you have to take a 
child into custody, you are stuck with that child until you can 
find a facility and have a judge make a facility, and those are 
very difficult instances. I dealt with a homicide perpetrator 
that in a fit of rage accidentally killed his best friend. We 
adjudicated that child as a juvenile, which means he needed to 
be treated. We farmed him out to various facilities throughout 
the State of Oklahoma because he had fully served his sentence 
and could be placed in a foster home.
    Another instance I dealt with was a very young, an eight-
year-old that was a child molester, and had a very troubled 
background. There was absolutely no place to put that child. We 
finally ended up moving him to a treatment center for young 
juveniles for alcohol addiction, because that was the best 
place that we could find.
    Senator Murkowski. Can you speak a little bit about what 
technical assistance is available?
    Mr. Little. Yes. In relation to that, currently I have just 
hired a couple more attorneys on staff, and myself when I was 
working in the technical assistance area, a lot of the issues 
are calls from the various tribal courts and the tribes 
themselves asking for specific help. A good example of this 
would be two tribes we are working with right now.
    I have an associate up in Blackfeet right now talking to 
the tribal community and the council. There may be some issues 
in their constitution in terms of amendments to accommodate 
some of the needs within the tribal court system. We are 
getting ready to go down to a tribe in southern New Mexico, 
hopefully next week, to sit down with the judges and some 
detention facilities in the region and help them develop a 
telephonic arraignment system and maybe even a televised 
arraignment system. And through that technical assistance, 
showing the judges how to do that, as well as maybe providing 
them equipment with which to do it. This way we keep the 
officers on the reservation for longer period of time and they 
are not taking long transport because we detain them in about 
three different facilities down in that area.
    So it is kind of a day-by-day issue on the technical 
assistance. We also help in that process through our court 
review process where we have several current and past tribal 
and CFR judges on contract that go out and do our court 
reviews. At the same time they do the court reviews, they 
provide technical assistance to that court.
    The training is quite new. Back in the 1970s, the Bureau of 
Indian Affairs actually provided national training to all the 
judges. That was changed over the years and it was felt that 
the tribal courts could select their own training components. 
So DOJ has basically filled a lot of that gap. They do quite a 
bit of the training.
    We are just entering into the training area. I have hired 
an individual that has a lot of experience in legal training. 
That is why, as we indicated in our testimony, that we have 
opened up discussions with the Judicial College in Reno. We are 
looking more at filling gaps that DOJ is not performing right 
now in the sense of more on-site training that many judges are 
asking for.
    If you do the judicial training, you are talking about two 
or three weeks away from the court systems during the training 
cycle. What the judges are somewhat interested in, and 
especially their clerical staff, is something a little more on-
site, where we would actually go out, send people out to the 
field and do some on-site training.
    So we are just getting into that arena right now. We don't 
really have a track record in that regard. It is just more of a 
project we are getting into. But in the interim, I think the 
Department of Justice provides quite a bit of training in that 
area.
    Senator Murkowski. Let me ask one last question, and this 
is as it relates to VAWA, the Violence Against Women Act and 
the full faith and credit that is to be extended to all tribal 
protection orders. What is your experience with how that is 
working? Is the full faith and credit extended, then? Are you 
satisfied with how this works? Judge Pouley? Judge Duran?
    Ms. Pouley. I am just lucky sometimes not only to be a 
tribal court judge, but to be on in the State of Washington. 
Shortly after the passage of VAWA, tribal court judges were 
invited to several meetings with the Washington State Supreme 
Court and State court judges.
    I am happy to say that particular provision in VAWA means 
that tribal court protection orders protecting victims of 
domestic violence are routinely given full faith and credit in 
Washington State court and Washington State court orders are 
routinely given full faith and credit in all tribal courts in 
the State of Washington.
    Senator Murkowski. Judge Duran?
    Mr. Duran. Speaking specifically for New Mexico, we have 
come a long way with regards to the Violence Against Women Act. 
More specifically, I don't know if any of you are aware of the 
Project Passport. That was initiated through the Center for 
State Courts to develop a uniform first-page order of 
protection. The State of New Mexico Supreme Court, I currently 
serve as a co-chair for the Tribal-State Consortium for New 
Mexico. We have quarterly meetings. We completed three regional 
meetings, two specifically on Project Passport.
    The Supreme Court, by and through a task force on domestic 
violence, has at this point completed a comment period for the 
development of a first-page order of protection for the State 
of New Mexico courts. The Supreme Court is looking at adopting 
that uniform first-page order for protection to apply to all 
the district courts in the State of New Mexico, whereby all the 
district courts are to recognize that particular format.
    In addition to that, the tribes and pueblos of New Mexico 
are also looking at following suit and using that same or 
similar form to assist law enforcement for enforcement of 
orders for protection. Through this consortium, we have 
accomplished a lot of things throughout the years, especially 
the Indian Child Welfare Act, notice provisions to the tribes 
regarding placements of Indian children following State 
custody. So that is just one example of what you are inquiring 
about.
    Senator Murkowski. It is good to hear that.
    Mr. Duran. So New Mexico is in the forefront of 
accomplishing the full faith and credit provision under the 
Violence Against Women Act.
    Senator Murkowski. Good. I am pleased to hear that.
    Thank you, Mr. Chairman.
    The Chairman. Senator Barrasso?

               STATEMENT OF HON. JOHN BARRASSO, 
                   U.S. SENATOR FROM WYOMING

    Senator Barrasso. Thank you very much, Mr. Chairman. Thank 
you for holding the hearing, and thank you also for extending 
the kind invitation to Judge John St. Clair, who is our Chief 
Judge for the Shoshone and Arapaho Tribal Court. As you 
mentioned, he wasn't able to be here due to the storm, but 
thank you very much for including his remarks as part of the 
record.
    Listening, Judge Pouley, to you talk about your daughter 15 
years old and the fear that she lives in, one in three young 
women and the possibility of rape. I also have a 15-year-old 
daughter, and I know all the members of the Committee join me 
in thinking that no 15-year-old girl in this Nation should live 
with that fear. We want to do everything we can to help you and 
to help your daughter be raised without that kind of fear every 
day and every night. So I appreciate your comments.
    Mr. Chairman, the Federal Government has a significant role 
in providing the resources for the tribal justice system. The 
justice system runs full circle, and if we don't have adequate 
law enforcement, we don't have order. If we don't provide our 
courts with the necessary resources, how can justice be served?
    If the Federal Government does not step up, how can we 
expect our tribal courts to do their job? Today, our BIA law 
enforcement officers are dramatically understaffed. I see it in 
Wyoming. Our current resources allow only two officers to 
patrol 2.2 million acres of Indian Country on any given shift 
in Wyoming. However, according to the Wind River prosecutor, 
the BIA has allotted 21 law enforcement slots for the Wind 
River Reservation and has never filled them.
    We must also provide the necessary correctional facilities. 
We hear about when there is not a juvenile detention facility, 
and the Wind River Reservation does not have one either. Same 
problem, same issues, and we appreciate your comments.
    We have been in a position before where our judges and 
prosecutors get calls about releasing prisoners, for a number 
of reasons. We have had it with funding issues, instances where 
the prison heating system goes down, all the problems that you 
are dealing with.
    To all of us, these situations are unacceptable and of a 
great concern. I do hope we can get the Department of Justice 
and BIA to step up their efforts in assisting our tribes. As we 
move closer to considering the Tribal Law and Order Act, I look 
forward to improving the justice system in Indian Country.
    We do not, Mr. Chairman, need a Washington one-size-fits-
all approach. We just need to provide the appropriate 
resources. With that, I must say that the Wind River courts and 
specifically Judge St. Clair, with their limited resources, do 
an incredible job with carrying out justice.
    Mr. Chairman, I did have several questions for Judge St. 
Clair, and I ask permission to submit those to the judge in 
writing and to include those answers as part of the record.
    The Chairman. Without objection.
    Senator Barrasso. Thank you, Mr. Chairman.
    The Chairman. Senator Tester?

