[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
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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