[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
TRIBAL LAW AND ORDER ACT OF 2009
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
H.R. 1924
__________
DECEMBER 10, 2009
__________
Serial No. 111-134
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
MIKE QUIGLEY, Illinois JASON CHAFFETZ, Utah
JUDY CHU, California TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman
PEDRO PIERLUISI, Puerto Rico LOUIE GOHMERT, Texas
JERROLD NADLER, New York TED POE, Texas
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois
Bobby Vassar, Chief Counsel
Caroline Lynch, Minority Counsel
C O N T E N T S
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DECEMBER 10, 2009
Page
TEXT OF THE BILL
H.R. 1924, the ``Tribal Law and Order Act of 2009''.............. 3
OPENING STATEMENTS
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Chairman, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 1
The Honorable Daniel E. Lungren, a Representative in Congress
from the State of California, and Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 29
WITNESSES
The Honorable Stephanie Herseth Sandlin, a Representative in
Congress from the State of South Dakota
Oral Testimony................................................. 31
Prepared Statement............................................. 34
The Honorable Thomas J. Perrelli, Associate Attorney General,
United States Department of Justice, Washington, DC
Oral Testimony................................................. 38
Prepared Statement............................................. 40
Mr. Marcus Levings, Great Plains Area Vice-President, National
Congress of American Indians, New Town, ND
Oral Testimony................................................. 66
Prepared Statement............................................. 68
Ms. Tova Indritz, Chair, National Association of Criminal Defense
Lawyers, Native American Justice Committee, Albuquerque, NM
Oral Testimony................................................. 75
Prepared Statement............................................. 78
Mr. Scott Burns, Executive Director, National District Attorneys
Association, Alexandria, VA
Oral Testimony................................................. 120
Prepared Statement............................................. 123
Ms. Barbara L. Creel, Assistant Professor of Law, Southwest
Indian Law Clinic, University of New Mexico School of Law,
Albuquerque, NM
Oral Testimony................................................. 127
Prepared Statement............................................. 129
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Tom Rooney, a Representative
in Congress from the State of Florida, and Member, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 61
APPENDIX
Material Submitted for the Hearing Record........................ 139
OFFICIAL HEARING RECORD
Material Submitted for the Hearing Record but not Reprinted
Submission entitled Maze of Injustice, The failure to protect
indigenous women from sexual violence in the USA, Amnesty
International. This document is available at the Subcommittee and
can also be accessed at:
http://www.amnestyusa.org/women/maze/report.pdf
TRIBAL LAW AND ORDER ACT OF 2009
----------
THURSDAY, DECEMBER 10, 2009
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:02 a.m., in
room 2237, Rayburn House Office Building, the Honorable Robert
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
Present: Representatives Scott, Quigley, Gohmert,
Goodlatte, Lungren, and Rooney.
Staff present: (Majority) Karen Wilkinson, (Fellow) Federal
Public Defender Office Detailee; Veronica Eligan, Professional
Staff Member; Sam Sokol, Counsel; Elliott Mincberg, Counsel;
(Minority) Caroline Lynch, Counsel; and Kimani Little, Counsel.
Mr. Scott. Subcommittee will now come to order. I am
pleased to welcome you today to the hearing before the
Subcommittee on Crime, Terrorism, and Homeland Security on H.R.
1924, the ``Tribal Law and Order Act of 2009,'' sponsored by
the gentlelady from South Dakota, Ms. Herseth Sandlin.
The general issue before us today is how to best prosecute
crime in Indian country. I don't believe there is any dispute
that violent crime in Indian country is unacceptable. Violent
crime on reservations is unfortunately two, three, or four
times that of the national average.
Amnesty International tells us that one in three American
Indian and Alaskan Native women will be raped in their
lifetime. This is a rate two and a half times the national
average.
The risk of being murdered is twice as high for an American
Indian living on a reservation as for the average American
living off a reservation. Amphetamine has made its way to the
reservations and, as in other areas, is destroying lives and
communities.
In spite of these excessive high crime rates, law
enforcement in Indian country remains underfunded,
undertrained, and understaffed. Prosecution of crime in Indian
country is also below the national average.
The Department of Justice reported earlier this year that
the number of cases declined for prosecution on Indian country
by the Federal Government, referred to as the declination rate,
was 52.2 percent for fiscal year 2007 and 47 percent for fiscal
year 2008. The rate for crimes reported off of Indian country
is at 20.7 percent for fiscal 2007 and 15.6 percent for fiscal
2008. While these figures are not directly comparable and do
not tell the entire story, there indicate that there is a
serious problem with crime control in Indian country and we
need to make sure that the problems are addressed.
In addition to inadequate resources in which to investigate
and prosecute serious crimes in Indian country there is also a
dearth of evidence-based prevention and intervention tools,
which we now know are effective in reducing crime before it
occurs. And so it is important that we consider evidence-based
crime prevention, intervention, substance abuse treatment, and
reentry programs.
And great Indian country is vast, covering 56 million
acres. In remote, scarcely populated areas such as these where
responding to a crime may take hours of travel even under the
best of circumstances, crime prevention is especially
important.
The unique status of Indian tribes as an independent
sovereigns together with the trust and responsibility of the
United States to tribes, however, presents issues not normally
faced by law enforcement. These issues affect core decisions,
such as who is responsible for investigating and prosecuting a
crime.
On Indian land a different law enforcement agency--tribal,
State, and/or Federal--will have sole, primary, or shared
responsibility for investigating a crime depending on tribal
membership of the suspect and victim, the location of the
crime, and the type of crime. By the time these jurisdictional
questions are answered critical evidence may be lost forever.
Similarly, those who prosecute a case--tribal, State, or
Federal Government--also depends on whether the suspect and
victim are members of a tribe, whether the crime occurred on
Indian country, and the type of crime. In most reservations
serious felony crimes in Indian country that involve suspects
and victims who are tribal members will be prosecuted in
Federal courts under the Major Crimes Act.
In six States, however, known as Public Law 280 states, the
State is responsible for prosecuting these crimes. Public Law
280 states are California, Alaska, Minnesota, Nebraska, Oregon,
and Wisconsin.
H.R. 1924 expands Federal jurisdiction in Public Law 280
states so that tribal, State, and Federal Governments will now
share concurrent jurisdiction over the same major crimes in
Indian country. Other than this change, the bill does not alter
existing jurisdiction over Indian country crime.
The bill also increases tribal sentencing authority from 1
year per offense to 3 years of incarceration for each offense.
The intent of this provision is to increase tribal authority to
prosecute and incarcerate more serious criminals, but it also
raises significant concerns for the individual rights of tribal
members because the Federal Constitution does not apply to
tribal prosecutions. And this is true even though the tribal
defendant is also a U.S. citizen.
One such concern is that there is no guarantee to right to
counsel in tribal court. Some tribes may voluntarily offer
legal representation to interested defendants, but others do
not. Those that provide representation may appoint lawyers
while other tribes merely appoint advocates who are neither
lawyers nor legally trained.
The bill expands concurrent jurisdiction in PL 280 states
and also fails to prioritize these possible investigations and
prosecutions. So the question remains as to who should
investigate and prosecute the case.
Should the Federal Government defer to the State
governments and only intervene when the State asks for
assistance or fails to prosecute, as in the hate crimes bill?
Should tribal governments also have a say in who investigates
the case and whether the case is prosecuted in State or Federal
court?
This increased concurrent jurisdiction coupled with no
guidance would seem to have the potential to create more
confusion, resulting in fewer, not more, prosecutions. So I
look forward to hearing from our witnesses about this issue.
I raise these concerns with the hope that our witnesses can
help us draft a bill that will reduce the unacceptably high
crime rate that currently plagues many Indian reservations
while respecting the individual rights of tribal defendants.
Tribal Law and Order Act of 2009 is a comprehensive bill that
incorporates a number of different approaches to prosecuting
crime. As with all crime bills, we need to examine the existing
problems of reservation crime to ensure to the best that we can
that the bill's provisions address those specific problems and
avoid unintended consequences.
So I look forward to hearing from our witnesses on these
issues.
And finally, I understand that the Senate Committee on
Indian Affairs has proposed amendments to the Senate companion
bill to H.R. 1924 that seek to address some of the concerns
that have been raised with this bill. So we intend to look
closely at these amendments.
[The text of the bill, H.R. 1924, follows:]
HR 1924 IH ___________________________________________________
I40 deg.
I
111th CONGRESS
1st Session
H. R. 1924
To amend the Indian Law Enforcement Reform Act, the Indian Tribal
Justice Act, the Indian Tribal Justice Technical and Legal
Assistance Act of 2000, and the Omnibus Crime Control and Safe
Streets Act of 1968 to improve the prosecution of, and response to,
crimes in Indian country, and for other purposes.
__________
IN THE HOUSE OF REPRESENTATIVES
April 2, 2009
Ms. Herseth Sandlin (for herself, Mr. Kildee, and Mr. Grijalva)
introduced the following bill; which was referred to the Committee
on the Judiciary, and in addition to the Committees on Natural
Resources, Energy and Commerce, and Education and Labor, for a
period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the
jurisdiction of the committee concerned
__________
A BILL
To amend the Indian Law Enforcement Reform Act, the Indian Tribal
Justice Act, the Indian Tribal Justice Technical and Legal
Assistance Act of 2000, and the Omnibus Crime Control and Safe
Streets Act of 1968 to improve the prosecution of, and response to,
crimes in Indian country, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Tribal Law and
Order Act of 2009''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings; purposes.
Sec. 3. Definitions.
Sec. 4. Severability clause.
TITLE I--FEDERAL ACCOUNTABILITY AND COORDINATION
Sec. 101. Office of Justice Services responsibilities.
Sec. 102. Declination reports.
Sec. 103. Prosecution of crimes in Indian country.
Sec. 104. Administration.
TITLE II--STATE ACCOUNTABILITY AND COORDINATION
Sec. 201. State criminal jurisdiction and resources.
Sec. 202. Incentives for State, tribal, and local law enforcement
cooperation.
TITLE III--EMPOWERING TRIBAL LAW ENFORCEMENT AGENCIES AND TRIBAL
GOVERNMENTS
Sec. 301. Tribal police officers.
Sec. 302. Drug enforcement in Indian country.
Sec. 303. Access to national criminal information databases.
Sec. 304. Tribal court sentencing authority.
Sec. 305. Indian Law and Order Commission.
TITLE IV--TRIBAL JUSTICE SYSTEMS
Sec. 401. Indian alcohol and substance abuse.
Sec. 402. Indian tribal justice; technical and legal assistance.
Sec. 403. Tribal resources grant program.
Sec. 404. Tribal jails program.
Sec. 405. Tribal probation office liaison program.
Sec. 406. Tribal youth program.
TITLE V--INDIAN COUNTRY CRIME DATA COLLECTION AND INFORMATION SHARING
Sec. 501. Tracking of crimes committed in Indian country.
Sec. 502. Grants to improve tribal data collection systems.
Sec. 503. Criminal history record improvement program.
TITLE VI--DOMESTIC VIOLENCE AND SEXUAL ASSAULT PROSECUTION AND
PREVENTION
Sec. 601. Prisoner release and reentry.
Sec. 602. Domestic and sexual violent offense training.
Sec. 603. Testimony by Federal employees in cases of rape and
sexual assault.
Sec. 604. Coordination of Federal agencies.
Sec. 605. Sexual assault protocol.
SEC. 2. FINDINGS; PURPOSES.
(a) Findings.--Congress finds that--
(1) the United States has distinct legal, treaty, and trust
obligations to provide for the public safety of tribal
communities;
(2) several States have been delegated or have accepted
responsibility to provide for the public safety of tribal
communities within the borders of the States;
(3) Congress and the President have acknowledged that--
(A) tribal law enforcement officers are often the
first responders to crimes on Indian reservations; and
(B) tribal justice systems are ultimately the most
appropriate institutions for maintaining law and order
in tribal communities;
(4) less than 3,000 tribal and Federal law enforcement
officers patrol more than 56,000,000 acres of Indian country,
which reflects less than \1/2\ of the law enforcement presence
in comparable rural communities nationwide;
(5) on many Indian reservations, law enforcement officers
respond to distress or emergency calls without backup and
travel to remote locations without adequate radio communication
or access to national crime information database systems;
(6) the majority of tribal detention facilities were
constructed decades before the date of enactment of this Act
and must be or will soon need to be replaced, creating a
multibillion-dollar backlog in facility needs;
(7) a number of Indian country offenders face no
consequences for minor crimes, and many such offenders are
released due to severe overcrowding in existing detention
facilities;
(8) tribal courts--
(A) are the primary arbiters of criminal and civil
justice for actions arising in Indian country; but
(B) have been historically underfunded;
(9) tribal courts have no criminal jurisdiction over non-
Indian persons, and the sentencing authority of tribal courts
is limited to sentences of not more than 1 year of imprisonment
for Indian offenders, forcing tribal communities to rely solely
on the Federal Government and certain State governments for the
prosecution of--
(A) misdemeanors committed by non-Indian persons;
and
(B) all felony crimes in Indian country;
(10) a significant percentage of cases referred to Federal
agencies for prosecution of crimes allegedly occurring in
tribal communities are declined to be prosecuted;
(11) the complicated jurisdictional scheme that exists in
Indian country--
(A) has a significant negative impact on the
ability to provide public safety to Indian communities;
and
(B) has been increasingly exploited by criminals;
(12) the violent crime rate in Indian country is--
(A) nearly twice the national average; and
(B) more than 20 times the national average on some
Indian reservations;
(13)(A) domestic and sexual violence against Indian and
Alaska Native women has reached epidemic proportions;
(B) 34 percent of Indian and Alaska Native women will be
raped in their lifetimes; and
(C) 39 percent of Indian and Alaska Native women will be
subject to domestic violence;
(14) the lack of police presence and resources in Indian
country has resulted in significant delays in responding to
victims' calls for assistance, which adversely affects the
collection of evidence needed to prosecute crimes, particularly
crimes of domestic and sexual violence;
(15) alcohol and drug abuse plays a role in more than 80
percent of crimes committed in tribal communities;
(16) the rate of methamphetamine addiction in tribal
communities is 3 times the national average;
(17) the Department of Justice has reported that drug
organizations have increasingly targeted Indian country to
produce and distribute methamphetamine, citing the limited law
enforcement presence and jurisdictional confusion as reasons
for the increased activity;
(18) tribal communities face significant increases in
instances of domestic violence, burglary, assault, and child
abuse as a direct result of increased methamphetamine use on
Indian reservations;
(19)(A) criminal jurisdiction in Indian country is complex,
and responsibility for Indian country law enforcement is shared
among Federal, tribal, and State authorities; and
(B) that complexity requires a high degree of commitment
and cooperation from Federal and State officials that can be
difficult to establish;
(20) agreements for cooperation among certified tribal and
State law enforcement officers have proven to improve law
enforcement in tribal communities;
(21) consistent communication among tribal, Federal, and
State law enforcement agencies has proven to increase public
safety and justice in tribal and nearby communities; and
(22) crime data is a fundamental tool of law enforcement,
but for decades the Bureau of Indian Affairs and the Department
of Justice have not been able to coordinate or consistently
report crime and prosecution rates in tribal communities.
(b) Purposes.--The purposes of this Act are--
(1) to clarify the responsibilities of Federal, State,
tribal, and local governments with respect to crimes committed
in tribal communities;
(2) to increase coordination and communication among
Federal, State, tribal, and local law enforcement agencies;
(3) to empower tribal governments with the authority,
resources, and information necessary to safely and effectively
provide for the safety of the public in tribal communities;
(4) to reduce the prevalence of violent crime in tribal
communities and to combat violence against Indian and Alaska
Native women;
(5) to address and prevent drug trafficking and reduce
rates of alcohol and drug addiction in Indian country; and
(6) to increase and standardize the collection of criminal
data and the sharing of criminal history information among
Federal, State, and tribal officials responsible for responding
to and investigating crimes in tribal communities.
SEC. 3. DEFINITIONS.
(a) In General.--In this Act:
(1) Indian community.--The term ``Indian community'' means
a community of a federally recognized Indian tribe.
(2) Indian country.--The term ``Indian country'' has the
meaning given the term in section 1151 of title 18, United
States Code.
(3) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 102 of the Federally
Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a).
(4) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(5) Tribal government.--The term ``tribal government''
means the governing body of an Indian tribe.