                 STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    Senator Tester. Thank you, Mr. Chairman.
    I am sorry for being late. This is a critically important 
issue. I think that from a safety standpoint, it speaks for 
itself. I can't speak for tribes in other parts of the Country, 
but I can tell you tribes in Montana from an economic 
standpoint, it is tough to get people to come and work in a 
place that is not safe. Those are pretty basic things.
    I have a couple of questions. The first one is for anybody 
who can answer it. The Chairman talked about 50 percent of the 
murders in Indian Country being turned away by the U.S. 
Attorney, and 76 percent of rapes being turned away by the U.S. 
Attorneys. We don't have a U.S. Attorney rep here. Can anybody 
shed any light as to why that is occurring?
    Ms. Sahneyah. Some of the reasons that we perceive--I am a 
prosecutor in Arizona for the Hopi Tribe--is that they have 
very high standards in terms of evidence. It is pretty much the 
attitude that the case--they have to be assured that they are 
going to win. So a high level of evidence needs to be received 
by them.
    Senator Tester. Excuse me, I don't mean to interrupt, but 
is that standard consistent with off-reservation crime?
    Mr. Ragsdale. I believe, so, Senator. She is correct. I 
have been an officer and have sat in Federal grand jury 
proceedings. There is a higher standard of evidence that you 
must present with a case. I think that the U.S. Attorneys by 
and large that serve Indian Country are very diligent in the 
prosecution of cases. But the Federal system is different. We 
ask our U.S. Attorneys essentially to act like a State 
prosecutor and the system is not set up that way, as I 
understand it. The U.S. Attorneys could answer that better than 
I can.
    Senator Tester. Okay. Go ahead, Dorma. You can continue if 
you want.
    Ms. Sahneyah. Okay. And some of the other things are the 
distance. Like, for example, the Hopi reservation is about five 
hours one-way. Them being able to meet with witnesses that are 
on the reservation, meeting with law enforcement officers, 
sometimes that distance presents issues. A lot of the times the 
law enforcement officers, the criminal investigators, have huge 
caseloads, and being able to get out to interview witnesses 
presents issues, too.
    So those are some of the reasons. The places where they 
have to send evidence to be analyzed, the homicide case that we 
have scheduled for trial, the reason we have been given for 
them not taking the case has been that they haven't received 
analysis back from back east somewhere--Virginia?--wherever the 
location is that the U.S. Attorney's office sends their 
evidence to be analyzed. It takes a large amount of time, so we 
are just sitting and waiting.
    Our statute of limitations is one year, so in order to get 
that individual off of the streets on the reservation, we took 
the case and have him in jail so that the family of the victim 
is at least believing that something is happening.
    Senator Tester. Okay. So if the U.S. Attorney doesn't take 
the case because of what they perceive as a lack of evidence or 
a lack of a slam-dunk, then it falls into the tribal court's 
hands.
    Ms. Sahneyah. Right. Well, generally, it is all sent to the 
prosecutor's hand. We decide that we are going to go forward 
with it, and then we bring it before the tribal court judge.
    Senator Tester. And is the tribal court limited--and if you 
covered this in your testimony, my apologies. Is the tribal 
court limited as far as the sentences go, to one year?
    Ms. Sahneyah. And a $5,000 fine.
    Senator Tester. And a $5,000 fine if they are convicted of 
murder.
    Ms. Sahneyah. Correct.
    Mr. Duran. Senator Tester, specifically for Hickory Apache 
Nation Court, the tribal council legislative body has limited 
the maximum sentence with the old requirement of the six months 
incarceration, as opposed to bumping it up to the one year. So 
for Hickory specifically, they have now made that transition to 
one year incarceration.
    Senator Tester. Got you. I know there is a separation of 
powers here, but does this seem right to you, Patrick?
    Mr. Ragsdale. No, it doesn't seem right to me that we have 
an appearance of a second-rate justice system in America, one 
for all Americans and one for tribal Americans. That doesn't 
seem fair.
    Senator Tester. How would you recommend we solve it?
    Mr. Ragsdale. Well, the Department has not taken a position 
on your bill, as you know, but I will tell you, I mean, I 
commend the Committee for the effort. But from a personal 
standpoint as a former law enforcement officer, unless the 
tribes and the law enforcement providers have the capacity to 
totally administer a three-tiered justice system, it is nice to 
have provisions to give the tribes more flexibility and restore 
some of the powers that they historically had until the United 
States took them away from them. But without the capacity to do 
that correctly, it is not going to mean a whole lot as far as I 
am concerned.
    Senator Tester. Yes.
    Mr. Duran. Senator Tester?
    Senator Tester. Yes?
    Mr. Duran. Also with regard to some of those issues, I had 
the opportunity throughout my judicial career to work with 
several Assistant U.S. Attorneys over the years. They did 
express that there is a threshold issue when dealing with 
cases. The major factor, especially with law enforcement, is 
that the first 24 hours is very critical. Oftentimes, law 
enforcement agencies are not adequately serviced or certified 
to conduct a lot of the investigations that are needed as well. 
And so a lot of the evidence that Ms. Sahneyah has pointed out 
from the prosecutor's standpoint, there is not enough evidence 
to move forward with the Federal prosecution.
    The bill would address the appointment of special 
prosecutors which would assist in expediting a lot of those 
cases and moving them forward to a probable cause hearing, also 
for an indictment. In addition to that, in NAICJA's written 
testimony, we are proposing a similar concept, which would be a 
cross-deputization of tribal court judges as special magistrate 
judges to handle Federal cases for the initial appearance, and 
also for detention and probable cause hearings. That might also 
expedite.
    Senator Tester. Okay. Let's move to a different topic for a 
second. I have a ton of questions here, but I just kind of want 
to go off of what Senator Barrasso said about resources.
    Patrick, are you in contact with the tribal courts, yes, 
the tribal courts themselves to find out what they need for 
resources?
    Mr. Ragsdale. Mr. Little is more than I am, but yes, I am, 
when I have the occasion to talk to tribal prosecutors, judges, 
as well as law enforcement officers and others.
    Senator Tester. Can you generally encapsulate what they 
tell you? Do they have enough money? Too much money? Not enough 
money? What do they tell you?
    Mr. Ragsdale. As I testified, the amount that we provide is 
a very modest amount of financial assistance. If you look in 
the President's green book budget, there is a shortfall report, 
at least for the self-governance tribes, where the tribes 
report what--and generally what we did at the Cherokee Nation 
is we put the amount the BIA provided us, and then the 
shortfall was what the actual court operation was at the 
Cherokee Nation.
    Senator Tester. Got you. So where are they supposed to come 
up with the additional money if they are funded at a nominal 
level?
    Mr. Ragsdale. What the tribes do is rely on other Federal 
grants or they provide their own tribal funds to support the 
justice system, and most tribes do.
    Senator Tester. Okay. Well, I mean, it seems like kind of a 
crazy system to me. If your job is to fund it at a less than 
adequate level--is that what I heard you say?
    Mr. Ragsdale. No, sir, that is not what I said. What I will 
say is that tribal courts law enforcement detention, programs 
that I have responsibility for, compete with all of the other 
deserving programs that are administered by the Bureau of 
Indian Affairs.
    Senator Tester. You are talking, like, Indian Health 
Service?
    Mr. Ragsdale. For the Department of Interior, I mean, all 
of us compete at the end of the day for the funds that the 
United States appropriates to run the Federal Government. You 
know, so tribal leaders and Federal leaders have to make very 
hard choices of how to balance those disciplines and 
responsibilities to provide funding to because they are all in 
competition.
    Senator Tester. Do you think that more funds for the tribal 
court system would result in a safer environment?
    Mr. Ragsdale. Yes, I do.
    Senator Tester. Okay. So who does the fighting? This isn't 
the first time we have asked this question. I may have asked it 
to you before, but there are other people who have been up 
here. Who gets down and gets their knuckles scraped up when it 
comes to getting money? Because the truth is, the truth is, and 
I can't speak for this whole Committee, but I bet I can speak 
for a fair number of them, that what we want is self-
sufficiency in Indian Country. As long as the environment is 
safe, economically they are trashed. It ain't going to happen. 
It ain't going to happen.
    So who sits down and gets their knuckles dirty that we make 
an investment earlier, and hopefully it will save us money 
later because their economic structure will get better and will 
require less Federal dollars?
    Mr. Ragsdale. Well, in our Federal system, we have one 
President of the United States, and we have people, and all of 
us that work in the Federal workforce at the end of the day, I 
think are pretty good about advocating our program requirements 
and responsibilities. At the end of the day, a decision is made 
as to what the allocations are going to be made. I know the 
Appropriations Committees have a similar responsibility in 
determining what their targets are going to be.
    Senator Tester. Do you think--and this is my last question, 
I don't want to continue on this--but do you think the 
Administration cut this by $2.3 million in 2009 because they 
thought we would restore it?
    Mr. Ragsdale. I can't answer that, Senator.
    Senator Tester. Okay. Thank you very much.
    The Chairman. Mr. Ragsdale, did the BIA going up through 
the budget process recommend at least level funding or more 
funding for the tribal court system?
    Mr. Ragsdale. I believe so.
    The Chairman. So that proposal was cut somewhere after it 
left Interior.
    Mr. Ragsdale. Somewhere.
    The Chairman. You know, this is a matter of priority, and I 
do think all the evidence suggests that we do need some 
additional resources. We certainly don't need a cut in funding. 
My expectation is the Congress will restore, and my hope is we 
will try to adequately fund this. Part of our issue is to 
change the law so that we make some sense of this system. The 
system isn't working. And then the second part is to adequately 
fund some of these issues.
    So we propose changing the law to give the tribal courts 
some more authority, for example, three year sentencing. My 
understanding is that the Administration and the department 
oppose that. Is that correct?
    Mr. Ragsdale. We have not taken a position on that, Mr. 
Chairman. We in the Bureau of Indian Affairs have not.
    The Chairman. The Department of the Interior has, I 
believe, on June 19 testimony from the Department of Interior 
is that they oppose that, worried about some constitutional 
protections. We have included in the legislation a requirement 
for public defenders, a whole series of things that we believe 
offers that constitutional protection. Do you have something 
else, Mr. Ragsdale?
    Mr. Ragsdale. No, I was just trying to check to verify that 
position. I am told that we indicated that we had issues with 
that as a concept, but I don't think we have taken a formal 
position on the extension of the sentencing.
    I did want to say that on behalf of my Secretary, and I 
wouldn't say it if it wasn't true, is Secretary Kempthorne has 
been very much of a champion for us since the day that he first 
came to office. We briefed him and we are going to have a short 
time to brief him, and he took a couple of hours. It was his 
initiative to get the Safe Indian Communities funding started. 
I don't think that we got everything we wanted. I know we 
didn't get everything that the Secretary wanted, but it was his 
leadership that at least gave us a modest increase to our 
public safety budget. He has been a very firm supporter of it.
    The Chairman. Yes, Secretary Kempthorne is an awfully good 
guy. I have worked with him. He is a colleague of ours in the 
Senate prior to becoming a Governor and Secretary. So I have 
great respect for him, but he has very little running room, I 
think. I don't think Secretary Kempthorne is the one who is 
saying, you know what, let's cut the tribal courts. I think 
that runs through the Office of Management and Budget and the 
White House, and they decided to cut the funding for tribal 
courts when all the evidence suggests that it is a pretty 
foolish decision if you want to strengthen tribal courts.
    But I understand your point about the Secretary. I think he 
is--but I would say this, however. When he came to town, when 
he was appointed, we had had a two-year vacancy in the 
Assistant Secretary for Indian Affairs, running the BIA. So he 
came up with a candidate and I supported that candidate very 
strongly. We worked very hard to get the nomination complete, 
and a year later he is gone. We are not quite sure of the 
reasons for all of that. And now the position is vacant again.
    It is very hard for an agency that is part of this 
bureaucracy, and the BIA, you know, I feel is unbelievably 
bureaucratic. It is pretty hard for an agency to have good 
leadership when you don't have someone at the head. You have 
acting people in this area and that area. But I accept your 
point about the Secretary. I think the Secretary means well and 
wants to do well. I think he has precious little running room 
to do that, given the Office of Management and Budget and the 
White House.
    Senator Cantwell?

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman.
    If I could put a statement into the record, I appreciate 
it.
    The Chairman. Without objection.
    [The prepared statement of Senator Cantwell follows:]

Prepared Statement of Hon. Maria Cantwell, U.S. Senator from Washington
    Mr. Chairman, I would like to thank you for your continued 
leadership of this Committee and your dedication to the pressing issue 
of the administration of justice in Indian Country.
    These are issues that are paramount in our nation's responsibility 
to our Native American neighbors.
    I would like to begin by welcoming the Honorable Theresa M. Pouley 
Associate Judge of the Tulalip Tribal Court, an Associate Justice of 
the Colville Court of Appeals in Eastern Washington, and the former 
Chief Judge of the Lummi Tribal Court.
    As a Judge for the Northwest Intertribal Court System, she also 
serves as a trial judge and appellate court justice for several other 
Northwest tribes.
    I thank her for making the 3,000 mile journey to discuss the 
incredibly important issue of justice in Indian country. I also 
appreciate you sharing your expertise on how the proposed 
reauthorization of tribal court programs and expansion of sentencing 
authority will allow tribal courts to prosecute more felony crimes. 
This will ultimately improve the safety of those living on 
reservations.
    In October 2006, the Tulalip Tribal Court's Alternative Sentencing 
Program was awarded High Honors by the Harvard Honoring Nations Board-
one of only seven programs to receive this honor. This program uses 
best practices of drug courts and adds a native ``healing'' philosophy 
into criminal procedure that focuses on correcting behavior, not just 
punishing the offender. And it has had promising results.

        Twenty-five percent of the participants in the program do not 
        re-offend.

        The police chief reports violent crime is dropping drastically.

        Cases of resisting arrest are few and far between.

        Gang activity is down.

        And there is a significant decrease in the number of 
        outstanding warrants.

    The program is an example of a culturally appropriate justice 
system that has worked. It is also an example of why tribal courts are 
the most appropriate venue for prosecuting Indian Country crimes within 
their jurisdiction.
    Unless we give tribes the authority to sentence tribal offenders to 
longer terms, their abilities are limited. Unless we provide funding 
for tribal court judicial personnel, public defenders, facilities, and 
other needs of the courts, their abilities are limited. And unless we 
make a commitment to cooperation and a sense of partnership with tribal 
courts, their abilities are limited.
    And the people that depend on them will suffer.
    To successfully fight the problem of crime in Indian Country, we 
must provide a stable source of funding for tribal justice and other 
law enforcement and prevention programs.
    I have fought for this in the past and I continue this fight today.
    We've seen how programs that are culturally aware can serve justice 
for these communities.
    And if we continue to fight for the resources and funding, we can 
give this kind of success story to more Native American tribal courts 
and communities in America.
    Once again, my thanks to Chairman Dorgan for his dedication to 
these issues. Again, Judge Pouley, thank you for being here with us 
today.

