[Senate Hearing 110-683]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-683
 
  EXAMINING FEDERAL DECLINATIONS TO PROSECUTE CRIMES IN INDIAN COUNTRY

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

                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 18, 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 September 18, 2008...............................     1
Statement of Senator Dorgan......................................     1
Statement of Senator Murkowski...................................     4
Statement of Senator Tester......................................     5

                               Witnesses

Doughty, Janelle F., Director, Department of Justice and 
  Regulatory, Southern Ute Indian Tribe..........................    45
    Prepared statement...........................................    48
Heffelfinger, Thomas B., Partner, Best and Flanagan, LLP.........    31
    Prepared statement...........................................    34
Leonhard, M. Brent, Deputy Attorney General, Confederated Tribes 
  of the Umatilla Indian Reservation.............................    40
    Prepared statement...........................................    41
Ragsdale, W. Patrick, Director, Office of Justice Services, 
  Bureau of Indian Affairs, U.S. Department of the Interior......    11
    Prepared statement...........................................    14
Weissmuller, Hon. Thomas W., Chief Justice, Mashantucket Pequot 
  Tribal Nation; Board Member and Tribal Representative, National 
  Criminal Justice Association...................................    50
    Prepared statement...........................................    51
Wrigley, Hon. Drew H., U.S. Attorney, District of North Dakota, 
  U.S. Department of Justice.....................................     6
    Prepared statement...........................................     8

                                Appendix

Amnesty International, prepared statement........................    57


  EXAMINING FEDERAL DECLINATIONS TO PROSECUTE CRIMES IN INDIAN COUNTRY

                              ----------                              


                      THURSDAY, SEPTEMBER 18, 2008


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m. in room 
628, 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. I will call the hearing to order.
    This is a hearing of the Indian Affairs Committee. My 
colleague, Senator Murkowski, will be along and other members 
as well, but I wish to start on time. With the consent of the 
Vice Chair, I will begin.
    The Committee will examine what are called Federal 
declinations, that is, declining to prosecute crimes in Indian 
Country. This is the ninth hearing on the issue focusing on 
tribal law enforcement. This hearing will reveal, I think, as 
we have revealed in others, that the law enforcement issues on 
Indian reservations are very serious issues, and that current 
situations on some of our reservations are threatening public 
safety of American Indians who live there.
    At the core of this problem, in my judgment, is the system 
of justice that applies to American Indians and to American 
Indian lands. The system, I think, is now a proven failure, and 
the question is what do we do about it. The system limits local 
tribal control, and forces reliance on the Federal Government 
to provide the public safety. That system is broken.
    Many Indian reservations are hundreds of miles from the 
U.S. Attorneys offices and the Federal courthouses. 
Unfortunately, some offices have taken an out of sight/out of 
mind attitude with regard to our obligation in Indian Country. 
That attitude is not department-wide. There are a good many 
U.S. Attorneys, and some in the Department of Justice, who have 
dedicated their careers to serving the public safety needs of 
tribal communities and other parts of America as well. But 
their efforts, in some cases, are too often ignored.
    The mind set was made evident in recent years at hearings 
that were held before this Committee and also the Senate 
Judiciary Committee, with the dismissal of several U.S. 
Attorneys who made a clear commitment to fighting crime in 
Indian Country. The U.S. Attorney from Michigan stated that 
people within the Justice Department simply don't recognize the 
Department's obligation to tribes. She claimed that she 
received little support for her efforts in Indian Country, and 
stated, ``People thought it was too much of my time and it was 
too small of a population.'' Another sitting U.S. Attorney is 
quoted as saying, ``I know the performance of my office will be 
compared to other U.S. Attorneys. My gun cases have to compete. 
My white collar crime cases have to compete. One criteria that 
is never on that list is Indian Country cases.''
    Testifying before the House Judiciary Committee on May 23 
last year, Monica Goodling, the Justice Department's White 
House Liaison, confirmed that the then-U.S. Attorney in 
Minnesota would have been dismissed had he not previously 
resigned. She cited his ``preoccupation with Indian affairs 
issues'' as the reason.
    We have had previous testimony from Mr. Heffelfinger, who 
served as U.S. Attorney both in the first Bush presidency and 
in the second Bush presidency, that ``something is 
fundamentally broken within the Department of Justice that goes 
to the core value of delivering services in all 93 Federal 
judicial districts.''
    Tribal communities rely on Federal prosecutions to deter 
crime and provide a sense of community justice. Ignoring the 
obligation undermines any sense of trust in that legal system. 
Combating crime on Indian reservations has to be made a top 
policy priority and it has to come from the top down.
    Another failure with the system is the lack of resources. 
Less than 3,000 Bureau of Indian Affairs and tribal police 
patrol more than 56 million acres in Indian lands. As of 1998, 
only 102 FBI agents served Indian Country. To address that 
shortfall, Congress appropriated funds for an additional 57 FBI 
agents to serve Indian Country. Despite the additional funding, 
the FBI's current numbers show an increase of only 12 FBI 
agents serving Indian Country. So something isn't adding up.
    The Department of Justice has been requested to share 
declination material with us and has declined to do that. I 
called Attorney General Mukasey this week and had a long 
conversation with him, and indicated to him why it is important 
that we have that information shared with this Committee and 
with the Congress. He is now reviewing the information and we 
will be talking again.
    I do want to show you what I believe I have charts here--I 
want to show you what we know, and pathetically it only comes 
from information from Syracuse University.
    [The information referred to follows:]

    
    
    It comes from Syracuse University, which has done FOIA 
requests of the Justice Department. I don't have any idea 
whether this represents accurate information. Again, this has 
been published in the press and it comes from Syracuse 
University information. It shows that with respect to murder 
and manslaughter, there is a 50 percent declination rate--we 
don't have the foggiest idea what that means, but it is 
serious--aggravated assaults, 58 percent; adult sex crimes, 76 
percent declination rate.
    So the question is, why would we have declination rates of 
50 percent on murder and manslaughter, 76 percent on adult sex 
crimes, including rape? I don't know the answer to that, but I 
intend to find the answer to that. I have asked General Mukasey 
to share information with us. He and U.S. Attorneys have told 
us, well, the problem is if we provide information, there are 
so many reasons that someone else would have to interpret it, 
or it might be misinterpreted. Well, we will see. Importantly 
in my judgment, withholding that information is not going to 
allow us to get where we need to get with respect to an 
understanding of what is happening and what needs to be done to 
fix it.
    In July of this year, I introduced S. 3320, the Tribal Law 
and Order Act of 2008, with the support of 12 Senators, 
including a number of members of this Committee: Senators 
Murkowski, Domenici, Johnson, Tester, Smith, and Cantwell. This 
bill would move Indian Country up on the priority list and 
would establish a system of accountability and transparency 
that requires data collection, while at the same time 
protecting the privacy of the victims and suspects. This bill 
alone will not solve the crisis. Congress needs to strengthen 
tribal justice systems and deal with adequate funding. We also 
need leadership from the Administration, from Justice. I want 
to say again, this Committee is not going to cease our intent 
to get information by which we can make decisions about what is 
happening. It is not acceptable to me that the Justice 
Department has said, we decline to give you information. We 
intend to get the information.
    Declination rates, a term that is kind of an unusual term, 
describes circumstances in which prosecutions are declined, 
many perhaps for very legitimate purposes. But when we have 
testimony before the Congress saying had someone not resigned, 
they would have been fired because they were spending too much 
time on Indian issues, or we have information in front of the 
Congress by U.S. Attorneys that describe to us people thought 
too much of my time was spent on Indian Country--that is a 
sitting U.S. Attorney. When we have that information, it seems 
to me, and at the same time we understand there is a violent 
crime rate that is excessive on reservations. Mr. Ragsdale, who 
is in charge of assigning resources, has pathetically too few 
resources to assign to all of the areas in this Country where 
we have responsibilities to provide law enforcement, so he 
moves people around here and there.
    When we see all of that, we have a responsibility. People 
are hurt. People are victims of crime. People are killed 
because the system isn't working. It is not acceptable to me to 
have the Justice Department say, we will not provide 
information that is requested on declinations.
    So we will have this hearing and then proceed again. I will 
have another discussion with the Attorney General.
    Let me now call on my Vice Chairman, Senator Murkowski.

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

    Senator Murkowski. Thank you, Mr. Chairman, and good 
morning. I do appreciate the fact that we are taking up this 
morning in the Committee the issue of what is going on with 
these declination rates and the accountability from a broader 
perspective, the accountability in administering justice in 
Indian Country.
    We recognize that when the Indian Law Enforcement Reform 
Act of 1990 was passed by the Congress that there was an 
attempt to address the issue of accountability, but we continue 
to hear from Indian Country. We recognize that the 
implementation, the congressional intent, has been frustrated 
over many years.
    Now, I do understand that the Department of Justice has 
concerns about both the accuracy of the declination rates that 
have been published in certain reports, and about disclosing 
the declination reports to tribal prosecutors and law 
enforcement. But Mr. Chairman, the Department of Justice has 
testified that it opposes the concept of mandatory submission 
of those reports as required in our bill, yet the Department, 
they haven't offered anything. They haven't offered any 
sufficient alternatives to improve that accountability and 
reduce the serious crimes that we know are occurring throughout 
Indian Country.
    When we hear about incidents of serious felony crimes in so 
many parts of Indian Country--the sexual assaults, the 
homicides, the drug manufacturing and the distribution, and 
about the impact of all of this on our Native communities--we 
have to acknowledge the status quo is simply not acceptable.
    Now, I do recognize that victims and confidential 
information need to be protected, that the integrity of 
investigations and prosecutions need to be preserved, but this 
matter does not, this is not to suggest that we just close our 
eyes to what needs to be done within the system in terms of 
accountability.
    We recognize that this matter doesn't lend itself to quick 
and easy solutions, but I do expect that we would hear some 
positive solutions from the Department of Justice.
    Mr. Chairman, I look forward to the comments of our 
witnesses today, and again I appreciate your leadership on this 
issue.
    The Chairman. Senator Murkowski, thank you very much.
    Let me just observe again. I talked to Attorney General 
Mukasey this week. We are going to talk again. My hope is that 
we will receive cooperation to get information about 
declinations. If not, I will suggest that we issue subpoenas 
from the full Committee. We will discuss it. My hope is that we 
don't even have to go there, but it is not acceptable that a 
department that collects data and information on declining 
prosecutions says, yes, we collect the data; no we will not 
share them with those of you who need them. That is not 
something that will stand, in my judgment, with this Committee.
    Senator Tester?

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

    Senator Tester. Thank you, Mr. Chairman. Thank you for your 
leadership. Thank you for your comments just now. I am sorry I 
am late.
    Thank you, Ranking Member Murkowski for your comments also 
because I think they are spot-on from what I heard.
    I apologize for being late, but I will just say that being 
in Indian Country, it is not like the folks sitting at this 
table. The folks sitting at this table haven't been in Indian 
Country and see the problems they have. The truth is, if we are 
going to help self-sufficiency in our Native American lands, 
safety has to be a big consideration.
    Let's put ourselves in the same position. Let's ask 
ourselves what we would do if there were crimes that weren't 
being prosecuted. Let's ask ourselves what we would do if our 
kids were living in a place that was unsafe. Let's ask 
ourselves what we would do as far as conducting business in a 
place that wasn't safe. Would we be able to do that? Let's ask 
just ultimately about quality of life. Could we even enjoy 
life?
    The truth is that we need to address the problem. We need 
to get it done and we ought not be hiding information. We ought 
not be untruthful and putting forth the information we need to 
be able to make the decisions. Because, you know, if it is a 
lack of law enforcement resources, if that is the problem, we 
can address it. If it is inadequate public detention 
facilities, we can address it. If it is under-staffing or 
overworked officials, then we can address it. If it is 
confusing jurisdictional problems, we can address it.
    But the truth is that unless we have the information, we 
can't. And the other truth is that this is too important to 
say, oh, it has always been that way so we are just going to 
leave it that way. That is not acceptable.
    With that, I want to thank the witnesses for coming today. 
I look forward to your testimony, and I appreciate your coming 
before the Committee to talk about this issue.
    Thank you, Mr. Chairman.
    The Chairman. Senator Tester, thank you very much.
    We have two panels today. One is Drew Wrigley, the U.S. 
Attorney from North Dakota; also Mr. Patrick Ragsdale, the 
Director of the Office of Justice Services at the BIA. And we 
have a second panel of four witnesses.
    I am going to begin with Mr. Drew Wrigley. The Justice 
Department has asked Drew Wrigley to appear. It is a 
coincidence that he is from North Dakota and the Chairman of 
the Committee is from North Dakota, I suspect. But Drew Wrigley 
is someone I have known for a long while and is a good person 
and has served well as U.S. Attorney. We very much appreciate 
him being here to provide the Justice Department views, 
although I suspect it would be more comfortable were he here 
providing views that I particularly thought were constructive 
on behalf of the Attorney General. I hope those views will 
change over time.
    But Mr. Wrigley, thank you for traveling to Washington to 
be with us today. We appreciate it. Why don't you proceed?

 STATEMENT OF HON. DREW H. WRIGLEY, U.S. ATTORNEY, DISTRICT OF 
            NORTH DAKOTA, U.S. DEPARTMENT OF JUSTICE

    Mr. Wrigley. Thank you, Mr. Chairman, Madam Chairman and 
members of the Committee. I do appreciate the opportunity to be 
here today. We, of course, are here to discuss declination 
reports.
    The Department of Justice and United States Attorneys take 
very seriously, of course, our responsibility as the key 
prosecutors in Indian Country. We recognize the seriousness of 
the crime problems on some of our reservations as well. We are 
committed to working to improve public safety on tribal 
reservations, but we believe that public reporting on 
declinations is not the best method to achieving that aim.
    The discussion of declinations has been distilled down to 
two essential points. The first is the report of the 
declination of an individual case to tribal law enforcement. 
The second is the issue of declination statistics generally.
    The Department agrees that Indian Country crime data is 
important. However, a U.S. Attorney's Office declination rate 
does not provide any useful information about whether 
additional resources are needed to train local investigators, 
to hire more prosecutors, to direct resources somewhere else 
along the path of any case from investigation to prosecution.
    The only way to determine why cases are declined and 
correspondingly how additional resources could best be used 
would be to examine cases individually, case by case going 
through that file. Was there a lack of evidence? Was there a 
problem with witnesses? Were there resources lacking somehow or 
was there a jurisdictional issue? Those are just a few of the 
many options.
    Providing detailed information in this regard is highly 
problematic in that it might undermine an investigation that 
does eventually lead to a chargeable case. It happens all the 
time in Indian Country, and may endanger witnesses along the 
way and others in the community as well.
    In most instances, the communication between Federal and 
tribal law enforcement occurs well before a declination is ever 
issued in any case. And that exchange of information that 
occurs between Assistant U.S. Attorneys and federal or tribal 
law enforcement often effectively renders a declination report 
a mere formality in the end anyway.
    The Department continues to work to ensure appropriate 
communication to our tribal liaisons, as well as other 
departmental resources such as the Officer of Violence Against 
Women, the Office of Tribal Justice, and then individual 
Assistant U.S. Attorneys assigned to prosecute tribal Indian 
Country cases.
    We do not believe that a statute requiring uniform 
formalized exchange of case information is advisable. Such a 
top-down mandate creates potentially discoverable material 
which could jeopardize a subsequent criminal case, could 
endanger the public safety and the privacy of victims, the 
privacy of witnesses and the Indian Country communities 
themselves.
    Other provisions of law often preclude U.S. Attorneys' 
offices and investigative agencies from providing the 
declination reports or any of the various types of protected 
information such as grand jury materials. Again, it is not 
uncommon for us to be working on investigation and for a 
declination to occur, and then sometime later a case to be 
resurrected because of emergence of a new witness, new evidence 
that comes along, or new technology.
    Moving on to the overall declination statistics that 
Senator Dorgan was referencing moments ago, because of the 
sometimes profound differences between our districts, 
individual United States Attorneys select different approaches 
to managing our offices. Case tracking is one management area 
in which there is a wide array of approaches.
    While all cases that are eventually charged by the grand 
jury, they are all tracked, of course, but there is a lot more 
flexibility when it comes to tracking cases pre-indictment--how 
we track the flow of information in our offices. Some U.S. 
Attorneys find it useful to know the total volume of matters 
that pass through their offices, regardless of whether they 
will ever become a Federal prosecution. While this option has 
the advantage of allowing U.S. Attorneys to follow the volume 
of the work in the office, it does nothing to assess the 
Federal capacity for work in that district.
    This is particularly true in districts that encompass 
Indian Country, where many criminal acts do not constitute 
Federal offenses. We get many, many referrals on cases that do 
not in fact constitute a Federal offense. That is because of a 
statutory definition of some kind, or maybe there was a 
territorial issue of some kind. Anyway, this approach can 
result in an artificially high declination rate created by 
including cases that could never have been prosecuted 
federally.
    Other U.S. Attorneys choose to focus their tracking efforts 
only on cases which are charged in Federal court. Still others 
might track the cases that include anything that is formally 
presented to the office by Federal law enforcement or another 
entity.
    While either of those approaches have the advantage of 
allowing the U.S. Attorney to focus his or her attention on 
serious matters that are likely to go to trial someday, they 
present a more limited picture of the overall work of the 
office.
    U.S. Attorneys using either of these last two approaches 
will record a much lower declination rate than those that open 
files for any referral that is made to the office. However, as 
you might guess, any statistical disparity between those two 
approaches would often be illusory when it comes to the issue 
of declinations.
    The Department doesn't believe that one of these management 
approaches is inherently better than the other. Each district 
is unique. It is clear, however, that these different 
management choices do result in very different rates of 
declinations, even though cases with similar facts are 
eventually resolved in the very same manner.
    If all U.S. Attorneys were required to manage case tracking 
the same way, any declination statistics would still not 
provide an accurate picture of the extend of our work in this 
regard because crimes in Indian Country are often tracked by 
the substantive offense, rather than the venue being in Indian 
Country. That means that many prosecutable crimes that occur in 
Indian Country don't even turn up on Indian Country statistics, 
again skewing the statistics looking at declination rates.
    As a result of the considerations I have listed today, the 
Department does not believe publication of declination 
statistics will provide an accurate or helpful tool for 
assessing the work of an individual U.S. Attorney's office or 
the Department. Indeed, such publication would simply create 
fodder for false comparisons that would inevitably prove 
corrosive.
    In conclusion, I just want to say again it is the 
Department's position that these statistics, while useful for 
internal management purposes, do not provide a sound basis upon 
which to make resource determinations.
    Mr. Chairman and Madam Vice Chair and members of the 
Committee, this does conclude my statement. I would be happy to 
answer any questions to the extent that I am able to today, and 
to get back to the Committee with anything that I can't answer 
for you.
    [The prepared statement of Mr. Wrigley follows:]