(b) Indian Law Enforcement Reform Act.--Section 2 of the Indian Law
Enforcement Reform Act (25 U.S.C. 2801) is amended by adding at the end
the following:
``(10) Tribal justice official.--The term `tribal justice
official' means--
``(A) a tribal prosecutor;
``(B) a tribal law enforcement officer; or
``(C) any other person responsible for
investigating or prosecuting an alleged criminal
offense in tribal court.''.
SEC. 4. SEVERABILITY CLAUSE.
If any provision of this Act, an amendment made this Act, or the
application of such provision or amendment to any person or
circumstance is held to be unconstitutional, the remainder of this Act,
the amendments made by this Act, and the application of the provisions
of such to any person or circumstances shall not be affected thereby.
TITLE I--FEDERAL ACCOUNTABILITY AND COORDINATION
SEC. 101. OFFICE OF JUSTICE SERVICES RESPONSIBILITIES.
(a) Definitions.--Section 2 of the Indian Law Enforcement Reform
Act (25 U.S.C. 2801) is amended--
(1) by striking paragraph (8);
(2) by redesignating paragraphs (1) through (7) as
paragraphs (2) through (8), respectively;
(3) by redesignating paragraph (9) as paragraph (1) and
moving the paragraphs so as to appear in numerical order; and
(4) in paragraph (1) (as redesignated by paragraph (3)), by
striking ``Division of Law Enforcement Services'' and inserting
``Office of Justice Services''.
(b) Additional Responsibilities of Office.--Section 3 of the Indian
Law Enforcement Reform Act (25 U.S.C. 2802) is amended--
(1) in subsection (b), by striking ``(b) There is hereby
established within the Bureau a Division of Law Enforcement
Services which'' and inserting the following:
``(b) Office of Justice Services.--There is established in the
Bureau an office, to be known as the `Office of Justice Services',
that'';
(2) in subsection (c)--
(A) in the matter preceding paragraph (1), by
striking ``Division of Law Enforcement Services'' and
inserting ``Office of Justice Services'';
(B) in paragraph (2), by inserting ``and, with the
consent of the Indian tribe, tribal criminal laws,
including testifying in tribal court'' before the
semicolon at the end;
(C) in paragraph (8), by striking ``and'' at the
end;
(D) in paragraph (9), by striking the period at the
end and inserting a semicolon; and
(E) by adding at the end the following:
``(10) the development and provision of dispatch and
emergency and E-911 services;
``(11) communicating with tribal leaders, tribal community
and victims' advocates, tribal justice officials, and residents
of Indian land on a regular basis regarding public safety and
justice concerns facing tribal communities;
``(12) conducting meaningful and timely consultation with
tribal leaders and tribal justice officials in the development
of regulatory policies and other actions that affect public
safety and justice in Indian country;
``(13) providing technical assistance and training to
tribal law enforcement officials to gain access and input
authority to utilize the National Criminal Information Center
and other national crime information databases pursuant to
section 534 of title 28, United States Code;
``(14) in coordination with the Attorney General pursuant
to subsection (g) of section 302 of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3732), collecting,
analyzing, and reporting data regarding Indian country crimes
on an annual basis;
``(15) submitting to the Committee on Indian Affairs of the
Senate and the Committee on Natural Resources of the House of
Representatives, for each fiscal year, a detailed spending
report regarding tribal public safety and justice programs that
includes--
``(A)(i) the number of full-time employees of the
Bureau and tribal government who serve as--
``(I) criminal investigators;
``(II) uniform police;
``(III) police and emergency dispatchers;
``(IV) detention officers;
``(V) executive personnel, including
special agents in charge, and directors and
deputies of various offices in the Office of
Justice Services; or
``(VI) tribal court judges, prosecutors,
public defenders, or related staff; and
``(ii) the amount of appropriations obligated for
each category described in clause (i) for each fiscal
year;
``(B) a list of amounts dedicated to law
enforcement and corrections, vehicles, related
transportation costs, equipment, inmate transportation
costs, inmate transfer costs, replacement, improvement,
and repair of facilities, personnel transfers,
detailees and costs related to their details, emergency
events, public safety and justice communications and
technology costs, and tribal court personnel,
facilities, and related program costs;
``(C) a list of the unmet staffing needs of law
enforcement, corrections, and court personnel at tribal
and Bureau of Indian Affairs justice agencies, the
replacement and repair needs of tribal and Bureau
corrections facilities, needs for tribal police and
court facilities, and public safety and emergency
communications and technology needs; and
``(D) the formula, priority list or other
methodology used to determine the method of
disbursement of funds for the public safety and justice
programs administered by the Office of Justice
Services;
``(16) submitting to the Committee on Indian Affairs of the
Senate and the Committee on Natural Resources of the House of
Representatives, for each fiscal year, a report summarizing the
technical assistance, training, and other support provided to
tribal law enforcement and corrections agencies that operate
relevant programs pursuant to self-determination contracts or
self-governance compacts with the Bureau of Indian Affairs; and
``(17) promulgating regulations to carry out this Act, and
routinely reviewing and updating, as necessary, the regulations
contained in subchapter B of title 25, Code of Federal
Regulations (or successor regulations).'';
(3) in subsection (d)--
(A) in paragraph (1), by striking ``Division of Law
Enforcement Services'' and inserting ``Office of
Justice Services'';
(B) in paragraph (3)--
(i) by striking ``regulations which shall
establish'' and inserting ``regulations, which
shall--
``(A) establish'';
(ii) by striking ``reservation.'' and
inserting ``reservation; but''; and
(iii) by adding at the end the following:
``(B) support the enforcement of tribal laws and
investigation of offenses against tribal criminal
laws.''; and
(C) in paragraph (4)(i), in the first sentence, by
striking ``Division'' and inserting ``Office of Justice
Services'';
(4) in subsection (e), by striking ``Division of Law
Enforcement Services'' each place it appears and inserting
``Office of Justice Services''; and
(5) by adding at the end the following:
``(f) Long-Term Plan for Tribal Detention Programs.--Not later than
1 year after the date of enactment of this subsection, the Secretary,
acting through the Bureau, in coordination with the Department of
Justice and in consultation with tribal leaders, tribal law enforcement
officers, and tribal corrections officials, shall submit to Congress a
long-term plan to address incarceration in Indian country, including a
description of--
``(1) proposed activities for the construction of detention
facilities (including regional facilities) on Indian land;
``(2) proposed activities for the construction of
additional Federal detention facilities on Indian land;
``(3) proposed activities for contracting with State and
local detention centers, upon approval of affected tribal
governments;
``(4) proposed activities for alternatives to
incarceration, developed in cooperation with tribal court
systems; and
``(5) other such alternatives to incarceration as the
Secretary, in coordination with the Bureau and in consultation
with tribal representatives, determines to be necessary.
``(g) Law Enforcement Personnel of Bureau and Indian Tribes.--
``(1) Report.--Not later than 60 days after the date of
enactment of this subsection, the Secretary shall submit to the
Committee on Indian Affairs of the Senate and the Committee on
Natural Resources of the House of Representatives a report
regarding vacancies in law enforcement personnel of Bureau and
Indian tribes.
``(2) Long-term plan.--Not later than 1 year after the date
of enactment of this subsection, the Secretary shall submit to
the Committee on Indian Affairs of the Senate and the Committee
on Natural Resources of the House of Representatives a long-
term plan to address law enforcement personnel needs in Indian
country.''.
(c) Law Enforcement Authority.--Section 4 of the Indian Law
Enforcement Reform Act (25 U.S.C. 2803) is amended--
(1) in paragraph (2)(A), by striking ``), or'' and
inserting ``or offenses committed on Federal property processed
by the Central Violations Bureau); or''; and
(2) in paragraph (3), by striking subparagraphs (A) through
(C) and inserting the following:
``(A) the offense is committed in the presence of
the employee; or
``(B) the offense is a Federal crime and the
employee has reasonable grounds to believe that the
person to be arrested has committed, or is committing,
the crime;''.
SEC. 102. DECLINATION REPORTS.
Section 10 of the Indian Law Enforcement Reform Act (25 U.S.C.
2809) is amended by striking subsections (a) through (d) and inserting
the following:
``(a) Reports.--
``(1) Law enforcement officials.--Subject to subsection
(d), if a law enforcement officer or employee of any Federal
department or agency declines to initiate an investigation of
an alleged violation of Federal law in Indian country, or
terminates such an investigation without referral for
prosecution, the officer or employee shall--
``(A) submit to the appropriate tribal justice
officials evidence, including related reports, relevant
to the case that would advance prosecution of the case
in a tribal court; and
``(B) submit to the Office of Indian Country Crime
relevant information regarding all declinations of
alleged violations of Federal law in Indian country,
including--
``(i) the type of crime alleged;
``(ii) the status of the accused as an
Indian or non-Indian;
``(iii) the status of the victim as an
Indian; and
``(iv) the reason for declining to
initiate, open, or terminate the investigation.
``(2) United states attorneys.--Subject to subsection (d),
if a United States Attorney declines to prosecute, or acts to
terminate prosecution of, an alleged violation of Federal law
in Indian country, the United States Attorney shall--
``(A) submit to the appropriate tribal justice
official, sufficiently in advance of the tribal statute
of limitations, evidence relevant to the case to permit
the tribal prosecutor to pursue the case in tribal
court; and
``(B) submit to the Office of Indian Country Crime
and the appropriate tribal justice official relevant
information regarding all declinations of alleged
violations of Federal law in Indian country,
including--
``(i) the type of crime alleged;
``(ii) the status of the accused as an
Indian or non-Indian;
``(iii) the status of the victim as an
Indian; and
``(iv) the reason for the determination to
decline or terminate the prosecution.
``(b) Maintenance of Records.--
``(1) In general.--The Director of the Office of Indian
Country Crime shall establish and maintain a compilation of
information received under paragraph (1) or (2) of subsection
(a) relating to declinations.
``(2) Availability to congress.--Each compilation under
paragraph (1) shall be made available to Congress on an annual
basis.
``(c) Inclusion of Case Files.--A report submitted to the
appropriate tribal justice officials under paragraph (1) or (2) of
subsection (a) may include the case file, including evidence collected
and statements taken that could support an investigation or prosecution
by the appropriate tribal justice officials.
``(d) Effect of Section.--
``(1) In general.--Nothing in this section requires any
Federal agency or official to transfer or disclose any
confidential or privileged communication, information, or
source to an official of any Indian tribe.
``(2) Federal rules of criminal procedure.--Rule 6 of the
Federal Rules of Criminal Procedure shall apply to this
section.
``(3) Regulations.--Each Federal agency required to submit
a report pursuant to this section shall adopt, by regulation,
standards for the protection of confidential or privileged
communications, information, and sources under paragraph
(1).''.
SEC. 103. PROSECUTION OF CRIMES IN INDIAN COUNTRY.
(a) Appointment of Special Prosecutors.--Section 543 of title 28,
United States Code, is amended--
(1) in subsection (a), by inserting before the period at
the end the following: ``, including the appointment of
qualified tribal prosecutors and other qualified attorneys to
assist in prosecuting Federal offenses committed in Indian
country''; and
(2) by adding at the end the following:
``(c) Sense of Congress Regarding Consultation.--It is the sense of
Congress that, in appointing attorneys under this section to serve as
special prosecutors in Indian country, the Attorney General should
consult with tribal justice officials of each Indian tribe that would
be affected by the appointment.''.
(b) Tribal Liaisons.--The Indian Law Enforcement Reform Act (25
U.S.C. 2801 et seq.) is amended by adding at the end the following:
``SEC. 11. ASSISTANT UNITED STATES ATTORNEY TRIBAL LIAISONS.
``(a) Appointment.--Each United States Attorney the district of
which includes Indian country shall appoint not less than 1 assistant
United States Attorney to serve as a tribal liaison for the district.
``(b) Duties.--A tribal liaison shall be responsible for the
following activities in the district of the tribal liaison:
``(1) Coordinating the prosecution of Federal crimes that
occur in Indian country.
``(2) Developing multidisciplinary teams to combat child
abuse and domestic and sexual violence offenses against
Indians.
``(3) Consulting and coordinating with tribal justice
officials and victims' advocates to address any backlog in the
prosecution of major crimes in Indian country in the district.
``(4) Developing working relationships and maintaining
communication with tribal leaders, tribal community and
victims' advocates, and tribal justice officials to gather
information from, and share appropriate information with,
tribal justice officials.
``(5) Coordinating with tribal prosecutors in cases in
which a tribal government has concurrent jurisdiction over an
alleged crime, in advance of the expiration of any applicable
statute of limitation.
``(6) Providing technical assistance and training regarding
evidence gathering techniques to tribal justice officials and
other individuals and entities that are instrumental to
responding to Indian country crimes.
``(7) Conducting training sessions and seminars to certify
special law enforcement commissions to tribal justice officials
and other individuals and entities responsible for responding
to Indian country crimes.
``(8) Coordinating with the Office of Indian Country Crime,
as necessary.
``(9) Conducting such other activities to address and
prevent violent crime in Indian country as the applicable
United States Attorney determines to be appropriate.
``(c) Sense of Congress Regarding Evaluations of Tribal Liaisons.--
``(1) Findings.--Congress finds that--
``(A) many tribal communities rely solely on United
States Attorneys offices to prosecute felony and
misdemeanor crimes occurring on Indian land; and
``(B) tribal liaisons have dual obligations of--
``(i) coordinating prosecutions of Indian
country crime; and
``(ii) developing relationships with tribal
communities and serving as a link between
tribal communities and the Federal justice
process.
``(2) Sense of congress.--It is the sense of Congress that
the Attorney General should--
``(A) take all appropriate actions to encourage the
aggressive prosecution of all crimes committed in
Indian country; and
``(B) when appropriate, take into consideration the
dual responsibilities of tribal liaisons described in
paragraph (1)(B) in evaluating the performance of the
tribal liaisons.
``(d) Enhanced Prosecution of Minor Crimes.--
``(1) In general.--Each United States Attorney serving a
district that includes Indian country is authorized and
encouraged--
``(A) to appoint Special Assistant United States
Attorneys pursuant to section 543(a) of title 28,
United States Code, to prosecute crimes in Indian
country as necessary to improve the administration of
justice, and particularly when--
``(i) the crime rate exceeds the national
average crime rate; or
``(ii) the rate at which criminal offenses
are declined to be prosecuted exceeds the
national average declination rate;
``(B) to coordinate with applicable United States
magistrate and district courts--
``(i) to ensure the provision of docket
time for prosecutions of Indian country crimes;
and
``(ii) to hold trials and other proceedings
in Indian country, as appropriate;
``(C) to provide to appointed Special Assistant
United States Attorneys appropriate training,
supervision, and staff support; and
``(D) if an agreement is entered into with a
Federal court pursuant to paragraph (2), to provide
technical and other assistance to tribal governments
and tribal court systems to ensure the success of the
program under this subsection.
``(2) Sense of congress regarding consultation.--It is the
sense of Congress that, in appointing Special Assistant United
States Attorneys under this subsection, a United States
Attorney should consult with tribal justice officials of each
Indian tribe that would be affected by the appointment.''.
SEC. 104. ADMINISTRATION.
(a) Office of Tribal Justice.--
(1) Definitions.--Section 4 of the Indian Tribal Justice
Technical and Legal Assistance Act of 2000 (25 U.S.C. 3653) is
amended--
(A) by redesignating paragraphs (2) through (7) as
paragraphs (3) through (8), respectively; and
(B) by inserting after paragraph (1) the following:
``(2) Director.--The term `Director' means the Director of
the Office of Tribal Justice.''.
(2) Status.--Title I of the Indian Tribal Justice Technical
and Legal Assistance Act of 2000 is amended--
(A) by redesignating section 106 (25 U.S.C. 3666)
as section 107; and
(B) by inserting after section 105 (25 U.S.C. 3665)
the following:
``SEC. 106. OFFICE OF TRIBAL JUSTICE.
``(a) In General.--Not later than 90 days after the date of
enactment of the Tribal Law and Order Act of 2009, the Attorney General
shall modify the status of the Office of Tribal Justice as the Attorney
General determines to be necessary to establish the Office of Tribal
Justice as a permanent division of the Department.
``(b) Personnel and Funding.--The Attorney General shall provide to
the Office of Tribal Justice such personnel and funds as are necessary
to establish the Office of Tribal Justice as a division of the
Department under subsection (a).