    Senator Cantwell. I appreciate you and Senator Murkowski 
holding this hearing.
    I want to welcome Judge Pouley to Washington. Thank you for 
being here. Obviously, the Tulalips have had some success in 
bringing down the crime rate on the reservation. I know you 
talked about that in your testimony, and talked about using a 
variety of tools to do that--cooperative agreements, increased 
police presence, use of drug courts. So you have used a variety 
of tools to do that.
    How would the Tribal Justice Support Act help you in 
furthering those efforts to improve the tribal court system?
    Ms. Pouley. In a variety of ways. First of all, of course, 
stable funding is really one of the keys for tribal court 
systems. The Tulalip Tribal Court has been very fortunate to 
have a very supportive tribal government that funds the 
$970,000 it takes to run a court that hears 1,100 cases, 
because we only get $30,000 from the Bureau of Indian Affairs.
    So the court has been very lucky in having Tulalip sponsor 
those resources as a result of its economic gains. We have also 
been very fortunate in having the tribal court support 
continued economic gains at Tulalip, but of course all of those 
gains are fragile. They are contingent upon Tulalip's ability 
to attain stable funding for its justice system.
    So prioritizing tribal courts as the place to be able to 
resolve disputes that happen in Indian Country, funding tribal 
courts at a level that has been recommended, or providing 
alternative stable funding for tribal courts, providing a 
concerted, coordinated law enforcement effort, which includes 
all of the services that we think of in tribal justice systems. 
All of those provisions in the bill are going to help Tulalip 
continue to address the violent crime rate on our reservation 
in particular, but in all of Washington State and the rest of 
the Country.
    Senator Cantwell. Thank you.
    And how would increased tribal sentencing authority from 
one to three years help the Tulalip Tribe in the Northwest in 
our tribal system?
    Ms. Pouley. It is the first step towards giving us the 
ability to actually sentence offenders for murder or rape, to 
amounts of time that are actually proportionate to the crime 
that they have committed. By removing those offenders from the 
reservation and from the community, we make all of the 
community members, Indian and non-Indian, safer.
    We have the ability by using a three-year sentence to 
encourage offenders to change their behavior, where that is 
appropriate. It is just the first step towards addressing 
serious crime when the Department of Justice and other agencies 
can't. One of the things, and no disrespect intended to Mr. 
Ragsdale, but it is one of the things that has been repeated in 
the testimony before these hearings that somehow tribal courts 
are not competent to do that. I really have to take issue with 
that.
    Washington State tribal courts and tribal courts in the 
United States absolutely are. The statistics bear it out. If 
you take a look at the number of writs of habeas corpus filed 
in Federal court, that would the time that a tribal court had 
violated somebody's due process, I have not seen one in any of 
the courts that I serve. So the idea that somehow tribal courts 
aren't ready or aren't competent is just absolutely untrue.
    And given the sentencing authority from one year to three 
years just helps tribal courts develop in their own competency 
and address the issues that really face their communities.
    Senator Cantwell. If I could follow up on that, Mr. 
Chairman, have you served as a tribal court judge for rural 
tribes and urban areas, and some of those without reservations? 
I mean, do you think we can achieve this across those various 
differences of Indian Country?
    Ms. Pouley. I think almost all of the experts from Amnesty 
International to Justice Sandra Day O'Connor to Janet Reno to 
the U.S. Commission on Human Rights report in 2003, all say 
that Indian tribal courts are the best mechanism to be able to 
address this issue. The Amnesty International report in 2007 
specifically recommended this kind of coordinated Federal, 
State and tribal program as the only way to address the 
absolute rampant violent crime rates in Indian Country, and 
specifically wanted to encourage State and tribal cooperative 
agreements, as well as making sure that tribal courts as 
institutions are respected and properly funded.
    Senator Cantwell. Well, thank you.
    And thank you, Mr. Chairman. I know that I have talked to 
our Supreme Court justices before when they have visited 
Washington State, and looked at the tribal court system and 
have been impressed. I am glad you brought that up, as some of 
those who have endorsed having a stronger, robust system. So 
thank you, Judge, for being here.
    Thank you, Mr. Chairman.
    Mr. Ragsdale. Mr. Chairman?
    The Chairman. Yes. Mr. Ragsdale?
    Mr. Ragsdale. Can I just clarify so that it is clear. When 
I talked about capacity, I was not talking about the 
institution of the tribal courts and judicial forums of tribes, 
which are older than America. What I was referring to is if we 
do not have adequate detention and policing systems to handle 
additional responsibility, in terms of capacity. Not that I 
think that the tribal courts are less than State or Federal 
courts or anything of that nature, because I don't believe that 
is so.
    The Chairman. All right. I have visited the Tulalip Tribe, 
and I understand the aggressive and robust economic development 
that goes on in that tribe, and can only occur if you have a 
tribal justice system for enforcement of contracts, diminished 
crime and so on. So it seems to me that that is a success 
story, and I appreciate very much, Judge Pouley, your being 
here. Senator Cantwell, of course, speaks often and well of 
what you are doing in the Tulalip Tribe.
    This is a very important issue because if you are not safe, 
you know, a lot of other things in life cannot be accomplished. 
We talk a lot about if you don't have your health, that is a 
serious problem. So we do a lot on Indian health care.
    Crime, housing, these are the essentials of life, to 
address these issues. Today, we talked about the tribal court 
system. We appreciate the fact that you make the tribal court 
system work in many cases with far less revenue than you need.
    Again, Judge Flies-Away, I will encourage all of my 
colleagues to read the piece that was done about your work in 
The Wall Street Journal. It just describes a day in the life of 
a tribal court judge. You are someone with a substantial 
background and have gone back to the reservation to try to make 
the tribal justice system work. This Committee deeply admires 
that, and I hope all of us recognize the restrictions under 
which you work. Inadequate detention facilities, inadequate 
funding, you know, and yet you are trying to make this system 
work. So we appreciate that.
    I would say to Judge Duran and Judge Pouley and Prosecutor 
Sahneyah, we thank you very much for your work.
    Mr. Ragsdale and Mr. Little, thank you very much for being 
here today and providing the perspective of the BIA and the 
Department of the Interior.
    This hearing is adjourned.
    [Whereupon, at 11:02 a.m., the Committee was adjourned.]

                            A P P E N D I X

 Prepared Statement of Hon. John St. Clair, Chief Judge, Shoshone and 
                          Arapaho Tribal Court

    Mr. Chairman and members of the Committee on Indian Affairs, my 
name is John St. Clair and I have been the Chief Judge of the Shoshone 
and Arapaho Tribal Court since its creation in 1988; and prior to that 
Chief Judge of the Code of Federal Regulations (CFR) Court since 1983.
    I wish to thank you for invitation to testify today regarding the 
Indian Law and Order Bill.
    The Wind River Indian Reservation is in west central Wyoming 
consisting of approximately 2 million acres set aside by the Treaty of 
Fort Bridger, 1968. The Northern Arapaho and Eastern Shoshone (the 
Tribes) jointly occupy and own it. These are about 6,000 enrolled 
Arapahos and 4,000 enrolled Shoshones, many of whom live on the 
reservation along with non-enrolled Indians and non-Indians. Within the 
exterior boundaries there are about 35,000 people.
    In 2007 the Tribal Court processed 3,939 criminal, traffic and 
civil cases. The Court exerts criminal jurisdiction over all Indians 
who commit offenses prohibited in the Shoshone and Arapaho Law and 
Order Code and civil jurisdiction over all persons who have significant 
contacts with the reservation. The Court was created in 1988 by the 
Tribes exercising their inherent authority to administer justice that 
derive from their substantive powers of self government which fall 
within the domain of tribal sovereignty.
    Budgetary needs for 2007 totaled $490,000. Funding by the Bureau of 
Indian Affairs (BIA) was $137,844 pursuant to a P.L. 93-638 contract, 
while the Department of Justice (DOJ) provided about $170,000 in grants 
and the Wyoming State Bar Foundation awarded an $8,000 grant for 
criminal defense. When this funding is combined, there exists an unmet 
need of $174,000. Because of this deficiency in funding, the court 
system cannot employ adult probation or sentence accountability 
officers to supervise, monitor and enforce the terms and conditions 
contained in probation agreements, deferred prosecutions agreements, 
suspended sentences, temporary releases and restitution orders. This 
directly affects the courts ability to address Title III Section 304 of 
``Tribal Justice Improvement Act'' where a tribal court may require a 
convicted offender to serve an alternative form of punishment. Since 
grants are not secured funding the court is concerned with the proposed 
amendment of the Indian Civil Rights Act (25 U.S.C. 1302) to replace 
the present language of ``. . . at his own expense to have the 
assistance of counsel for bill defense;'' with, ``. . . to deny any 
person in a criminal proceeding the assistance of defense counsel; ''. 
The concern is that tribes may be required to provide for a tribal 
defender, thus creating a financial obligation that did not exist prior 
to this proposed bill.
    In 1995 the State of Wyoming passed legislation giving full faith 
and credit to civil orders of the Tribal Court and in compliance with 
the Violence Against Woman Act (VAWA) (18 U.S.C. 2265 and 2266) enacted 
provisions to extend full faith and credit and registration of tribal 
protection orders (W S 35-21-108 and 111). The Tribes have in the 
Shoshone and Arapaho Law and Order Code (SALOC) procedures for 
recognizing foreign judgments from outside jurisdictions at Title I 
Chapter 9 and under rule-making authority of the Chief Judge found at 
Rule 4-6-17 Rules of Criminal Procedure in 1999 Rule CU-109 
Recognization and Enforcement of Foreign Protection Orders was made to 
recognize and register outside protection orders.
    The Tribes have operated adult and juvenile drug courts since 2001. 
The courts were created pursuant to the same rule making authority of 
the chief judge utilized to comply with VAWA. An associate judge was 
assigned to carry out the duties in both courts. This has worked well 
because there is no conflict or competition with the existing court 
since the judge has the authority to sit in either court. The average 
number of clients in the drug courts are about 50 participants and 
approximately 10 of these successfully complete the program.
    Law enforcement services are provided by the BIA and there exists a 
lack of enough officers to adequately patrol the reservation. Compared 
to the state law enforcement system, the Wind River Reservation's 
resources are only about 60 percent. This impacts not only on how the 
department is able to deliver services, but knowledge in the 
communities that response may be inadequate or non existent. As a 
result many crimes are not investigated or not even reported.
    In conclusion, the goal of providing tools for tribal governments 
to address public safety concerns in Indian Country proposes 
$35,000,000 for jails and $10,000,000 for emergency shelters, but 
nothing for tribal courts who have vast unmet needs such as the 
Shoshone and Arapaho Tribal Court which totals $350,000 without 
considering grants. In addition, increased resources for law 
enforcement will result in a corresponding increase in tribal court 
caseloads which will also increase with the proposed increase in 
sentencing authority from a year and $5,000 to three years and $15,000 
or both. The impact of increased sentencing authority will be far less 
federal prosecution and more tribal prosecutions. Should ICRA be 
amended so that tribes must provide legal defense this will be an 
additional cost to tribal courts.
    Finally ITJA authorized but did not appropriate $50,000,000 base 
support funding each fiscal year for tribal justice systems. I 
recommend and request that the Tribal Justice Improvement Act of 2008 
include an appropriation of $50,000,000 each fiscal year for 2009 
through 2013.
    On behalf of the Shoshone and Arapaho Tribal Court System I want to 
thank the Committee for this opportunity to testify before you and 
express my support for this important legislation.







                                 ______
                                 
 Response to Written Questions Submitted by Hon. John Barrasso to Hon. 
                             John St. Clair
    Question 1. It is understood that BIA Law Enforcement is severely 
understaffed. How does this affect the unit's ability to enforce the 
law?
    Answer. With approximately 40 percent of the officers needed to 
patrol the 2.3 million acre reservation, many crimes go uninvestigated 
while others are not even reported because the community is aware of 
the situation. When more than one crime is reported, the department 
must choose which will take priority and the other must wait until 
someone is available.

    Question 1a. How does this shortcoming affect the tribal court?
    Answer. Police Officers aren't always able to attend trials or 
serve court papers because calls need to be responded to immediately. 
Because of speedy trial requirements cases have to be dismissed. 
Defendants know this and enter a plea of not guilty knowing that there 
is a good chance of dismissal. Another reason for non attendance is 
when an officer just goes off duty.

    Question 1b. What would you recommend to improve this situation?
    Answer. Increased funding to make more officers available or for 
the tribes to contract law enforcement and become eligible for 
additional funding outside the Interior Department.

    Question 2. The Shoshone and Arapaho Tribal Court cannot afford to 
employ probation and sentence accountability officers. What effect does 
this have on the effectiveness of the system?
    Answer. The effect is to undermine the system because defendants 
know that there will be no one to monitor and follow up on the terms of 
their probations. Any accountability is initiated by the judge or 
criminal clerk on a catch-as-catch-can basis which is inconsistent and 
unfair. This deficiency also inhibits the courts ability to collect 
fines paid on a monthly basis, to supervise a community service program 
and to follow-up orders to pay restitution.

    Question 2a. How does this affect the crime rate?
    Answer. It renders the justice system a ``paper tiger'' because the 
public knows that once they leave the court, no one is watching. They 
can forget their obligations until they commit another crime. Treatment 
requirements for drug and alcohol abuse and for domestic violence 
aren't being met by defendants, and as a result their underlying 
problem is never addressed. These kinds of violations continue and 
increase.

    Question 3. What if BIA would budget properly and fully meet the 
needs of law enforcement and tribal courts? Wouldn't it be more 
effective?
    Answer. Yes, the reservation needs to be adequately patrolled, then 
all calls need to be responded to immediately and fully investigated. 
Full funding would also mean that crimes could be fully prosecuted by 
the attendance at trial of the officer who is the complaining witness. 
Finally notices and subpoenas could be served in a timely manner.

    Question 3a. Wouldn't the rule of law be more consistent?
    Answer. Yes, presently, enforcement is haphazard and inconsistent 
due to lack of funding. There is no follow-up to requirements after 
conviction. With adequate funds these shortcomings could be corrected 
and the public would respect the justice system rather than just to try 
and find ways to avoid responsibility. This would result in the system 
having a deterrent effect on crime rather than little or no effect.