Prepared Statement of Hon. Drew H. Wrigley, U.S. Attorney, District of 
                North Dakota, U.S. Department of Justice

    Mr. Chairman, Madame Vice-Chair and members of the Committee:
    My name is Drew Wrigley, and I am the United States Attorney for 
North Dakota.
    We are here today to discuss declination reports. This is a 
discussion that the Department, this Committee, and the public have 
been actively engaged in for a number of months. The Department and the 
U.S. Attorneys take very seriously their responsibility as key 
prosecutors in Indian Country and recognizes the seriousness of the 
crime problems on some reservations. We are committed to working to 
improve safety on tribal reservations, but do believe that public 
reporting on declinations is not the best method to achieve this aim.
    The discussion of declinations has been distilled down to two 
distinct issues. The first issue is the reporting of the declination of 
an individual case by federal law enforcement to tribal law 
enforcement. Here the concern is the appropriate and timely 
communication of information within the law enforcement community. The 
second is the issue of declination statistics. This is a broad general 
accounting of which cases are prosecuted federally and which are not.
    The Department understands your desire to better understand how 
decisions to prosecute or decline cases are made by those on the ground 
in Indian Country. Further, we agree that better data on crime in 
Indian Country will help law enforcement agencies combat crime and help 
inform the decisions on where to direct additional resources to have 
the greatest impact. Rates pertaining to the number of cases that a 
U.S. Attorney's Office declines do not provide any useful information 
about whether additional resources are needed to train local 
investigators, hire additional prosecutors, or take other action along 
the path from investigation to prosecution. Unfortunately, the only way 
to determine why cases are declined--and correspondingly how additional 
resources would be best used--would be to examine cases individually to 
determine if there was a lack of evidence, witnesses, resources or 
jurisdiction. But please keep in mind that providing detailed 
information as to why an investigation was either declined or 
terminated is highly problematic because the information could be 
rendered discoverable in any subsequent prosecution. Such information 
might well compromise the safety and privacy of victims and witnesses, 
and also provide a damaging roadmap to any weaknesses in the case.
    Let me tell you about a case handled by the office of my colleague, 
Marty Jackley, in the District of South Dakota. In the case in 
question, the U.S. Attorney's Office sent a letter declining to 
prosecute a matter based on ``weak or insufficient admissible evidence 
and a potential witness problem.'' Eventually, there was sufficient 
evidence to charge the offender for similar sexual conduct against 
another victim. That case went to trial. During the trial, the victim 
from the declined matter testified as a prosecution witness. The judge 
allowed the defense to introduce the declination letter into evidence. 
In his closing argument, the defense attorney used the fact that the 
previous matter involving the prosecution witness was investigated and 
ultimately declined to suggest that the witness's testimony was not 
credible.
    While we believe that declination information needs to be handled 
appropriately so as not to jeopardize a future case, the Department 
agrees that there is a need for close coordination with tribal 
prosecutors to ensure that criminals are brought to justice. However, 
given everyone's desire to ensure wrong-doers are brought to justice, 
we need to ensure that's done in a way that doesn't jeopardize future 
prosecutions, or compromise victim and witness safety and privacy. Note 
that in cases in which a tribal court has jurisdiction, tribal 
prosecutors never have to wait for a declination from a U.S. Attorney's 
Office before launching their own investigation or prosecution. The 
U.S. and tribal governments are separate sovereigns, each with their 
own independent right to bring a prosecution. Each U.S. Attorney's 
Office with Indian country jurisdiction has at least one tribal liaison 
to facilitate this coordination. In most instances this communication 
between federal and tribal law enforcement should--and does--occur well 
before a declination occurs. For example, many districts use multi-
disciplinary teams in the review of child abuse allegations in Indian 
country. These teams involve law enforcement agents, health 
professionals, social services representative and prosecutors. The 
teams work matters from the time an allegation is received until, where 
appropriate, a defendant is prosecuted. In districts where such teams 
are in place, the constant exchange of information that occurs in team 
meetings effectively renders a declination report a formality. The 
Department is exploring the use of this team concept in other settings, 
such as Sexual Assault Response Teams which address sexual assault 
allegations. Where a formal team is not practical, we believe that 
better communication between tribal and federal prosecutors will ensure 
that cases do not fall through the cracks. The Department is working to 
ensure appropriate communication through our tribal liaisons as well as 
other Departmental resources, such as the Office on Violence Against 
Women and the Office of Tribal Justice.
    Conversely, we do not believe that a statute requiring formalized 
exchange of case information is advisable. First, removing discretion 
and requiring U.S. Attorneys' Offices and other investigative agencies 
to prepare detailed written reports that contain information about why 
investigations were either declined or terminated, runs the danger of 
compromising victims and witnesses, and creates potentially 
discoverable material which could jeopardize subsequent criminal case 
by highlighting weaknesses. Second, other provisions of law often 
preclude USAOs and investigative agencies from providing declination 
reports or any of the various types of protected information. For 
example, law enforcement officers and prosecutors can be subject to 
criminal liability for improper disclosure of information, where a 
declination is based on the existence of an on-going investigation that 
requires the law enforcement agency to protect the investigation, such 
as with grand jury proceedings. Because of the statutory restrictions 
on the use of protected information, the usefulness of declination 
reports and declination rates would be severely limited. Moreover, the 
very production of a declination report under this circumstance could 
lead to the inadvertent disclosure of protected information. Thus, the 
USAOs must have discretion in what information may be provided to 
tribal justice officials. In addition, declination reports can get into 
the wrong hands and pose the danger of jeopardizing investigations, as 
well as the safety and privacy of witnesses and victims, and the 
integrity of related investigations. This would particularly be a 
concern for districts with small tribal populations, in which even 
reports that have personally identifying information redacted could 
still be easily linked to victims.
    Moving on to overall declination statistics. As you are certainly 
aware, each tribe in North Dakota has unique qualities that distinguish 
it from every other tribe in North Dakota. Similarly, U.S. Attorneys 
located in districts across the United States recognize the various law 
enforcement realities which exist in different areas of the country. 
The presence of tribes in a district adds to the unique circumstances 
that an individual U.S. Attorney's Office faces. It is that unique set 
of circumstances that renders declination comparisons meaningless or 
misleading.
    As a starting point, because of the sometimes profound differences 
between their districts, individual U.S. Attorneys select different 
approaches to manage their offices. Case tracking is one management 
area in which they differ from one another. While all cases that are 
charged are tracked, there is more flexibility in tracking cases pre-
indictment. As a result, individual U.S. Attorneys use different 
models, based on the needs of their individual districts.
    Some U.S. Attorneys find it useful to know the total volume of 
matters that pass through their offices. This entails coding and 
tracking every case presented to the office, regardless of whether that 
case was likely eligible for Federal prosecution. While this option has 
the advantage of allowing the U.S. Attorney to follow the volume of 
work his or her office is processing, it doesn't provide an accurate 
picture of the federal case capacity for that district. This is 
particularly true in districts that encompass Indian country, where 
many criminal acts do not constitute federal offenses because of 
statutory definitions or limited territorial jurisdiction. That 
approach can result in an artificially high declination rate created by 
including cases that could never have been prosecuted federally.
    Other U.S. Attorneys choose to focus their tracking efforts only on 
those cases which are charged in Federal court, or are formally 
presented to prosecutors by a Federal law enforcement agency. These 
approaches have the advantage of allowing the U.S. Attorney to focus 
his or her attention on serious matters likely to result in a trial. On 
the other hand, these options present a more limited picture of the 
overall work of the office. U.S. Attorneys using either of these case 
tracking options will record a much lower declination rate than those 
that open files for any referral made to their office. However, as you 
might guess, any statistical disparity recorded by offices following 
the two approaches could be wholly illusory.
    The Department doesn't believe that one of these management 
approaches is inherently better than the other. We recognize that each 
U.S. Attorney's district is unique, so effective management requires 
flexibility. It is clear, however, that these different management 
choices will result in very different rates of declinations. This is 
true even though cases with similar facts are eventually resolved in 
similar manners. To reiterate, differences in declination rates between 
districts may represent differences in case tracking though no 
meaningful difference exists in the way cases are handled.
    In addition, even if all U.S. Attorneys were required to manage 
case tracking in the same manner, Indian country declination statistics 
by district would still not provide an accurate picture of our work in 
this area. Crimes in Indian country are often tracked by the 
substantive offenses (such as drugs, child exploitation, or violent 
crime), which is the general practice of the United States Attorneys' 
Offices, rather than by venue on Indian country. This means that many 
crimes that occur in Indian country, and that are likely to proceed to 
prosecution, may not be included in Indian country statistics. Because 
these categories of cases are not included in Indian country data, any 
declination statistics would be misleading.
    Accordingly, the Department does not believe publication of 
district specific declination statistics will provide an accurate or 
helpful tool for assessing the work of an individual U.S. Attorney's 
Office. Indeed such publication would simply create fodder for false 
comparisons that would inevitably prove corrosive. The Department wants 
to assure you and your colleagues that the availability of USAO 
resources is not the primary basis for a decision to decline a case 
arising in Indian country. That is certainly true of North Dakota, 
where a lack of United States Attorney's office resources is never the 
basis for declinations in violent crime cases or any other serious 
offenses.
    Finally, as I have noted repeatedly each tribe is different, and as 
a result each U.S. Attorney's district is also fundamentally different. 
This truism carries over to the type of crime and the environment in 
which the crime occurred. Generally speaking, violent crime may be much 
more difficult to investigate and prosecute than other types of 
offenses, such as white collar crime or drug conspiracies. When 
investigating a white collar crime, the law enforcement officer often 
has the ability to pace the investigation. As investigations progress, 
it is usually possible to seek additional documentary evidence or 
depose additional witnesses. With a violent crime, an investigator is 
often limited to evidence (as well as witnesses) that remain at the 
crime scene. This is particularly problematic in Indian country, where 
the crime may have occurred in an area hours away from a police 
station. It is not uncommon for these crimes to occur outside, where 
the elements may quickly degrade or destroy evidence. Add in 
uncooperative or unavailable witnesses, and investigators sometimes 
don't have the necessary factual record to present a case to 
prosecutors. Again, it is the Department's position that these 
statistics do not provide a meaningful tool to assess investigative and 
prosecutorial efforts in Indian country.
Conclusion
    Mr. Chairman, Madame Vice Chair, this concludes my statement. It 
has been my honor to appear before this Committee today, and I will do 
my best to answer any questions the Committee may have at this time.

    The Chairman. Mr. Wrigley, thank you very much.
    Mr. Wrigley. Thank you.
    The Chairman. Next, we will hear from Mr. Patrick Ragsdale, 
Director, Office of Justice Services of the Bureau of Indian 
Affairs.
    Mr. Ragsdale?

 STATEMENT OF W. PATRICK RAGSDALE, DIRECTOR, OFFICE OF JUSTICE 
  SERVICES, BUREAU OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Ragsdale. Good morning, Mr. Chairman, Madam Vice 
Chairman, and Senator Tester.
    You have my full statement, which I would ask the Committee 
to put in the record, and I will just try to highlight the 
points that we try to make in my personal testimony.
    Let me take a moment and give the Committee a quick update 
on some significant operations that we have ongoing in Indian 
Country. The Operation Dakota Peacekeeper in North and South 
Dakota is still ongoing. We have supplemented our regular 
police force with about 20 additional officers from throughout 
Indian Country, as well as from various tribal jurisdictions 
that have allowed us to take their officers that have special 
Federal commissions to supplement our workforce--the Cherokee 
Nation, the Comanche Nation, the Chickasaw Nation, the Poarch 
Creek Band of the Creeks, and maybe one or two other officers.
    Our force is also now being supplemented with National Park 
Service rangers, and we will probably have another team, a 
group from our sister agencies within the Department to assist 
us in the operations at both Pine Ridge and Standing Rock that 
entails about 50 officers on detail to both of those 
reservations.
    I am happy to report this morning, you probably have heard 
about the shooting of one of our police officers, Sergeant 
Louis Troy Poitra. He has been discharged from the hospital and 
is expected to fully recover from the wound that he received at 
an early morning call on September 10. We are very proud of 
Sergeant Poitra. He is one of our best, and we are proud of all 
the officers that we have serving Indian Country throughout 
America.
    The Committee had an interest in a number of issues which I 
will just try to highlight from my testimony. I think it is 
always important to cite where our authority comes from in 
enforcing laws in Indian Country throughout the United States. 
At one of my recent visits to Pine Ridge, I met with one of the 
traditional Sioux leaders and he reminded me of our treaty 
obligations under the Treaty of 1865. So after I talked with 
him that morning, I dug up the Treaty of 1865 with all the 
Sioux Nations.
    Article I provides for peace and friendship with the United 
States, which is common to most of our treaties, but Article I 
specifically talks about the responsibilities of the United 
States of America to deliver bad people to appropriate 
authorities, whether they have committed a Federal offense or 
committed an offense against the tribe. So that is where our 
basic authorities are rooted, as well as in other Federal laws.
    With regards to who is responsible for patrolling, 
policing, and investigating crimes in Indian Country, the 
primary responsibility for policing is vested historically with 
the Bureau of Indian Affairs. So we provide either through a 
direct policing operation or through tribal contracts for the 
basic policing and initial investigation of crimes throughout 
Indian Country.
    We also have a Criminal Investigative Division within the 
Bureau of Indian Affairs. That is spoken about in the Indian 
Law Enforcement Reform Act of 1990. Those services are 
supplemented with the Federal Bureau of Investigations, 
sometimes the DEA and ATF, depending on the types of crimes 
that are involved. So we have the responsibility to provide for 
basic policing in Indian Country, the Bureau of Indian Affairs 
does.
    We have spoken about the training, which was another issue 
that I understand that the Committee was interested in. I will 
just say succinctly that it is my belief that we provide some 
of the best training in law enforcement in the Country in terms 
of providing police with the complete range of training, with 
specialization and focus on domestic crimes, sex crimes, crimes 
against children, and homicides and the like.
    We also provide supplemental training by sending criminal 
investigators to the criminal investigative course at Glencoe, 
Georgia. We send senior tribal police officials and BIA 
officials to the FBI's National Academy at Quantico, Virginia, 
which is one of the premier law enforcement agencies in the 
world.
    In my written testimony, we provide you with a synopsis of 
a hypothetical incident on one of our reservations and try to 
walk through the process, which I will not go into in my 
testimony. But typically, this is the way we address major 
crime investigations in Indian Country, whether it is directed 
from a tribal police department or a BIA police direct 
operation.
    Last, or next to last, let me talk a little bit about our 
collaboration with U.S. Attorneys, Federal and tribal 
investigators, and victims. In the best set of circumstances, 
this collaboration between the law enforcement partners is 
constant and ongoing depending on the nature of the case. It 
has been my experience when I was in a tribal police 
department, that my discussions were always open and direct 
with both of the U.S. Attorneys that represented my 
jurisdiction in Indian Country, the Northern District and 
Eastern District of Oklahoma. I have never found the U.S. 
Attorneys that I have dealt with, either in my former capacity 
as a tribal police officer or in my current capacity, to be 
less than diligent and champion the rights of victims and go 
after those people that have violated Federal law.
    A lot is involved, depending on the particular 
circumstances of a case. You know, a case may stay open for a 
year or years, depending upon the complexity of the case. A 
whole bunch of factors go into the development of a criminal 
investigation that we submit to the U.S. Attorney, which I will 
defer to Mr. Wrigley to answer specific questions about. They 
are sometimes very complex. I have never found that the U.S. 
Attorneys that I have dealt with, and my folks that run 
investigations now, that is a lower priority for them.
    The Indian Country U.S. Attorneys I believe are very 
diligent and thoughtful. Mr. Wrigley called me about 30 days 
ago because he was concerned that they were not getting very 
many referrals from one particular reservation. So we had a 
conference where we involved a couple of his offices and with 
their Assistant U.S. Attorney. So if the perception is that the 
Indian Country U.S. Attorney have a second layer or a low 
priority for Indian cases, that has not been my personal 
experience.
    As we have talked about before, there are a number of 
pillars that support a public safety system throughout America. 
Number one, you have to have an effective police department to 
maintain the peace, which is our primary role in the 
administration of justice. You have to have a court system that 
works, whether it is the local tribal court system or the 
Federal system. And you also have to have strong community 
support from the Government that you are dealing with.
    In the instance of Standing Rock, one of the great 
strengths in our operation there is the tribal government has 
been totally supportive of developing and maintaining a better 
justice system for that particular jurisdiction.
    The prosecutor's role is next to last to the court's 
determination. A court case is the final process of 
administering justice, so we rely very heavily on the 
prosecutors, both tribal and Federal, to get our work done.
    With regards to the declination issue, I just returned from 
a Phoenix meeting with the U.S. Attorneys in Indian Country. We 
had some discussion about the numbers that were being talked 
about in terms of declinations. I can tell you that when I was 
a tribal police chief, I referred every allegation of a crime 
against a child that was reported to my office to the U.S. 
Attorney.
    Now, sorting those out, if that is the basis--and a U.S. 
Attorney would decline those that were in another jurisdiction. 
Many of those allegations and incidents were in State 
jurisdictions and for whatever reason, we would clear those in 
an investigation. So if that is the basis of the statistic of 
declination, I think that is not the real view of what our work 
entails and the U.S. Attorney's decision-making process is.
    Thank you, Mr. Chairman.
    [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