``(c) Additional Duties.--In addition to the duties of the Office
of Tribal Justice in effect on the day before the date of enactment of
the Tribal Law and Order Act of 2009, the Office of Tribal Justice
shall--
``(1) serve as the program and legal policy advisor to the
Attorney General with respect to the treaty and trust
relationship between the United States and Indian tribes;
``(2) serve as the point of contact for federally
recognized tribal governments and tribal organizations with
respect to questions and comments regarding policies and
programs of the Department and issues relating to public safety
and justice in Indian country; and
``(3) coordinate with other bureaus, agencies, offices, and
divisions within the Department of Justice to ensure that each
component has an accountable process to ensure meaningful and
timely consultation with tribal leaders in the development of
regulatory policies and other actions that affect--
``(A) the trust responsibility of the United States
to Indian tribes;
``(B) any tribal treaty provision;
``(C) the status of Indian tribes as a sovereign
governments; or
``(D) any other tribal interest.''.
(b) Office of Indian Country Crime.--The Indian Law Enforcement
Reform Act (25 U.S.C. 2801 et seq.) (as amended by section 103(b)) is
amended by adding at the end the following:
``SEC. 12. OFFICE OF INDIAN COUNTRY CRIME.
``(a) Establishment.--There is established in the criminal division
of the Department of Justice an office, to be known as the `Office of
Indian Country Crime'.
``(b) Duties.--The Office of Indian Country Crime shall--
``(1) develop, enforce, and administer the application of
Federal criminal laws applicable in Indian country;
``(2) coordinate with the United States Attorneys that have
authority to prosecute crimes in Indian country;
``(3) coordinate prosecutions of crimes of national
significance in Indian country, as determined by the Attorney
General;
``(4) develop and implement criminal enforcement policies
for United States Attorneys and investigators of Federal crimes
regarding cases arising in Indian country; and
``(5) submit to the Committee on Indian Affairs of the
Senate and the Committee on Natural Resources of the House of
Representatives annual reports describing the prosecution and
declination rates of cases involving alleged crimes in Indian
country referred to United States Attorneys.
``(c) Deputy Assistant Attorney General.--
``(1) Appointment.--The Attorney General shall appoint a
Deputy Assistant Attorney General for Indian Country Crime.
``(2) Duties.--The Deputy Assistant Attorney General for
Indian Country Crime shall--
``(A) serve as the head of the Office of Indian
Country Crime;
``(B) serve as a point of contact to United State
Attorneys serving districts including Indian country,
tribal liaisons, tribal governments, and other Federal,
State, and local law enforcement agencies regarding
issues affecting the prosecution of crime in Indian
country; and
``(C) carry out such other duties as the Attorney
General may prescribe.''.
TITLE II--STATE ACCOUNTABILITY AND COORDINATION
SEC. 201. STATE CRIMINAL JURISDICTION AND RESOURCES.
(a) Concurrent Authority of United States.--Section 401(a) of
Public Law 90-284 (25 U.S.C. 1321(a)) is amended--
(1) by striking the section designation and heading and all
that follows through ``The consent of the United States'' and
inserting the following:
``SEC. 401. ASSUMPTION BY STATE OF CRIMINAL JURISDICTION.
``(a) Consent of United States.--
``(1) In general.--The consent of the United States''; and
(2) by adding at the end the following:
``(2) Concurrent jurisdiction.--At the request of an Indian
tribe, and after consultation with the Attorney General, the
United States shall maintain concurrent jurisdiction to
prosecute violations of sections 1152 and 1153 of title 18,
United States Code, within the Indian country of the Indian
tribe.''.
(b) Applicable Law.--Section 1162 of title 18, United States Code,
is amended by striking subsection (c) and inserting the following:
``(c) Applicable Law.--At the request of an Indian tribe, and after
consultation with the Attorney General--
``(1) sections 1152 and 1153 of this title shall remain in
effect in the areas of the Indian country of the Indian tribe;
and
``(2) jurisdiction over those areas shall be concurrent
among the Federal Government and State and tribal
governments.''.
SEC. 202. INCENTIVES FOR STATE, TRIBAL, AND LOCAL LAW ENFORCEMENT
COOPERATION.
(a) Establishment of Cooperative Assistance Program.--The Attorney
General may provide grants, technical assistance, and other assistance
to State, tribal, and local governments that enter into cooperative
agreements, including agreements relating to mutual aid, hot pursuit of
suspects, and cross-deputization for the purposes of--
(1) improving law enforcement effectiveness; and
(2) reducing crime in Indian country and nearby
communities.
(b) Program Plans.--
(1) In general.--To be eligible to receive assistance under
this section, a group composed of not less than 1 of each of a
tribal government and a State or local government shall jointly
develop and submit to the Attorney General a plan for a program
to achieve the purpose described in subsection (a).
(2) Plan requirements.--A joint program plan under
paragraph (1) shall include a description of--
(A) the proposed cooperative tribal and State or
local law enforcement program for which funding is
sought, including information on the population and
each geographic area to be served by the program;
(B) the need of the proposed program for funding
under this section, the amount of funding requested,
and the proposed use of funds, subject to the
requirements listed in subsection (c);
(C) the unit of government that will administer any
assistance received under this section, and the method
by which the assistance will be distributed;
(D) the types of law enforcement services to be
performed on each applicable Indian reservation and the
individuals and entities that will perform those
services;
(E) the individual or group of individuals who will
exercise daily supervision and control over law
enforcement officers participating in the program;
(F) the method by which local and tribal government
input with respect to the planning and implementation
of the program will be ensured;
(G) the policies of the program regarding mutual
aid, hot pursuit of suspects, deputization, training,
and insurance of applicable law enforcement officers;
(H) the recordkeeping procedures and types of data
to be collected pursuant to the program; and
(I) other information that the Attorney General
determines to be relevant.
(c) Permissible Uses of Funds.--An eligible entity that receives a
grant under this section may use the grant, in accordance with the
program plan described in subsection (b)--
(1) to hire and train new career tribal, State, or local
law enforcement officers, or to make overtime payments for
current law enforcement officers, that are or will be dedicated
to--
(A) policing tribal land and nearby lands; and
(B) investigating alleged crimes on those lands;
(2) procure equipment, technology, or support systems to be
used to investigate crimes and share information between
tribal, State, and local law enforcement agencies; or
(3) for any other uses that the Attorney General determines
will meet the purposes described in subsection (a).
(d) Factors for Consideration.--In determining whether to approve a
joint program plan submitted under subsection (b) and, on approval, the
amount of assistance to provide to the program, the Attorney General
shall take into consideration the following factors:
(1) The size and population of each Indian reservation and
nearby community proposed to be served by the program.
(2) The complexity of the law enforcement problems proposed
to be addressed by the program.
(3) The range of services proposed to be provided by the
program.
(4) The proposed improvements the program will make
regarding law enforcement cooperation beyond existing levels of
cooperation.
(5) The crime rates of the tribal and nearby communities.
(6) The available resources of each entity applying for a
grant under this section for dedication to public safety in the
respective jurisdictions of the entities.
(e) Annual Reports.--To be eligible to renew or extend a grant
under this section, a group described in subsection (b)(1) shall submit
to the Attorney General, together with the joint program plan under
subsection (b), a report describing the law enforcement activities
carried out pursuant to the program during the preceding fiscal year,
including the success of the activities, including any increase in
arrests or prosecutions.
(f) Reports by Attorney General.--Not later than January 15 of each
applicable fiscal year, the Attorney General shall submit to the
Committee on Indian Affairs of the Senate and the Committee on Natural
Resources of the House of Representatives a report describing the law
enforcement programs carried out using assistance provided under this
section during the preceding fiscal year, including the success of the
programs.
(g) Technical Assistance.--On receipt of a request from a group
composed of not less than 1 tribal government and 1 State or local
government, the Attorney General shall provide technical assistance to
the group to develop successful cooperative relationships that
effectively combat crime in Indian country and nearby communities.
(h) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section for
each of fiscal years 2010 through 2014.
TITLE III--EMPOWERING TRIBAL LAW ENFORCEMENT AGENCIES AND TRIBAL
GOVERNMENTS
SEC. 301. TRIBAL POLICE OFFICERS.
(a) Flexibility in Training Law Enforcement Officers Serving Indian
Country.--Section 3(e) of the Indian Law Enforcement Reform Act (25
U.S.C. 2802(e)) (as amended by section 101(b)(4)) is amended--
(1) in paragraph (1)--
(A) by striking ``(e)(1) The Secretary'' and
inserting the following:
``(e) Standards of Education and Experience and Classification of
Positions.--
``(1) Standards of education and experience.--
``(A) In general.--The Secretary''; and
(B) by adding at the end the following:
``(B) Training.--The training standards established
under subparagraph (A) shall permit law enforcement
personnel of the Office of Justice Services or an
Indian tribe to obtain training at a State or tribal
police academy, a local or tribal community college, or
another training academy that meets the relevant Peace
Officer Standards and Training.'';
(2) in paragraph (3), by striking ``Agencies'' and
inserting ``agencies''; and
(3) by adding at the end the following:
``(4) Background checks for officers.--The Office of
Justice Services shall develop standards and deadlines for the
provision of background checks for tribal law enforcement and
corrections officials that ensure that a response to a request
by an Indian tribe for such a background check shall be
provided by not later than 60 days after the date of receipt of
the request, unless an adequate reason for failure to respond
by that date is provided to the Indian tribe.''.
(b) Special Law Enforcement Commissions.--Section 5(a) of the
Indian Law Enforcement Reform Act (25 U.S.C. 2804(a)) is amended--
(1) by striking ``(a) The Secretary may enter into an
agreement'' and inserting the following:
``(a) Agreements.--
``(1) In general.--Not later than 180 days after the date
of enactment of the Tribal Law and Order Act of 2009, the
Secretary shall establish procedures to enter into memoranda of
agreement'';
(2) in the second sentence, by striking ``The Secretary''
and inserting the following:
``(2) Certain activities.--The Secretary''; and
(3) by adding at the end the following:
``(3) Program enhancement.--
``(A) Training sessions in indian country.--
``(i) In general.--The procedures described
in paragraph (1) shall include the development
of a plan to enhance the certification and
provision of special law enforcement
commissions to tribal law enforcement
officials, and, subject to subsection (d),
State and local law enforcement officials,
pursuant to this section.
``(ii) Inclusions.--The plan under clause
(i) shall include the hosting of regional
training sessions in Indian country, not less
frequently than biannually, to educate and
certify candidates for the special law
enforcement commissions.
``(B) Memoranda of agreement.--
``(i) In general.--Not later than 180 days
after the date of enactment of the Tribal Law
and Order Act of 2009, the Secretary, in
consultation with Indian tribes and tribal law
enforcement agencies, shall develop minimum
requirements to be included in special law
enforcement commission agreements pursuant to
this section.
``(ii) Agreement.--Not later than 60 days
after the date on which the Secretary
determines that all applicable requirements
under clause (i) are met, the Secretary shall
offer to enter into a special law enforcement
commission agreement with the applicable Indian
tribe.''.
(c) Indian Law Enforcement Foundation.--The Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450 et seq.) is
amended by adding at the end the following:
``TITLE VII--INDIAN LAW ENFORCEMENT FOUNDATION
``SEC. 701. INDIAN LAW ENFORCEMENT FOUNDATION.
``(a) Establishment.--As soon as practicable after the date of
enactment of this title, the Secretary shall establish, under the laws
of the District of Columbia and in accordance with this title, a
foundation, to be known as the `Indian Law Enforcement Foundation'
(referred to in this section as the `Foundation').
``(b) Duties.--The Foundation shall--
``(1) encourage, accept, and administer, in accordance with
the terms of each donation, private gifts of real and personal
property, and any income from or interest in such gifts, for
the benefit of, or in support of, public safety and justice
services in American Indian and Alaska Native communities; and
``(2) assist the Office of Justice Services of the Bureau
of Indian Affairs and Indian tribal governments in funding and
conducting activities and providing education to advance and
support the provision of public safety and justice services in
American Indian and Alaska Native communities.''.
(d) Acceptance and Assistance.--Section 5 of the Indian Law
Enforcement Reform Act (25 U.S.C. 2804) is amended by adding at the end
the following:
``(g) Acceptance of Assistance.--The Bureau may accept
reimbursement, resources, assistance, or funding from--
``(1) a Federal, tribal, State, or other government agency;
or
``(2) the Indian Law Enforcement Foundation established
under section 701(a) of the Indian Self-Determination and
Education Assistance Act.''.
SEC. 302. DRUG ENFORCEMENT IN INDIAN COUNTRY.
(a) Education and Research Programs.--Section 502 of the Controlled
Substances Act (21 U.S.C. 872) is amended in subsections (a)(1) and
(c), by inserting `` tribal,'' after ``State,'' each place it appears.
(b) Public-Private Education Program.--Section 503 of the
Comprehensive Methamphetamine Control Act of 1996 (21 U.S.C. 872a) is
amended--
(1) in subsection (a), by inserting ``tribal,'' after
``State,''; and
(2) in subsection (b)(2), by inserting ``, tribal,'' after
``State''.
(c) Cooperative Arrangements.--Section 503 of the Controlled
Substances Act (21 U.S.C. 873) is amended--
(1) in subsection (a)--
(A) by inserting ``tribal,'' after ``State,'' each
place it appears; and
(B) in paragraphs (6) and (7), by inserting ``,
tribal,'' after ``State'' each place it appears; and
(2) in subsection (d)(1), by inserting ``, tribal,'' after
``State''.
(d) Powers of Enforcement Personnel.--Section 508(a) of the
Controlled Substances Act (21 U.S.C. 878(a)) is amended in the matter
preceding paragraph (1) by inserting ``, tribal,'' after ``State''.
SEC. 303. ACCESS TO NATIONAL CRIMINAL INFORMATION DATABASES.
(a) Access to National Criminal Information Databases.--Section 534
of title 28, United States Code, is amended--
(1) in subsection (a)(4), by inserting ``Indian tribes,''
after ``the States,'';
(2) by striking subsection (d) and inserting the following:
``(d) Indian Law Enforcement Agencies.--The Attorney General shall
permit tribal and Bureau of Indian Affairs law enforcement agencies--
``(1) to directly access and enter information into Federal
criminal information databases; and
``(2) to directly obtain information from the databases.'';
(3) by redesignating the second subsection (e) as
subsection (f); and
(4) in paragraph (2) of subsection (f) (as redesignated by
paragraph (3)), in the matter preceding subparagraph (A), by
inserting ``, tribal,'' after ``Federal''.
(b) Requirement.--
(1) In general.--The Attorney General shall ensure that
tribal law enforcement officials that meet applicable Federal
or State requirements have access to national crime information
databases.
(2) Sanctions.--For purpose of sanctions for noncompliance
with requirements of, or misuse of, national crime information
databases and information obtained from those databases, a
tribal law enforcement agency or official shall be treated as
Federal law enforcement agency or official.
(3) NCIC.--Each tribal justice official serving an Indian
tribe with criminal jurisdiction over Indian country shall be
considered to be an authorized law enforcement official for
purposes of access to the National Crime Information Center of
the Federal Bureau of Investigation.
SEC. 304. TRIBAL COURT SENTENCING AUTHORITY.
(a) Constitutional Rights.--Section 202 of Public Law 90-284 (25
U.S.C. 1302) is amended--
(1) in the matter preceding paragraph (1), by striking ``No
Indian tribe'' and inserting the following:
``(a) In General.--No Indian tribe'';
(2) in paragraph (7) of subsection (a) (as designated by
paragraph (1)), by striking ``and a fine'' and inserting ``or a
fine''; and
(3) by adding at the end the following:
``(b) Tribal Courts and Prisoners.--
``(1) In general.--Notwithstanding paragraph (7) of
subsection (a) and in addition to the limitations described in
the other paragraphs of that subsection, no Indian tribe, in
exercising any power of self-government involving a criminal
trial that subjects a defendant to more than 1 year
imprisonment for any single offense, may--
``(A) deny any person in such a criminal proceeding
the assistance of a defense attorney licensed to
practice law in any jurisdiction in the United States;
``(B) require excessive bail, impose an excessive
fine, inflict a cruel or unusual punishment, or impose
for conviction of a single offense any penalty or
punishment greater than imprisonment for a term of 3
years or a fine of $15,000, or both; or
``(C) deny any person in such a criminal proceeding
the due process of law.
``(2) Authority.--An Indian tribe exercising authority
pursuant to this subsection shall--
``(A) require that each judge presiding over an
applicable criminal case is licensed to practice law in
any jurisdiction in the United States; and
``(B) make publicly available the criminal laws
(including regulations and interpretive documents) of
the Indian tribe.