    Question 3b. Wouldn't the people of the Eastern Shoshone and 
Northern Arapaho Tribes have more confidence in their community?
    Answer. Yes, the public needs to feel safe in their homes with the 
knowledge that crimes involving violence, drugs and alcohol will be 
fully investigated and prosecuted. That's not the case today. Three 
young girls were found dead in a housing complex June 4, 2008. As of 
today no information has been released as to the cause of death. One 
parent stated that the BIA police refused to look for her daughter when 
she reported her missing earlier. If this is true, this refusal may be 
due to inadequate services or it may be due to neglect of duty. In any 
case this did little to bolster community confidence.

    Question 4. Is the BIA meeting its obligation to the people of the 
Eastern Shoshone and Northern Arapaho Tribes?
    Answer. No it is not. Resources for law enforcement and courts have 
historically been woefully inadequate to meet existing needs. Resources 
have ranged from 25-40 percent of need and as a result this reservation 
has one of the highest rates of crime in the nation. A major drug bust 
in 2005 revealed the existence of a major operation with sources out of 
Mexico. This was ale to develop due to inadequate law enforcement 
presence, lack of authority of tribes to prosecute non Indians, lack of 
sentencing authority of tribes which is limited to one year and a fine 
of $5,000 and to lack of co-ordination and even communication across 
jurisdictional lines.
                                 ______
                                 
      A Comparison of State Low Level Felony Sentencing Authority

              by M. Brent Leonhard and Cisco Minthorn \1\
---------------------------------------------------------------------------

    \1\ Brent Leonhard is the Deputy Attorney General of the 
Confederated Tribes of the Umatilla Indian Reservation. Cisco Minthorn 
is a summer law clerk for the Confederated Tribes of the Umatilla 
Indian Reservation, and an enrolled member. He is also a Spring 2009 
candidate for a dual JD/MUP at the University of Michigan Law School.
---------------------------------------------------------------------------
    The Tribal Law and Order Act of 2008 is a significant step forward 
in curbing crime in Indian Country. Among its provisions is the 
expansion of tribal sentencing authority from a maximum of 1 year to a 
maximum of 3 years. While this is laudable, for the reasons set out in 
this memo it may be more appropriate to permit tribes to sentence 
individuals who commit serious crimes to a maximum of 5 years.
    The 3 year timeframe was initially selected based on the 2002 
report of the Committee to the U.S. Sentencing Commission, which showed 
that the most common federally prosecuted crime was assault, and that 
the most common sentence was 34 months. However, it may be more 
relevant to look at how states define their lowest level felonies to 
determine what tribal sentencing authority ought to be. Furthermore, 
the 3 year time frame fails to take into account that prisoners are 
often given good time, such that the actual sentence served may be 
significantly less than that imposed.
    Most states define felonies by statute, just as the proposed bill 
will do for Indian Country. Rather than basing tribal sentencing 
authority on a given federal sentence, it might be more appropriate to 
look at how states define their lowest level felonies as a guide to 
determine an appropriate expansion of tribal sentencing authority. 
Furthermore, it stands to reason and fairness that a tribe ought to at 
least have the same sentencing authority as a state does with respect 
to the state's lowest level felonies. This is particularly true given 
that a tribe's use of such enhanced sentencing authority will typically 
be for very serious crimes that have not been prosecuted through the 
federal system. Examples include rape, attempted homicide, serious 
child abuse, and aggravated assault. While it is unlikely that a state 
would include such crimes within their lowest level felonies given the 
serious nature of the offenses we are talking about, tribes ought to at 
least be able to sentence someone committing these crimes up to the 
maximum allowed by a typical state's lowest level felony.
    In that regard, this memo examines how each state defines its 
lowest level felony. As it turns out, of the states that define 
felonies, the majority define their lowest level felony as having a 
maximum sentence of 5 years. And most states that define low level 
felonies as less than 5 years categorize aggravated assault 
(presumably, the typical crime to be covered by expanded jurisdiction) 
as falling within a felony class that has at least a 5 year maximum 
sentence.
    11 states are left out of this calculation because they don't 
define a felony and we have been unable to find an equivalency. Of the 
remaining 39 States we have found the following:
    25 states define their lowest level felony as carrying a maximum 
sentence of 5 years in jail or more (18 of these define the lowest 
level felony at 5 years.) 4 states define the lowest level felony as 4 
years, 3 States as 3 years, and 7 as 2 years or less. However, 6 of the 
7 that have low level felonies defined as 2 years or less actually 
treat aggravated assaults (the typical type of offense to be covered by 
expanded jurisdiction) as 5 years or more. So, it might be more 
accurate to say, in regard to offenses of concern in Indian Country and 
the need to expand jurisdiction, at least 31 of 39 states define their 
lowest level felony as 5 years or more.
    So, 64 percent define a low level felony as 5 years or more, and if 
we include relevant felony crimes for Indian Country, it is more like 
79 percent. In addition, of the 11 states that do not define felonies, 
9 sentence aggravated assaults to mare than 5 years. As for the other 2 
states, 1 sentences aggravated assault to 4 years and the other uses a 
complex sentencing grid for all offenses. So, in regard to offenses of 
concern in Indian Country, 46 of the 50 states, or 92 percent, allow 
for a sentence of 5 years or more.
    The actual breakdown is as follows:
    10 years: Alabama, Montana, and Texas.
    7 years: New Hampshire and Pennsylvania.
    6 years: Arkansas and Tennessee.
    5 years: Alaska, Connecticut, Florida, Hawaii, Idaho, Iowa, 
Kentucky, Maine, Massachusetts (appears to be), Minnesota, Nebraska, 
New Jersey (appears to be), North Dakota, Oregon, South Carolina, Utah, 
Virginia and Washington.
    4 years: Michigan, Missouri (note: first degree assault is 15 
years), Nevada (note: battery with substantial bodily harm is 5 years) 
and New York (note: first degree assault is 25 years).
    3 years: Illinois, Indiana, and Wisconsin (technically 3\1/2\ 
years).
    2 years: Delaware (note: felony assault is 8 years), Oklahoma 
(note: aggravated assault is 5 years), and South Dakota (note: 
aggravated assault is 15 years).
    18 months: Arizona (note: felony assault is 5 years), Colorado 
(note: first degree assault is 8 years), New Mexico, and Ohio (note: 
felonious assault is 8 years).
    Not defined: California, Georgia, Kansas, Louisiana, Maryland, 
Mississippi, North Carolina, Rhode Island, Vermont, West Virginia, and 
Wyoming.
    The following is a list of states along with how and where they 
define their lowest level felony.
    Alabama. In Alabama the lowest level felony is classified as class 
C, and carries a maximum sentence of 10 years. Ala.Code 1975 Sec. 13A-
5-6.
    Alaska. AS 12.55.125(e) defines a class C felony, the lowest level 
felony, as having a maximum sentence of 5 years.
    Arizona. In Arizona there is a numbered class system, with 6 being 
listed as the lowest level felony. However, a class 6 felony has a 
maximum sentence of one year, which is what most states consider a 
gross misdemeanor. The next highest level, a class 5, has a maximum 
sentence of 18 months. A.R.S. Sec. 13-701. However, aggravated assaults 
involving serious physical injury, use of a deadly weapon or dangerous 
instrument, or one causing temporary but substantial disfigurement or 
temporary but substantial loss or impairment of any body organ 
(including the fracturing of any body part) are sentenced between at 
the low end (breaking an arm, say) at 2\1/2\ years to serious bodily 
injury at 3\1/2\ to 5 years.) ARS 13-1204.
    Arkansas. A class D felony is the lowest level in Arkansas and it 
carries a maximum sentence of 6 years. A.C.A. Sec. 5-4-401.
    California. California does not have a classification system in 
place for the punishment of felonies. Rather, each felony defined by 
statute has a specific punishment tied to it. Assault with a deadly 
weapon or force likely to produce great bodily injury for instance, 
carries a maximum prison sentence of four years. West's Ann.Cal.Penal 
Code Sec. 245.
    Colorado. The lowest level felony in Colorado is a class 6, with a 
maximum sentence of 18 months. CO 18-1.3-401. Assault in the first 
degree however, is a class 3 felony and as such is punishable by a 
maximum sentence of up to 8 years. C.R.S.A. Sec. 18-3-202(2)(b), 18-
1.3-401.
    Connecticut. A class D felony is the lowest level in Connecticut, 
and has a maximum sentence of 5 years. C.G.S.A. 53a-35a.
    Delaware. In Delaware the lowest level felony is a class G, with a 
maximum sentence of 2 years. 11 Del. C. 4205. However, the lowest level 
felony assault is a class D felony in Delaware and carries a maximum 
sentence of 8 years. 11 Del. C. 612, 4205.
    Florida. Florida's third degree felony is its lowest, and it 
carries a maximum sentence of 5 years. F.S.A. 775.082.
    Georgia. Georgia does not have classes of felonies. However, 
aggravated assault carries a sentence of up to 20 years. Ga. Code Ann. 
Sec. 16-5-21.
    Hawaii. A class C felony is Hawaii's lowest, which caries a maximum 
sentence of 5 years. HRS 706-660.
    Idaho. Every felony that is not otherwise prescribed a different 
punishment in Idaho is punishable by a maximum 5 year sentence. I.C. 
18-112.
    Illinois. Class 4 felonies are the lowest level in Illinois and 
have a maximum sentence of 3 years. 730 ILCS 5/5-8-1. Aggravated 
assault, depending on the circumstances, can be a class 4 felony or a 
class 3 felony. 720 ILCS 5/12-2. If it is considered a class 3 felony, 
it can be sentenced to up to 5 years imprisonment.
    Indiana. Class D felonies are Indiana's lowest level with a maximum 
sentence of 3 years. IC 35-50-2-7. Aggravated battery is a class B 
felony and is punishable by a maximum 20 year prison sentence. IC 35-
42-2-1.5.
    Iowa. In Iowa the lowest level felony is class D, with a 5 year 
maximum sentence. I.C.A. Sec. 902.9.
    Kansas. Kansas does not define felonies, but appears rather to rely 
on a sentencing grid.
    Kentucky. The maximum sentence for a class D felony in Kentucky is 
5 years, which is the lowest level felony in that state. KRS 
Sec. 532.060.
    Louisiana. While Louisiana does not classify felonies, if 
punishment is not otherwise defined in a statute, the sentence is left 
to the discretion of the court up to 2 years. LSA-R.S. 15:303. However, 
aggravated battery carries a maximum sentence of 10 years. LSA-R.S. 
14:34.
    Maine. Maine makes no distinction between felonies and 
misdemeanors. ``Crime'' is used as a blanket term. However, class C 
crimes are the next highest after those carrying a maximum sentence of 
one year (a typical gross misdemeanor) and are punishable by a maximum 
of 5 years. 17-A M.R.S.A. Sec. 1252.
    Maryland. It does not appear that Maryland classifies felonies, but 
rather gives a specific sentence for a given offense. Felony assault is 
punishable by up to 25 years in prison. MD Code, Criminal Law, Sec. 3-
202.
    Massachusetts. While Massachusetts operates under a sentencing 
grid, it looks like low level felonies are punishable by a maximum 
sentence of 5 years. See, for example, M.G.L.A. 265 Sec. 13A with 
regard to aggravated assaults.
    Michigan. The default felony in Michigan is punishable by a maximum 
4 year sentence. M.C.L.A. 750.503.
    Minnesota. Pursuant to M.S.A. 609.03 the default felony sentence in 
Minnesota carries a maximum sentence of 5 years.
    Mississippi. In Mississippi it appears that punishment is defined 
by each specific crime. Aggravated assault carries a maximum 20 year 
prison term. Miss. Code Ann. Sec. 97-3-7.
    Missouri. The class D felony is the lowest in Missouri, with a 
maximum sentence of 4 years. V.A.M.S. 558.011. Assault in the first 
degree without the infliction of serious physical injury is sentenced 
to a maximum of 15 years imprisonment. V.A.M.S. 565.050
    Montana. Montana does not define felonies other than crimes with a 
sentence greater than one year (MCA 45-2-101), but the default 
punishment is a maximum of 10 years. MCA 46-18-213.
    Nebraska. Class 4 felonies are Nebraska's lowest level felonies, 
and they carry a maximum punishment of 5 years. Neb.Rev.St. Sec. 28-
105.
    Nevada. Category E felonies are Nevada's lowest, with a maximum 
sentence of 4 years. N.R.S. 193.130. Battery with substantial bodily 
harm is sentenced to a maximum of 5 years. N.R.S. 200.481.
    New Hampshire. In New Hampshire the lowest level felony, a class B, 
carries a maximum sentence of 7 years. N.H. Rev. Stat. Sec. 651:2.
    New Jersey. New Jersey has four classes of crimes and does not use 
the term ``felony'', however, high misdemeanors are designated as class 
3 crimes. A class 3 crime has a maximum sentence of 5 years, whereas a 
class 2 has a maximum sentence of 10 years. N.J.S.A. 2C:43-1; 2C:43-6.
    New Mexico. 4th degree felonies are New Mexico's lowest, with a 
maximum sentence of 18 months. N.M.S.A. 31-18-15. Aggravated battery 
resulting in great bodily harm, however, is a 3rd felony punishable by 
up to 3 years imprisonment. N.M.S.A. Sec. 31-18-15.
    New York. Class E felonies in New York carry a maximum sentence of 
4 years and are the state's lowest level. McKinney's Penal Law 
Sec. 70.00. However, assault in the first degree is a class B felony 
and is sentence to a maximum of 25 years imprisonment. McKinney's Penal 
law Sec. 120.10.
    North Carolina. North Carolina uses a combination of a sentencing 
grid (See N.C.G.S.A. Sec. 15A-1340.17 which incorporates a 
classification system. To give a better idea of how this state punishes 
its felons, aggravated assaults can be punished by up to 145 months 
imprisonment. See N.C.G.S.A. Sec. 14-30.
    North Dakota. North Dakota's lowest level felony is a class C, with 
a 5 year maximum sentence. N.D.C.C. 12.1-32-01.
    Ohio. A 4th degree felony in Ohio carries a maximum sentence of 18 
months. While Ohio technically defines a 4th degree felony as a maximum 
sentence of 1 year, that is what is otherwise typically referred to as 
a gross misdemeanor. However, felonious assault (R.C. Sec. 2903.11) is 
a 2nd degree felony in Ohio, punishable by up to 8 years imprisonment.
    Oklahoma. The default penalty for a felony in Oklahoma carries a 
maximum sentence of 2 years. 21 Okl.St.Ann. Sec. 9. However, an 
aggravated assault carries a maximum sentence of 5 years. Sec. 681.
    Oregon. In Oregon a class C felony has a maximum sentence of 5 
years, and is the lowest level felony in the state. ORS 161.605.
    Pennsylvania. 7 years is the maximum sentence for a 3rd degree 
felony in Pennsylvania, which is the state's lowest. 18 Pa.C.S.A. 
Sec. 1103.
    Rhode Island. It doesn't appear that Rhode Island defines felonies. 
However, felony assault is punishable by up to 20 years imprisonment. 
Gen. Laws 1956, Sec. 11-5-2.
    South Carolina. A class F felony in South Carolina carries a 
maximum sentence of 5 years, which is its lowest. Code 1976 Sec. 16-1-
20.
    South Dakota. Class 6 felonies are the lowest in South Dakota, with 
a maximum sentence of 2 years. SDCL Sec. 22-6-1. However, an aggravated 
assault is a class 3 felony with a maximum sentence of 15 years, 
whereas a 3rd misdemeanor assault within 5 years constitutes a class 6 
felony. SDCL Sec. 22-18-1.1; 22-18-1.
    Tennessee. A class E felony is Tennessee's lowest level felony and 
carries a maximum sentence of 6 years. T.C.A 40-35-111.
    Texas. Texas' lowest level felony is a 3rd degree felony, which 
carries a maximum sentence of 10 years. Although, in 1993, a lower 
level felony class was created to address non-violent, non-sex offense 
cases (unlike those likely to be prosecuted in Indian Country under 
expanded jurisdiction), which is called a ``state jail felony'' and 
carries a maximum sentence of 2 years in an effort to reduce prison 
overpopulation. V.T.C.A., Penal Code Sec. 12.34; 12.35.
    Utah. A 3rd degree felony is the lowest level in Utah, with a 
maximum sentence of 5 years. U.C.A. 1953 Sec. 76-3-203.
    Vermont. Vermont has no felony classification system; punishment is 
defined in each offense. First degree aggravated domestic assault, for 
example, carries a maximum sentence of 15 years imprisonment. 13 V.S.A. 
Sec. 1043.
    Virginia. In Virginia, the lowest level felony is a class 6, 
carrying a maximum sentence of 5 years. Va. Code Ann. Sec. 18.2-10.
    Washington. A class C felony in Washington carries a maximum 
penalty of 5 years, which is the lowest level felony. RCW 9A.20.021.
    West Virginia. West Virginia does not have a felony classification 
system and the maximum punishment is indicated in each offense. West 
Virginia's penalty for aggravated assault is up to 10 years 
imprisonment. See W. Va. Code, Sec. 61-2-9.
    Wisconsin. In Wisconsin a class I felony is the lowest, with a 
maximum punishment of 3 years and 6 months. W.S.A. 939.50. While 
battery is a class I felony in Wisconsin, if the victim sustains great 
bodily harm, the battery is considered a class H felony and is 
punishable by up to 6 years imprisonment. W.S.A. 940.19.
    Wyoming. There is no felony classification system in place in 
Wyoming, as punishment is defined in each offense. For reference, 
however, aggravated assault and battery is punishable by up to 10 years 
imprisonment. W.S. 1977 Sec. 6-2-502.
                                 ______
                                 