    The Chairman. Mr. Ragsdale, thank you very much.
    The point is, you don't know and we don't know what those 
declination numbers mean. That is the problem.
    Mr. Wrigley, I indicated when I started that we have some 
evidence, and this is not to tarnish all U.S. Attorneys because 
we have a lot of great U.S. Attorneys across the country, but 
when Monica Goodling comes to testify before the Congress and 
she says that one U.S. Attorney would have been fired had he 
not resigned because of a preoccupation with Indian Affairs 
issues. Another sitting U.S. Attorney says one criteria that is 
never on my list as a U.S. Attorney to the Justice Department 
is Indian Country cases. Another U.S. Attorney, who has since 
retired, said she received little support from Justice; people 
thought it was too much of my time being spent on too small a 
population.
    So that is the reason we are concerned. We know there is a 
string of evidence here that at least in some cases a U.S. 
Attorney's office was not encouraged to, and perhaps in some 
cases discouraged, to pursue those kinds of cases. But because 
we know almost nothing about this, I went to the Syracuse 
University website and pulled down what they have. They are the 
only ones that have any information because we have not been 
allowed to get the information from Justice. Justice has said 
we collect it, but we won't give it to you.
    So Syracuse University filed a FOIA, and so I went to North 
Dakota. For example, on page one, the first six cases, all 
aggravated sexual assault or sexual abuse or sexual contact, 
perhaps rape, perhaps sexual assault against a child or a 
woman. And this one, two, three, four, five, six--they all say 
declined. They all say weak or insufficient admissible 
evidence--all of them, just the first six cases. I don't have 
the foggiest idea what that means. Does it mean, for example, 
that the BIA, who investigated the report of a crime--serious 
crime, sexual assault is a serious crime--that the BIA didn't 
do the job to put the information together so that you could 
prosecute? Maybe that is the case. I am not talking about you 
now. I am just talking about whatever U.S. Attorney's office.
    Maybe that is the case. Maybe it is the case that they put 
together the case and it was considered a lower priority. Maybe 
that is the case. I don't have the foggiest idea. The only 
information we have is to go to a university website and pull 
down information that Justice has in its possession, but will 
not share with us.
    You have aid today, and I think General Mukasey said to me, 
well, we are worried that someone would disclose information. 
We are not asking for information about victims, about names. 
We are not asking for information about circumstances that 
would prejudice a case. That is not what we are asking for. 
What we are trying to do is understand what on earth is 
happening.
    So again, I guess the question is, if we are not asking for 
anything that would undermine an investigation or harm 
witnesses, as you have implied in your testimony, why would the 
Department not want to not only provide us the information, but 
provide a substantial amount of explanation of the information 
so that we all understand the same thing?
    Mr. Wrigley. Thank you, Senator. I would first point out 
that it has not been my experience at all that the Department 
is not supportive of our Indian Country efforts.
    The Chairman. I understand that.
    Mr. Wrigley. In fact, in my seven-years quite separate from 
that, we have had a great deal of support. In our district, as 
you know, in any given year 25 percent of our caseload comes 
from Indian Country cases.
    The last issue that you talked about though, Senator, when 
you mention that the information that you do not want, it is 
the information that you do not want that is the basis of a 
declination. By that, I mean every case, and I mentioned it in 
my testimony and in my written testimony as well, every case 
where here is a declination might have a very, very different 
reason. I know the public perception because I end up talking 
to people who read those same articles. I know the public 
perception would be, well, it must be indifference or lack of 
resources that would lead to those declinations. As I have 
mentioned here today, there are a variety of reasons that lead 
to those declinations.
    The Department, like most government entities, puts out a 
lot of information, but the information that we are reluctant 
to put out--speaking very generally and trodding gentle ground, 
of course, speaking on behalf of a large organization--but we 
recognize this would be misleading. Well, people say why do you 
have the information, then, if it could be misleading? Well, it 
is useful to use as an internal management mechanism. It is 
useful for us to know because I am familiar with the individual 
cases that get declined. I am familiar with the rationale that 
they got declined for a lack of evidence, or was there an 
investigative problem, as you point out, or was it just a false 
allegation of some kind.
    The Chairman. Why would it mislead us to try to understand 
what the purpose of the declinations were? What if Mr. 
Ragsdale's investigators investigating six people who alleged 
sexual assault has been committed against them, what if Mr. 
Ragsdale's investigators are insufficiently trained and have 
presented six successive cases of sexual assault to your office 
or to another office, and they simply can't be prosecuted 
because they just weren't good? Perhaps the assault happened, 
but the investigation was flawed and didn't give you the 
information with which to prosecute. Shouldn't Mr. Ragsdale 
know that? Shouldn't we know that? Because what that would 
suggest is substantial law enforcement additional training is 
needed, perhaps additional personnel. Wouldn't that be 
information that would be useful not just to you, but also to 
us?
    Mr. Wrigley. Well, Senator, the reasons that you spell out, 
if we were to provide that level of detail, we would get into 
the information oftentimes stuff that we are not allowed to 
provide by law; information that we cannot provide out of 
privacy concerns for individuals on the reservations or 
witnesses; concerns about public safety of witnesses or the 
alleged victim in a particular case. And that would be the only 
meaningful information to assess why the declination took 
place.
    So the catch-22 is, the only information that we could 
provide to you would be that there was a declination, and then 
that would come up as a declination statistic. But when you ask 
for the additional--I am sorry, Senator.
    The Chairman. Well, that is not quite the case. Let me ask 
it in a different way. Have you, for example, in your district 
and perhaps all other districts, you have six cases of alleged 
sexual assault. Have you evaluated and catalogued for your own 
use what has occurred her that persuaded you not to prosecute? 
If so, was that valuable to you? If so, would it be valuable to 
us as decision-makers about resources?
    Mr. Wrigley. That is the last question that I would go to. 
The issue of resources is never a basis for a declination of a 
case in North Dakota, but violent Indian crime cases, we never 
decline any cases for resources. I can tell you that statistic 
because it is zero. We never decline cases in North Dakota in 
Indian Country because of resources.
    The Chairman. But the first question was have you evaluated 
the broad inventory of declinations to evaluate what you can 
learn from those declinations? And have you shared that with, 
for example, the BIA? You obviously will not share it with us 
at this point under the order of General Mukasey, but have you 
done that kind of evaluation? And have most U.S. Attorneys done 
it?
    Mr. Wrigley. Well, Senator, I can speak for myself on that 
issue. The issue of declinations is something that happens 
week-in and week-out, because as you know we have hundreds of 
case referrals every year. Hundreds of cases come in, and any 
case that comes in, and my office is not so big--I have 17 
Assistant U.S. Attorneys, 13 of whom are working on Indian 
Country cases. So in one form or another, they are working on 
criminal matters.
    And so I am in real-time discussing matters as they go 
forward, so I would hear if there is an investigative problem, 
and from time to time, you know, we may take issue with an 
individual investigator on a particular case, and most often 
that is something where we say we need additional information. 
Most agents will then turn around and go and work on the 
additional information for you.
    If it becomes systemic with one entity or another, whether 
it is--and I don't want to mention any because it sounds like I 
am slandering them. I am not. If it is a particular agency 
where I feel now I need to go above that agent, and I talk to 
their supervisor or I go up to the SAC level beyond that--those 
discussions take place. And understanding that, and I would 
like to point out, I think we are conscientious to the point 
where we are deeply concerned if ever we had an emerging trend 
that they are just not investigating crime, they are showing 
indifference towards Indian Country or anything along those 
lines, they wouldn't last a week, much less a month or 
something else.
    Our obligation is strong. My experience in the seven years 
that I have been there as U.S. Attorney has been that that 
commitment is very wide in the Department among the U.S. 
Attorneys.
    The Chairman. Except that you have heard my description of 
what we have had testified to here in the Congress from Monica 
Goodling, from the previous U.S. Attorney in Minnesota, and 
elsewhere about that commitment. So I mean, I understand your 
point about your experience, but there is plenty of reason, it 
seems to me, publicly to question what happened. This isn't 
under Mr. Mukasey's stewardship. He has not been there a very 
long period of time. I had that discussion with him the other 
day. My hope is that we will have some cooperation from him.
    I am going to make one other quick observation to Mr. 
Ragsdale. Mr. Ragsdale, you and I have talked about this. You 
have indicated you are understaffed. We know that. I mean, we 
appreciate that you have put some people in Standing Rock 
Reservation, where they have five times the rate of violence of 
the national rate of violence. My understanding is on the 
Spirit Lake Reservation, it is about seven times the rate of 
violence compared to national rates of violence and violent 
crime.
    You are dramatically understaffed in order to do what the 
Congress has promised by treaty and by trust to do. You can 
come here forever. We appreciate very much your work and your 
testimony, but ultimately we have to find the additional 
resources and the training necessary to make this system work.
    I am going to call on my colleagues, and then I will have 
another round.
    Senator Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman.
    Mr. Wrigley, I guess I am still not clear. You have the 
information regarding the declinations. You say that you use it 
for internal management and that you are able to learn from 
that. But I will express the same concerns that the Chairman 
has, that if in fact there is something in another agency, 
whether it is BIA or wherever, that information needs to be 
conveyed that there is an inadequacy or a lack of 
accountability or lack of training or what have you. Internal 
management within your department is fine, but if there isn't 
some way to then help another agency because of the information 
that you have, what good is the collection of the information 
that you are gathering?
    Mr. Wrigley. Thank you, Senator. Again, I don't think that 
I was very clear in my answer. The information is useful to us 
because of course we are charged with the responsibility of 
having that information. The information flows into us. We have 
the security clearances. We have the case management 
responsibilities as to the facts and the allegations contained 
in the individual case file.
    Senator Murkowski. They are only as good as what you may 
have received in the collection of information from law 
enforcement from the BIA. Correct?
    Mr. Wrigley. That is correct. As you point out, if we had 
an issue that developed on a particular case or in a number of 
cases or they are trending, we had an issue, a problem with the 
investigative work of BIA or anyone else, we would certainly be 
addressing it head-on with that individual investigator.
    Senator Murkowski. How would you convey that to the agency?
    Mr. Wrigley. Mr. Ragsdale wants to answer this, too, but if 
I just could respond, Senator. You have to understand, my 
individual Assistant U.S. Attorneys are very conscientiously 
working on individual case allegations that come in. In working 
with an agent, if they feel that there has been substandard 
work of some kind or something has been overlooked in their 
investigation, they convey that back to the agent and the work 
gets completed.
    Senator Murkowski. But that is the particular investigation 
that they are looking at and working with another agent at BIA. 
What if you have--everybody has their work order in front of 
them. You might not know what is happening two cubicles down, 
and you may have a trend here that you all are aware of, but 
that the agency itself, that information is not communicated. 
Is there a way to communicate that, that we have a problem 
here?
    Mr. Wrigley. As for resources within the Department, there 
is a way. I mean, there is a process by which----
    Senator Murkowski. Not the resources, the information that 
you have, the information that you have learned that could be 
used to help, whether it is with training or just 
accountability procedures. Is there some way to convey that?
    Mr. Wrigley. Well, sure, within the Department, as I say--
--
    Senator Murkowski. Within the Department is fine, but we 
are not talking about--if you guys were the ones that were 
handling it exclusively, then that is fine. But you are not. 
You have other agencies, as we know, and this is part of our 
problem here. How do you talk between the agencies?
    Mr. Wrigley. Well, we talk in terms of trends in cases. And 
we talk about individual cases, and we talk about if there are 
resource needs. As Mr. Ragsdale pointed out, if there is an 
issue where I feel that we have not gotten referrals from one 
reservation for a time that I am starting to question that and 
wonder about it, that is communicated and we try to get to the 
bottom of it, and we do. I mean, we address those problems.
    It is done in real time and it is done consistently and in 
an ongoing fashion. My point about the declinations is again 
the information, the only way to explain an individual 
declination or even the statistic overall, you have to break it 
down by case. And if you break it down by case, you get down to 
the information that we are sometimes not by law allowed to 
share, and sometimes it is unwise to share because it would 
violate the essence of an ongoing investigation. That is 
common. And also, it might violate the privacy interests. There 
is a lot of medical information contained in that information, 
especially involving sexual assault cases. So it goes into 
that.
    The reason behind the individual declination, which is the 
only way to give meaning to a declination, that information is 
what is problematic in sharing outside of the law enforcement 
circle.
    Senator Murkowski. Two things that I want to ask, and my 
time is up, but I need the answers to these two questions. On 
the second panel there is a gentleman who I guess is proposing 
that in our legislation, the Tribal Law and Order Act, that the 
information be considered confidential. If it was strictly 
confidential with penalties imposed by law, is this going to 
help?
    The second question that I would like the answer to, you 
stated in your opening remarks that these statistics, these 
declination statistics are not helpful; that they are not 
accurate and publication of them would not be particularly 
helpful. I am assuming that you recognize, though, that we are 
not able to prosecute as many of the cases that come from 
Indian Country that we would like; that there are issues there. 
We can dispute whether or not it is a 58 percent declination 
rate or whether it is a 63 percent, but I am assuming you would 
agree that we need to do better.
    The question then is, if you don't think that publication 
of the declination reports is going to be helpful, if you say 
that we can't get around the confidentiality, what do you 
propose as a positive solution to this Committee and to the 
Congress as to how we do a better job? Unless you say that we 
are doing a fine job and we don't need to improve, what is the 
solution?
    Mr. Wrigley. Well, with due respect, Senator, Senator 
Dorgan pointed out it might be uncomfortable to come in 
sometimes and testify as a U.S. Attorney. I understand I am not 
going to be telling anybody whether they are doing a good job. 
I understand the importance of this hearing.
    I do want to point out, though, I want to go back to a 
point that you made about me accepting that there are more 
cases than we can prosecute and more than we can do. I will say 
again to the Committee, and I have gone back with my individual 
Assistant U.S. Attorneys to confirm this at the ground level in 
my office, we do not decline cases because of a lack of 
resources in North Dakota on Indian Country matters. We don't. 
We don't have thresholds.
    Senator Murkowski. What can you do to improve?
    Mr. Wrigley. Okay. What can we do to improve the 
statistics? Or what can we do to improve the reporting to the 
Senate?
    Senator Murkowski. What can you do to improve the situation 
so that the people that are the victims of a sexual assault, 
domestic violence and all kinds of heinous acts know that those 
that have violated them will be prosecuted to the full extent 
of the law?
    Mr. Wrigley. Senator, I am actually glad to get that 
question because I can tell you again, tying back into what I 
just said, in North Dakota, I do not aspire to drop that 
declination rate because our declination rate does not contain 
any percent of cases that are declined for resources. It is 
declinations based on no jurisdiction----
    Senator Murkowski. We are not talking about resources. If 
you haven't been able to prosecute this because, you know, 
whether it was a chain of custody problem or whether it was 
lack of training--we don't know what it is. You just keep 
saying that you don't decline because of lack of resources, but 
there are clearly other reasons that you would decline to take 
the case.
    Mr. Wrigley. The vast majority, and I am talking the vast 
majority is because there is a lack of jurisdiction or because 
there was no Federal crime. I know that we share the 
understanding and respect for the idea that we are duty bound 
not to present cases to the grand jury or proceed on cases 
where we don't have jurisdiction or we don't think we have an 
evidentiary hope of getting there. We don't think there is a 
Federal crime.
    And so when the vast majority of declinations are based on 
those reasons, there would be nothing to improve. The issue 
that you raise, though, is a good one. It is something that we 
work on all the time on an individual case. If there is, as you 
mentioned, a chain of custody matter, I mentioned to someone 
the other day. I was a State prosecutor. I was away from my 
State for about six years. I was in the Philadelphia DA's 
office. I had a different experience there in a lot of regards 
from being in North Dakota. I don't recall a single case in my 
seven years as U.S. Attorney where there was substantial 
evidence suppressed under the Fourth Amendment--extremely 
professional law enforcement; not a single case that I can 
remember substantial evidence being thrown out of court under 
the Fourth Amendment.
    I think that addresses the issue that you raise. It is not 
to say that issues don't come up in cases, and when they do, my 
assistants deal with them very directly with the law 
enforcement agencies that they are dealing with. There would be 
no way to catalogue, and we don't catalogue in a year, and I 
think this addresses your question as well, the number of times 
someone has said that they were upset with an investigation 
that was done by a particular agency or another. But I hear 
about it when there are substantial problems with an individual 
investigator of some kind, or if people feel, you know, fill in 
the blanks--agency X is not living up to their obligation. I 
hear about that.
    The Chairman. We want to move on.
    Senator Tester?
    Senator Tester. Thank you, Mr. Chairman.
    First of all, you have a difficult job. We all recognize 
that and appreciate the job you do. I just want to step back 
for just a second. Do you think that there is a problem with 
the number of cases in your jurisdiction that are declined to 
be worked on?
    Mr. Wrigley. Again, Senator, the reasons for the 
declinations----
    Senator Tester. Or just your perspective? I mean, you don't 
have to justify it, but if you don't think there is a problem, 
no; if you think there is a problem, yes.
    Mr. Wrigley. It is an issue, and I see these public 
reports, you know, I get concerned about, too. I want to kind 
of ferret out what, if any, impact that is having in my 
particular jurisdiction. So concerned, yes, of course. I look 
at those numbers and I need to make sure that we are doing the 
job that we need to be doing here. I have made those inquiries.
    Senator Tester. And from your previous answers to Senator 
Murkowski's questions, you seem to indicate that most of those 
reasons for declination were due to jurisdiction. Is that 
correct?
    Mr. Wrigley. Jurisdiction and lack of evidence, the most 
common being someone brings an assault case in and we don't 
have jurisdiction over it unless it is an assault resulting in 
serious bodily injury. If there is no serious bodily injury, 
that is far and away the vast majority of those kinds of 
declinations I am discussing.
    Senator Tester. Okay. How about on-reservation versus off-
reservation? You said that you had worked in a previous job 
before--I assume that wasn't in Indian Country.
    Mr. Wrigley. No, it was in Philadelphia, the DA's office.