``(3) Sentences.--A tribal court acting pursuant to
paragraph (1) may require a convicted offender--
``(A) to serve the sentence--
``(i) in a tribal correctional center that
has been approved by the Bureau of Indian
Affairs for long-term incarceration, in
accordance with guidelines developed by the
Bureau of Indian Affairs, in consultation with
Indian tribes;
``(ii) in the nearest appropriate Federal
facility, at the expense of the United States
pursuant to a memorandum of agreement with
Bureau of Prisons in accordance with paragraph
(4);
``(iii) in a State or local government-
approved detention or correctional center
pursuant to an agreement between the Indian
tribe and the State or local government; or
``(iv) subject to paragraph (1), in an
alternative rehabilitation center of an Indian
tribe; or
``(B) to serve another alternative form of
punishment, as determined by the tribal court judge
pursuant to tribal law.
``(4) Memoranda of agreement.--A memorandum of agreement
between an Indian tribe and the Bureau of Prisons under
paragraph (2)(A)(ii)--
``(A) shall acknowledge that the United States will
incur all costs involved, including the costs of
transfer, housing, medical care, rehabilitation, and
reentry of transferred prisoners;
``(B) shall limit the transfer of prisoners to
prisoners convicted in tribal court of violent crimes,
crimes involving sexual abuse, and serious drug
offenses, as determined by the Bureau of Prisons, in
consultation with tribal governments, by regulation;
``(C) shall not affect the jurisdiction, power of
self-government, or any other authority of an Indian
tribe over the territory or members of the Indian
tribe;
``(D) shall contain such other requirements as the
Bureau of Prisons, in consultation with the Bureau of
Indian Affairs and tribal governments, may determine,
by regulation; and
``(E) shall be executed and carried out not later
than 180 days after the date on which the applicable
Indian tribe first contacts the Bureau of Prisons to
accept a transfer of a tribal court offender pursuant
to this subsection.
``(c) Effect of Section.--Nothing in this section affects the
obligation of the United States, or any State government that has been
delegated authority by the United States, to investigate and prosecute
any criminal violation in Indian country.''.
(b) Grants and Contracts.--Section 1007(b) of the Economic
Opportunity Act of 1964 (42 U.S.C. 2996f(b)) is amended by striking
paragraph (2) and inserting the following:
``(2) to provide legal assistance with respect to any
criminal proceeding, except to provide assistance to a person
charged with an offense in an Indian tribal court;''.
SEC. 305. INDIAN LAW AND ORDER COMMISSION.
(a) Establishment.--There is established a commission to be known
as the Indian Law and Order Commission (referred to in this section as
the ``Commission'').
(b) Membership.--
(1) In general.--The Commission shall be composed of 9
members, of whom--
(A) 3 shall be appointed by the President, in
consultation with--
(i) the Attorney General; and
(ii) the Secretary of the Interior;
(B) 2 shall be appointed by the majority leader of
the Senate, in consultation with the Chairperson of the
Committee on Indian Affairs of the Senate;
(C) 1 shall be appointed by the minority leader of
the Senate, in consultation with the Vice Chairperson
of the Committee on Indian Affairs of the Senate;
(D) 2 shall be appointed by the Speaker of the
House of Representatives, in consultation with the
Chairperson of the Committee on Natural Resources of
the House of Representatives; and
(E) 1 shall be appointed by the minority leader of
the House of Representatives, in consultation with the
Ranking Member of the Committee on Natural Resources of
the House of Representatives.
(2) Requirements for eligibility.--Each member of the
Commission shall have significant experience and expertise in--
(A) the Indian country criminal justice system; and
(B) matters to be studied by the Commission.
(3) Consultation required.--The President, the Speaker and
minority leader of the House of Representatives, and the
majority leader and minority leader of the Senate shall consult
before the appointment of members of the Commission under
paragraph (1) to achieve, to the maximum extent practicable,
fair and equitable representation of various points of view
with respect to the matters to be studied by the Commission.
(4) Term.--Each member shall be appointed for the life of
the Commission.
(5) Time for initial appointments.--The appointment of the
members of the Commission shall be made not later than 60 days
after the date of enactment of this Act.
(6) Vacancies.--A vacancy in the Commission shall be
filled--
(A) in the same manner in which the original
appointment was made; and
(B) not later than 60 days after the date on which
the vacancy occurred.
(c) Operation.--
(1) Chairperson.--Not later than 15 days after the date on
which all members of the Commission have been appointed, the
Commission shall select 1 member to serve as Chairperson of the
Commission.
(2) Meetings.--
(A) In general.--The Commission shall meet at the
call of the Chairperson.
(B) Initial meeting.--The initial meeting shall
take place not later than 30 days after the date
described in paragraph (1).
(3) Quorum.--A majority of the members of the Commission
shall constitute a quorum, but a lesser number of members may
hold hearings.
(4) Rules.--The Commission may establish, by majority vote,
any rules for the conduct of Commission business, in accordance
with this Act and other applicable law.
(d) Comprehensive Study of Criminal Justice System Relating to
Indian Country.--The Commission shall conduct a comprehensive study of
law enforcement and criminal justice in tribal communities, including--
(1) jurisdiction over crimes committed in Indian country
and the impact of that jurisdiction on--
(A) the investigation and prosecution of Indian
country crimes; and
(B) residents of Indian land;
(2) the tribal jail and Federal prisons systems and the
effect of those systems with respect to--
(A) reducing Indian country crime; and
(B) rehabilitation of offenders;
(3)(A) tribal juvenile justice systems and the Federal
juvenile justice system as relating to Indian country; and
(B) the effect of those systems and related programs in
preventing juvenile crime, rehabilitating Indian youth in
custody, and reducing recidivism among Indian youth;
(4) the impact of the Indian Civil Rights Act of 1968 (25
U.S.C. 1301 et seq.) on--
(A) the authority of Indian tribes; and
(B) the rights of defendants subject to tribal
government authority; and
(5) studies of such other subjects as the Commission
determines relevant to achieve the purposes of the Tribal Law
and Order Act of 2009.
(e) Recommendations.--Taking into consideration the results of the
study under paragraph (1), the Commission shall develop recommendations
on necessary modifications and improvements to justice systems at the
tribal, Federal, and State levels, including consideration of--
(1) simplifying jurisdiction in Indian country;
(2) improving services and programs--
(A) to prevent juvenile crime on Indian land;
(B) to rehabilitate Indian youth in custody; and
(C) to reduce recidivism among Indian youth;
(3) enhancing the penal authority of tribal courts and
exploring alternatives to incarceration;
(4) the establishment of satellite United States magistrate
or district courts in Indian country;
(5) changes to the tribal jails and Federal prison systems;
and
(6) other issues that, as determined by the Commission,
would reduce violent crime in Indian country.
(f) Report.--Not later than 2 years after the date of enactment of
this Act, the Commission shall submit to the President and Congress a
report that contains--
(1) a detailed statement of the findings and conclusions of
the Commission; and
(2) the recommendations of the Commission for such
legislative and administrative actions as the Commission
considers to be appropriate.
(g) Powers.--
(1) Hearings.--
(A) In general.--The Commission may hold such
hearings, meet and act at such times and places, take
such testimony, and receive such evidence as the
Commission considers to be advisable to carry out the
duties of the Commission under this section.
(B) Public requirement.--The hearings of the
Commission under this paragraph shall be open to the
public.
(2) Witness expenses.--
(A) In general.--A witness requested to appear
before the Commission shall be paid the same fees as
are paid to witnesses under section 1821 of title 28,
United States Code.
(B) Per diem and mileage.--The per diem and mileage
allowance for a witness shall be paid from funds made
available to the Commission.
(3) Information from federal, tribal, and state agencies.--
(A) In general.--The Commission may secure directly
from a Federal agency such information as the
Commission considers to be necessary to carry out this
section.
(B) Tribal and state agencies.--The Commission may
request the head of any tribal or State agency to
provide to the Commission such information as the
Commission considers to be necessary to carry out this
section.
(4) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other agencies of the Federal Government.
(5) Gifts.--The Commission may accept, use, and dispose of
gifts or donations of services or property.
(h) Commission Personnel Matters.--
(1) Travel expenses.--A member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for an employee of an agency
under subchapter I of chapter 57 of title 5, United States
Code, while away from the home or regular place of business of
the member in the performance of the duties of the Commission.
(2) Detail of federal employees.--On the affirmative vote
of \2/3\ of the members of the Commission and the approval of
the appropriate Federal agency head, an employee of the Federal
Government may be detailed to the Commission without
reimbursement, and such detail shall be without interruption or
loss of civil service status, benefits, or privileges.
(3) Procurement of temporary and intermittent services.--On
request of the Commission, the Attorney General and Secretary
shall provide to the Commission reasonable and appropriate
office space, supplies, and administrative assistance.
(i) Contracts for Research.--
(1) Researchers and experts.--
(A) In general.--On an affirmative vote of \2/3\ of
the members of the Commission, the Commission may
select nongovernmental researchers and experts to
assist the Commission in carrying out the duties of the
Commission under this section.
(B) National institute of justice.--The National
Institute of Justice may enter into a contract with the
researchers and experts selected by the Commission
under subparagraph (A) to provide funding in exchange
for the services of the researchers and experts.
(2) Other organizations.--Nothing in this subsection limits
the ability of the Commission to enter into contracts with any
other entity or organization to carry out research necessary to
carry out the duties of the Commission under this section.
(j) Tribal Advisory Committee.--
(1) Establishment.--The Commission shall establish a
committee, to be known as the ``Tribal Advisory Committee''.
(2) Membership.--
(A) Composition.--The Tribal Advisory Committee
shall consist of 2 representatives of Indian tribes
from each region of the Bureau of Indian Affairs.
(B) Qualifications.--Each member of the Tribal
Advisory Committee shall have experience relating to--
(i) justice systems;
(ii) crime prevention; or
(iii) victim services.
(3) Duties.--The Tribal Advisory Committee shall--
(A) serve as an advisory body to the Commission;
and
(B) provide to the Commission advice and
recommendations, submit materials, documents,
testimony, and such other information as the Commission
determines to be necessary to carry out the duties of
the Commission under this section.
(k) Authorization of Appropriations.--There are authorized to be
appropriated such sums as are necessary to carry out this section, to
remain available until expended.
(l) Termination of Commission.--The Commission shall terminate 90
days after the date on which the Commission submits the report of the
Commission under subsection (c)(3).
(m) Nonapplicability of FACA.--The Federal Advisory Committee Act
(5 U.S.C. App.) shall not apply to the Commission.
TITLE IV--TRIBAL JUSTICE SYSTEMS
SEC. 401. INDIAN ALCOHOL AND SUBSTANCE ABUSE.
(a) Correction of References.--
(1) Inter-departmental memorandum of agreement.--Section
4205 of the Indian Alcohol and Substance Abuse Prevention and
Treatment Act of 1986 (25 U.S.C. 2411) is amended--
(A) in subsection (a)--
(i) in the matter preceding paragraph (1)--
(I) by striking ``the date of
enactment of this subtitle'' and
inserting ``the date of enactment of
the Tribal Law and Order Act of 2009'';
and
(II) by inserting ``, the Attorney
General,'' after ``Secretary of the
Interior'';
(ii) in paragraph (2)(A), by inserting ``,
Bureau of Justice Assistance, Substance Abuse
and Mental Health Services Administration,''
after ``Bureau of Indian Affairs,'';
(iii) in paragraph (4), by inserting ``,
Department of Justice, Substance Abuse and
Mental Health Services Administration,'' after
``Bureau of Indian Affairs'';
(iv) in paragraph (5), by inserting ``,
Department of Justice, Substance Abuse and
Mental Health Services Administration,'' after
``Bureau of Indian Affairs'';
(v) in paragraph (7), by inserting ``, the
Attorney General,'' after ``Secretary of the
Interior'';
(B) in subsection (c), by inserting ``, the
Attorney General,'' after ``Secretary of the
Interior''; and
(C) in subsection (d), by striking ``the date of
enactment of this subtitle'' and inserting ``the date
of enactment of the Tribal Law and Order Act of 2009''.
(2) Tribal action plans.--Section 4206 of the Indian
Alcohol and Substance Abuse Prevention and Treatment Act of
1986 (25 U.S.C. 2412) is amended--
(A) in subsection (b), in the first sentence, by
inserting ``, the Bureau of Justice Assistance, the
Substance Abuse and Mental Health Services
Administration,'' before ``and the Indian Health
Service service unit'';
(B) in subsection (c)(1)(A)(i), by inserting ``,
the Bureau of Justice Assistance, the Substance Abuse
and Mental Health Services Administration,'' before
``and the Indian Health Service service unit'';
(C) in subsection (d)(2), by striking ``fiscal year
1993 and such sums as are necessary for each of the
fiscal years 1994, 1995, 1996, 1997, 1998, 1999, and
2000'' and inserting ``the period of fiscal years 2010
through 2014'';
(D) in subsection (e), in the first sentence, by
inserting ``, the Attorney General,'' after ``the
Secretary of the Interior''; and
(E) in subsection (f)(3), by striking ``fiscal year
1993 and such sums as are necessary for each of the
fiscal years 1994, 1995, 1996, 1997, 1998, 1999, and
2000'' and inserting ``the period of fiscal years 2010
through 2014''.
(3) Departmental responsibility.--Section 4207 of the
Indian Alcohol and Substance Abuse Prevention and Treatment Act
of 1986 (25 U.S.C. 2413) is amended--
(A) in subsection (a), by inserting ``, the
Attorney General'' after ``Bureau of Indian Affairs'';
(B) in subsection (b)--
(i) by striking paragraph (1) and inserting
the following:
``(1) Establishment.--
``(A) In general.--To improve coordination among
the Federal agencies and departments carrying out this
subtitle, there is established within the Substance
Abuse and Mental Health Services Administration an
office, to be known as the `Office of Indian Alcohol
and Substance Abuse' (referred to in this section as
the `Office').
``(B) Director.--The director of the Office shall
be appointed by the Director of the Substance Abuse and
Mental Health Services Administration--
``(i) on a permanent basis; and
``(ii) at a grade of not less than GS-15 of
the General Schedule.'';
(ii) in paragraph (2)--
(I) by striking ``(2) In addition''
and inserting the following:
``(2) Responsibilities of office.--In addition'';
(II) by striking subparagraph (A)
and inserting the following:
``(A) coordinating with other agencies to monitor
the performance and compliance of the relevant Federal
programs in achieving the goals and purposes of this
subtitle and the Memorandum of Agreement entered into
under section 4205;'';
(III) in subparagraph (B)--
(aa) by striking ``within the Bureau of Indian Affairs''; and
(bb) by striking the period at the end and inserting ``; and''; and
(IV) by adding at the end the
following:
``(C) not later than 1 year after the date of
enactment of the Tribal Law and Order Act of 2009,
developing, in coordination and consultation with
tribal governments, a framework for interagency and
tribal coordination that--
``(i) establish the goals and other desired
outcomes of this Act;
``(ii) prioritizes outcomes that are
aligned with the purposes of affected agencies;
``(iii) provides guidelines for resource
and information sharing;
``(iv) provides technical assistance to the
affected agencies to establish effective and
permanent interagency communication and
coordination; and
``(v) determines whether collaboration is
feasible, cost-effective, and within agency
capability.''; and
(iii) by striking paragraph (3) and
inserting the following:
``(3) Appointment of employees.--The Director of the
Substance Abuse and Mental Health Services Administration shall
appoint such employees to work in the Office, and shall provide
such funding, services, and equipment, as may be necessary to
enable the Office to carry out the responsibilities under this
subsection.''; and
(C) in subsection (c)--
(i) by striking ``of Alcohol and Substance
Abuse'' each place it appears;
(ii) in paragraph (1), in the second
sentence, by striking ``The Assistant Secretary
of the Interior for Indian Affairs'' and
inserting ``The Director of the Substance Abuse
and Mental Health Services Administration'';
and
(iii) in paragraph (3)--
(I) in the matter preceding
subparagraph (A), by striking ``Youth''
and inserting ``youth''; and
(II) by striking ``programs of the
Bureau of Indian Affairs'' and
inserting ``the applicable Federal
programs''.
(4) Review of programs.--Section 4208a(a) of the Indian
Alcohol and Substance Abuse Prevention and Treatment Act of
1986 (25 U.S.C. 2414a(a)) is amended in the matter preceding
paragraph (1) by inserting ``, the Attorney General,'' after
``the Secretary of the Interior''.