 Prepared Statement of Hon. Myra Pearson, Chairwoman, Spirit Lake Tribe

    The Spirit Lake Tribal Court has been a functioning tribal court 
system for more than 50 years, adjudicating a number of legal issues 
for tribal members, non-member Indians and non-Indians. The Spirit Lake 
Tribal Court is comprised of three divisions: Civil Division, Criminal 
Division and a Juvenile Division. The Tribal Court is staffed with a 
Chief Judge, Associate Judge, three Clerks of Court and a Receptionist. 
OF this core staff only the Associate Judge and the Clerks of Court are 
funded through the 638-contract process. The Tribe funds the Chief 
Judge, the Tribal Prosecutor and the Juvenile Intake Officer positions. 
The Tribal Court processes more than 3000 cases per year including, but 
not limited to, various civil lawsuits, child custody cases, divorce, 
child deprivation and protection, adoption, juvenile delinquency, and 
criminal cases. The Tribal Court addresses issues stemming from a 
variety of societal ills such as drug trafficking, substance abuse, 
child abuse and neglect, domestic violence, sexual violence and other 
such violent crimes.
    Tribal Courts are tasked with the very same responsibilities as 
state and federal courts and have managed to administer justice on less 
than a shoestring budget. Tribal Court Judges and employees are 
expected to administer justice with little to no access to legal 
research tools and in many cases with outdated technology. While 
advances are made in courtrooms around the country Tribal Courts are 
left to piece together funding through unreliable grant programs in an 
effort to cover the very basic costs of court operations. Basic funding 
is lacking for court databases, adequate computers, court recording 
devices and personnel costs such as bailiffs, court process servers, 
public defenders and probation officers. These are technological 
resources and personnel resources that state and federal courts are 
provided as a basic need for the administration of justice yet in 
tribal justice systems many of these basic needs are not available due 
to lack of reliable and ongoing funding. It is essential that 
sustainable funding be made available for tribal courts to meet these 
basic needs.
    When Tribe's such as Spirit Lake opted to 638 contract the Tribal 
Court services the funding that came along with that contract was not 
adequate to meet the basic needs of the Tribal Court. This fact remains 
true today. Tribal Courts are not provided the administrative costs 
that would have been made available to the BIA had they continued to 
operate courts of Indian Offenses. In other words it is expected that 
Tribal Courts do more to administer justice with less money. Even more 
troublesome is the fact that these very deficiencies I have identified 
are often used against tribes to further reduce tribal sovereignty. 
Attorneys are constantly making arguments that Tribal Courts are not 
adequate to adjudicate cases and are using arguments like lack of 
access to governmentally funded public defenders to make such 
challenges.
    It has been proven time and again that Tribal Courts are in the 
best position to administer justice in Indian Country in a meaningful 
and cost-effective way. In fact if Tribal Courts ceased to operate the 
burden for administering justice would simply fall to the federal and 
state systems, a burden which those jurisdictions clearly do not want. 
Innovative Court programs such as the Shunka Wakan Ah Ku (Bringing Back 
the Horse Project) at the Spirit Lake Tribe are the very types of 
justice based programs that will make a long-term difference in our 
community and it is of the utmost importance. Additionally courts such 
as wellness courts and peacemaking courts incorporate methods of 
traditional dispute resolution that have proven very effective in 
resolving familial disputes and addressing substance abuse problems. 
The Spirit Lake Tribe had a functioning juvenile wellness court that 
was very helpful to the youth in our community but loss of funding 
meant the program came to an end. It serves little good to the long 
term betterment of our communities to plan and implement such programs 
only to seem them dissipate due to lack of funds.
    It is for these reasons that direct non-competitive funding is 
needed to support the daily operational courts for tribal courts and 
technological advancements for tribal courts. Through such funding 
initiatives Tribal Courts will become more effective and efficient at 
administering justice in tribal communities. Additionally, competitive 
funding resources such as the many grants administered through the 
Bureau of Justice Assistance and other Department of Justice Agencies 
need continued funding and need to be flexible enough to enable tribal 
courts to incorporate their culture and traditions into their tribal 
justice initiatives.
                                 ______
                                 
  Prepared Statement of Alberta Iron Cloud Miller, Chief Prosecutor, 
                       Oglala Sioux Tribal Court