    Senator Tester. Right. So I mean, that is a whole different 
world. But I mean, did you see the same kind of problems there 
as far as cases that were not pursued?
    Mr. Wrigley. Well, to the first part of your question, I 
have said often that the prosecution of Indian Country crime is 
very similar to the prosecution of crime in some of our more 
dangerous urban centers.
    Senator Tester. Okay. All right. How about from a 
standpoint of what is pursued and what isn't? Is that very 
similar, too?
    Mr. Wrigley. Well, again, my experience prosecuting crimes 
in Indian Country and having people working on my behalf doing 
that is that the law enforcement has been very professional in 
North Dakota at the Federal, State and local levels. They work 
together quite well, so it is a different experience in that 
regard.
    Senator Tester. Okay, so I guess what I am trying to figure 
out is, is it comparable to what is happening off the 
reservation to what is happening on the reservation as far as 
crimes and how they are pursued and how many of them are turned 
away because of lack of evidence or jurisdictional problems?
    Mr. Wrigley. Again comparing Philadelphia and Indian 
Country? Or just our other----
    Senator Tester. Any way you want to go--just off-
reservation, on-reservation. You worked in Philly, but if you 
can compare it to Fargo, that is fine.
    Mr. Wrigley. Let's compare it to our other cases in North 
Dakota, because it raises another issue. The vast majority of 
our violent crime that we prosecute federally in North Dakota 
is off of the reservation and is Indian Country and it is 
reactive work. So you have the problems of evidence-gathering. 
You have the issues that come up with witnesses in every 
violent crime case, whether working in an urban center or 
somewhere else.
    Compared to a lot of the other cases that we do in North 
Dakota where they are proactive investigations in a white 
collar case, proactive investigations in a drug trafficking 
organization of some kind, so you have different evidentiary 
issues because you are building into the investigation, as 
opposed to reacting to it, and maybe the elements are playing 
some role. I talked about that in my written testimony a bit. 
So there are those differences.
    Senator Tester. Okay. I guess what I kind of envisioned 
coming into this hearing and kind of where we started at are 
kind of two different places. I envisioned coming into this 
hearing to try to figure out ways that we could offer some help 
in the legislative branch of things to the judicial branch to 
be able to make you as effective as possible. Then the 
conversation got around to we couldn't get the information and 
so we don't know how to compare apples with apples. We don't 
know how to help you. We don't know if it is a jurisdictional 
issue or if it is an issue with police collection of data or 
what the heck it is.
    What would you do if you were in my shoes? How would you 
find out the information that you need? I don't think we would 
be having this hearing if there wasn't at least a perceived 
problem. I think there is a problem. What would you do? I mean, 
how do we help? How do we offer a level of accountability to 
folks in Indian Country that come up to me and say, my daughter 
was raped and nothing was done about it?
    Mr. Wrigley. Well, Senator, I think one of the first gauges 
that has to be viewed is what is the commitment of individual 
U.S. Attorneys to Indian Country prosecution? What is the 
commitment of the Department? I am here to say that the 
commitment is quite strong. I have been there seven years, and 
I won't go through all of that because I know that----
    Senator Tester. I think you do a great job. How do we get 
the information to help figure out what the problem is so we 
can solve it?
    Mr. Wrigley. As I said, when the commitment is strong 
there, I guess I have to look back on my years of experience 
again here and say I do not have an issue with resources. When 
we have had questions of resources, I have to say I think that 
the Congress has been supportive of that because issues--let's 
say it is Internet luring of crimes or child pornography--those 
issues surface as well.
    Where that need develops, it does get communicated by the 
Department. I think the Congress has been very receptive. I am 
going to get in trouble when I get back and say, well, they 
forgot to give us $8 for that, but--you know what I am saying.
    Senator Tester. I am not saying it is resources. It may not 
be your resources. It may be Patrick Ragsdale's resources. How 
do we fix the problem if we don't have the information? And how 
do we get the information? It just seems to me--I am not an 
attorney--but it seems to me if we wanted to fix this problem, 
we could fix this problem, if it is a problem, but we can't 
tell if it is a problem because we can't get the information to 
determine if it is a problem.
    Mr. Wrigley. Senator, as I have said, I think, and you 
know, I am sitting here being forthright with you about my 
issues. If the issue is resources, as I say, when people read 
those statistics or when they come to me after some member of 
my family or someone else has read those stories, they want to 
know what is wrong. Is it indifference, or do you guys just 
don't have enough people to prosecute the cases, which is a 
rational inquiry. My response is, we are very interested and we 
have the resources to prosecute every case, including all the 
additional cases that came off this BIA action down in Standing 
Rock this year. We were able to handle those cases and the 
surge of cases coming from there.
    So again, that goes to the issue of what is--when you say 
there is a problem. Again, there is no problem when a 
significant number of the declinations are based on 
jurisdictional issues. That is not a problem. That is a truism. 
It is not a problem to say we couldn't prosecute the case 
because we didn't have evidence that there was serious bodily 
injury.
    Now, the smidgen of cases that might come in there--I am 
talking just about North Dakota--that might come in there where 
I say, you know, the real problem is we didn't have sufficient 
training for the investigators that responded to the scene that 
day from the tribe, or from BIA, or from the FBI or whomever. 
When that problem arises, whenever it does, in real time U.S. 
Attorneys and Assistant U.S. Attorneys before us when they have 
the case, they address those issues with the FBI and with that 
agency. They address it for that case. They address it for the 
others. They are very conscientious about the individual cases 
that they are working on.
    That is why, you know, I go to Indian Country as well. We 
go out to visit and I hear from folks who will say, you know, 
the same kind of things you mentioned, Senator, about, well, 
``why didn't this case get pursued? '' And just as often, ``why 
did this case get pursued? '' ``I heard that that person 
recanted.'' You know, we hear it both ways and the reality is 
we deal with individual cases. I don't know of a meaningful 
way, Senator, to deal with these things. They are so factually 
dependent. They are dependent upon who was the investigator. 
They are dependent upon who responded to that scene. And they 
are so dependent upon the facts of a particular case, you can't 
often extrapolate much out of that.
    I can guarantee the Senate that if in North Dakota--and I 
trust my colleagues to be doing the same--if there evolved a 
trend where we were seeing indifference by investigators or 
lack of training by investigators, we are professional and we 
are conscientious about it, and our assistants are as well. The 
Department is committed to Indian Country prosecutions. And 
when they do develop in places or for individual investigators, 
they are addressed head-on. I don't know how to discuss this in 
the abstract.
    The Chairman. Mr. Wrigley, if I might just ask, one of the 
sitting U.S. Attorneys was quoted in a recent report saying, I 
know the performance of my office will be compared to other 
U.S. Attorneys' offices. My gun cases have to compete. My white 
collar cases have to compete. One criteria that has never been 
on that list is Indian Country cases.
    Is that your experience?
    Mr. Wrigley. That is not my experience because it is such 
an overall part of our office's work.
    The Chairman. Are you done?
    Senator Tester. No, ultimately there is not a problem, 
there is not a problem that I have seen since I have been that 
can't be solved if people work together and branches of 
government work together. I can tell you, if it is a 
jurisdictional issue, then we need to figure out what that 
issue is and I am sure it is different in every reservation 
there is, but we need to figure out ways we can overcome the 
jurisdictional issue. If it is an issue about gathering 
evidence, then we need to figure out how to do it.
    I can tell you that the violent crimes I hear about where I 
live, and I live about 40 miles, 35 miles from a reservation, 
the violent crimes in our area that I hear about most often 
happen on that reservation. And that is one of the reasons why 
we don't have economic development on reservations like we 
should have; that is one of the reasons why businesses don't 
move up there; that is one of the reasons why the schools don't 
do as well; that is one of the reasons why our kids come out 
and the unemployment rate is higher.
    I mean, the list goes on and on and on. Unless we figure 
out a way to find out how we are going to solve the problems, 
whatever those problems might be, then it is never going to get 
any better. And quite honestly, that is unacceptable to me. It 
has got to get better.
    Quite frankly, I want Native Americans to be able to 
determine their own destiny and be self-sufficient. I don't 
want to have the Federal Government have to cut them a check 
because I don't think they want it to begin with. That is all. 
That is where the frustration is for me. If we can't get the 
Department to at least come together to figure out a way we can 
share information to fix the problem, the problem will never be 
fixed. That is all.
    And if there is no problem, then how come when I read the 
paper it appears to be a problem to me. I mean, there is 
something going on here that I think we need to figure out a 
solution for. We are not going to do it without your help.
    The Chairman. Senator Tester, thank you very much.
    Let me just make a point. I did when I started and I want 
to do it again. I know there are wonderful U.S. Attorneys' 
offices out there with a lot of people working very hard to do 
exactly the right thing. And we appreciate them. But to sit on 
this side of the desk and, for example, here is a story about a 
woman named Leslie Iron Road--this happened in South Dakota--20 
years old, violently raped. It was not investigated or ever 
prosecuted. She indicated, her relatives indicated that while 
in the hospital before she died, she indicated specific names 
of the people that, of the gang of people that brutally raped 
her. And then they talked to one of the BIA investigators and 
he said--and again, this is a published piece, a long-published 
piece in June of this year--he said, you know, we knew when it 
came to prosecution, we all knew they only take the ones with a 
confession, so we are forced to triage our cases--this is from 
one of Patrick Ragsdale's people.
    You know, I don't know where the truth lies in all of this. 
I know you can parse statements here and there and everywhere. 
All I know is this, in the U.S. Attorney's manual, there is a 
whole long list of reasons for declining cases, a long list: no 
Federal offense; lack of criminal intent; no known suspect; 
suspect was either a fugitive or serving a sentence or deceased 
or deported; weak or insufficient evidence; no rape kit; no 
confession--a whole series of things that represent reasons for 
declination.
    But when I look at this data that Syracuse put out, on this 
list, reasons of weak or insufficient or inadmissible evidence. 
I mean, that is for most of it. And it raises the question, was 
the crime not committed? Or if the crime was committed, was the 
investigation flawed? Somehow, in some way, we need to be a 
part of evaluating--not in any way ever to prejudice a 
prosecution, to get the name of the victim, to get information 
that should be confidential--that is, and I know you have 
raised that and so did Attorney General Mukasey, but that is 
not the issue. That is well beside the point because no one is 
asking for that information.
    But I think, Mr. Wrigley, you make a good appearance on 
behalf of the Attorney General. You have worked long and hard 
for seven years. I think you have been a really good U.S. 
Attorney in North Dakota. I appreciate your work, and I don't 
suggest that in our jurisdiction you turn down cases just for 
the sake of turning them down.
    I do suggest this, however. We have violent crime rates in 
North Dakota and around the Country that are multiples of the 
national average. Those violent crime rates on Indian 
reservations demonstrate something very serious is wrong--five 
times at Standing Rock; seven times at Spirit Lake. Something 
is desperately wrong, and we need to find a way to fix it.
    Part of that continuum is the investigation side. Part of 
that continuum is the prosecution side. Part of it is tribal 
courts. Part of it is detention. It is all of those things 
together.
    All we are trying to do today is try to begin to understand 
on that piece that represents prosecution and declination rates 
that we have virtually no knowledge of at all, despite the fact 
that data is collected and then withheld from us.
    So I appreciate your testimony. I appreciate, Mr. Ragsdale, 
your being here today. Senator Murkowski and I will have a 
conversation with the Attorney General. He wanted to go back 
and review this information and the reason that we had 
requested it. I hope that our discussion with the Attorney 
General will resolve the matter. If not, this Committee will 
take further action.
    Mr. Ragsdale. Could I?
    The Chairman. Yes, Mr. Ragsdale?
    Mr. Ragsdale. Let me just say briefly that I don't have any 
points to gain from the DOJ, but I think the core issue with 
policing and prosecution in Indian Country is having an 
effective police department that can provide for basic 
peacekeeping, and to vigorously go after those people that 
violate the law. The problem is not with the prosecutor's 
unwillingness to take our cases. The problem is keeping up with 
the cases.
    In the State of Montana, on one of your reservations, 
Senator, you have two FBI--we used to have, I don't know if 
they are still there--two FBI agents full-time on probably one 
of the most violent reservations in the Country. They had a 
caseload the last time I checked of about 50, and that is 
including we have our CID criminal investigators in that same 
office.
    Now, if you have that kind of caseload to do due diligence 
on serious crimes, that is part of the problem. The U.S. 
Attorney cannot prosecute a case that just isn't there, that 
you have incomplete information, or you have in the scenario 
that we laid out--the person that was assaulted with a blunt 
instrument--if you find out in the investigation that there 
were witnesses there, but they were all drunk or under the 
influence or uncooperative, you can write the best 
investigative report in the world and refer it to the U.S. 
Attorney and they are not going to be able to make a case out 
of it. The core issue is providing effective policing up front 
on the reservation, and effective investigations with a 
caseload that professional investigators can handle.
    Now, if one of my agents told a victim or a witness that 
the U.S. Attorney didn't take anything except for a signed 
confession, that is just simply not true, and that was an 
unprofessional thing for that agent to say. So I will look into 
that.
    The Chairman. Senator Murkowski?
    Senator Murkowski. Thank you, Mr. Chairman.
    I just wanted to do a quick follow-up. I probably didn't 
give you an opportunity, Mr. Wrigley, to answer my question 
about why can't we just make the information confidential. I 
guess I pose this, we recognize that here in Congress, we have 
the authority to exercise the oversight over the executive. We 
deal in classified information all the time. We deal in top 
secret information all the time.
    I guess I am just not certain why the Department of Justice 
would be hesitant, would be afraid to share the declination 
information with us, subject to whatever appropriate discharge 
restrictions might be in order, so that we can more effectively 
carry out the oversight responsibilities that we have.
    You didn't answer that question about whether or not we 
could provide for that level of confidentiality so we can have 
the information that I think it is quite clear that we need.
    Mr. Wrigley. Thank you, Senator, for giving me that 
opportunity again, because I have it written down here with a 
box next to it and it is not checked, so that means I didn't 
get to it, and I apologize.
    The reason would be, what you point out is getting the 
information to you confidentially or otherwise, and again from 
my testimony, and just experience looking at these matters, my 
chief concern in looking at those is that it will be misleading 
to you to give you the information without providing real-time, 
here-is-the-case files. That is the reality of it, because 
every one of those declinations is going to involve a measure 
of the professional judgment of the assistant in dealing with 
the specifics of that particular case. You know, if told to do 
so, of course the Department could put into nice categories, 
here is the declination for this, this and this. And by the 
way, those statistics are misleading when you don't know the 
individual case. That is the very real concern.
    The Chairman. But you have made that case over and over 
today. You would be surprised at how often people come to the 
Congress to say, you probably won't understand this information 
so it won't be valuable to you. You know what? I think it would 
be useful for that information to be available to policymakers. 
And frankly, I think the continuum here--Mr. Ragsdale, you and 
I share one common piece of information. The six cases of 
sexual assault--likely rape and sexual assault--all dismissed 
for weak or insufficient admissible evidence. The one thing 
that you and I share is we don't have the foggiest idea what 
connects these six. Is it because you have investigators out 
there that don't know what they are doing? Or is it because you 
had a bunch of folks at a party that were drunk and they were 
witnesses that were unreliable, as you said? The thing is, you 
don't know and I don't know. None of us know. So you have six 
declinations here with no information at all for either of us.
    And with respect to the FBI, we appropriated money for FBI 
agents. Somehow, they didn't get out to Indian Country despite 
that fact that is why we appropriated the money. So there is a 
whole continuum of issues that we need to deal with. It is not 
as if there isn't knowledge by us from U.S. Attorneys, Mr. 
Wrigley, that there are problems in some areas. And I don't 
ascribe that to you, but it is not as if there is not direct 
testimony before the Congress that those problems exist.
    So we will continue to pursue this information. You know, I 
think Senator Tester said it as well, and Senator Murkowski, 
our interest is not in trying to skewer anybody. But the fact 
is, if you are not living in a circumstance where you believe 
that you and your family are safe because there is a violent 
crime wave going on in your area, that is real trouble. This 
Congress and this government has a responsibility to address it 
because of treaty and trust responsibilities.
    Mr. Ragsdale, you are dramatically understaffed and you 
know it. You said at the last hearing something most people 
wouldn't say because some people have come to say that I didn't 
get enough money in my budget, and the next morning they were 
fired. You are still here. I am pleased.
    [Laughter.]
    Mr. Ragsdale. I am just stubborn, sir.
    The Chairman. And a bit surprised. But we have a lot of 
things to do, to work on together. We want U.S. Attorneys' 
offices to succeed. We want BIA law enforcement to succeed. 
Senator Tester said the U.S. Attorneys' offices, those are 
tough jobs and you do very important work for this Country. I 
don't want this hearing to tarnish the reputation of all U.S. 
Attorneys. That is not the case. But we want all U.S. Attorneys 
and their offices to make sure that they are all addressing the 
issue of violent crime on Indian reservations in a serious way. 
I believe testimony suggests that has not always been the case, 
and we will except your service, Mr. Wrigley.
    So let me thank you for being here on the part of the 
Attorney General. You are a strong advocate admonishing us why 
we shouldn't see the information, but I think ultimately we 
will. I think it will help us. It will help you. It will help 
Mr. Ragsdale and help us write a piece of legislation that will 
really begin to address a serious crime problem on the 
reservations.
    You have traveled some distance to be here. We thank you, 
Mr. Wrigley.
    Mr. Wrigley. It is a pleasure. Thank you, Senator.
    The Chairman. And Mr. Ragsdale, thank you again.
    Mr. Ragsdale. Thank you, Mr. Chairman.
    The Chairman. We have a second panel, and if the two of you 
can stay for any amount of time, we would appreciate that, just 
to listen to the second panel: Mr. Thomas Heffelfinger, a 
partner of Best and Flanagan at Minneapolis, Minnesota, former 
U.S. Attorney; Mr. Brent Leonhard, Deputy Attorney General, 
Confederated Tribes of Umatilla Indian Reservation in Oregon; 
Ms. Janelle Doughty, Director of the Department of Justice, 
Southern Ute Indian Tribe in Colorado; and the Honorable Thomas 
Weissmuller, Board Member and Tribal Representative of the 
National Criminal Justice Association, and Chief Justice of the 
Mashantucket Pequot Tribal Nation.
    I appreciate very much the four of you coming. We will 
include all of your statements in the record. We would ask only 
that you summarize your statement. Your entire statement will 
be made a part of the permanent record.
    Mr. Heffelfinger, why don't you proceed.