(5) Federal facilities, property, and equipment.--Section
4209 of the Indian Alcohol and Substance Abuse Prevention and
Treatment Act of 1986 (25 U.S.C. 2415) is amended--
(A) in subsection (a), by inserting ``, the
Attorney General,'' after ``the Secretary of the
Interior'';
(B) in subsection (b)--
(i) in the first sentence, by inserting ``,
the Attorney General,'' after ``the Secretary
of the Interior'';
(ii) in the second sentence, by inserting
``, nor the Attorney General,'' after ``the
Secretary of the Interior''; and
(iii) in the third sentence, by inserting
``, the Department of Justice,'' after ``the
Department of the Interior''; and
(C) in subsection (c)(1), by inserting ``, the
Attorney General,'' after ``the Secretary of the
Interior''.
(6) Newsletter.--Section 4210 of the Indian Alcohol and
Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C.
2416) is amended--
(A) in subsection (a), in the first sentence, by
inserting ``, the Attorney General,'' after ``the
Secretary of the Interior''; and
(B) in subsection (b), by striking ``fiscal year
1993 and such sums as may be necessary for each of the
fiscal years 1994, 1995, 1996, 1997, 1998, 1999, and
2000'' and inserting ``the period of fiscal years 2010
through 2014''.
(7) Review.--Section 4211(a) of the Indian Alcohol and
Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C.
2431(a)) is amended in the matter preceding paragraph (1) by
inserting ``, the Attorney General,'' after ``the Secretary of
the Interior''.
(b) Indian Education Programs.--Section 4212 of the Indian Alcohol
and Substance Abuse Prevention Act of 1986 (25 U.S.C. 2432) is amended
by striking subsection (a) and inserting the following:
``(a) Summer Youth Programs.--
``(1) In general.--The head of the Indian Alcohol and
Substance Abuse Program, in coordination with the Assistant
Secretary for Indian Affairs, shall develop and implement
programs in tribal schools and schools funded by the Bureau of
Indian Education (subject to the approval of the local school
board or contract school board) to determine the effectiveness
of summer youth programs in advancing the purposes and goals of
this Act.
``(2) Costs.--The head of the Indian Alcohol and Substance
Abuse Program and the Assistant Secretary shall defray all
costs associated with the actual operation and support of the
summer youth programs in a school from funds appropriated to
carry out this subsection.
``(3) Authorization of appropriations.--There are
authorized to be appropriated to carry out the programs under
this subsection such sums as are necessary for each of fiscal
years 2010 through 2014.''.
(c) Emergency Shelters.--Section 4213(e) of the Indian Alcohol and
Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C.
2433(e)) is amended--
(1) in paragraph (1), by striking ``as may be necessary''
and all that follows through the end of the paragraph and
inserting ``as are necessary for each of fiscal years 2010
through 2014.'';
(2) in paragraph (2), by striking ``$7,000,000'' and all
that follows through the end of the paragraph and inserting
``$10,000,000 for each of fiscal years 2010 through 2014.'';
and
(3) by indenting paragraphs (4) and (5) appropriately.
(d) Review of Programs.--Section 4215(a) of the Indian Alcohol and
Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C.
2441(a)) is amended by inserting ``, the Attorney General,'' after
``the Secretary of the Interior''.
(e) Illegal Narcotics Trafficking; Source Eradication.--Section
4216 of the Indian Alcohol and Substance Abuse Prevention and Treatment
Act of 1986 (25 U.S.C. 2442) is amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking the
comma at the end and inserting a semicolon;
(ii) in subparagraph (B), by striking ``,
and'' at the end and inserting a semicolon;
(iii) in subparagraph (C), by striking the
period at the end and inserting ``; and''; and
(iv) by adding at the end the following:
``(D) the Blackfeet Nation of Montana for the
investigation and control of illegal narcotics traffic
on the Blackfeet Indian Reservation along the border
with Canada.'';
(B) in paragraph (2), by striking ``United States
Custom Service'' and inserting ``United States Customs
and Border Protection''; and
(C) by striking paragraph (3) and inserting the
following:
``(3) Authorization of appropriations.--There are
authorized to be appropriated to carry out this subsection such
sums as are necessary for each of fiscal years 2010 through
2014.''; and
(2) in subsection (b)(2), by striking ``as may be
necessary'' and all that follows through the end of the
paragraph and inserting ``as are necessary for each of fiscal
years 2010 through 2014.''.
(f) Law Enforcement and Judicial Training.--Section 4218 of the
Indian Alcohol and Substance Abuse Prevention and Treatment Act of 1986
(25 U.S.C. 2451) is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Training Programs.--
``(1) In general.--The Secretary of the Interior, in
coordination with the Attorney General, the Administrator of
the Drug Enforcement Administration, and the Director of the
Federal Bureau of Investigation, shall ensure, through the
establishment of a new training program or by supplementing
existing training programs, that all Bureau of Indian Affairs
and tribal law enforcement and judicial personnel have access
to training regarding--
``(A) the investigation and prosecution of offenses
relating to illegal narcotics; and
``(B) alcohol and substance abuse prevention and
treatment.
``(2) Youth-related training.--Any training provided to
Bureau of Indian Affairs or tribal law enforcement or judicial
personnel under paragraph (1) shall include training in issues
relating to youth alcohol and substance abuse prevention and
treatment.''; and
(2) in subsection (b), by striking ``as may be necessary''
and all that follows through the end of the subsection and
inserting ``as are necessary for each of fiscal years 2010
through 2014.''.
(g) Juvenile Detention Centers.--Section 4220 of the Indian Alcohol
and Substance Abuse Prevention and Treatment Act of 1986 (25 U.S.C.
2453) is amended--
(1) in subsection (a)--
(A) by striking ``The Secretary'' the first place
it appears and inserting the following:
``(1) In general.--The Secretary'';
(B) in the second sentence, by striking ``The
Secretary shall'' and inserting the following:
``(2) Construction and operation.--The Secretary shall'';
and
(C) by adding at the end the following:
``(3) Development of plan.--
``(A) In general.--Not later than 180 days after
the date of enactment of this paragraph, the Secretary,
the Director of the Substance Abuse and Mental Health
Services Administration, the Director of the Indian
Health Service, and the Attorney General, in
consultation with tribal leaders and tribal justice
officials, shall develop a long-term plan for the
construction, renovation, and operation of Indian
juvenile detention and treatment centers and
alternatives to detention for juvenile offenders.
``(B) Coordination.--The plan under subparagraph
(A) shall require the Bureau of Indian Education and
the Indian Health Service to coordinate with tribal and
Bureau of Indian Affairs juvenile detention centers to
provide services to those centers.''; and
(2) in subsection (b)--
(A) by striking ``such sums as may be necessary for
each of the fiscal years 1994, 1995, 1996, 1997, 1998,
1999, and 2000'' each place it appears and inserting
``such sums as are necessary for each of fiscal years
2010 through 2014''; and
(B) by indenting paragraph (2) appropriately.
SEC. 402. INDIAN TRIBAL JUSTICE; TECHNICAL AND LEGAL ASSISTANCE.
(a) Indian Tribal Justice.--
(1) Base support funding.--Section 103(b) of the Indian
Tribal Justice Act (25 U.S.C. 3613(b)) is amended by striking
paragraph (2) and inserting the following:
``(2) the employment of tribal court personnel, including
tribal court judges, prosecutors, public defenders, guardians
ad litem, and court-appointed special advocates for children
and juveniles;''.
(2) Tribal justice systems.--Section 201 of the Indian
Tribal Justice Act (25 U.S.C. 3621) is amended--
(A) in subsection (a)--
(i) by striking ``the provisions of
sections 101 and 102 of this Act'' and
inserting ``sections 101 and 102''; and
(ii) by striking ``the fiscal years 2000
through 2007'' and inserting ``fiscal years
2010 through 2014'';
(B) in subsection (b)--
(i) by striking ``the provisions of section
103 of this Act'' and inserting ``section
103''; and
(ii) by striking ``the fiscal years 2000
through 2007'' and inserting ``fiscal years
2010 through 2014'';
(C) in subsection (c), by striking ``the fiscal
years 2000 through 2007'' and inserting ``fiscal years
2010 through 2014''; and
(D) in subsection (d), by striking ``the fiscal
years 2000 through 2007'' and inserting ``fiscal years
2010 through 2014''.
(b) Technical and Legal Assistance.--
(1) Tribal civil legal assistance grants.--Section 102 of
the Indian Tribal Justice Technical and Legal Assistance Act of
2000 (25 U.S.C. 3662) is amended by inserting ``(including
guardians ad litem and court-appointed special advocates for
children and juveniles)'' after ``civil legal assistance''.
(2) Tribal criminal legal assistance grants.--Section 103
of the Indian Tribal Justice Technical and Legal Assistance Act
of 2000 (25 U.S.C. 3663) is amended by striking ``criminal
legal assistance to members of Indian tribes and tribal justice
systems'' and inserting ``criminal legal assistance services to
all defendants subject to tribal court jurisdiction and
judicial services for tribal courts''.
(3) Funding.--The Indian Tribal Justice Technical and Legal
Assistance Act of 2000 is amended--
(A) in section 106 (25 U.S.C. 3666), by striking
``2000 through 2004'' and inserting ``2010 through
2014''; and
(B) in section 201(d) (25 U.S.C. 3681(d)), by
striking ``2000 through 2004'' and inserting ``2010
through 2014''.
SEC. 403. TRIBAL RESOURCES GRANT PROGRAM.
Section 1701 of the Omnibus Crime Control and Safe Streets Act of
1968 (42 U.S.C. 3796dd) is amended--
(1) in subsection (b)--
(A) in each of paragraphs (1) through (4) and (6)
through (17), by inserting ``to'' after the paragraph
designation;
(B) in paragraph (1), by striking ``State and'' and
inserting ``State, tribal, or'';
(C) in paragraphs (9) and (10), by inserting ``,
tribal,'' after ``State'' each place it appears;
(D) in paragraph (15)--
(i) by striking ``a State in'' and
inserting ``a State or Indian tribe in'';
(ii) by striking ``the State which'' and
inserting ``the State or tribal community
that''; and
(iii) by striking ``a State or'' and
inserting ``a State, tribal, or'';
(E) in paragraph (16), by striking ``and'' at the
end
(F) in paragraph (17), by striking the period at
the end and inserting ``; and'';
(G) by redesignating paragraphs (6) through (17) as
paragraphs (5) through (16), respectively; and
(H) by adding at the end the following:
``(17) to permit tribal governments receiving direct law
enforcement services from the Bureau of Indian Affairs to
access the program under this section on behalf of the Bureau
for use in accordance with paragraphs (1) through (16).''.
(2) in subsection (i), by striking ``The authority'' and
inserting ``Except as provided in subsection (j), the
authority''; and
(3) by adding at the end the following:
``(j) Grants to Indian Tribes.--
``(1) In general.--Notwithstanding subsection (i) and
section 1703, and in acknowledgment of the Federal nexus and
distinct Federal responsibility to address and prevent crime in
Indian country, the Attorney General shall provide grants under
this section to Indian tribal governments, for fiscal year 2010
and any fiscal year thereafter, for such period as the Attorney
General determines to be appropriate to assist the Indian
tribal governments in carrying out the purposes described in
subsection (b).
``(2) Priority of funding.--In providing grants to Indian
tribal governments under this subsection, the Attorney General
shall take into consideration reservation crime rates and
tribal law enforcement staffing needs of each Indian tribal
government.
``(3) Federal share.--Because of the Federal nature and
responsibility for providing public safety on Indian land, the
Federal share of the cost of any activity carried out using a
grant under this subsection shall be 100 percent.
``(4) Authorization of appropriations.--There are
authorized to be appropriated such sums as are necessary to
carry out this subsection for each of fiscal years 2010 through
2014.
``(k) Report.--Not later than 180 days after the date of enactment
of this subsection, the Attorney General shall submit to Congress a
report describing the extent and effectiveness of the Community
Oriented Policing (COPS) initiative as applied in Indian country,
including particular references to--
``(1) the problem of intermittent funding;
``(2) the integration of COPS personnel with existing law
enforcement authorities; and
``(3) an explanation of how the practice of community
policing and the broken windows theory can most effectively be
applied in remote tribal locations.''.
SEC. 404. TRIBAL JAILS PROGRAM.
(a) In General.--Section 20109 of the Violent Crime Control and Law
Enforcement Act of 1994 (42 U.S.C. 13709) is amended by striking
subsection (a) and inserting the following:
``(a) Reservation of Funds.--Notwithstanding any other provision of
this part, of amounts made available to the Attorney General to carry
out programs relating to offender incarceration, the Attorney General
shall reserve $35,000,000 for each of fiscal years 2010 through 2014 to
carry out this section.''.
(b) Regional Detention Centers.--
(1) In general.--Section 20109 of the Violent Crime Control
and Law Enforcement Act of 1994 (42 U.S.C. 13709) is amended by
striking subsection (b) and inserting the following:
``(b) Grants to Indian Tribes.--
``(1) In general.--From the amounts reserved under
subsection (a), the Attorney General shall provide grants--
``(A) to Indian tribes for purposes of--
``(i) construction and maintenance of jails
on Indian land for the incarceration of
offenders subject to tribal jurisdiction;
``(ii) entering into contracts with private
entities to increase the efficiency of the
construction of tribal jails; and
``(iii) developing and implementing
alternatives to incarceration in tribal jails;
``(B) to Indian tribes for the construction of
tribal justice centers that combine tribal police,
courts, and corrections services to address violations
of tribal civil and criminal laws;
``(C) to consortia of Indian tribes for purposes of
constructing and operating regional detention centers
on Indian land for long-term incarceration of offenders
subject to tribal jurisdiction, as the applicable
consortium determines to be appropriate.
``(2) Priority of funding.--in providing grants under this
subsection, the Attorney General shall take into consideration
applicable--
``(A) reservation crime rates;
``(B) annual tribal court convictions; and
``(C) bed space needs.
``(3) Federal share.--Because of the Federal nature and
responsibility for providing public safety on Indian land, the
Federal share of the cost of any activity carried out using a
grant under this subsection shall be 100 percent.''.
(2) Conforming amendment.--Section 20109(c) of the Violent
Crime Control and Law Enforcement Act of 1994 (42 U.S.C.
13709(c)) is amended by inserting ``or consortium of Indian
tribes, as applicable,'' after ``Indian tribe''.
(3) Long-term plan.--Section 20109 of the Violent Crime
Control and Law Enforcement Act of 1994 (42 U.S.C. 13709) is
amended by adding at the end the following:
``(d) Long-Term Plan.--Not later than 1 year after the date of
enactment of this subsection, the Attorney General, in coordination
with the Bureau of Indian Affairs and in consultation with tribal
leaders, tribal law enforcement officers, and tribal corrections
officials, shall submit to Congress a long-term plan to address
incarceration in Indian country, including a description of--
``(1) proposed activities for construction of detention
facilities (including regional facilities) on Indian land;
``(2) proposed activities for construction of additional
Federal detention facilities on Indian land;
``(3) proposed activities for contracting with State and
local detention centers, with tribal government approval;
``(4) proposed alternatives to incarceration, developed in
cooperation with tribal court systems; and
``(5) such other alternatives as the Attorney General, in
coordination with the Bureau of Indian Affairs and in
consultation with Indian tribes, determines to be necessary.''.
SEC. 405. TRIBAL PROBATION OFFICE LIAISON PROGRAM.
Title II of the Indian Tribal Justice Technical and Legal
Assistance Act of 2000 (25 U.S.C. 3681 et seq.) is amended by adding at
the end the following:
``SEC. 203. ASSISTANT PAROLE AND PROBATION OFFICERS.
``To the maximum extent practicable, the Director of the
Administrative Office of the United States Courts, in coordination with
the Office of Tribal Justice and the Director of the Office of Justice
Services, shall--
``(1) appoint individuals residing in Indian country to
serve as assistant parole or probation officers for purposes of
monitoring and providing service to Federal prisoners residing
in Indian country; and
``(2) provide substance abuse, mental health, and other
related treatment services to offenders residing on Indian
land.''.
SEC. 406. TRIBAL YOUTH PROGRAM.
(a) Incentive Grants for Local Delinquency Prevention Programs.--
(1) In general.--Section 504 of the Juvenile Justice and
Delinquency Prevention Act of 1974 (42 U.S.C. 5783) is
amended--
(A) in subsection (a), by inserting ``, or to
Indian tribes under subsection (d)'' after ``subsection
(b)''; and
(B) by adding at the end the following:
``(d) Grants for Tribal Delinquency Prevention and Response
Programs.--
``(1) In general.--The Administrator shall make grants
under this section, on a competitive basis, to eligible Indian
tribes or consortia of Indian tribes, as described in paragraph
(2)--
``(A) to support and enhance--
``(i) tribal juvenile delinquency
prevention services; and
``(ii) the ability of Indian tribes to
respond to, and care for, juvenile offenders;
and
``(B) to encourage accountability of Indian tribal
governments with respect to preventing juvenile
delinquency and responding to, and caring for, juvenile
offenders.