    Mr. Chairman:
    My name is Alberta Iron Cloud Miller and I am the Attorney General, 
our name for the Chief Prosecutor, of the Oglala Sioux Tribal Court. 
Our Oglala Tribal Court is facing a serious crisis, and for that reason 
I would like to thank you for this opportunity to present our concerns.
    BACKGROUND ON OUR COMMUNITY--As you are aware, the Pine Ridge 
Indian Reservation, located in southwestern South Dakota, is one of the 
largest in the United States. Its' 4,353 square miles makes it 
approximately the size of the State of Rhode Island. Our Court has an 
on-reservation service population of approximately 50,000, but that 
number is misleading low because we also have another 10,000 people who 
reside in nearby Rapid City and other communities just off our 
reservation, and many of those people travel on and off of Pine Ridge 
almost every day. As our housing shortage continues to increase, more 
of our people are forced to live off the reservation and commute onto 
the reservation to work and see their families. Unfortunately, once 
they move off to live, they stop being counted in our service 
population, even though they are on-reservation almost every waking 
hour of the work week. It's also important to remember that you do not 
have to live on our reservation to be a party to litigation in our 
Tribal Court and in civil cases, you don't even have to be a member of 
the Tribe.
    At present, our community suffers from a lack of jobs, a non-
existent economy and a lack of services. We have an unemployment rate 
of well over 50 percent, and many of those who are working having only 
seasonal or non-secure jobs. Those who are fortunate enough to be 
employed are often caring for two or three other households, as many of 
the young adults with families have no income or no housing. We have a 
drop out rate of over 60 percent, giving us a serious juvenile problem, 
and our average per capita income is below $7,000 a year. As a result, 
our court handles all of the various types of criminal and civil 
problems that poverty brings with it.
    ABOUT OUR TRIBAL COURT--Because of the size of our reservation, we 
are forced to operate two separate Tribal Courts, one at Pine Ridge and 
the other at Kyle. These two Courts are over 60 miles apart. Because of 
our lack of communications equipment and the distance between our two 
locations, these Courts are often forced to operate independent of each 
other, which is something we are striving hard to avoid.
    We also have a Youth and Family Court. This handles child 
protection orders, juvenile offenders, juveniles in need of care and 
other youth related matters. Finally, our Tribal Supreme Court hears 
appeals. Because of the volume of domestic violence cases we are called 
upon to decide, and the danger of misjudging the case, we desperately 
need a Domestic Violence Court, but we have no space to house it and 
inadequate funds to set it up. We average 20 new domestic violence 
criminal prosecutions a month and this does not count the equal number 
of protective orders and follow up cases that we are ask to decide each 
month through our civil court system.
    Currently, our Tribal Court hears approximately 2,470 criminal 
cases per year and a civil case load in excess of 2,000 cases. These 
numbers are also unrealistically low. Because of our current and ever 
increasing inability to hear criminal cases in a timely manner, many of 
our local law enforcement officers chose to paper a sizable percentage 
of alcohol related misdemeanors as Public Intoxication offenses. 
Papering a case as a Public Intoxication offense leads to the automatic 
release of the prisoner eight hours after arrest and incarceration, 
rather than into our Tribal Court system. Just to show you what our 
real numbers should be, our police officers made a total of 23,000 
arrests last year, but we were only able to prosecute 2,470 cases. We 
would also have a sizable increase in civil cases if our members 
believed that our Court could resolve their disputes in a timely 
manner. But, because our dockets have become so backlogged, we have 
actually had members try to file civil cases in non-Indian courts, 
simply because they feared that we could not resolve their matter fast 
enough to meet their needs.
    Even with this artificially low number of cases, all of our Court 
staff are seriously overworked. In fact, all of the 2,470 criminal 
cases and 2,000 civil cases I just mentioned are handled by our one 
Chief Judge, and three Associate Judges and 3 prosecutors and the 
Attorney General. Remember these individuals are not only handling a 
ridiculously large case load, they are also forced to serve two 
separate court houses which are 60 miles apart and which have no 
workable electronic communication with each other. This results in a 
lot of lost time traveling back and forth and shipping documents. We 
are in the process of installing an electronic filing system, however, 
lack of resources in the form of servers, computers, etc. have delayed 
the installation of this critical system.
    The Judges and Prosecutors also have a totally inadequate number of 
support staff. We currently have only two criminal clerks, two civil 
clerks and two juvenile clerks in Pine Ridge, and 2 clerks total to 
handle the case load at our Kyle Court. This is a nightmare, because we 
have no case tracking software and inadequate filing capability. This 
leads to the dismissal of cases because of our inability to meet speedy 
trial requirements, dismissal because of lost or unavailable records, 
and we have even on occasion lost track of prisoners. In one case this 
year, a young man sat in jail from February until July simply because 
someone misplaced his trial record and we have no tracking software to 
pick up the error. That's five months of a young man's life.
    OPERATIONAL PROBLEMS--Despite the huge number of cases we are 
confronted with each year, our Court is so broke that it is forced to 
operate on old outdated and often broken computers that were purchased 
at Wal-Mart. To make matters worse, our software is so outdated that it 
does not even allow us to open many of the files we receive from 
attorneys, and other jurisdictions. Our computers also have no virus 
protection software, no spam blockers, no security firewalls and we 
have no off-site backup for our files, so if a tornado were to hit, as 
it has done in some of our more outlining communities this year, we 
could lose all of our current records.
    Because we have no commercial scanners, inadequate file cabinets 
and inadequate filing space, most of our files, over six years old, are 
stored in cardboard boxes that are stacked in our basement. Because our 
Court is located in a condemned building, which has leaky floors and 
leaky wall and exposed asbestos, our Court records, especially those 
stored in these boxes are regularly subjected to mold, mildew, water 
leaks, dust and decay. We also have no computer software to track the 
whereabouts of a particular file. This creates a major problem for 
those appearing before our court and for those seeking to perform 
background checks for employment. I cannot imagine any state judge or 
prosecutor having to use a hair blow-dryer to make a soaked official 
court record usable in a case, if they can even find the file in time, 
but that is the world in which we work at Pine Ridge. And, this is a 
federally owned, federally funded building!
    I also cannot imagine a federal or state court staff working in an 
environment where the papers that they handle every day are making them 
sick, but given the mold and mildew in our building and our lack of air 
conditioning in the summer, that too is the environment in which our 
staff is forced to work. Our former Chief Judge left her position in 
large part because she was allergic to the mold and dust in our 
building and because working there was forcing her to seek medical 
attention for respiratory disease on a regular basis. Others get stuffy 
noses, watery eyes and sneezing, and more than one person has been 
forced to seek another job altogether simply because they could not 
work in our building because of respiratory problems. The former clerk 
of our Supreme Court developed arthritis from the cold and damp 
environment she was working in because her office was in our unheated 
basement and from lifting boxes off the floor. She is now on social 
security disability for that problem.
    Things are no better for our prosecutors who work in the condemned 
Pine Ridge jail. That building loses heat in the winter and air 
conditioning in the summer and it is as damp and dirty as the court 
house. Our current Supreme Court clerk works in two small rooms in our 
basement. She shares that space with the boxes of court records that we 
have had to store there. Her office has virtually no heat in the winter 
and no air conditioning in the summer. The leaks from the wall soaked 
and damaged the carpet so badly that the BIA was finally convinced to 
tear it out because it was making people sick. Unfortunately, they then 
failed to replace it, so she now has nothing but a concrete floor to 
work on in the cold of winter. In preparing this testimony, she 
commented that there were actually times when she was glad that her 
office had no heat during the winter, because the frozen walls were the 
only thing that seemed to stop the leaks that were making her sick and 
damaging her files and computer and the frozen floor was keeping the 
smell down on the carpet. Again, this is in a federally owned and 
funded facility!
    Our tribal judges and prosecutors have no law clerks, inadequate 
funding for new law books and publications, and no funding to train the 
court staff. Westlaw doesn't work; because we can't afford it, and when 
we do get some funding to go online, our Internet is so bad that we get 
cut off 4 and 5 times a search, making legal research a nightmare. 
Additionally, when staff training is available, we regularly lack the 
travel funds to send anyone to the training site. Then, even if we can 
find the travel funds funds, we are so understaffed that we have to 
decide how much of an additional backlog we can accommodate, when 
deciding if we can afford to send one or more of our staff to attend 
that training. Our Supreme Court Clerk, for example, is the only one 
working in that office. If she is ill, or out for a meeting or training 
session, there is no one there to assist the public.
    While we have a dedicated team of judges, prosecutors and Court 
staff, we simply cannot manage the workload that we are faced with and 
still afford our people with the legal protections they are entitled 
to. Our case backlog is becoming longer by the day. Right now we have 
at least 1,200 criminal cases from 2007-2008 which have been awaiting 
trial for over 12 months and more are being added to this list every 
day. Our docket is already full through February 2009 and we dare not 
schedule past that date because we do not know what our funding will be 
for next year.
    We have been lucky of late that very few of our people have 
requested jury trials, because we simply have no money to pay for them. 
We don't even have enough funds to cover travel costs or lunch for 
jurors, even if we could get them to serve for nothing. Our lack of 
funds has also impacted our appellate process, since we have limited 
funds to pay appellate judges or their staff and no space to house them 
when they need to hear a case.
    Mr. Chairman, while we strongly support the increase in tribal 
court sentencing authority that is proposed in your new law enforcement 
improvement legislation, I have to be honest when I tell you that I 
cannot imagine any tribe in North or South Dakota taking advantage of 
that provision, not because we do not want to, but simply because we 
cannot afford to pay for jury trials and right to counsel. So, if more 
money is not added to the tribal court budgets, and that provision is 
enacted into law, the only tribal courts operating with expanded 
sentencing authority will be the tribes in states to the far east and 
far west of us with large successful gaming operations, because they 
will be the only ones who can afford to supplement their tribal courts 
budgets to provide these legal protections. This will leave the large 
land based treaty tribes in the mid west and southwest with less 
ability to administer justice. I'm sorry, I see your reasoning behind 
the jury trial and right to counsel pre-requisites, but I still think 
that a person's right to justice and a tribe's ability to exercise its 
sovereignty should be based on more than which tribe has money and 
which does not.
    ABOUT YOUR NEW LAW ENFORCEMENT LEGISLATION--As Officers of the 
Oglala Sioux Tribal Court, and as members of the Oglala Sioux Tribe, we 
are very aware of the difficulties facing our tribal police and the 
dangers our people live with because of inadequate law enforcement. 
Thus, we were thrilled to learn of the introduction of your new law 
enforcement legislation and of the Senate's recently past increase in 
law enforcement funding authorizations. While your new bill has many 
positive attributes, we must be honest in saying that we remain only 
cautiously optimistic. This is because we have seen new authorizations 
come and go before, but we have never seen the funding delivered to 
implement what is promised by the authorizing committees. And that is 
certainly now because past Authorizing Committee Members did not fight 
hard for those appropriations. They just lost those fights.
    This is also not to say that we do not appreciate the hard work 
that you and your staff are putting in. It's just that our experiences 
with the Appropriations and Administrative Budgeting processes have not 
been good. For example, while your reauthorization of the Indian Tribal 
Justice Support and Technical & Legal Assistance Acts looks wonderful 
on paper, it very hard for us at the OST Tribal Court to get our people 
really excited about it, because that exact same program did not do 
much for us the last time it was authorized. This is not because of the 
way the authorization was written, it was fine, it is because no one 
ever appropriated the funding necessary to implement that program in 
the manner intended. Thus, it made some minor improvements for a few 
tribes that have long since deteriorated. The same is true for the 
reauthorization of the Indian Alcohol and Substance Abuse Act. We, at 
Pine Ridge, have a serious alcohol abuse problem. Almost 95 percent of 
the criminal cases that come before our Tribal Court involve alcohol in 
one way or another. Thus, were so excited when that program was 
authorized the last time, that we spent months putting together a 
tribal plan, developing our substance abuse task force/committee and 
working with everyone involved. Unfortunately, when we were done, we 
received none of the funding necessary to implement any of the ideas 
that came from all of that hard work, and we, like many other Sioux 
Tribes, found ourselves worse off than before because we had devoted so 
much time and money to putting that plan together. People's 
expectations go up and it's a big let down when nothing positive 
happens. In 2006 the Judiciary Committee and the justice agencies 
developed a five year strategic plan to reduce crime and enhance 
community safety, however, the plan will remain in paper form due to 
our lack of resources to implement it.
    Mr. Chairman, you cannot address law enforcement and criminal 
justice on reservations like ours without adequately addressing alcohol 
abuse. If a prosecutor or a judge has no adequate detoxification or 
treatment programs to refer a person to, they are left with two choices 
in a criminal case: send an alcoholic to jail to detox without medical 
support, or put them back on the street to be arrested again in a few 
days. It's a no win situation.
    If you really want to see a difference in the testimony that you 
are receiving today, you need to work towards stable, reoccurring, long 
term tribal court funding from the BIA, which arrives, in some form, on 
October 1st of each year. Discretionary grants are appreciated, but 
they are never large enough to complete the task at hand, they never 
reach the program on time, and they often leave us with a huge mess 
when the funding dries up. Let me give you one example. Some years ago, 
we received discretionary funding for a micro fiche machine under a one 
year grant. We got very excited and we used this machine to film all of 
our old divorce, adoption, child placement and a variety of other court 
records. Then, the grant funding dried up, and our BIA funding was 
inadequate to maintain or replace the machine. Today, that machine is 
still broken, and it is so old that no one can obtain parts. This makes 
all of these old files unusable and we now in need new funding to 
retrieve and revert those files back to paper. This is a real problem 
for tribes. Because we lack the funding to keep up with the changing 
computer software acquired with these one year grants, we often find 
ourselves with disks and files that our new computers, when and if we 
ever get them, cannot open. Anyone who has a computer knows that you 
cannot upgrade from Word 1998 to Vista Word 2008 unless you have 
installed all of the software upgrade programs in between.
    Mr. Chairman, our courts have to operate 365 days a year, and I 
cannot shut down a case merely because a federal agency decided not to 
renew a discretionary grant or because it has no mechanism of getting 
the funding out to us at the beginning of the fiscal year. How can I 
plan a prosecution when I do not know what I will have to work with, 
and if I have no idea of if I will be able to hire and pay an expert 
witness at trial time, or what staff will be available to me on October 
1st of each year.
    DOJ grants have also created some serious financial problems for 
the Tribe. Under those authorizing statutes, DOJ has traditionally been 
required to seek a match, and they have never paid indirect cost. Thus, 
the bottom line is that is usually costs the tribe 50 percent of what 
we receive just to operate one of those programs. DOJ's inability to 
pay indirect cost is a real problem for poor tribes without large 
gaming incomes. Assume for a minute that we receive a DOJ grant of 
$200,000 and we have an indirect cost rate of 25 percent. That means 
that we need to come up with $50, 0000 in tribally funded indirect cost 
dollars, just to operate a program that we only applied for because we 
were broke. Now add a 10 percent or a 20 percent match on top of that 
and you can begin to see our dilemma. If we can't pay that indirect 
cost out of our own tribal income, the Inspector General simply 
determines that we have over-recovered on indirect cost from that grant 
and lowers our indirect cost rate for every program that we operate at 
the next negotiation.
    You can solve a big problem for many of us and make these DOJ 
grants much more helpful and accessible by simply eliminating the DOJ 
match requirements altogether and requiring DOJ to pay negotiated 
indirect cost. The match waiver language in your bill is helpful, but 
why do we need to spend money to prove that we have no money. If the 
match and indirect cost problem is not solved, many tribes like Oglala 
will no long be able to apply for the DOJ grants that you are 
reauthorizing because we will not have an indirect cost rate high 
enough to manage them. It's just that simple!
    The timing of these discretionary grants is also a big problem. In 
December of 2007, Congress awarded us a DOJ earmark for our Tribal 
Court system and we added some minor national increases in BIA law 
enforcement appropriations, but this is now July 2008--seven months 
later--and despite repeated promises, none of those dollars have 
actually reached us at Pine Ridge. I cannot speak about the BIA 
funding, but I can tell you that the delay in the release of the DOJ 
funding is not the fault of anyone at the DOJ COPS office. It is the 
nature of the discretionary grants and the irregular timing of 
Congressional appropriations. Unlike 638 contracts, which are funded at 
least in part, even when we have a continuing resolution, DOJ 
discretionary grants are generally shut down pending the passage of a 
final year long budget.
    Also, when and if some of the additional BIA law enforcement 
dollars that Congress appropriated do reach Pine Ridge for 2008; they 
will be used to put more law enforcement officers on the street. While 
this will be a great thing for our community, from our Tribal Court's 
perspective it will merely increase our case load, and we have no new 
funds, at the Tribal Court level, to address the additional cases that 
these new officers will bring in. That is why we were gratified to see 
that your bill recognizes that on reservation law enforcement, courts, 
prosecutors, jails and tribal diversion programs all need to be funded 
in concert in order to address what we really face on a day to day 
basis. Increasing the manpower for law enforcement without increasing 
the funding for judges, prosecutors, probation officers and diversion 
programs will simple lead to the revolving door of justice that 
Americans and Pine Ridge Tribal members are already complaining about.
    OUR COURT BUILDING--No court which handles the kind of caseload 
that we face can operate properly in the building that we are housed 
in. Our Pine Ridge Tribal Court House is housed in an old un-renovated 
BIA building that was built in the 1800s. It has been condemned for 
years, yet the BIA has done nothing to solve the problem. As I 
described above, it has a leaky basement and leaky roof, exposed 
asbestos, air quality that is below anything close to OSAH requirements 
and no heat or air conditioning for the basement offices that it 
houses. It also has no storage space, wiring that is inadequate and in 
some cases dangerous to use because of the leaks. That wiring is also 
unable to handle modern equipment. In short, this building is making 
everyone who works there sick many days per year. This is the federally 
owned and federally funded building. This is the building we invite our 
people to come to for Justice!
    Over the last ten years, we have lobbied, begged, threatened and 
tried every other method that we can think of to attract the BIA and 
the DOJ's attention to this building problem, but to no avail. The 
people we have been meeting with insist that they are powerless to help 
us unless the Congress decides to appropriate the required funds to 
build new tribal court buildings, because our building simply cannot be 
repaired. And, unlike tribes who are located closer to urban areas, we 
have no place else that we can move to. There are no suitable 
unoccupied buildings in Pine Ridge, nothing to rent nearby, and no 
money to move if we actually found one.
    Mr. Chairman, I would think that the Administration would be 
embarrassed by these facts, but they don't seem to care. I am not 
singling out President Bush. These problems have been around for years, 
but they have clearly become worse in the last ten years because of the 
lack of attention. I know that this Committee and this Congress are 
facing some serious funding problems and a serious backlog in 
construction needs for tribal schools, hospitals, clinics, and jails, 
but I implore you not to leave tribal courts out of the mix when monies 
are finally handed out.
    We at the Oglala Sioux Tribal Court have recognized the financial 
problems facing the United States and for that reason, we have worked 
with our counterparts in Oglala Law Enforcement to support the 
construction of a new tribal department of justice building which could 
house our Tribal Court, Tribal Prosecutors, OST Law Enforcement and one 
of our tribal jails. This would be far cheaper than building three or 
four separate buildings, as it would make it unnecessary to bring 
utilities to three or four different sites, build multiply parking lots 
and construct multiple access roads. I, therefore, hope that in your 
new authorizing legislation you will allow for funding for multi 
purpose tribal justice buildings of this nature. It makes great sense 
programmatically and we believe it could lead to a big savings in total 
construction outlays, where a tribe has a need for a court, a jail and 
office space for its public safety related programs.
    Mr. Chairman, I have attached a serious of photo graphs which will 
help you understand what we are faced with a Pine Ridge and again thank 
you for taking on this very important problem.
                                 ______
                                 