    STATEMENT OF THOMAS B. HEFFELFINGER, PARTNER, BEST AND 
                         FLANAGAN, LLP

    Mr. Heffelfinger. Thank you, Senator Dorgan, Vice Chair 
Murkowski, Senator Tester, thank you very much. I appreciate 
the honor and opportunity to appear before you again. My name 
is Tom Heffelfinger, I am with the Minneapolis law form of Best 
and Flanagan, where among other things, I represent tribal 
communities.
    As Senator Dorgan implied in the prior panel, I served as 
United States Attorney in the District of Minnesota twice, most 
recently from 2001 through 2006, and during that period, I was 
Chair of the Native American Issues Subcommittee.
    Probably relevant to the discussion here today is that in 
my background I also spent six years as an assistant Hennepin 
County Attorney in Minneapolis, where I prosecuted street 
crimes and spent about nine months on the charging desk, where 
all I did is every day come in and review cases, charge them or 
decline them. And I am happy to share my declination 
experience. I also spent seven years as an Assistant U.S. 
Attorney.
    I am going to lead off by saying I do, in all due respect 
to Mr. Wrigley, who is a great friend and a great U.S. 
Attorney, I disagree with the position of the Department of 
Justice and I am testifying here today in support of the 
declination report provision of the 2008 Act. I want to commend 
this Committee, quite frankly, for the Tribal Law and Order Act 
of 2008, and for your commitment to pursuing the issues in 
there. There are many, any provisions of that Act, which will 
enhance public safety in Indian Country.
    Ultimately, I don't understand the Department's position on 
the declination reports. The experience of State and local 
prosecutors across the Nation, and this was my experience, is 
that declination reports are a common part of doing business. 
They are shared with probably the elected district attorney and 
they are shared with the referring police department. By doing 
that, the information that led to the declination is shared 
with people who are in a position to make change in order to 
avoid having those reasons that led to declination interfere 
with the ability to prosecute future crimes.
    Also, members of the Committee, in all due respect to the 
Committee's need for the statistics, I understand that, and I 
understand it is important for your oversight and for your 
identification of resources. I believe that the value of 
declination reports to the communities in which those crimes 
are committed and the law enforcement agencies that refer those 
crimes to the United States Attorneys offices outweighs the 
benefit that this Committee will gain from them. Because 
without that information, and I will give you a very specific 
case example at the end of my testimony, without that 
information how is the community to effect change in order to 
enhance the safety of their own people, which in my experience, 
is what every tribal community places as its top priority?
    Despite my general agreement with the declination report 
provisions in Section 102, I do have several different 
suggestions. Having testified before this Committee three times 
as a Department of Justice representative, I actually welcome 
today the freedom to be able to make suggestions. I need to say 
up front, these are my suggestions, they do not reflect, 
obviously, the Department, nor do they reflect the positions of 
the tribal clients whom I represent.
    First, however, the current law as you have drafted it 
places the burden on law enforcement agencies to report to 
Congress, and I believe to the tribes, when the law enforcement 
agencies decide not to pursue an investigation. I believe that 
a law enforcement agency investigating a case in Indian Country 
ought not to be able to decline an investigation without 
consulting with an Assistant U.S. Attorney on that case. In 
other words, it ought not be a decision made at the desk of an 
investigating agent, period.
    There are two reasons for that. First of all, I am a strong 
believer that a second set of eyes and a legal analysis from an 
Assistant U.S. Attorney is valuable when it comes to make the 
decision of whether or not to investigate that case at all. 
Quite frankly, if one looks at the role of the FBI, they 
generally will not decline a white collar case without at least 
consulting with an Assistant U.S. Attorney before they will 
make that declination to investigate.
    The second benefit of requiring that all decisions to not 
investigate go through U.S. Attorneys offices is that then the 
data and the declination data will be included in the data that 
is reported by the United States Attorneys office. As Senator 
Murkowski properly identified, there are a ton of agencies out 
there who have jurisdiction in Indian Country, and all of them 
have the ability to decline. By requiring that that declination 
data go through the U.S. Attorneys office, for all the positive 
reasons the declination report can provide, it will be unified.
    The second suggestion, confidentiality is a legitimate 
concern. And I think that the Act needs to be amended to 
reflect that. But frankly, Section 102(d), which is the 
confidentiality provision, isn't strong enough, it isn't clear 
enough, and it could be tightened up. There are three areas of 
confidentiality concern that I see, most of which were 
mentioned by Mr. Wrigley. The first is protecting the identity 
of victims, clearly, and of offenders where no prosecution has 
been undertaken. Those people have the right to have their 
confidentiality preserved.
    Number two, it is improtant to recognize that sometimes 
investigations in Indian Country are ongoing. We are seeing 
that increasingly as the FBI established Safe Trails task 
forces and gang and drug investigations are undertaken. Those 
cases sometimes are presented to the U.S. Attorneys office 
piece-meal, and if you decline one, the U.S. Attorney ought not 
be in a position of disclosing the existence of an ongoing 
investigation. It is a simple fix, but it is a fix that I think 
needs to be taken.
    Third, it wasn't mentioned here, but it is a concern of 
mine, having been a U.S. Attorney responsible for protecting 
the United States Governmetn against claims of liability. 
Declination reports ought not be used as evidence upon which a 
claim of legal liability can be asserted against a Federal 
agent or a Federal prosecutor or anybody like that. Again, 
simple fix. That section could provide that, these reports may 
not be used, or the information contained therein may not be 
used to establish a claim of liability.
    The third suggestion I make, and this is something of a 
fundamental change from what you have suggested. I suggest that 
the distribution of declination reports be limited to the 
tribal liaisons in each U.S. Attorneys office and to either the 
Office of Tribal Justice or the Office of Indian Country Crime, 
if it is fact established. What I am suggesting here is that 
the reports not be routed direcly to the tribes. However, I say 
that recognizing that this Committee in the proposed 2008 Act 
has sigificantly enhanced and clarified the role of the tribal 
liaisons, including in there a requirement that the tribal 
liaisons coordinate and communicate dirctly with tribal law 
enforcement officals, including tribal prosecutors, and that 
the performance of those tribal liaisons be evaluated based on 
their success in doing that kind of communication.
    The most effective way for a case to be prosecuted at the 
tribal level when there is confirmed jurisdiction, or even at 
the State level where there may be State jursidictino, is to 
put the tribal liaison in a position to effectively communicate 
that information to the tribal prosecutor and tribal law 
enforcmeent official and the like. Similarly, that will enahce 
the ability to protect confidentiality.
    Finally, by putting the data through either OTJ or the new 
Office of Indian Country Crime, there is a second route for 
providing that information to tribal governments.
    The Chairman. Mr. Heffelfinger, I must ask you to 
summarize.
    Mr. Heffelfinger. Thank you.
    I will not repeat what has already been said. I do 
obviously have strong feelings about the competence and 
credibility of the Assistant U.S. Attorneys and the agents who 
work in Indian Country. As I stated in the testimony, I am 
concerned that, as Senator Dorgan cited with the report, that 
more often than not these cases get declined for weak or 
insufficient evidence. One has to go behind that. In my written 
testimony, I cite some reasons for that.
    But let me address one which I think is relevant. I would 
agree with Mr. Wrigley, there is not a United States Attorney's 
office in the Nation, including North Dakota and Minnesota, 
that would ever decline an Indian Country crime simply because 
that office or the U.S. or the FBI or BIA or whomever lacks the 
resources to do the investigation.
    However, it is my experience that the lack of resources 
does lead to weak and insufficient evidence. It is in the 
inability to recover evidence from the work that was not done 
between the time of the crime and the time of the referral. And 
frequently, that work isn't attributable to the law enforcement 
officer, but rather to the support resources that are not 
available in Indian Country. Let me give you examples: child 
advocacy centers, domestic violence shelters, crime 
laboratories, safe and sane trained nurses capable of doing 
sexual assault testing.
    Let me make a suggestion to you in that regard. I think 
that in the 2008 Act you have taken a great step forward in 
providing for State and local cooperation at the law 
enforcement level. I strongly support that, which I believe is 
in chapter 202. I would suggest, however, that 202 be amended 
to provide for grants for organizations that provide services 
that are not directly law enforcement, but provide services 
upon which law enforcement officers rely.
    I am thinking now of sexual advocacy centers. I will finish 
with how this can work and how it does work. In Northern 
Minnesota, we faced this problem back in 2004 and 2005 with 
child abuse cases and the inability to find a child abuse 
advocacy center who could evaluate these children. We took our 
declination data and took it to the tribal council directly. 
The Red Lake Tribal Council agreed with us that we needed to 
establish something like this that would serve for the benefit 
of Red Lake and White Earth and Leech Lake, as well as the non-
Indian communities around it. And because of that, we were able 
to develop an advocacy center that now provides those services.
    Thank you very much, Senators. I will stand for questions.
    [The prepared statement of Mr. Heffelfinger follows:]

    Prepared Statement of Thomas B. Heffelfinger, Partner, Best and 
                             Flanagan, LLP














    The Chairman. Mr. Heffelfinger, thank you very much.
    Next, we will hear from Mr. Brent Leonhard, the Deputy 
Attorney General of the Confederated Tribes of the Umatilla 
Indian Reservation in Oregon.
    Mr. Leonhard?