``(2) Eligible indian tribes.--To be eligible to receive a
grant under this subsection, an Indian tribe or consortium of
Indian tribes shall submit to the Administrator an application
in such form and containing such information as the
Administrator may require.
``(3) Priority of funding.--In providing grants under this
subsection, the Administrator shall take into consideration,
with respect to the reservation communities to be served--
``(A) juvenile crime rates;
``(B) dropout rates; and
``(C) percentage of at-risk youth.''.
(2) Authorization of appropriations.--Section 505 of the
Juvenile Justice and Delinquency Prevention Act of 1974 (42
U.S.C. 5784) is amended by striking ``fiscal years 2004, 2005,
2006, 2007, and 2008'' and inserting ``each of fiscal years
2010 through 2014''.
(b) Coordinating Council on Juvenile Justice and Delinquency
Prevention.--Section 206(a)(2) of the Juvenile Justice and Delinquency
Prevention Act of 1974 (42 U.S.C. 5616(a)(2)) is amended--
(1) in subparagraph (A), by striking ``Nine'' and inserting
``Ten''; and
(2) in subparagraph (B), by adding at the end the
following:
``(iv) One member shall be appointed by the
Chairman of the Committee on Indian Affairs of
the Senate, in consultation with the Vice
Chairman of that Committee.''.
TITLE V--INDIAN COUNTRY CRIME DATA COLLECTION AND INFORMATION SHARING
SEC. 501. TRACKING OF CRIMES COMMITTED IN INDIAN COUNTRY.
(a) Gang Violence.--Section 1107 of the Violence Against Women and
Department of Justice Reauthorization Act of 2005 (28 U.S.C. 534 note;
Public Law 109-162) is amended--
(1) in subsection (a)--
(A) by redesignating paragraphs (8) through (12) as
paragraphs (9) through (13), respectively;
(B) by inserting after paragraph (7) the following:
``(8) the Office of Justice Services of the Bureau of
Indian Affairs;'';
(C) in paragraph (9) (as redesignated by
subparagraph (A)), by striking ``State'' and inserting
``tribal, State,''; and
(D) in paragraphs (10) through (12) (as
redesignated by subparagraph (A)), by inserting
``tribal,'' before ``State,'' each place it appears;
and
(2) in subsection (b), by inserting ``tribal,'' before
``State,'' each place it appears.
(b) Bureau of Justice Statistics.--Section 302 of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3732) is amended--
(1) in subsection (c)--
(A) in paragraph (1), by inserting ``, Indian
tribes,'' after ``contracts with'';
(B) in each of paragraphs (3) through (6), by
inserting ``tribal,'' after ``State,'' each place it
appears;
(C) in paragraph (7), by inserting ``and in Indian
country'' after ``States'';
(D) in paragraph (9), by striking ``Federal and
State Governments'' and inserting ``Federal Government
and State and tribal governments'';
(E) in each of paragraphs (10) and (11), by
inserting ``, tribal,'' after ``State'' each place it
appears;
(F) in paragraph (13), by inserting ``, Indian
tribes,'' after ``States'';
(G) in paragraph (17)--
(i) by striking ``State and local'' and
inserting ``State, tribal, and local''; and
(ii) by striking ``State, and local'' and
inserting ``State, tribal, and local'';
(H) in paragraph (18), by striking ``State and
local'' and inserting ``State, tribal, and local'';
(I) in paragraph (19), by inserting ``and tribal''
after ``State'' each place it appears;
(J) in paragraph (20), by inserting ``, tribal,''
after ``State''; and
(K) in paragraph (22), by inserting ``, tribal,''
after ``Federal'';
(2) in subsection (d)--
(A) by redesignating paragraphs (1) through (6) as
subparagraphs (A) through (F), respectively, and
indenting the subparagraphs appropriately;
(B) by striking ``To insure'' and inserting the
following:
``(1) In general.--To ensure''; and
(C) by adding at the end the following:
``(2) Consultation with indian tribes.--The Director,
acting jointly with the Assistant Secretary for Indian Affairs
(acting through the Director of the Office of Law Enforcement
Services) and the Director of the Federal Bureau of
Investigation, shall work with Indian tribes and tribal law
enforcement agencies to establish and implement such tribal
data collection systems as the Director determines to be
necessary to achieve the purposes of this section.'';
(3) in subsection (e), by striking ``subsection (d)(3)''
and inserting ``subsection (d)(1)(C)'';
(4) in subsection (f)--
(A) in the subsection heading, by inserting ``,
Tribal,'' after ``State''; and
(B) by inserting ``, tribal,'' after ``State''; and
(5) by adding at the end the following:
``(g) Report to Congress on Crimes in Indian Country.--Not later
than 1 year after the date of enactment of this subsection, and
annually thereafter, the Director shall submit to Congress a report
describing the data collected and analyzed under this section relating
to crimes in Indian country.''.
SEC. 502. GRANTS TO IMPROVE TRIBAL DATA COLLECTION SYSTEMS.
Section 3 of the Indian Law Enforcement Reform Act (25 U.S.C. 2802)
is amended by adding at the end the following:
``(f) Grants To Improve Tribal Data Collection Systems.--
``(1) Grant program.--The Secretary, acting through the
Director of the Office of Justice Services of the Bureau and in
coordination with the Attorney General, shall establish a
program under which the Secretary shall provide grants to
Indian tribes for activities to ensure uniformity in the
collection and analysis of data relating to crime in Indian
country.
``(2) Regulations.--The Secretary, acting through the
Director of the Office of Justice Services of the Bureau, in
consultation with tribal governments and tribal justice
officials, shall promulgate such regulations as are necessary
to carry out the grant program under this subsection.''.
SEC. 503. CRIMINAL HISTORY RECORD IMPROVEMENT PROGRAM.
Section 1301(a) of the Omnibus Crime Control and Safe Streets Act
of 1968 (42 U.S.C. 3796h(a)) is amended by inserting ``, tribal,''
after ``State''.
TITLE VI--DOMESTIC VIOLENCE AND SEXUAL ASSAULT PROSECUTION AND
PREVENTION
SEC. 601. PRISONER RELEASE AND REENTRY.
Section 4042 of title 18, United States Code, is amended--
(1) in subsection (a)(4), by inserting ``, tribal,'' after
``State'';
(2) in subsection (b)(1), in the first sentence, by
striking ``officer of the State and of the local jurisdiction''
and inserting ``officers of each State, tribal, and local
jurisdiction''; and
(3) in subsection (c)--
(A) in paragraph (1)--
(i) in subparagraph (A), by striking
``officer of the State and of the local
jurisdiction'' and inserting ``officers of each
State, tribal, and local jurisdiction''; and
(ii) in subparagraph (B), by inserting ``,
tribal,'' after ``State'' each place it
appears; and
(B) in paragraph (2)--
(i) by striking ``(2) Notice'' and
inserting the following:
``(2) Requirements.--
``(A) In general.--A notice'';
(ii) in the second sentence, by striking
``For a person who is released'' and inserting
the following:
``(B) Released persons.--For a person who is
released'';
(iii) in the third sentence, by striking
``For a person who is sentenced'' and inserting
the following:
``(C) Persons on probation.--For a person who is
sentenced'';
(iv) in the fourth sentence, by striking
``Notice concerning'' and inserting the
following:
``(D) Released persons required to register.--
``(i) In general.--A notice concerning'';
and
(v) in subparagraph (D) (as designated by
clause (iv)), by adding at the end the
following:
``(ii) Persons residing in indian
country.--For a person described in paragraph
(3) the expected place of residence of whom is
potentially located in Indian country, the
Director of the Bureau of Prisons or the
Director of the Administrative Office of the
United States Courts, as appropriate, shall--
``(I) make all reasonable and
necessary efforts to determine whether
the residence of the person is located
in Indian country; and
``(II) ensure that the person is
registered with the law enforcement
office of each appropriate jurisdiction
before release from Federal custody.''.
SEC. 602. DOMESTIC AND SEXUAL VIOLENT OFFENSE TRAINING.
Section 3(c)(9) of the Indian Law Enforcement Reform Act (25 U.S.C.
2802(c)(9)) (as amended by section 101(a)(2)) is amended by inserting
before the semicolon at the end the following: ``, including training
to properly interview victims of domestic and sexual violence and to
collect, preserve, and present evidence to Federal and tribal
prosecutors to increase the conviction rate for domestic and sexual
violence offenses for purposes of addressing and preventing domestic
and sexual violent offenses''.
SEC. 603. TESTIMONY BY FEDERAL EMPLOYEES IN CASES OF RAPE AND SEXUAL
ASSAULT.
The Indian Law Enforcement Reform Act (25 U.S.C. 2801 et seq.) is
amended by adding at the end the following:
``SEC. 11. TESTIMONY BY FEDERAL EMPLOYEES IN CASES OF RAPE AND SEXUAL
ASSAULT.
``(a) Approval of Employee Testimony.--The Director of the Office
of Justice Services or the Director of the Indian Health Service, as
appropriate (referred to in this section as the `Director concerned'),
shall approve or disapprove, in writing, any request or subpoena for a
law enforcement officer, sexual assault nurse examiner, or other
employee under the supervision of the Director concerned to provide
testimony in a deposition, trial, or other similar proceeding regarding
information obtained in carrying out the official duties of the
employee.
``(b) Requirement.--The Director concerned shall approve a request
or subpoena under subsection (a) if the request or subpoena does not
violate the policy of the Department of the Interior to maintain strict
impartiality with respect to private causes of action.
``(c) Treatment.--If the Director concerned fails to approve or
disapprove a request or subpoena by the date that is 30 days after the
date of receipt of the request or subpoena, the request or subpoena
shall be considered to be approved for purposes of this section.''.
SEC. 604. COORDINATION OF FEDERAL AGENCIES.
The Indian Law Enforcement Reform Act (25 U.S.C. 2801 et seq.) (as
amended by section 603) is amended by adding at the end the following:
``SEC. 12. COORDINATION OF FEDERAL AGENCIES.
``(a) In General.--The Secretary, in coordination with the Attorney
General, Federal and tribal law enforcement agencies, the Indian Health
Service, and domestic violence or sexual assault victim organizations,
shall develop appropriate victim services and victim advocate training
programs--
``(1) to improve domestic violence or sexual abuse
responses;
``(2) to improve forensic examinations and collection;
``(3) to identify problems or obstacles in the prosecution
of domestic violence or sexual abuse; and
``(4) to meet other needs or carry out other activities
required to prevent, treat, and improve prosecutions of
domestic violence and sexual abuse.
``(b) Report.--Not later than 2 years after the date of enactment
of this section, the Secretary shall submit to the Committee on Indian
Affairs of the Senate and the Committee on Natural Resources of the
House of Representatives a report that describes, with respect to the
matters described in subsection (a), the improvements made and needed,
problems or obstacles identified, and costs necessary to address the
problems or obstacles, and any other recommendations that the Secretary
determines to be appropriate.''.
SEC. 605. SEXUAL ASSAULT PROTOCOL.
Title VIII of the Indian Health Care Improvement Act is amended by
inserting after section 802 (25 U.S.C. 1672) the following:
``SEC. 803. POLICIES AND PROTOCOL.
``The Director of Service, in coordination with the Director of the
Office on Violence Against Women of the Department of Justice, in
consultation with Indian Tribes and Tribal Organizations, and in
conference with Urban Indian Organizations, shall develop standardized
sexual assault policies and protocol for the facilities of the Service,
based on similar protocol that has been established by the Department
of Justice.''.
Mr. Scott. It is now my pleasure to recognize the acting
Ranking Member of the Subcommittee, gentleman from California,
Mr. Lungren.
Mr. Lungren. Thank you very much, Mr. Chairman. I am
sitting here in the stead of Mr. Gohmert, who will be here
shortly. Unfortunately I am a Member of the Task Force on
Impeachment and we are considering the impeachment of a Federal
judge from Louisiana, and we have another hearing that I must
attend a little bit later.
But I thank you for having this hearing examining H.R.
1924, the ``Tribal Law and Order Act of 2009.'' As I recall,
this, I believe, is the first hearing the Subcommittee has held
on the issue of criminal law enforcement in Indian country in
some time. I don't recall a hearing this year or last year.
And so I am very pleased that we are doing this. It is a
matter this Subcommittee needs to spend time on as the rising
crime rate and apparent inadequate law enforcement on Indian
reservations have been a serious concern for many years.
As the former attorney general of California and a Member
whose district contains Indian country I have some familiarity
with tribal issues. There are 564 federally-recognized tribes
in the United States comprised of 1.9 million American Indians
and Alaska Natives, with tribal lands covering about 56 million
acres in the continental United States.
But Indian country is disparate country. What I mean by
that is there are very many differences. In California we
have--I believe it is now over 110 maybe approaching 120
different recognized tribes and bands, most of which live on
small parcels of land--rancherias--very different than what you
find in some other States that have large expanses.
We are a PL 280 State, as the gentleman suggested, with
general criminal supervision law enforcement by State law. And
there may be gaps there but I think that that is not a bad
model and I am very interested in how this--the changes
intended in this law might impact our State.
Concurrent jurisdiction sometimes is an additional
protection. I would not want to see it, though, advanced in a
certain way that would interfere with prompt and timely
investigation and prosecution of crimes by local jurisdiction
under State law, as is currently the case, if there is no
problem there.
As you stated, the jurisdiction over criminal matters in
Indian country is a responsibility shared by tribal, State, and
Federal law enforcement officials in a very complex manner. In
fact, the reservation that is in one of my counties crosses
over State lines.
A good part of the land is in Nevada; some of the land is
in California. I believe more of the members of that tribe
actually live in Nevada than in California.
I have worked in the past on how we deal with cross-
jurisdictional matters and how we try and work with the tribal
law enforcement in conjunction with local law enforcement. It
is not an easy question and I believe it is important for us to
have these kinds of hearings to understand what is done.
Sometimes you have peculiar circumstances. I recall at one
point in time in California when the Federal Government was not
enforcing the laws dealing with gambling, and the interesting
thing was that local law enforcement could go in and do general
prosecution on Indian lands but they could not do anything with
respect to illegal gambling on the Indian lands.
And so you had the anomalous situation where a local
sheriff would go in if there were an act of violence at a
gambling establishment on the lands but could do nothing about
illegal gambling that was going on there. I mean, those things
have been sorted out better, but it just shows you the
confusion that can arise when you have concurrent jurisdiction.
And in some cases the result was an inability or a failure to
enforce laws at all.
And so this is a very interesting, very important thing for
us to talk about. And one of the things that we need to do is
to make sure our colleagues when we deal with this issue
understand the unique status that tribes have. They hold a
unique status of a dependent, domestic, sovereign nation within
the United States. Nobody else has that.
As a result, many Members don't understand why we have
these kinds of conflicts of law and why our examination is
necessary. So I thank the Chairman for bringing us to this
point and I am very interested in looking at the material. And
I promise that while I might have to leave for a good portion
of this for the impeachment proceedings I will examine this
information and follow this, and hopefully work with you and
others so that we can come to completion on this.
Mr. Scott. Thank you.
Our first panel consists of the sponsor of H.R. 1924, the
gentlelady from South Dakota, Ms. Stephanie Herseth Sandlin.
She is the at-large Member from South Dakota and is serving her
fourth term.
She serves on the Committees on Agriculture, Veterans'
Affairs, and Natural Resources, and chairs the Veterans'
Affairs Subcommittee on Economic Opportunity. She also serves
on the Select Committee on Energy Independence and Global
Warming.
Ms. Herseth Sandlin, it is good to see you. You know the
drill.
TESTIMONY OF THE HONORABLE STEPHANIE HERSETH SANDLIN, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF SOUTH DAKOTA
Ms. Herseth Sandlin. Thank you very much, Chairman Scott,
for holding today's hearing and for your interest in the Tribal
Law and Order Act and for allowing me to testify in support of
this legislation.
I want to thank Mr. Lungren for his comments and his
understanding and perspective as it relates to the impact of
law enforcement across the country and the different tribes
that we represent.
As South Dakota's lone Member of the U.S. House of
Representatives, I have the privilege of representing nine
sovereign Sioux tribes. The Tribal Law and Order Act is a
bipartisan and bicameral initiative to improve coordination
among tribal, State, and Federal law enforcement agencies and
increase accountability standards.