  Prepared Statement of Donnette J. Patterson, Administrator, Yankton 
                           Sioux Tribal Court

    Greetings Mr. Chairman and the Senate of Indian Affairs Committee:
    My name is Donnette J. Patterson and I am the Yankton Sioux Tribal 
Court Administrator, I have held this position since January 24, 2002. 
I find my job to be exciting and a great need for the people of my 
reservation. The Court helps people who have been victims of a crime, 
children who need support from the non-custodial parent, A & N (abused 
and neglected children) cases and people in need of a guardian or power 
of attorney. We are facing a serious need here on the Yankton Sioux 
Reservation, and that is funding, or lack thereof.
    We are in the old community building, which is approximately 35 
years old and in need of a new roof, new plumbing, new heating and 
cooling and general contracting repairs. The Yankton Sioux Reservation 
is growing with jobs, housing and services offered on the reservation 
are becoming more and more scarce. The Yankton Sioux Tribal Court sees 
approximately 100 people in criminal court a month and 20 to 25 civil 
cases per month (ranging from child support, child custody, mental 
health hearings, divorces, adoptions, emergency custody and power of 
attorneys).
    We also have Juvenile Court only once a month and Jury Trials once 
a month due to lack of funding and personnel, to be held on a weekly 
basis. The court caseload is so overbooked and backlogged that we are 
approximately three weeks behind, where we should be in juvenile and 
civil matters.
    With the lack of funding the Yankton Sioux Tribal Court to date has 
court only 2 days per week. The Court has one Chief Judge (2 days--1 
civil and 1 criminal), one Prosecutor (1 day) and 1 Court 
Administrator/Clerk of Court (40 hour week). The Yankton Sioux Tribe 
has squeezed some funds to be able to have a Deputy Clerk of Court for 
the minimum wage $6.50 per hour. I do know of other court systems which 
have a Civil Judge, a Criminal Judge, Juvenile Judge and an Emergency 
Judge for after hour and weekend matters. Some of these courts also 
have a Court Administrator, Civil Clerk, Criminal Clerk, Head Clerk, 
Deputy Clerk of Courts, Juvenile Clerk, Process Servers, Bailiffs and 
Receptionist/Mail Clerk.
    With the Yankton Sioux Reservation, we have cases that get taken 
over by the Federal Bureau of Investigations on the more serious 
matters, the Charles Mix County Sheriff's Office for matters with 
Native Americans within their jurisdiction and the Department of 
Criminal Investigations for the more serious matters within their 
jurisdiction of Native Americans. Not all of the cases the Yankton 
Sioux Tribal Police and Bureau of Indian Affairs Law Enforcement get 
brought into tribal court, due to lack of participation from witnesses 
and sometimes even the victim due to fear of retaliation, because of 
the small size of our reservation, everybody knows everybody and so on. 
There are also civil cases that do not get to see their day in court 
due to family and friends hiding out the Respondent, stating to police 
(who do our process service) that they do not know where ``John Doe'' 
is or where he is living or when he/she will be back. If we had a 
process server, I do believe that would solve some of our problems, 
just because some people are fearful of law enforcement for whatever 
their reasons are, do not like to talk or even cooperate with them. 
Lack of Law Enforcement is another issue; right now we have a 
Supervisory Lead Officer/Acting Chief of Police and one BIA Law 
Enforcement Officer. On the Yankton Sioux Tribal Police Department we 
have 3 Police Officers and 2 Highway Safety Officers. They patrol our 
reservation, trying to keep the peace and protect the people of the 
Yankton Sioux Tribe. I know that if we had sufficient man power there 
would be a little less crime and violence on the Reservation.
    Old, outdated, and lack of computers, software, printers are also a 
big problem in the Yankton Sioux Tribal Court. We do not even have a 
backup plan in place for our records, if we were to have a fire, flood 
or natural disaster happen to the court building, all of the records 
(civil and criminal) would be a total loss. This would include 
adoption, marriage certificates, divorce decrees, child custody and 
support orders, power of attorney documents and all criminal matters. 
Our Tribal Court is in such a small space that we have to rent a place 
to store the documents and office supplies in and then comes the hassle 
of having to drive over there and go through all the boxes to find the 
sealed juvenile file, to find an old document from when this was a FRC 
Court. We do have some documents in our filing cabinets out there 
because they are a danger to Court Personnel as the drawers have to be 
hung on to so they do not fall on you while you are searching for a 
file. I have not been in very many state or federal courts that have 
old, dilapidated, dangerous office equipment, furniture or lack thereof 
these things. It is such a shame that we have to work in such 
conditions and with such equipment. I feel that we should be able to 
have the same equipment and furniture and funding that is found in 
Washington, DC as we are part of the government also. If we cannot have 
some of the same equipment, furniture or funding the Tribal Court would 
sure appreciate more funding than what is there now. This does not even 
begin the health and safety issues of the Court, with lack of heat in 
the winter, air conditioning in the summer, plumbing problems year 
round and mold and mildew due to the leaky roof. We have to learn to 
deal with: runny noses, itchy and watery eyes, sneezing and coughing 
all adding up to respiratory problems, and with the limitation of jobs 
here on the reservation, all that can be done is to see the doctor and 
get a quick fix for those health issues. Asbestos being present, 
because it is such an old building that it was never removed.
    The Yankton Sioux Tribal Court has not received an increase in the 
638 Budget since I have been employed in January of 2002 and now 
Congress is talking about a decrease in the budget for the Tribal Court 
programs. The Yankton Sioux Tribe is aware of the introduction of your 
new law enforcement legislation and of the Senate's recently passed 
increase in law enforcement funding authorizations. We realize your 
bill has positive attributes and can make differences on our 
reservation, we still caution our hopes, due to the actual funds 
implemented and delivered to the Yankton Sioux Tribe for Law 
Enforcement. The Authorizing Committee Members, that were set to task, 
have not seemed to be as experienced as other AC Members while fighting 
with the Appropriations and Administrative Budgeting processes. Due to 
the previous lack of program assistance from the Indian Tribal Justice 
Support and Technical Assistance Acts, we will patiently await for 
assistance, although with not a lot of excitement or anticipation, due 
to past broken promises for help with funding many different programs. 
We have a great need for a Jail/Detention Facility on the reservation 
also, and the funding from Indian Tribal Justice Support and Technical 
Assistance Acts would just be the place to start. We have the building 
partially completed, BUT due to lack of funding we cannot finish the 
building and therefore we do not have a place to house adult and 
juvenile offenders, they are released to the general public due to lack 
of space for housing.
    Mr. Chairman I feel that if a few members of Congress and the 
Senate were to come to the Yankton Sioux Reservation to see the need 
for funding for Tribal Courts and Law Enforcement they would realize 
that we are in dire need for more funding. The problem has been around 
for years and it does not seem to be going away it seems to be getting 
worse. If Congress could take some of the money that has been set aside 
for the war going on (instead of spending millions of dollars 
destroying a country and then millions of dollars rebuilding that 
country, not to mention the young men and women that have given their 
lives for their country) and offered a portion of that for Tribal 
Courts and Law Enforcement that would be a beginning in the healing 
process of the unfair treatment Native Americans received and are still 
receiving (lack of health care, lack of education, lack of housing, 
etc. . .). There has to be a solution out there and cutting and cutting 
of funds does not make it go away it makes it worse. I am not saying 
this to embarrass you or the Administration, I am trying to get you to 
realize it is not a perfect world out there, all is not well, nobody 
has everything and some have nothing.
    Our 638 funding has the basic funding that barely covers the needs 
of the Yankton Sioux Tribal Court and if we were to have an increase in 
crime, which is steadily happening, and a rush of people returning to 
live on the reservation, we might not have the man power in the Court 
and Law Enforcement to handle such an increase. The lack of funding is 
putting our Court Personnel and Law Enforcement in danger due to lack 
of man power. When Law Enforcement is not available for process 
service, either the Deputy Clerk or myself the Court Administrator do 
service, which has once proven to be dangerous (for me) and many times 
for Law Enforcement as we can only manage to have one officer per shift 
and on special occasions have two and they are then working 12 hour 
shifts.
    In closing Mr. Chairman the Tribal Courts and Law Enforcement do 
not shut down for holidays, for special occasions or for vacations. We 
work 24/7/365 because criminals forgot it's a holiday, don't know you 
are sick or on vacation. Abused and Neglected Children cannot help to 
be on schedule for a beating or such crime. We also realize that 
federal agencies did not renew grant applications due to technicalities 
or end of fiscal years and have to wait until October 1st of the each 
year. Indirect Costs also is determined from the grants and sometimes 
the rate of such can be negotiated, but ultimately so much money can be 
found for the 638 contracts due to irregular timing of the 
Congressional Appropriations Committee. Even with lobbying and begging 
Congress for additional funding there has not been a way to get the BIA 
and DOJ's attention to see to this matter. I do hope that you can take 
the time to read the Testimony of the Yankton Sioux Tribal Court to see 
how we work on a daily basis in the dilapidated building with, plumbing 
problems, leaky roofs, shortage of storage cabinets, shortage of other 
office furniture and having to use a garage as the waiting area for 
Court. I would like to thank you for your time and concern in this 
matter. Any cooperation you can give in additional funding would be 
more appreciated than you can begin to realize. On behalf of a grateful 
nation on the Yankton Sioux Reservation, I thank you, again.
                                 ______
                                 