   STATEMENT OF M. BRENT LEONHARD, DEPUTY ATTORNEY GENERAL, 
              CONFEDERATED TRIBES OF THE UMATILLA 
                       INDIAN RESERVATION

    Mr. Leonhard. Thank you, Chairman Dorgan, Vice Chairman 
Murkowski, members of the Committee. I want to thank you for 
allowing me to testify this morning.
    This is a very important bill. The 2008 Law and Order Act 
is probably one of the most important Indian Country crime 
bills in the last 30 or 40 years, primarily because it gets at 
systemic fixes to a completely broken system.
    I appreciate that, and I also want to thank Senator Smith 
from Oregon for cosponsoring the bill. This is a bill that 
needs and deserves broad bipartisan support as it is written.
    There are two areas I want to touch on in my oral 
testimony. The first is the need to amend the bill to expand 
tribal sentencing jurisdiction actually up to five years, and I 
will explain that; and the second is Federal declinations.
    As it stands, the bill expands tribal sentencing 
jurisdiction from one to three years, which is a great thing. 
It is a wonderful thing. I like that idea. The reason for it 
was because the typical Federal prosecution is an aggravated 
assault. The average sentence for that is 34 months. So there 
is a gap between one year and three years. To fill that gap, 
the bill gives tribal courts the ability to sentence up to 
three years. It fills that gap. That is great.
    However, it overlooks one thing. When you have a defendant 
who is put into the Bureau of Prisons system, the Bureau of 
Prisons is going to credit them good time, and sometimes that 
can be quite substantial. So instead of three years, you have 
actually got that gap opening up. It hasn't been closed. And I 
think more importantly, it is important to look at how States 
treat their felonies. I have drafted a report with the help of 
Cisco Minthorn which I think is in the Senate record, which 
looks at how all 50 States deal with their felonies.
    One thing that is pointed out there is of the States that 
define felonies, 64 percent of them define their lowest-level 
felony as having a maximum sentence of five years. So a State's 
lowest-level felony is five years. You have tribes that are 
dealing with murder, intentional homicide, rape, child 
molestation--extremely serious offenses. Tribes ought to be 
afforded the respect to be able to treat their most serious 
offenses the way States treat their least serious felonies, and 
that would close the gap.
    Moving on to declinations. We all know that the declination 
rates are exceedingly high. We don't all know why that is, and 
I think there is probably a lot of finger-pointing and a lot of 
disagreement. I have my personal opinions which don't jibe with 
what you have heard today. But this bill is critically 
important, section 102, to deal with that issue by requiring 
the reporting of declinations. It does so in two ways, or for 
two reasons. It seeks to, one, obtain accurate information for 
declination rates and the reasons for them. That is critical. 
If you have a system that is broken, you can't fix it without 
knowing why it is broke. We have to have that data, and I am 
disturbed to hear that DOJ won't provide you with the data it 
already has.
    And two, the most important aspect of this is it requires 
coordination between the Federal prosecutor and the tribal 
prosecutor. It requires the Federal prosecutor to in a timely 
way coordinate and communicate with the tribal prosecutor so a 
declined case can be brought forward in tribal court before a 
statute of limitations runs, and to make sure that the tribal 
prosecutor has all the information they need to take the case 
forward in tribal court. Without it, cases fall through the 
cracks.
    To illustrate this, there is an excellent series of 
articles in 2007 by the Denver Post, one part of which 
illustrates an incident on the Crow Nation reservation. The 
Crow Nation prosecutor had a case involving the sexual 
molestation of a six-year-old girl. The Feds declined to 
prosecute. So the tribe tried to pick up that ball and run with 
it in tribal court to do something, but by the time it got to 
tribal court, the statute of limitations had run. The case was 
dismissed. Nothing happened. We have to fix that problem, and 
this bill helps fix that problem.
    Now, DOJ has previously in written testimony and today 
explained that they have concerns that somehow the reporting 
requirements in section 102 will become either public or 
subject to discovery disclosure in the future if they in some 
unusual circumstances decide to take up the case after they 
declined it. I think that is highly unlikely, and I detail that 
in my written testimony.
    I think the most valid argument they would have is somehow 
the provision that says that Federal law enforcement is to 
share written reports with tribal law enforcement, giving the 
reason for refusing to investigate or terminating an 
investigation, and somehow by sharing that information it loses 
its designation as work product. I find that highly doubtful, 
given the nature of Federal Indian law and criminal 
jurisdiction of Federal Indian jurisdiction.
    However, if that is the case and they can give cogent 
reasons and legal analysis and case law to suggest that is the 
case, I think there is an easy fix. And that is to say that 
these reports remain work product of the Department of Justice 
when they are disclosed to tribal law enforcement. Tribal law 
enforcement is the prosecutor. Maybe the chief of police, key 
law enforcement--there are people probably already involved in 
an investigation. It is not going anywhere else. So I think we 
can fix that problem easily if there is indeed a problem.
    The Chairman. Mr. Leonhard, I have to ask you to summarize 
as well.
    Mr. Leonhard. I just want to say again thank you for the 
opportunity, and I look forward to answering any questions you 
have.
    [The prepared statement of Mr. Leonhard follows:]

   Prepared Statement of M. Brent Leonhard, Deputy Attorney General, 
         Confederated Tribes of the Umatilla Indian Reservation

    Chairman Dorgan, Vice-Chairman Murkowski, and Members of the 
Committee:
    My name is M. Brent Leonhard. I and the Confederated Tribes for the 
Umatilla Indian Reservation appreciate the opportunity to testify 
before the Committee regarding the 2008 Tribal Law and Order Act, and 
more specifically, federal declinations to prosecute crimes in Indian 
Country.
    The first section of my testimony pertains directly to federal 
declinations to prosecute crimes in Indian Country. As has been 
repeatedly pointed out before this Committee, the rate at which federal 
prosecutions are declined in Indian Country is appallingly high. There 
may be many reasons for such high rates of declinations ranging from 
inadequate evidence to limited resources, from lack of jurisdiction to 
a lack of confidence in the ability to obtain a conviction at trial, 
and anything in between. Regardless the rates are inordinately high, 
and in light of this fact it is important to do the two things that 
relevant portions of this bill seek to accomplish. First, the bill 
seeks to obtain accurate data on declination rates and the reasons for 
those declinations. And second, the bill seeks to ensure there is 
timely coordination and reasonable communication with tribal 
prosecutors to make certain they have sufficient details to proceed 
with the case in tribal court. While the Department of Justice has 
indicated that it is committed to improving Indian Country crime data, 
it has previously expressed concerns about the purported publication 
and disclosure of declination reports under the bill. My testimony on 
this issue addresses those concerns.
    The second part of my testimony pertains to section 103 of the bill 
and its bolstering of the use of Special Assistant United States 
Attorneys (SAUSA) within Indian Country. While the head of the 
prosecution unit for the White Mountain Apache Tribe I was an SAUSA in 
Arizona. Unfortunately, my participation in that program was 
underutilized at the time. However, the program itself offers a 
significant opportunity for United States Attorney offices to leverage 
limited resources, increase federal prosecutions of Indian Country 
crime, and improve tribal-federal relations. All of which is 
desperately needed.
    Finally, I want to encourage the Committee to amend the bill to 
expand tribal sentencing jurisdiction from 3 years to 5. As outlined in 
the last section of my testimony, the majority of states that define 
felonies in terms of maximum sentences define their lowest level 
felonies as carrying a maximum sentence of 5 years. It seems only fair 
that Tribes ought to at least have the same sentencing authority as 
states with respect to the state's lowest level felonies.

I. Declination Reports
    The United States Department of Justice has expressed concerns 
about provisions of the 2008 Tribal Law and Order Act that pertain to 
declination reports. Those concerns turned on publicizing declination 
reports and creating potentially discoverable material outlining 
weaknesses in subsequent criminal cases. Presumably, these concerns 
specifically pertain to section 102 of the bill as presently drafted, 
as that is the section of the bill governing the declination of 
reports. The concerns previously expressed by the Department of Justice 
should be sufficiently dealt with by the language of the bill as 
presently drafted.
    Section 102 of the bill essentially requires federal law 
enforcement officials, when declining to investigate a crime or upon 
terminating an investigation, to submit a report describing each reason 
why the case was not opened or an investigation was declined or 
terminated. This report is to go to two places. First, it goes to the 
appropriate tribal justice official so that they have a full 
understanding of the reasons for the termination or declination. 
Second, the report goes to the Office of Indian Country Crime, which 
will be a component of the Department of Justice itself. A ``tribal 
justice official'' is a defined term under the bill and means ``a 
tribal prosecutor, a tribal law enforcement officer, or any other 
person responsible for investigating or prosecuting an alleged criminal 
offense in tribal court.'' In short, initial disclosure outside of the 
Department of Justice itself is only made to those tribal officials who 
are intimately involved in the criminal investigation. And in those 
situations where the tribal prosecutor is an SAUSA or the tribal law 
enforcement officer has authority to conduct federal investigations, 
the disclosure still technically remains within the Department of 
Justice or at least within a federal law enforcement agency.
    In those circumstances where the appropriate tribal justice 
official is not effectively an arm of the Department or Federal 
Government in a given criminal investigation, the information still is 
not subject to general public disclosure unless the tribal justice 
officials themselves make such a disclosure. The Freedom of Information 
Act (FOIA), at 5 U.S.C. 552(b)(7)(A), specifically exempts records or 
information compiled for law enforcement purposes to the extent that 
the production of such law enforcement records or information could 
reasonably be expected to interfere with enforcement proceedings. With 
the specific FOIA exemption, and limited disclosure to critical tribal 
law enforcement officials, the concern that such reports could be 
subject to public disclosure is unwarranted.
    Section 102 of the bill also requires United States Attorneys, when 
declining to prosecute a case or otherwise terminating a federal 
prosecution, to do two things. First, they are to coordinate and 
communicate with the appropriate tribal justice official with enough 
advanced notice to prevent the running of a tribal statute of 
limitations and provide them with reasonable details about the case to 
allow the tribal prosecutor to pursue the case in tribal court. Second, 
they must submit relevant information regarding a declination, 
including among other things the reason for the declination, to the 
Office of Indian Country Crime.
    With regard to the requirement that they coordinate and communicate 
with appropriate tribal justice officials in a timely manner on 
declined federal cases, it should go without saying that this 
requirement is critical. Every state and the Federal Government have a 
criminal statute of limitations. Tribes may, or may not. Even those 
that don't may look to state or federal laws for guidance in 
determining if a limitation period applies and what that period might 
be. Typical state statutes limit the time in which misdemeanor crimes 
can be prosecuted to one or two years. In Washington State it is two 
years for a gross misdemeanor (punishable by up to one year) and one 
year for misdemeanors (punishable by up to six months). Given that 
tribal courts are limited to sentencing an individual to one year in 
jail this can have serious consequences for very serious offenses. As 
reported in a 2007 Denver Post article, a prosecutor for the Crow tribe 
had a case dismissed for violation of a statue of limitations in a case 
alleging the sexual assault of a six year old girl that was eventually 
declined by federal prosecutors (http://www.denverpost.com/ci--
7429560). Delays can have serious consequences. Furthermore, 
information obtained during the federal investigation of any case needs 
to be shared with tribal prosecutors to ensure they have all of the 
facts and evidence necessary to take a case forward, not to mention the 
need to ensure a defendant's discovery rights are being protected as 
the case proceeds through tribal court. Consequently, even if such a 
requirement may in some tenuous way potentially jeopardize a few 
federal cases that are initially decline but later pursued, absence of 
such a requirement will seriously undermine the ability for tribes to 
bring cases in tribal court.
    Furthermore, there isn't a requirement in the bill that this 
coordination or communication be in writing, let alone subject to 
public disclosure or publication. There is no reason to assume such 
coordination with tribal prosecutors would result in the creation of 
federally discoverable material that will somehow undermine the 
investigation that would not otherwise be discoverable. I am not aware 
of any requirement that a federal prosecutor must provide discovery to 
a potential federal defendant absent a pending federal case. If and 
when the matter is pursued in tribal court, certainly the defendant 
will have a right to all discoverable material, but that requirement 
isn't unique to any provision of the proposed bill--it is a matter of 
criminal procedure and due process requirements. Furthermore, there is 
no reason to assume that any work product from the Department of 
Justice would be subject to disclosure even after a case is filed in 
tribal court, as work product generally is not subject to disclosure.
    The second thing United States Attorneys are to do under section 
102 is to submit relevant information regarding a declination, 
including among other things the reason for the declination, to the 
Office of Indian Country Crime. Again, the Office of Indian Country 
Crime will be an office within the Department of Justice and sharing 
information within the department does not give rise to any unique 
problems concerning publicizing sensitive information.
    In addition to the requirements imposed on federal law enforcement 
and United States Attorneys, section 102 of the bill requires that the 
Director of the Office of Indian Affairs establish and maintain a 
compilation of the information discussed above. This compilation is to 
be made available to Congress. However, release of information to 
Congress does not constitute a waiver of any exemption under FOIA. 
Kanter v. Internal Revenue Service, N.D.I11.1977, 433 F.Supp. 812; 5 
U.S.C. 552(d). Furthermore, a compilation report as contemplated under 
the bill (which, presumably, will be made public) will not contain 
information of such a detailed nature as to be capable of undermining 
the investigation or prosecution of a specific case. And such a report, 
in and of itself, certainly would not make other more specific 
information about a particular case suddenly discoverable.
    It may be that the Department of Justice fears that after having 
created a report detailing the reasons for declining to prosecute a 
case or terminating the prosecution of a case, they may subsequently 
decide to pursue prosecution after all. In that instance, they may be 
concerned that the previously created report which has only been shared 
internally and, potentially, with tribal law enforcement officials has 
become discoverable. This line of reasoning would presume the report 
would have lost its status as work product because of the disclosure to 
``outside'' law enforcement. I'm not sure such a concern is warranted. 
Certainly, given the nature of federal Indian law and the necessary 
interaction between tribal and federal law enforcement in prosecuting 
crimes in Indian Country it is reasonable to assume communications 
between the two remain work product for both. In fact, the connection 
between the two is so intimate, given the present nature of federal 
criminal Indian law, that tribal law enforcement officers often have 
certification to exercise federal investigatory powers and tribal 
prosecutors are often designated as Special Assistant United States 
Attorneys. If, however, that assumption is erroneous, there appears to 
be no reason why the bill could not be amended to specifically declare 
that such reports are to be considered the work product of the 
Department of Justice and tribal law enforcement. Furthermore, the 
likelihood that the Department of Justice is going to pursue the 
prosecution of a case after having specifically declined to prosecute 
it, or after having terminated the prosecution of the case, as opposed 
to issuing a request to conduct further investigation pursuant to 
United States Attorney Criminal Resource Manual 9-27.200, is likely 
very low. On the other hand, the need to coordinate and communicate 
with tribal law enforcement officials on the reasons for declinations 
is critically important.

II. Special Assistant United States Attorneys
    In an effort to expand the capacity of United States Attorney 
Offices, section 103 of the bill specifically amends 28 U.S.C. 543(a) 
to include the appointment of qualified tribal prosecutors and other 
qualified attorneys to assist in prosecuting federal offenses committed 
in Indian Country. The bill goes on to encourage the use of SAUSAs in 
Indian Country to enhance the prosecution of what might other wise be 
considered minor federal crimes. United States Attorney resources are 
limited. Consequently, they often have to pick and choose between cases 
they want to prosecute in federal court. The United States Attorney 
manual gives prosecutors wide discretion in determining whether to 
proceed with the prosecution of a case, as it should. However, 
discretion does not turn solely on the likelihood of conviction at 
trial. Exercise of discretion also turns on whether a substantial 
federal interest would be served. In making that determination federal 
prosecutors are to refer to federal law enforcement priorities, the 
nature and seriousness of the offense, the deterrent effect of 
prosecution, culpability, criminal history, and willingness to 
cooperate in other prosecutions (USAM 9-27.230). There is little doubt 
in my mind that this means a lot of federal crimes go un-prosecuted in 
Indian Country and often even serious crimes will be set aside to 
pursue other serious matters that have a greater likelihood of 
conviction.
    Using qualified tribal prosecutors or other attorneys to pursue 
viable cases in federal court that might otherwise have been set aside 
to pursue other, more serious, cases can close this resource gap. 
SAUSAs in Indian Country are not paid out of United States Attorney 
resources, have direct ties to the community where cases arise, and 
routinely deal with the law enforcement officials who will be handling 
the investigation of the crimes. Unfortunately, it is a program that is 
significantly underutilized in Indian Country.
    My own experience as an SAUSA left me without having prosecuted a 
single case in federal court. But that doesn't have to be the case. 
Many tribal prosecutors are highly qualified trial lawyers. With 
appropriate encouragement and training they can be effective federal 
prosecutors on cases that would otherwise be set aside. Furthermore, 
training could involve second chairing a few cases with AUSAs which 
would certainly enhance the relationship between tribal and federal law 
enforcement. In addition, AUSAs could second chair a few of the SAUSA's 
initial cases. While this may require some additional devotion of 
resources upfront, the payoff could be significant in that United 
States Attorney offices would essentially be getting free prosecutors 
to handle cases that otherwise would not have been pursued. 
Furthermore, tribes would gain by having their prosecutors receive free 
training and experience in prosecuting crimes in multiple 
jurisdictions.