Senator Byron Dorgan, who is Chairman of the Senate
Committee on Indian Affairs, has introduced nearly identical
legislation in the Senate that has been approved by the
Committee, and President Obama announced at the Tribal Nations
Conference held in Washington, D.C., here last month that, ``I
support the Tribal Law and Order Act and look forward to
Congress passing it so I can sign it into law.''
I would especially like to thank the U.S. Department of
Justice and Attorney General Holder for the priority the
Department has given to tribal justice issues. The department
held a tribal nations listening session on public safety and
law enforcement in Minneapolis in October on other places
across the country, which, together with the Tribal Nations
Summit in Washington, DC, and DOJ's ongoing efforts to work
with Congress to fashion the very best tribal law and order
bill, that demonstrates the President and his Administration's
commitment to working with tribes on law enforcement priorities
that we share in common.
I am very glad to see that Associate Attorney General Tom
Perrelli is here today to testify, and I thank him for all of
the initiative and attention that he himself has given and
devoted to these issues throughout his career, including
speaking at the listening session in Minneapolis and the Tribal
Nations Summit. I am particularly pleased at his candor that
the Federal Government must do better and that he is
experienced working with large, land-based tribes, like the
Oglala Sioux tribes in South Dakota.
As you know, the Federal Government has a unique
relationship with the 562 federally-recognized American Indian
and Alaska Native tribes. This government-to-government
relationship is established by our founders in the U.S.
Constitution, recognized by hundreds of treaties, and
reaffirmed through executive orders, judicial decisions, and
congressional action. Fundamentally, this relationship
establishes the responsibilities to be carried out by one
sovereign to the other.
Native American family, like all families in our country,
deserve a basic sense of safety and security in their
community. Law enforcement is one of the Federal Government's
trust obligations to federally-recognized tribes. Yet, as the
tribes across the country know all too well, on many counts we
are failing to meet that obligation and have done so for too
many years.
For instance, as the Chairman noted in his opening remarks,
Amnesty International has reported that American Indian and
Alaska Native women are more than two and a half times more
likely to be raped or sexually assaulted than women in the
United States in general. Yet, the majority of those crimes go
unpunished.
Moreover, fewer than 3,000 law enforcement officers patrol
more than 56 million acres of Indian country. That reflects
less than one half of the law enforcement presence in
comparable rural communities.
The situation is particularly challenging--I think Mr.
Lungren noted--for large, land-based reservations in South
Dakota and elsewhere. The kinds of problems that arise include
the case of a young woman living on the Pine Ridge reservation
who had received a restraining order for an ex-boyfriend who
had battered her. One night she was home alone and woke up as
he attempted to break into her home with a crow bar.
She immediately called the police, but due to a lack of
landlines for telephones and spotty cell phone coverage the
call was cut off three times before she could report the
situation to the dispatcher. The nearest officer was over 40
miles away.
Even though the police officer who took the call started
driving to her home at 80 miles an hour on roads that the
quality of which--well, if you traveled those roads you would
understand why traveling over 60 miles an hour is a hazard and
the high incidence of traffic accidents that we have and deaths
that result. But even with his efforts, by the time he arrived
the woman was severely bloodied and beaten and the perpetrator
had escaped.
In addition to the situations faced by victims of violent
crime these officers frequently have no backup. And again, just
to put the expansive nature of this territory into perspective,
just the Cheyenne River Sioux tribe that I represent their
reservation is comparable to the size of the State of
Connecticut.
The Tribal Law and Order Act would improve law enforcement
efforts in Indian country by clarifying the responsibilities of
Federal, State, tribal, and local governments with respect to
crimes committed on tribal--in tribal communities. It would
increase coordination and communication among Federal, State,
tribal, and local law enforcement agencies.
It would empower tribal governments with the authority,
resources, and information necessary to effectively provide for
the public safety in tribal communities, reduce the prevalence
of violent crime in tribal communities, and combat violence
against Indian and Alaska Native women.
It would target youth prevention by authorizing funding for
summer education programs and at-risk youth treatment centers,
address and prevent drug trafficking and reduce rates of
alcohol and drug addiction in Indian country, and increase and
standardize the collection of criminal data and the sharing of
criminal history information among State, Federal, and tribal
officials responsible for responding to and investigating
crimes in tribal communities.
One example of an improvement the bill would make is the
provision for special law enforcement commissions. Currently
only Federal agents, such as the FBI, can make arrests for
rapes on reservations in cases in which the perpetrator is non-
Indian. In many cases those FBI officers can be hundreds of
miles from a reservation.
A provision in this bill would expand a training program to
give special law enforcement commissions to tribal law
enforcement officers. With this special commission a tribal law
enforcement officer can be federally deputized to arrest any
person on tribal land who commits a Federal crime such as rape,
murder, or drug trafficking.
The bill also streamlines the process for IHS officials to
testify in criminal cases, such as rape or sexual assault
cases, before a tribal court. In order for an IHS official or
BIA officer to answer a subpoena to testify in court approval
must be given by someone in Washington, D.C.
The result is that some tribal court criminal cases are
dropped because the person who conducted the rape examination
or the officer who answered the distress call doesn't show up
in tribal court. That would be changed so that if approval
isn't given within 30 days the request to testify will be
considered approved.
By expanding training programs to grant tribal law
enforcement officers authority to arrest all suspects of crime
on tribal land and making it easier for IHS experts to testify
in court we can slow the flood of crimes that go unpunished.
While there will be no simple or quick fix, this
comprehensive legislation is a step in the right direction. By
passing this legislation we will make important strides in
improving law enforcement in Indian country during this
Congress.
I thank you again, Chairman Scott, for this opportunity to
testify on behalf of the Tribal Law and Order Act of 2009 and
for helping to advance this important bill on behalf of the
tribal communities across Indian country that are in desperate
need of improved law enforcement.
[The prepared statement of Ms. Herseth Sandlin follows:]
Prepared Statement of the Honorable Stephanie Herseth Sandlin
__________
Mr. Scott. Thank you very much. Thank you.
Are there any questions?
Thank you. And we will be proceeding with the next panel.
Thank you for your sponsorship of this, Ms. Herseth Sandlin.
And we will next call our next witness. The next panel
consists of the Associate Attorney General in the United States
Department of Justice, Tom Perrelli.
As the third ranking official in the department he oversees
what is traditionally described as the Department's civil
litigations component. He also receives much of the
Department's work supporting State, local, and tribal law
enforcement efforts. He graduated from Harvard Law School magna
cum laude and is serving his sixth tour in the Department of
Justice.
Mr. Perrelli?
TESTIMONY OF THE HONORABLE THOMAS J. PERRELLI, ASSOCIATE
ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Perrelli. Good morning, Chairman Scott, Acting Ranking
Member Lungren, and Members of the Subcommittee. Thank you for
having me here today to testify about the Tribal Law and Order
Act of 2009.
It is an important area and I would like to thank
Representative Herseth Sandlin for her leadership in this area.
And I also want to thank the Committee for taking on this
issue.
By any standard we have an enormous public safety problem
in Indian country. As those who have worked in Indian country
know and as Congressman Lungren said, enforcing the law is
complicated, due to jurisdictional complexities, lack of
resources, and the basic challenge--in many locations--that
comes from distance. And the challenges of enforcing the law in
California are different from those in South Dakota, and
different again from those in Alaska.
But I want to make something clear: We need to make Indian
country safer, and I think we can do so. The problems today are
severe.
American Indians and Alaska Natives suffer from violent
crime at far greater rates than other Americans. Some tribes
have experienced crime rates of two, three, four, even ten
times the national average.
Violence against native women and children is a particular
problem, with some counties facing murder rates of native women
well over 10 times the national average. Reservation and clinic
research show that there are high rates of intimate partner
violence, and those levels of violence have continued for
years.
The leadership of the Justice Department is absolutely
committed to doing better. The Federal Government has a trust
responsibility to Native Americans, and the reality is that in
many Indian communities, the Federal Government has the primary
law enforcement role. But in that role we are also partners
with tribal prosecutors, law enforcement, courts, victim
services providers, and with State and local authorities.
All of us need to work together more effectively to improve
the lives of Native Americans and make those communities safer.
The Tribal Law and Order bill is key to this effort because it
focuses on a number of critical areas, including building
tribal capacity to play an increasing role in public safety,
encouraging partnership and communication among tribal, State,
and Federal actors, addressing the violence against native
women that has devastated many communities, and reauthorizing
important programs that address public safety and improve the
lives of tribal youth.
Now as I have said, the Department of Justice, at its
highest levels, is committed to this effort. As part of that
the Attorney General convened a listening session, as
Congresswoman Herseth Sandlin explained, to discuss public
safety and law enforcement. Leaders of all the federally-
recognized tribes were invited.
And what we heard there is simply unacceptable. We were
told by a veteran South Dakota prosecutor that in one
neighborhood, nearly every other house had been a crime scene
in the last 10 years. We heard from American Indian women about
reservations in which women who had not been sexually assaulted
were the exception.
We heard from tribal law enforcement officials who were so
strapped on a reservation the size of Delaware that they can
have only two officers on duty at any given time, putting those
officers hours away from likely crime scenes. And we have heard
from a tribal judge about the frustration of learning that a
domestic violence perpetrator who had been given no jail time
had more than 20 prior arrests for domestic violence, but the
judge simply was not able to access a database that would have
told him that.
These issues are real priorities for the Department of
Justice. Both the Deputy Attorney General and I have extensive
personal experience in Indian country, having been involved in
efforts to improve public safety there over the years. I
personally consider the efforts of the CIRCLE Project, which
was a project that attempted to bring comprehensive approaches
to problems in Indian country with as many partners as possible
in Northern Cheyenne, Oglala Sioux, and Zuni Pueblo areas, to
be one of the most fulfilling aspects of my career.
With a new focus, we at the Justice Department are hard at
work to develop sustainable, effective, and efficient
strategies, and I would by happy to talk about the things that
we are already doing. We believe the Tribal Law and Order Act
would make important changes, and we strongly support S. 797,
the Senate version of this legislation, which is sponsored by
Senator Dorgan, and we look forward with this Subcommittee to
further develop H.R. 1924. I urge the Subcommittee to do all
that it can to move the measure forward so that it can be
signed into law as soon as possible.
Thank you very much, and I look forward to questions.
[The prepared statement of Mr. Perrelli follows:]
Prepared Statement of the Honorable Thomas J. Perrelli
__________
Mr. Scott. Thank you.
And I now recognize myself for 5 minutes of questions.
You indicated your support of the Senate bill. Do you not
support the House bill?
Mr. Perrelli. I think we have been working with the Senate
to make improvements on the bill. There are a number of areas
where I think we have been able to do that.
That includes areas such as ensuring a right to counsel.
That includes trying to create the right set of incentives in
the area of declination reports and reporting on decision-
making by the Federal Government. And those are just a couple
of the areas.
So we think that S. 797 is--represents the next stage of
development and we look forward to working with this Committee.
Mr. Scott. What is the status of 797?
Mr. Perrelli. It is my understanding that they are looking
at a manager's amendment to that, but I don't think I have seen
a copy of that.
Mr. Scott. In Committee?
Mr. Perrelli. I think it is out of Committee, but--it is
out of Committee----
Mr. Scott. But the changes have been made in Committee?
Mr. Perrelli. Correct.
Mr. Scott. Okay.
Are there challenges in the prosecution involving
evidence--the arrest process, and evidence, and chain of
custody of evidence--are there challenges in prosecution in
that area?
Mr. Perrelli. There are significant challenges in Indian
country. Some of them are presented by sheer distance--the
amount of time it takes to get to a crime scene when evidence
may have spoiled.
And there is simply the challenge of the lack of resources,
whether insufficient number of police officers or insufficient
resources for forensics. So those are serious challenges and
they certainly affect the ability to prosecute cases in Indian
country.
Mr. Scott. What about number of prosecutors and indigent
defense--attorneys for defendants?
Mr. Perrelli. I think both of those--there are challenges
in both of those areas. While some tribes do provide counsel to
criminal defendants, we certainly think that particularly if
the Congress enacts the Tribal Law and Order Act and increases
potential sentences to 3 years that it will be important to
ensure counsel to indigent defendants.
On the prosecution side I think we are actively engaged in
trying to determine what additional resources need to be put
put in Indian country. A major initiative for the Department is
to move law enforcement and prosecutorial resources closer to
the reservations where they are needed so that some of the
problems of distance we could cut down.
Mr. Scott. In tribal trials are there trials by jury?
Mr. Perrelli. Not every trial is trial by jury, but there
are trials by jury in many tribal courts. And the juries--
different tribes have different practices and procedures but
some have all Native American jurors, others have a mix of
native and non-native jurors.
Mr. Scott. And who are the judges and what are their
qualifications?
Mr. Perrelli. They are tribal court judges. They are
selected, again, in different ways by different communities.
My experience over the last decade is that there has been
an enormous improvement in the quality of tribal court judges.
We spent the last several months working with a number of them
on developing the right approach for the Justice Department to
take in Indian country.
Mr. Scott. A judge is legally--to have formal legal
training?
Mr. Perrelli. Many are, but some are not.
Mr. Scott. What about services after conviction--services
like drug courts, alcohol safety courts? Are those available in
tribal courts and are they available in Federal courts?
Mr. Perrelli. In many tribal communities there are wellness
courts or drug courts that have been, I think, proven very
effective, and we have seen some terrific, promising practices.
And I know that when I meet with tribal leaders, those who
don't have such courts very much want to develop them in their
jurisdiction.
Mr. Scott. Have you proposed a budget for prevention law
enforcement, criminal defense and prosecution? Have you
presented a budget to solve some of these problems?
Mr. Perrelli. We are engaged in the 2011 budget process and
are very focused on these issues. And I agree with, I think,
the premise of your question, which is we need to look at this
comprehensively.
It can't just be about putting police officers on the
street and prosecutors. One has to fund the indigent defense;
one also has to fund prevention and reentry strategies. Without
putting all of those pieces together, we won't do the best job
possible.
Mr. Scott. And are you developing a budget?
Mr. Perrelli. We are engaged in the 2011 budget process,
where we are looking at what additional resources are needed in
Indian country across the entire spectrum.
Mr. Scott. And will that budget include costs of
incarceration?
Mr. Perrelli. Well, certainly we will factor that in. In
this year, under the Recovery Act, there is $225 million
dedicated to the construction of tribal prisons.
One of the things that the Tribal Law and Order Act would
do and that we think is important is allow those funds to be
used in a broader way. Currently it really only allows the
construction of traditional prisons. Tribal communities have
come to us and said, ``We would like to use them for broader
purposes, whether it is justice centers, rehabilitation, other
purposes.'' So that, we think, is an important aspect of this
act.
Mr. Scott. And we can count on the budget on being a
comprehensive response to this problem?
Mr. Perrelli. I can't guarantee what OMB will do but I can
guarantee that we are looking at this problem in a
comprehensive----
Mr. Scott. You are asking.
Mr. Perrelli. We are asking.
Mr. Scott. Thank you.
Gentleman from California?
Mr. Lungren. Obviously responses by representatives of
Administrations do not change with their understanding of the
power of OMB.
Mr. Perrelli, I would like to ask you this, both what the
position of the Administration is, and as you understand this
bill how would it affect the PL 280 States and would it be a
situation of concurrent jurisdiction or would this remove
jurisdiction of general criminal enforcement by State law
enforcement in PL 280 States?
Mr. Perrelli. My understanding is that upon a request of a
particular tribe and in the House version of the bill,
consultation with the Attorney General, I know that on the
Senate version of the bill it requires the consent of the
Attorney General, which we support, and I can explain why--that
it would move from mandatory PL 280 to a concurrent
jurisdiction, and there are a number of concurrent PL280
jurisdictions across the country.
Mr. Lungren. So it would not remove, as you understand it,
jurisdiction with State authorities?
Mr. Perrelli. That is my understanding of the current
version of the bill.
Mr. Lungren. Because if it did I would have to oppose it
because I would be afraid we would be losing the very thing the
purpose of this bill is to achieve, which is to ensure those
who are part of Indian country the same right to protection
from crime, including violent crime, that every other American
has the right to not only deserve but to expect.
Let me ask you this: Under current law, with respect to
criminal violations on tribal land, what is the appellate
process?