 Written Questions Submitted by Hon. Byron L. Dorgan to Hon. John St. 
                                Clair *
---------------------------------------------------------------------------
    * Response to written questions was not available at the time this 
hearing went to press.
---------------------------------------------------------------------------
    Question 1. Judge St. Clair, what effective alternatives to 
incarceration has your court system employed?

    Question 2. The Tribal Law and Order Act would permit Tribes to 
access criminal history databases. Does your court system have access 
to these databases? If not, what are the primary barriers?

  Written Questions Submitted by Hon. Lisa Murkowski to Hon. John St. 
                                Clair *

    Question 1. Your written testimony states that your court system 
cannot employ adult probation or sentence accountability officers due 
to lack of funding. What alternative measures is the court taking to 
ensure that offenders are complying with their sentencing or probation 
agreements?

    Question 2. The Committee has been informed that in many cases the 
BIA law enforcement officers and Indian Health Service professionals 
have been reluctant to testify in tribal court. How has your court been 
able to work with these federal employees in securing their testimony 
before your court?

    Question 3. How will the recent Supreme Court ruling in Plains 
Commerce Bank v. Long Family Land & Cattle affect the cases pending 
before your courts or the ability of tribal members to seek relief 
against non-Indian parties?

    Written Questions Submitted by Hon. Byron L. Dorgan to Dorma L. 
                               Sahneyah *

    Question 1. Ms. Sahneyah, your written testimony discussed 
``restorative justice'' as an alternative to incarceration. You also 
discussed the significant unmet needs to employ such as system. Can you 
provide us with more details about the use of restorative justice in 
your court system? What is needed to make the system work?

    Question 2. We hear from other tribal prosecutors about the 
inconsistent coordination or communication from the U.S. Attorneys 
offices. Some tribal prosecutors have to wait a number of months, and 
some more than a year to receive information on a case that is 
eventually declined. What has been your experience as a prosecutor? 
Does the Law and Order bill address the issue, or should more be done?

    Question 3. The Tribal Law and Order Act would permit Tribes to 
access criminal history databases. Does your court system have access 
to these databases? If not, what are the primary barriers?

Written Questions Submitted by Hon. Lisa Murkowski to Dorma L. Sahneyah 
                                   *

    Question 1. The Violence Against Women Act requires the full faith 
& credit recognition of tribal court protection orders. What has been 
your tribe's experience with this full faith & credit requirement?

    Question 2. The lack of detention facilities affects tribal judges' 
ability to sentence offenders. How has the lack of detention facilities 
affected the exercise of your prosecutorial discretion?

    Question 3. How will the recent Supreme Court ruling in Plains 
Commerce Bank v. Long Family Land & Cattle affect the cases pending 
before your courts or the ability of tribal members to seek relief 
against non-Indian parties?

Written Questions Submitted by Hon. Byron L. Dorgan to Hon. Theresa M. 
                                Pouley *

    Question 1. Judge Pouley, I am a supporter of drug courts both in 
and out of Indian country. Can you provide us with more on your Healing 
to Wellness Court, and if possible share any information on your 
recidivism rates?

    Question 2. Incarceration may be a necessary punishment for violent 
offenders, but may not be an option available to tribal judges in 
imposing sentences for any number of reasons, including the lack of 
space. What effective alternatives to incarceration have you employed? 
Have these alternatives been successful in reducing recidivism and 
rehabilitating offenders?

    Question 3. Your written statement mentioned that offenders can 
appeal their convictions in Federal district court. Do you believe that 
process adequately protects the constitutional rights of defendants 
that go before tribal courts?

    Question 4. The Tribal Law and Order Act would permit Tribes to 
access criminal history databases. Does your court system have access 
to these databases? If not, what are the primary barriers?

 Written Questions Submitted by Hon. Lisa Murkowski to Hon. Theresa M. 
                                Pouley *
---------------------------------------------------------------------------
    * Response to written questions was not available at the time this 
hearing went to press.
---------------------------------------------------------------------------
    Question 1. Your written testimony states that Congress has a role 
in authorizing an expansion of tribal government taxing authority to 
raise revenues for tribal justice systems. Can you elaborate on what 
manner the tribal government authority should be expanded?

    Question 2. Your written testimony states that your drug court has 
received an award for excellence in addressing the combined problems of 
substance abuse and crime in the criminal justice system. Can you 
elaborate on some of the successes your drug court has experienced in 
addressing these problems?

    Question 3. How will the recent Supreme Court ruling in Plains 
Commerce Bank v. Long Family Land & Cattle affect the cases pending 
before your courts or the ability of tribal members to seek relief 
against non-Indian parties?

  Written Questions Submitted by Hon. Byron L. Dorgan to Hon. Joseph 
                          Thomas Flies-Away *

    Question 1. Judge Flies-Away, you made significant points about the 
need for greater cooperation, and the lack of it that you have 
experienced in dealing with the IHS and the BIA. The Tribal Law and 
Order Act seeks to increase cooperation, consultation, and transparency 
in federal law enforcement. Specifically, Section 603 would force the 
hand of cooperation by requiring federal officials to testify in tribal 
court. The bill also requires the United States to notify and register 
with tribal courts and law enforcement officials prior to releasing sex 
offenders. How do you think those provisions in S. 3320 could be 
strengthened?

    Question 2. Incarceration may be a necessary punishment for violent 
offenders, but may not be an option available to tribal judges in 
imposing sentences for any number of reasons, including the lack of 
space. What effective alternatives to incarceration have you employed? 
Have these alternatives been successful in reducing recidivism and 
rehabilitating offenders?

    Question 3. Regarding juvenile offenders, does your court system 
have a separate juvenile court? If so, can you provide some details on 
that part of your court system?

    Question 4. The Tribal Law and Order Act would permit Tribes to 
access criminal history databases. Does your court system have access 
to these databases? If not, what are the primary barriers?

   Written Questions Submitted by Hon. Lisa Murkowski to Hon. Joseph 
                          Thomas Flies-Away *

    Question 1. Your written testimony mentioned that with further 
development and funding, tribal courts will provide the same necessary 
components and legal procedures as any state or federal court. In so 
doing, business entities may become more comfortable with tribal 
courts, laws and processes, particularly for commercial enterprises and 
economic development. What types of tribal laws and processes has your 
tribe developed to support economic development on your reservation?

    Question 2. How will the recent Supreme Court ruling in Plains 
Commerce Bank v. Long Family Land & Cattle affect the cases pending 
before your courts or the ability of tribal members to seek relief 
against non-Indian parties?

 Written Questions Submitted by Hon. Byron L. Dorgan to Hon. Roman J. 
                                Duran *

    Question 1. Incarceration may be a necessary punishment for violent 
offenders, but may not be an option available to tribal judges in 
imposing sentences for any number of reasons, including the lack of 
space. What effective alternatives to incarceration have you employed? 
Have these alternatives been successful in reducing recidivism and 
rehabilitating offenders?

    Question 2. The Tribal Law and Order Act would permit Tribes to 
access criminal history databases. However, there may be some 
infrastructure needs that will prevent full access. Does NAICJA have an 
indication of how many tribal court systems have access to such 
databases? Of the Tribes that do not have access, what are the primary 
barriers?

    Question 3. You described the complete failure in funding for the 
Tribal Justice Support Act. From the National perspective, what is the 
most vital need for tribal court systems to succeed?

    Question 4. What type of technical assistance are the BIA and 
Justice Department providing to help train tribal judicial personnel, 
and develop tribal codes?
  Written Questions Submitted by Hon. Lisa Murkowski to Hon. Roman J. 
                                Duran *
---------------------------------------------------------------------------
    * Response to written questions was not available at the time this 
hearing went to press.
---------------------------------------------------------------------------
    Question 1. Can you elaborate on the types of due process 
protections that tribal courts afford to defendants under current law?

    Question 2. The Violence Against Women Act mandated full faith & 
credit be extended to tribal court protection orders. In general, what 
kind of full faith & credit recognition has been extended to these 
tribal court orders?

    Question 3. How will the recent Supreme Court ruling in Plains 
Commerce Bank v. Long Family Land & Cattle affect the cases pending 
before your courts or tribal members' ability to seek relief against 
non-Indian parties?

Written Questions Submitted by Hon. Byron L. Dorgan to Hon. W. Patrick 
                               Ragsdale *

    Question 1. Please provide the Committee with copies of the 40 
tribal court reviews that the Tribal Justice Support Division has 
completed.

    Question 2. As you know, section 304 of S. 3320, the Tribal Law and 
Order Act of 2008, would authorize tribal courts to sentence offenders 
up to 3 years in jail. Tribes must provide a public defender to 
exercise the additional authority. In addition, defendants may seek 
habeas review in federal court of their detention or conviction. Your 
previous testimony indicated that the Department had constitutional 
concerns with this provision. Can you please expand on those concerns?

    Question 3. A number of Tribes in the Great Plains other areas of 
Indian Country rely on the BIA to provide direct law enforcement 
services. BIA police enforce federal laws, but it's equally important 
that they enforce violations of tribal law. Tribal courts rely on the 
BIA's work to afford basic due process, and the right to confront 
witnesses to defendants before their courts. What is the Department's 
policy on BIA police testifying in tribal court? Will BIA police 
respond to a subpoena or order to appear to testify issued by a tribal 
court?

    Question 4. In Fiscal Year 2008, Congress appropriated $23.7 
million for the Secretary's Safe Indian Communities Initiative. The 
President asked for an additional $26 million in Fiscal Year 2009. 
Please provide the Committee with a spending report to date in FY 2008, 
and a plan for the remainder of FY 2008 with regard to the Department's 
use of FY 2008 funding for the Safe Indian Communities Initiative.

 Written Questions Submitted by Hon. Lisa Murkowski to Hon. W. Patrick 
                               Ragsdale *

    Question 1. The biggest challenge for tribal courts appears to be 
the lack of funding. The lack of comprehensive data on unmet needs 
seems to frustrate the problem. How can the BIA coordinate with both 
the Department of Justice and Indian tribes to secure solid data 
supporting adequate funding levels?

    Question 2. The Tribal Law and Order Act of 2008 would expand 
tribal sentencing authority from one year to three years for 
incarceration. Would the increased sentencing authority affect the BIA 
detention facilities or staffing levels of the BIA corrections 
officers?

    Question 3. Would incarcerating offenders convicted in tribal 
courts into the Federal Bureau of Prisons system provide some relief to 
the BIA detention facilities?

                                  
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