III. Expanding Tribal Court Sentencing Jurisdiction to 5 Years
    Finally, I want to address the need to make at least one more 
amendment to the bill as presently drafted. 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, it may be more appropriate to permit tribes to sentence 
individuals who commit serious crimes to a maximum of 5 years, and I 
encourage the Committee to consider amending the bill to expand 
sentencing authority from 3 to 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 this 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.
    As it turns out, according to a memo previously submitted into the 
Senate record by myself and Cisco Minthorn, 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 were left out of the calculation because they don't 
define a felony and an equivalency was not found. Of the remaining 39 
States we have found that 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.
    Consequently, 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 more than 5 years. 
As for the other 2 states, 1 sentences aggravated assault up to 4 years 
and the other uses a complex sentencing grid for all offenses. 
Therefore, 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.
    In conclusion I want to extend my gratitude and appreciation to 
Senator Gordon Smith, this Committee, and all those who support this 
very important bill. It has many significant provisions and seeks not 
only increased resources to combat crime in Indian Country, but most 
notably, systemic changes that are necessary to help fix a clearly 
broken system. It is easily one of the most important federal Indian 
Country crime bills in the last 30 years, and accordingly warrants the 
broad bi-partisan support it has received. Thank you for your efforts.

    The Chairman. We thank you for being here.
    Ms. Janelle Doughty, the Director of the Department of 
Justice, Southern Ute Indian Tribe in Colorado.
    Ms. Doughty, thank you for being here. If you would pull 
that very close to you, we would appreciate that.

          STATEMENT OF JANELLE F. DOUGHTY, DIRECTOR, 
DEPARTMENT OF JUSTICE AND REGULATORY, SOUTHERN UTE INDIAN TRIBE

    Ms. Doughty. Thank you and good morning. Chairman Dorgan, 
Committee members, thank you for the opportunity to testify 
today. My name is Janelle Doughty. I am an enrolled member of 
the Southern Ute Indian Tribe, and serve as the Director for 
the Department of Justice and Regulatory for the tribe.
    The Southern Ute Indian Tribe has 1,500 enrolled members 
and consists of approximately 681,000 acres of land in 
Colorado. I supervise the tribe's Police Department, Wildlife 
Rangers, as well as the Southern Ute Detention Center. I also 
oversee the tribal prosecutor, the public defender, the 
Division of Gaming, Regulation and Licensing, and Environment 
Affairs. I am also leading the tribe's development of a new 
juvenile detention center. I previously served as the tribe's 
Crime Victims Advocate and as its Executive Officer. I have a 
master's degree in social work from the University of Denver 
and I am a graduate of the State of New Mexico Police Academy.
    The topic of this hearing is declinations. I understand 
this term to mean decisions by United States Attorneys not to 
prosecute certain criminal cases arising within Indian Country. 
I have read published reports that some U.S. Attorneys in other 
States than Colorado are declining criminal prosecutions that 
is disproportionate to that in similar situations off-
reservation.
    The Southern Ute Tribe hosted a meeting of the Native 
American Issues Subcommittee of the U.S. Attorney General's 
Advisory Committee last October in Ignacio, Colorado, and our 
Tribal Council met with approximately 15 U.S. Attorneys from 
around the United States. Colorado's United States Attorney 
Troy Eid invited Professor Kevin Washburn of Harvard Law School 
to talk about declination rates during a public portion of that 
meeting. It was refreshing to see the issue openly discussed by 
the Justice Department. So I am very familiar with the public 
debate over this issue, as well as what really happens in 
practice.
    We have a model relationship with the U.S. Attorney's 
office in Colorado. This is a direct result of the current U.S. 
Attorney Troy Eid. My department has partnered with Mr. Eid and 
his office to strengthen criminal justice on the Southern Ute 
Reservation, and is achieving real results. Before Mr. Eid took 
office, I could not have told you the U.S. Attorney was because 
I have never met him. Mr. Eid meets regularly with the Tribal 
Council, doesn't decline cases without discussing them with me 
and my department, and has even revisited cases that his 
predecessors declined.
    In one such case, Mr. Eid's office obtained a conviction in 
a statutory rape case involving a 13-year-old victim. This was 
a case that the previous U.S. Attorney had declined without any 
explanation. The Tribal Council asked Mr. Eid to revisit the 
case. I have established a cooperative relationship geared 
toward training and information-sharing that allows my officers 
actual face-time with those responsible for prosecuting our 
cases. On many occasions, Assistant U.S. Attorneys have 
actually conducted training opportunities in areas such as 
building a Federal case, preparation for courtroom testimony, 
and pertinent issues of jurisdiction. It is my belief that 
actual personal interaction is irreplaceable in developing 
strong working relationships.
    With isolation from the prosecutorial system, we 
drastically limit common understanding. By putting 
investigators and prosecutors in the same room, we have been 
able to reach a high level of cooperation and understanding, 
which translates into cases being developed in an appropriate 
format for prosecution. This is the way things are supposed to 
work, but often didn't until Colorado finally had a U.S. 
Attorney who understands that his role is that of a local 
district attorney on our reservation.
    I also persuaded Mr. Eid to develop a pilot program to 
train and federally deputize tribal, State and local law 
enforcement officers on the Southern Ute Reservation so they 
can obtain or renew their Special Law Enforcement Commission 
cards without traveling for a week to the BIA Police Academy.
    On the Southern Ute Reservation, we can see the positive 
results. Last May 24, the tribe's Chief Criminal Investigator, 
Chris Naranjo, responded to a domestic violence crime scene on 
the reservation. Because he was federally deputized, Chris 
could arrest the non-Indian suspect who allegedly victimized 
one of our tribal members in that case, which is now being 
prosecuted by the U.S. Attorney's office.
    Mr. Eid has written about the need for Congress to overrule 
the U.S. Supreme Court's decision in Oliphant v. Suquamish 
Tribe so that qualifying tribes can choose to assert criminal 
jurisdiction over non-Indians. This was not an easy or popular 
stance for him to take in the Justice Department or with some 
in Congress, but I am glad that there is at least one U.S. 
Attorney who understands his trust responsibility. As a Tribal 
Justice Department Director, I strongly support a repeal of 
Oliphant as a common sense way to strengthen public safety on 
our reservation.
    Our tribal courts protect criminal defendants' rights. We 
should be permitted to take the next step further. It is wrong 
for Indian people living on Indian reservations to be totally 
at the mercy of chief Federal prosecutors far from our 
reservations. It is absolutely deplorable for Indian people to 
be denied equal access to justice. We need to have a meaningful 
voice in their selection. It is also totally unacceptable that 
the nearest U.S. District Court Judge in Colorado is 350 miles 
away from the Southern Ute Reservation and even farther from 
our sister tribe to the west, the Ute Mountain Ute Tribe.
    I and other law enforcement agency managers, along with 
local municipal, tribal, and county government representatives 
have been pushing for a Federal courthouse and judgeship in our 
area. Trying cases that meet the elements of the Major Crimes 
Act 350 miles from the jurisdiction in which they occur stands 
as a roadblock to justice and must be resolved.
    Federal juries in Colorado rarely include a single American 
Indian, yet they decide purely local crimes, and we have never 
had a Federal grand jury in Western Colorado in my lifetime.
    It is time for Congress and the Department of Justice to 
chart a path that, over time, will end the Federal Government's 
dominant role in Indian Country criminal justice for those 
tribes that are willing and able to do this for themselves. 
Case declination, inadequate resources for criminal 
investigations, the lack of Federal judicial access, these are 
all symptoms of a justice system that was designed more than a 
century ago by the Federal Government to keep Indian people 
down, instead of permitting us to take responsibility for our 
own destiny.
    Thank you.
    [The prepared statement of Ms. Doughty follows:]

   Prepared Statement of Janelle F. Doughty, Director, Department of 
           Justice and Regulatory, Southern Ute Indian Tribe

    Chairman Dorgan, Committee members, thank you for the opportunity 
to testify today. I have a written statement and ask that it be 
submitted in its entirety for the record of these proceedings.
    My name is Janelle Doughty. I am an enrolled member of the Southern 
Ute Indian Tribe and serve as the Director of the Department of Justice 
and Regulatory for the Tribe. The Southern Ute Indian Tribe has 1,500 
enrolled members and consists of approximately 681,000 total acres in 
Colorado. My responsibilities as Director include managing 97 total 
employees. The Bureau of Indian Affairs has delegated the primary 
justice and regulatory functions of my Department to our Tribal 
government through so-called ``638'' contracts. I supervise the Tribe's 
Police Department and Wildlife Rangers, as well as the Southern Ute 
Detention Center. I also oversee the Tribal prosecutor and public 
defender; the Division of Gaming; Regulation and Licensing; and 
Environment Affairs, including the regulation of stationary air 
pollution sources, water quality and environmental controls. I am also 
leading the Tribe's development of a new Juvenile Detention Center. I 
previously served as the Tribe's Crime Victims' Advocate and as its 
Executive Officer. I have a Master's Degree in Social Work from the 
University of Denver and am a graduate of the State of New Mexico 
Police Academy.
    The topic of this hearing is ``declinations.'' I understand this 
term to mean decisions by United States Attorneys not to prosecute 
certain criminal cases arising within Indian Country. I've read 
published reports that some United States Attorneys in states other 
than Colorado are declining criminal prosecutions at a rate that is 
disproportionate to that in similarly situated areas off-reservation. 
These reports include the newspaper series entitled ``Lawless Lands,'' 
written by investigative reporter Michael Riley and published by The 
Denver Post last November. Mr. Riley's work recently received the 
national Silver Gavel Award from the American Bar Association for 
excellence in legal reporting, and he interviewed me and members of my 
staff during his investigation. The Southern Ute Tribe also hosted a 
meeting of the Native American Issues Subcommittee of the U.S. Attorney 
General's Advisory Committee last October in Ignacio, Colorado, and our 
Tribal Council met with approximately 15 U.S. Attorneys from around the 
United States. Colorado's United States Attorney, Troy Eid, invited 
Professor Kevin Washburn of Harvard Law School to talk about 
declination rates during a public portion of that meeting, and it was 
refreshing to see the issue openly discussed by the Justice Department. 
So I am very familiar with the public debate over this issue--as well 
as what really happens in practice.
    We have a model relationship with the United States Attorney's 
Office in Colorado. This is a direct result of the current United 
States Attorney, Troy Eid. My Department has partnered with Mr. Eid and 
his office to strengthen criminal justice on the Southern Ute 
Reservation, and is achieving real results. Before Mr. Eid took office, 
I could not have told you who the U.S. Attorney was because I have 
never met him. Mr. Eid meets regularly with the Tribal Council, doesn't 
decline cases without discussing them with me and my Department, and 
has even revisited cases that his predecessor declined. In one such 
case, Mr. Eid's office obtained a conviction in a statutory rape case 
involving a 13-year-old victim. This was a case that the previous U. S. 
Attorney had declined without any explanation. The Tribal Council asked 
Mr. Eid to revisit the case. He met with the victim's mother at my 
request, took the case, and Assistant U.S. Attorney Jim Candelaria--who 
does a terrific job for the Tribe--obtained a conviction.
    I have established a cooperative relationship geared toward 
training and information sharing that allows my officers actual face 
time with those responsible for prosecuting our cases. On many 
occasions Assistant United States Attorneys have actually conducted 
training opportunities in areas such as: building a federal case, 
preparation for court room testimony, and pertinent issues of 
jurisdiction. It is my belief that actual personal interaction is 
irreplaceable in developing strong working relationships. With 
isolation from the prosecutorial system we drastically limit common 
understanding. By putting investigators and prosecutors in the same 
room we have been able to reach a high level of cooperation and 
understanding which translates into cases being developed in an 
appropriate format for prosecution.
    This is the way things are supposed to work but often didn't until 
Colorado finally had a U.S. Attorney who understands that his role is 
that of a local District Attorney on our Reservation.
    I also persuaded Mr. Eid to develop a pilot program to train and 
federally deputized tribal, state, and local law enforcement officers 
on the Southern Ute Reservation so they can obtain or renew their 
Special Law Enforcement Commission cards without traveling for a week 
to the BIA Indian Police Academy. This program has worked so well that 
all our Tribal officers, and many of those off-reservation from state 
and local government, have been trained by Mr. Eid, his Criminal 
Division Chief, Jim Allison, and others from the U.S. Attorney's 
Office. Mr. Eid has taken this training to other states, including New 
Mexico and South Dakota, and will again provide it free of charge at 
the National Congress of American Indians' national convention next 
month. On the Southern Ute Reservation, we can see the positive 
results. Last May 24th, the Tribe's Chief Criminal Investigator, Chris 
Naranjo, responded to a domestic violence crime scene on the 
Reservation. Because he was federally deputized, Chris could arrest the 
non-Indian suspect who had allegedly victimized one of our Tribal 
members in that case, which is now being prosecuted by the U.S. 
Attorney's Office.
    Mr. Eid has written about the need for Congress to overrule the 
U.S. Supreme Court's decision in Oliphant v. Suquamish Tribe so that 
qualifying tribes can choose to assert criminal jurisdiction over non-
Indians. This was not an easy or popular stance for him to take in the 
Justice Department or with some in Congress, but I'm glad there is at 
least one U.S. Attorney who understands his trust responsibility. As a 
Tribal Justice Department Director, I strongly support a repeal of 
Oliphant as a common-sense way to strengthen public safety on our 
reservation. This should include the ability of Tribal Courts to punish 
non-Indians for contempt when they refuse to comply with valid court 
orders in civil cases. The Federal Government already contracts with 
Southern Ute's detention center to hold Immigration and Customs 
Enforcement and U.S. Marshals Service detainees. Our tribal courts 
protect criminal defendants' rights. We should be permitted to take the 
next step without further delay.
    Finally we have a great relationship with the Colorado U.S. 
Attorney's Office right now, but we all wonder what will happen when 
Mr. Eid leaves. I remember when some previous U.S. Attorneys ignored 
our Tribe, and when one former Assistant U.S. Attorney treated our 
people rudely and unprofessionally. It is wrong for Indian people 
living on reservations to be totally at the mercy of chief federal 
prosecutors far from our reservations. It is absolutely deplorable for 
Indian people to be denied equal access to the justice system. We need 
to have a meaningful voice in their selection and move away from the 
Federal Government's dominance in criminal law enforcement in Indian 
Country which traces its roots to the Bad Old Days of Indian Wars and 
the military occupation of tribal lands. It is also totally 
unacceptable that the nearest U.S. District Court Judge in Colorado is 
350 miles away from the Southern Ute Indian Reservation, and even 
farther from our sister tribe to the west, the Ute Mountain Ute 
Reservation. I and other law enforcement agency managers along with 
local municipal, tribal, and county government representatives have 
been pushing for a federal court house and judgeship in our area. 
Trying cases that meet the elements of the Major Crimes Act 350 miles 
from the jurisdiction in which they occur stands as a road block to 
justice and must be resolved. Federal juries in Colorado rarely include 
a single American Indian, yet they decide purely local crimes. And we 
have never had a federal grand jury in Western Colorado in my lifetime.
    It's time for Congress and the Justice Department to chart a path 
that--over time--will end the Federal Government's dominant role in 
Indian Country criminal justice for those Tribes that are willing and 
able to do for themselves. Case declinations, inadequate resources for 
criminal investigations, the lack of federal judicial access--these are 
all symptoms of a justice system that was designed more than a century 
ago by the Federal Government to keep Indian people down instead of 
permitting us to take responsibility for our own destiny.
    Thank you.

    The Chairman. Ms. Doughty, thank you very much.
    Next, and finally, we will hear from the Honorable Thomas 
Weissmuller. He is a Board Member and Tribal Representative of 
the National Criminal Justice Association and Chief Justice of 
the Mashantucket Pequot Tribal Nation.
    Mr. Weissmuller, you may proceed.

        STATEMENT OF HON. THOMAS W. WEISSMULLER, CHIEF 
 JUSTICE, MASHANTUCKET PEQUOT TRIBAL NATION; BOARD MEMBER AND 
                TRIBAL REPRESENTATIVE, NATIONAL 
                  CRIMINAL JUSTICE ASSOCIATION

    Mr. Weissmuller. Mr. Chairman and members of the Committee, 
thank you for holding this hearing to address this very 
important issue to tribal communities. I appreciate the 
opportunity to share with you some of my experiences in Indian 
Country from approximately 12 years of working with various 
tribes.
    I have served as a trial judge on the Tulalip and Swimomish 
Indian Reservations, and I am currently the Chief Judge at 
Mashantucket. As we speak, a man is held at Tulalip under a 
$50,000 cash bond for allegedly raping a five-year-old child. 
The matter was forwarded to Federal authorities, but there has 
been no word as to whether the matter will be presented in 
Federal court. Tulalip continues to hold the man in jail 
pending the trial before the tribal court. At Tulalip, the 
penalty for raping a child is one year in jail and a $5,000 
fine.
    Tulalip authorities must prepare for the complex case and 
the child must endure the traumatic pretrial process, which 
will include psychological evaluations, forensic interviews, 
and of course cross-examination. The child may endure this once 
again in Federal court. All the while, the alleged perpetrator 
remains in jail at tribal expense. He has waived his right to a 
speedy trial to see if there can be a determination on the 
Federal matter.
    The current case at Tulalip is but one example of how 
tribal courts work to overcome the possible declination and the 
institutional delays associated with the Federal process. The 
worst example in my experience involves the prosecution of a 
Native American man for the sexual assault or rape of a young 
child. I presided over the jury trial. The Federal authorities 
did not prosecute. They did not formally decline. As the 
statute of limitations was about to run, the matter was filed 
before me.
    The case involved a young native girl and a man in his 20s. 
The man befriended the girl and her friend and added alcohol to 
their soda. Concerned relatives eventually found the girl 
behind a closed bedroom door. As they opened the door, the man 
known to them was pulling himself off the girl. They testified 
that his pants were down and that the woman was exposed from 
her ankles to her neck. She was unconscious. The more graphic 
details of what happened are in my submission, along with the 
investigation and the testimony.
    At the trial, the eyewitnesses recounted what they had 
seen. The victim testified to the events she could recall. The 
factual record was supported by DNA and blood evidence. The 
jury rendered a verdict to convict in approximately 45 minutes. 
To this day, I wonder why the Federal authorities did not 
prosecute, after seeing what one jury had done with the 
evidence. Unknown to that jury, but known to the Federal 
authorities, the defendant had even confessed.
    In what can only be described as an indictment of the 
system, the defendant was released from jail after serving only 
nine months, pursuant to a Federal order intended to alleviate 
prison overcrowding. We managed to correct that.
    Every tribal judge deals with this on some level. You hold 
sway over the Federal component in this equation. You may 
strengthen the tribal component by increasing the sentencing 
limit that you have imposed. You may increase the number of 
tribal officers on the reservations. You may ask Federal 
authorities to revisit the way they prosecute matters in Indian 
Country.
    In my written testimony, I echo the United States 
Attorney's office and their acknowledgment that Federal law 
enforcement services were built to investigate and prosecute 
complex interstate crimes. They excel at this and we all 
benefit from the excellence. They are not currently equipped to 
address reactive crimes. Reactive crimes are those that are 
commonly introduced to the system by a 9-1-1 call.
    Last year, Tulalip received nearly 14,000 calls for 
assistance. Since their police forces have increased from two 
when I arrived, to 47 sworn officers and staff, crime has been 
cut in half after first ballooning. During the retrocession 
process in 2001, we gave assurances that we could meet the law 
enforcement and justice needs and demands as the State ceded 
criminal authority back to the Federal Government and the tribe 
became the first line of defense.
    We intended to overcome the catastrophic failure of Public 
Law 280. When I first arrived on the reservation, what I saw 
was horrific lawlessness. The information contained about the 
crimes that were not prosecuted at that time can be found in 
the Indian Child Welfare Act cases inside the records of the 
Tulalip and Swimomish Tribes.
    The tribes that I worked with have responded brilliantly. 
They effectively police the communities now. What we need to do 
now is fill in the gaps.
    This concludes my remarks for today. I stand prepared to 
answer some questions.
    [The prepared statement of Mr. Weissmuller follows:]

   Prepared Statement of Hon. Thomas W. Weissmuller, Chief Justice, 
      Mashantucket Pequot Tribal Nation; Board Member and Tribal 
         Representative, National Criminal Justice Association

    Mr. Chairman and members of the Committee, thank you for holding a 
hearing about this critical issue in tribal communities. I appreciate 
the opportunity to offer examples of what can happen when federal 
prosecutors decline to pursue cases in Indian Country. In my written 
submission, I will touch upon the process of managing cases in tribal 
court when those cases are presented to the federal authorities for 
possible prosecution in federal court. I will limit my oral testimony 
to one current case, one memorable case, and some thoughts about the 
unique aspects of federal prosecutions of major crimes.
    My experiences were formed while I served as a trial judge on a 
handful in Indian Reservations, including the Tulalip and Swimomish 
Reservations in Washington State between 1997 and January 1, 2005. At 
that time I returned to Connecticut to assume my current position as 
Chief Judge of the Mashantucket Pequot Tribal Nation.
    My personal experiences have induced me to participate as a Board 
Member and Advisory Council Member for the National Criminal Justice 
Association, (NCJA) where we address, among other things, cross-
jurisdictional challenges. I participate as a Board Member of the 
National American Indian Court Judges' Association, (NAICJA) where we 
work to assist tribal judges as they attempt to meet the challenges 
posed by their respective jurisdictions.
    As we speak, a man is held at Tulalip under $50,000.00 bond for 
allegedly raping a five (5) year old child. The matter was forwarded to 
federal authorities but there has been no word on whether the matter 
will be presented in federal court. Tulalip continues to hold the man 
in jail pending trial before the tribal court. At Tulalip that will be 
one (1) year in prison and a five thousand dollar ($5,000.00) fine for 
raping a child.
    The Tulalip authorities would like to hold off on the local 
prosecution but they may not remain idle. DNA evidence must be 
preserved and produced to the defense; child psychological evaluations 
and forensic interviews must be conducted to allow the defendant an 
opportunity to meaningful confront his accuser. Physical barriers must 
be constructed so the child does not face her alleged assailant in open 
court, a forum that is inherently harmful to children without this 
added burden. This is all essential to allow the matter to go forward 
in Tulalip. It must be repeated, and the child must be subjected to it 
again, if the matter goes forward in federal court.
    The alleged perpetrator in the current Tulalip example remains in 
jail, but not at the direction of a federal judge. No federal judge has 
yet considered this claim. In less well funded jurisdictions, the 
defendant would likely remain free. He might even remain in the same 
home as the alleged victim. I have presided over hundreds of child 
dependency matters. In more than I care to mention, this scenario has 
played out.
    The current case at Tulalip is but one example of how tribal courts 
work to overcome the declination of cases by federal attorneys. I 
presided over the jury trial of another example. In this instance, the 
federal authorities were contacted and they did not prosecute. They did 
not formally decline and I believe the statute of limitations 
eventually ran. The significant thing about this case is that it was 
prosecuted successfully in tribal court. I will state my recollection 
of the testimony.
    The case involved a young Native girl and her friend. As I recall, 
she had just turned thirteen and was belatedly celebrating her birthday 
with a girl of her own age. They were listening to music and having 
some soda. They were playing on a federal Indian Reservation.
    A Native man in his mid to late twenties began to visit with them 
and share some of their root-beer. He invited them to listen to music 
at a friend's place. It was close to home and they agreed. It was 
alleged that the man laced the root-beer the girls were drinking with a 
root-beer flavored alcohol. After a time, one of the girls left. The 
other remained with the man. She drank more root-beer and eventually 
passed out. Two family members received a call that the girl had been 
seen with an adult man that the callers knew and identified by name. 
The relatives began to look for the girl.
    As I recall, the relatives testified that they found the young girl 
after a short search. She was in a bedroom with the door closed. As 
they opened the door, the man, known to them, was pulling himself off 
of the girl. They testified that his pants were down. The girl was laid 
over a pile of blankets, face down so her bottom was elevated. Her 
pants and underclothes were pulled down to her ankles. Her sweater/
shirt and bra were pulled unceremoniously over her head, hiding her 
face and her hair. As situated, the clothing served to hold her arms 
above her head. Her body was exposed from her ankles to her neck. She 
was unconscious. The witnesses called the police.
    A team of cross-commissioned law enforcement officers, including a 
forensic nurse, utilized a forensic ``rape kit'' to recover fluid 
samples from inside and outside of the victim's body. The fluid was 
identified as semen. The chain of evidence revealed that the rape kit 
was properly logged into and out of each location, and that the samples 
were treated and tested to extract DNA and blood evidence. This was 
offered at trial. The eye witnesses recounted what they had seen. The 
victim testified to the events she could recall.
    As indicated, defense counsel secured the suppression of the 
defendant's confession. The trial was managed pursuant to the federal 
rules of evidence and the tribal rules of procedure, which basically 
mirrored the federal rules. All witnesses were cross examined by 
defense counsel and the defense called supporting witnesses. The 
defendant did not testify.
    When the jury issued the verdict, I set the matter on for 
sentencing. In a federal system, the defendant might have received 18 
years. I heard argument on the benefits of utilizing the full one (1) 
year and five thousand dollars. I sentenced the defendant to the 
maximum but suspended $1,000.00 on the condition that he register as a 
sex offender and undergo sex offender treatment.
    In what can only be described as an ironic twist, the defendant was 
released from jail after serving only nine months pursuant to a federal 
order intended to alleviate prison overcrowding. It seems the jail 
identified him as having ``nearly completed'' his sentence, which was 
enough to warrant release under the order. After a discussion with the 
jail wherein the underlying charge was revealed, the facility 
readmitted him.
The multi-jurisdictional challenge: Reactive v. Investigative Cases
    Every tribal judge is attuned to the multi-jurisdictional nature of 
the matters presented in tribal courtrooms. The perspective of tribal 
judges may assist you in this area of emerging law, for you hold sway 
over the federal component, may strengthen the tribal component, and 
may profoundly influence the state component in this equation.
    The United States Supreme Court has decreed that tribes lack the 
jurisdiction necessary to prosecute non-Native people who have 
allegedly committed crimes on reservations. The United States Congress 
has decreed that tribes lack the ability to incarcerate Native people 
for more than one year on any given offense. As long as these decrees 
stand, innocent people will be asked to repeat their testimony in 
multiple jurisdictions.
    What does this mean to a victim? With each new jurisdiction, a new 
set of strangers awaits to exercise another level of official 
discretion. Police exercise it; prosecutors exercise it; judges 
exercise it. When a case dove-tails into two jurisdictions, efforts are 
frequently duplicated and the several levels of discretion are 
revisited.
    The discretion phenomenon is most pronounced in systems that handle 
what some United States Attorneys identify as ``reactive'' cases. Some 
justice systems are designed to handle reactive cases, some are not. 
When a case is initiated with a 9-1-1 call, someone must react. Lives 
are changed in the moments that follow. For Native Americans living on 
federal Indian reservations, lives become very complex.
    On July 24, 2008, a United States Attorney testified before this 
Committee, stating that Indian country work is ``reactive'' not 
``investigative'' and frankly I agree. The Department of Justice (DOJ) 
is geared for investigations that may be protracted. It is not geared 
to react to street crime on a case by case basis. (Tribal and state 
police agencies are designed to do this.) The DOJ yields outstanding 
results from its investigations and subsequent prosecutions. When they 
take down a major drug ring, they help to stem the flow of drugs to the 
dependent populations that commit crimes in every jurisdiction, 
including tribal jurisdictions. We therefore applaud them. We are on 
the same team.
    Reactive cases, however, like assault, disorderly conduct, and 
domestic violence, require a police force ``on the ground.'' They need 
an independent magistrate to conclude that the police officers' 
allegation of probable cause exists to justify the arrest. Prosecutors 
then determine whether the matter will go forward. Judges may enter 
immediate orders to secure the attendance of the defendant and the 
protection of the victims. They can convene juries to decide the cases 
as needed. This is a reliable process that moves ahead with speed and 
impartiality. Most significantly, the collateral domestic cases 
(petitions for restraint, custody, dissolution, and child protection) 
may also proceed. When cases move forward, lives are made whole; 
justice is achieved.
    The filter for an Indian case goes beyond the reduction of actual 
events to paper so a magistrate can formulate immediate protections. It 
passes in paper form from police officer to supervisor, to tribal 
prosecutor, and, in the instance of a major crime, a federal 
investigator.
    The tribal prosecutor files a complaint and moves forward with the 
domestic case. The federal investigator meets with the Assistant United 
States Attorney Indian Law Liaison, who will in turn streamline the 
process and direct the matter internally at the Department of Justice 
to the appropriate section within the criminal division (e.g. the 
Organized Crime and Racketeering Division, the Child Exploitation and 
Obscenity Division, or the Gang Squad, to name a few) before it reaches 
the appropriate prosecutor for investigation, case analysis, and 
hopefully, presentation to a Grand Jury. This system is not designed to 
handle reactive cases.
    This concludes my remarks today. Mr. Chairman, Senators, thank you 
for inviting me to speak. I am happy to entertain any questions that 
you have.

    The Chairman. Mr. Weissmuller, thank you very much.
    I want to thank all of you for traveling some distance to 
be with us and to present testimony from many different 
perspectives.
    Mr. Heffelfinger, you have testified previously, both as a 
member of the Justice Department and the U.S. Attorneys' 
Office, and now as a private citizen.
    I think that all of you give us perspectives about this. I 
think most agree that there are problems with respect to the 
criminal justice system dealing with Indian reservations, and 
the problems are in many ways structural as well, as you know. 
I mean, it deals with Indians versus non-Indians, on and off 
the reservation, who can make the arrest, who can detain. These 
are very difficult structural questions.
    We put together a piece of legislation that while in some 
cases controversial, still tries to address some questions that 
have lingered out there for a long while. We have consulted 
across the Country with Indian tribes. We have done a lot of 
work in consultation. We have consulted with local law 
enforcement authorities. We have consulted with U.S. Attorneys, 
with local prosecutors, with tribal court systems, with BIA. I 
mean, we have consulted with almost everyone to put together a 
piece of legislation.
    We know it is not yet perfected, but we introduced it as we 
wrote it because we think you need to start somewhere.
    Mr. Heffelfinger, you today have offered your perspective 
about some changes. Some of them I think are really well 
thought out and we want to work with you on that.
    Others of you have described your experiences from your 
perspective in this criminal justice system. Clearly, when you 
have a maximum sentence that you can issue in a tribal court of 
one year, that is a serious problem.
    Mr. Weissmuller, you have just described it from the 
perspective of a case.
    But Senator Murkowski and I, and Senator Tester and Senator 
Barrasso and others on this Committee are really very 
interested in trying to get this right and improve the criminal 
justice system so that it works better and gives those who live 
on Indian reservations a sense that they can live in safe 
communities, and that we can find a way to reduce the rate of 
violent crime and prosecute those crimes that are committed.
    Let me call on Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    I do have a few questions, but recognizing that both the 
Chairman and I have appointments at 11:30, I will submit what 
limited questions I have to you in writing, and appreciate your 
responses.
    I, too, want to thank you for your perspective.
    Mr. Heffelfinger, I appreciate some very concrete 
solutions. You know, they may or may not be ones that we 
actually adopt, but the fact of the matter is that we need to 
be looking to what these solutions may be.
    I said in my opening that I don't think that the status quo 
here is acceptable. We can be smart enough to figure this one 
out. I also appreciate the point that you made that the value 
in this information, this data that is gathered, is not 
necessarily--I am sure it certainly helps within the Department 
of Justice in their internal management. It certainly can help 
across agencies, but ultimately the true value of this 
information is really to Indian Country so that we can use that 
information so that we can learn and truly effect some change.
    So again, I appreciate your contributions in so many 
different areas, all of you.
    Thank you, Mr. Chairman.
    The Chairman. Senator Murkowski, thank you very much.
    This hearing has gone two hours, and both of us have 
something that we have to do beyond the conclusion of the 
hearing.
    I do want to ask if all of you would be available, we want 
to submit additional questions to you based on your testimony. 
I also would ask if you have additional views that you wish to 
submit, and we are going to keep the hearing record open for 
others for two weeks to submit additional views.
    I want to thank you, Mr. Ragsdale, again, for your 
attendance here today and the work that you and the BIA do, and 
thank Mr. Wrigley for being with us, and thank him for his fine 
work as a U.S. Attorney.
    This hearing is adjourned.
    [Whereupon, at 11:25 a.m., the hearing was adjourned.]

                            A P P E N D I X



                                  
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