Mr. Perrelli. Under current law if the case is taken into
the Federal system it follows the normal Federal appeal
structure. Depending on the type of jurisdiction in place,
whether it is PL 280 or something else may well go into the
State system and go through the State process. If the tribal
prosecutor takes the case and pursues it in tribal court there
is the limit of the 1-year sentence and then there are whatever
appellate options may be available through that tribal court
system.
There are a number of courts that have intertribal
appellate courts so that there will be several tribes together
that will have an appellate system. That is not at all
uncommon--some in California, the Pacific Northwest, as well as
the Southwest. But not every tribe has an appellate system
currently.
Mr. Lungren. And under this legislation, if granted,
jurisdiction in a particular--well, in tribal areas, would the
Federal law enforcement have the ability to make the decision
as to whether they would take a case or would that have to be
with the acquiescence of the tribe or tribal court? How would
that work?
Mr. Perrelli. I think it would work similar to how it does
in the many concurrent jurisdiction States now, where the
Federal law enforcement makes the decision. They have the
ultimate authority whether they want to pursue Federal charges.
There is no question that we work in close partnership with
tribal authorities as well as State and local authorities in
making decisions.
And I would say that I think it is extraordinarily
important for all of those entities to work together to address
public safety, because it may well be that while pursuing one
case on the State level is a better idea, pursuing another case
at the Federal level may be a better idea. That is really the
theme behind what are called our Safe Trail Task Forces. There
are 18 of them that the FBI manages that are focused on Indian
country, and they bring together tribal, State, local, and
Federal law enforcement to work together on cases that may
ultimately be pursued in different ways. But certainly this
does not give up any of the discretion of Federal law
enforcement to pursue cases federally.
Mr. Lungren. Now, a number of cases were mentioned by the
author of the bill, and I think you made reference to it too,
with respect to the unbelievably high level of sexual assaults
that apparently do not go prosecuted. Is this because of a
failure of resources?
Is this a failure of tribal law? Is this a failure of
Federal prosecutors? Is it a uniquely serious problem in PL 280
States?
I am trying to get a sense of what the--if the facts are--
and I believe them to be true--but if the facts are as vivid
and as offensive as they appear to be, how can this continue?
Why has it continued?
Mr. Perrelli. I would first of all say it is not a problem
specific to PL 280 States, although I would certainly note that
Alaska presents perhaps the biggest challenges. There certainly
are challenges, I think, on several levels. First, there is
obviously the need to dedicate sufficient resources. I think
the challenges of distance in many areas make it difficult to
gather evidence and to be able to pursue crime appropriately.
I do think that we in the Federal Government, working with
State, local, and tribal partners need to develop some new
strategies. One of the things we have seen in child sexual
assault cases is the use of child advocacy centers and
multidisciplinary teams bringing everyone together has been
extremely effective, in both protecting children as well as in
bringing perpetrators to justice.
I think we are looking right now at a similar model in the
domestic violence and sexual assault area, where we would bring
everyone together, because I think there is no question that
anybody can look at the statistics and say we are not doing as
good a job as we need to.
Mr. Scott. Gentleman from Illinois, Mr. Quigley?
Mr. Quigley. Thank you, Mr. Chairman. Sorry about that.
I guess as a former criminal defense attorney I witnessed
the problems that sometimes could take place just between the
State and the Federal deciding who was going to go forward in a
criminal investigation or charges. This is only compounded in
this kind of situation.
Could you address some of those issues of jurisdiction and
how it could complicate life for a defendant, but also, as is
addressed elsewhere, the issues that could come out in a
disparity in sentencing as a result of this, given the limits
the tribes face and so forth?
Mr. Perrelli. Certainly. First, on the complexity: The
situation that would arise if a tribe were to seek retrocession
and if it actually occurred, is not dissimilar from what you
see in, you know, maybe a dozen States today, which is
concurrent jurisdiction, where there really are tribal, State,
and Federal law enforcement who all could have potential
involvement in the matter.
And it is absolutely incumbent on them to work together and
to ensure that a defendant's rights are not violated. But it is
correct that as separate sovereigns they each have their own
authority to potentially prosecute.
I don't think we have seen a huge number of situations
where there have been multiple prosecutions in an effort, but
it certainly does occur, just as it occurs at the State and
Federal level. So I think the cornerstone of this bill, and I
think going forward, is the need to work together to prosecute
crime in a smart way and not prosecute the same crime over and
over again.
Mr. Quigley. But is it detailed in the legislation or are
you suggesting that a defendant needs to hope that these
entities work together?
Mr. Perrelli. I think there is a great deal in the
legislation that tries to facilitate that kind of cooperation
and coordination, but I think that the defendant is in no
different position than defendants in Connecticut, Idaho,
Florida, Massachusetts, and other States that have the exact
same situation currently. But it would be putting the defendant
in a situation no different than the situation currently in
California and other states that are mandatory PL 280.
Let me get to the disparate sentencing which you asked--
this is an area of real concern to us. The study was done in
2003 identifying disparate sentencing, I think. You know,
roughly 25 percent of the violent crime prosecuted in the
Federal system is actually Indian country crime, and so that as
violent crime sentences increase it has a disproportionate
effect on Native American defendants.
This has been an issue that we have been concerned about,
and the Department is engaged in a broad review of sentencing
policy now. I think it will require a longer and deeper
examination of sentencing policy related to Native Americans,
and this is something on which certainly tribal leaders who
have been concerned about this issue have sought our
engagement, both at the Department of Justice in terms of
thinking about charging decisions, but also in trying to engage
the Sentencing Commission.
Mr. Quigley. Is there anything else we can do within this
legislation to try to address that, or----
Mr. Perrelli. Perhaps slightly off the topic, but I think
getting in the same direction, certainly one of the things that
we have supported as an amendment to the Senate in the bill and
would support here is ensuring a right to counsel whenever a
tribal court seeks to impose a sentence of more than 1 year. So
that is something that we are very supportive of and think
would be helpful.
Mr. Quigley. Thank you.
Mr. Scott. Gentleman from Florida, Mr. Rooney?
Mr. Rooney. Thank you, Mr. Chairman.
And I come from the 16th district of Florida. We have the
Brighton Seminole Indian Reservation in my district, and so
these issues are of utmost importance to me and I think a lot
of the people in central Florida and south Florida.
So with that, I want to thank you for your testimony. I
just have a few brief questions and appreciate your response.
Can you provide for me examples of statutes requiring the
reporting of all declinations by either Federal law enforcement
or Federal prosecutors to either an office within the
Department or another jurisdiction for prosecution, and is the
referral of cases to States for prosecution governed by the
statute?
Mr. Perrelli. I think in terms of reporting on
declinations, the one bill that I can think of is the Emmett
Till bill, the cold case bill. So that does have a reporting
requirement.
What we have supported is a requirement that we cooperate
and coordinate with tribal partners, rather than a mandatory
requirement of providing specific evidence or specific
information, because I think our view is that you want to make
sure that a prosecutor has the discretion in a particular case
to say, ``No, I don't want to hand over this evidence because
it might be relevant to another investigation,'' or, ``I don't
want to provide this evidence because of privacy or other
issues.''
But the one bill that I can think of that has that kind of
reporting requirement is the Emmett Till bill.
Mr. Rooney. Okay. Is the referral of cases to States for
prosecution governed by a statute?
Mr. Perrelli. It is not governed by a statute that I can
think of. We are authorized to cooperate with them, but I don't
think there is a specific statute that lays out what
prosecutors have to do.
Mr. Rooney. Okay. Thank you.
Does the Department support the provision in Section 101(c)
of the bill, which appears to grant warrantless arrest
authority to tribal authorities for all Federal crimes?
Mr. Perrelli. Our view is that we think that section would
best allow warrantless arrests only upon probable cause, which
would be a change, as well as really for felonies or certain
misdemeanors where there is a threat to public safety. But for
misdemeanors where there is no threat to public safety, we have
generally been of the view that there is not a need to
authorize a warrantless arrest.
Mr. Rooney. Section 201 addresses the issue of retrocession
of criminal jurisdiction to the United States. Does the
Department have any objections or concerns to how Section 201
is currently drafted?
Mr. Perrelli. We have taken the view--and this has been
adopted in the Senate--that retrocession shouldn't occur unless
the Attorney General is not just consulted but actually
concurs. I think we want to ensure that jurisdiction isn't
retroceded in Federal law enforcement authority absent a
determination by the Attorney General that the resources are
available and the Federal Government is prepared to take on
those additional efforts.
Mr. Rooney. Okay. Does the Department support Section 304
of the bill, which would allow a tribal court to direct the
incarceration of those convicted by tribal court in a Bureau of
Prisons facility?
Mr. Perrelli. We have had concerns about doing that
wholesale across the board. I think our view is that the best
medium-and long-term approach here is construction of
appropriate facilities, including alternatives to
incarceration, in tribal communities or on a regional basis for
a number of tribes.
But we have been willing to take on a pilot project that
involves placing up to 100 prisoners into the Bureau of Prisons
system, recognizing that there are capacity constraints in
tribal facilities and believing that, at least in the short
term, this may relieve some of those problems in the hope that
we will be able to build capacity in tribal facilities over
time.
Mr. Rooney. Okay.
If I might take the liberty--and this might not be an
appropriate question for you--but as somebody who has sort of
watched the reservation in our district change over the years,
specifically with the introduction of a very large hotel-
casino, and reading the background of the--your testimony here
today and the issue--and it deals with a lot of things that
deal with funding, obviously, manpower and unemployment and
things like that--has that phenomenon had any effect in the
bigger picture? And again, if you don't know the answer to this
that is--I completely understand. I am just curious as--what
has that--what impact, if any, has that had on what we are
talking about here today?
Mr. Perrelli. Sure. I think you do see larger differences
among tribal communities, whether it is economic development,
housing, health care, and criminal justice systems. Certainly
there are certain advantages that gaming tribes have that live
near larger communities and are able to earn significant
revenue.
They certainly have advantages that others do not, and so
you see that. I particularly focus on some of the tribes in the
reservations in the Great Plains particularly, where
Congresswoman Herseth Sandlin's jurisdiction is, where they may
have casinos but they don't have the same kind of revenue, and
there are obviously less funds available to spend on justice
systems and other things. So I think you do see some tremendous
development of justice systems, health care, and other things
in some communities, and other communities that are still
struggling.
Mr. Rooney. Thank you, sir.
And, Mr. Chairman, just--I would like to submit a letter
from our Ranking Member into the record, if I could.
Mr. Scott. Without objection, so ordered.
[The information referred to follows:]
__________
Mr. Rooney. Thank you, sir.
Mr. Perrelli. Thank you.
Mr. Scott. Mr. Perrelli, you--in response to the gentleman
from Illinois you indicated you support a right to counsel if
they are getting more than 1 year. You do not support a right
to counsel under a year?
Mr. Perrelli. We support for more than 1 year; we have not
taken a position on less than a year. But I think we have been
focused on the situation, similar to the situation in the
Federal system, where you have got potential felony time of
more than a year.
Mr. Scott. It was my understanding if you are looking at
any time you have a right to counsel.
Mr. Perrelli. With respect to----
Mr. Scott. Is that not right?
Mr. Perrelli. Well, in Indian country it is not--it has not
been correct----
Mr. Scott. But in Federal court if you are looking at any
time you have a right to counsel.
Mr. Perrelli. I guess my recollection was if it was less
than 6 months that----
Mr. Scott. Well, if you could get back to us on that, and
also what does counsel mean?
Mr. Perrelli. We think a counsel have to mean effective
representation. And so we have been supportive of amendments
that make clear that there is a requirement of effective
representation and that--effective representation by someone
who is a member of a bar of a jurisdiction in the United
States.
Mr. Scott. A lawyer?
Mr. Perrelli. Well, someone who is barred. I know that
there are some tribal communities where they do authorize to
practice non-lawyers in certain circumstances.
Mr. Scott. Okay, so when you say right to counsel you were
talking about a lawyer and not an advocate?
Mr. Perrelli. We are talking about--what we have said is
effective representation, and that is some----
Mr. Scott. Is that an issue we need to look at as the bill
goes forward?
Mr. Perrelli. We certainly think that the current version
of the House bill needs to be amended to ensure counsel to--
counsel who is authorized to practice law in a jurisdiction in
the United States and that that representation should be
effective.
Mr. Scott. Okay.
Other questions, Mr. Rooney, Mr. Quigley?
Thank you very much, Mr. Perrelli.
If our next witnesses will come forward--next panel of
witnesses?
As they come forward I will begin my introductions. We have
four witnesses coming forward.
The first panelist is Marcus Levings, who serves as the
Great Plains area vice president of the National Congress of
American Indians. He also serves as a Tribal Business Council
chairman of the Three Affiliated Tribes in western North
Dakota. Graduated from Dickinson State University with a
Bachelor's degree in business administration and finance and
holds a Master's degree from the University of Maryland.
Our next witness is Tova Indritz. She is the chair of the
Native American Justice Committee of the National Association
of Criminal Defense Lawyers.
For 13 years she headed the Federal Public Defender Office
in New Mexico. She has been in private practice since 1995,
where she represents defendants in Federal, State, and Indian
tribal courts. She graduated from Yale Law School.
Next panelist will be Scott Burns, who is the executive
director for the National District Attorneys Association.
Between 2000 and February 2009 he was deputy drug czar with the
executive office of the president, Office of National Drug
Control Policy. In that position he was chair of several White
House intergovernmental committees, including the Native
American Initiative. He graduated from California Western
School of Law.
And our final panelist is Barbara Creel. She is a member of
the Pueblo Jemez and a law professor at the University of New
Mexico School of Law, where she teaches in the Southwest Indian
Law Clinic. She also teaches a course designed--she designed
called Criminal Law in Indian country.
Prior to teaching she served as the tribal liaison to the
United States Army Corps of Engineers and as assistant Federal
public defender in Portland, Oregon. She is a graduate of
University of New Mexico School of Law.
We begin with Chairman Levings.
Mr. Levings. Morning.
Mr. Scott. Just before you start, there is a timing device
that will help you keep within the 5 minutes that you have been
allotted. It will start green and when there is 1 minute left
the device will turn to yellow, and red when your 5 minutes
have expired.
Chairman Levings?
TESTIMONY OF MARCUS LEVINGS, GREAT PLAINS AREA VICE-PRESIDENT,
NATIONAL CONGRESS OF AMERICAN INDIANS, NEW TOWN, ND
Mr. Levings. Morning. My name is Marcus Dominick Levings.
My Hidatsa name is Upapagish, White-Headed Eagle. I am the
chairman of the Three Affiliated Tribes of Mandan, Hidatsa, and
Arikara of the Fort Berthold Reservation. It is an honor to be
here in front of you and--very important issue.
Honorable Chairman and distinguished Members of the
Committee, thank you for the opportunity to testify today. We
would also like to thank Congressman Herseth Sandlin for her
efforts to move the Tribal Law and Order Act forward.
We have a public safety crisis on Indian reservations
across the country and we urge Congress to move swiftly to pass
the legislation in 2009. On some reservations violent crime is
more than 20 times the national average. One in three Native
American women will be raped in their lifetimes.
Many reservations are viewed as places with weak law
enforcement and that perception breeds crime and violence. As
President Obama said in his speech to tribal leaders last
month, these facts are an assault on our national conscience
that we can no longer ignore.
For 2\1/2\ years NCAI has worked with the Senate Committee
on Indian Affairs and the Senate Judiciary Committee. The
legislation has been well-vetted and we have achieved a strong
bipartisan consensus.
We ask that the Judiciary Committee allow the Senate bill
to move to the House floor to be considered under suspension.
Our goal is to make 2010 a safer year for American Indian
communities.
I would like to mention only two areas that are addressed
by the bill: Federal accountability and empowerment of tribal
law enforcement. Under the Major Crimes Act the Federal
Government has the role--sole authority for felonies committed
on Indian reservations. Despite the Federal responsibility,
crime rates have been doubling and tripling in Indian country
while crime rates have been falling throughout the rest of the
United States.
Something is seriously wrong with the Federal law
enforcement response. Funding for U.S. attorneys' offices has
nearly doubled since 1998, yet the number of Federal
prosecutions of Indian country crimes has fallen 26 percent
since 2003.
These concerns are not confined to any one Administration.
In November 2007 the Denver Post reported that over the past 10
years U.S. attorneys have declined to prosecute nearly two-
thirds of felony Indian country cases nationally.
The reforms in the Tribal Law and Order Court would ensure
that Indian country crime is subject to consistent and focused
attention. In particular, Section 102 would require the
Department to compile data on declinations of Indian country
cases and submit annual reports to Congress.
Tribal leaders and Members of Congress have sought this
data for decades. This will provide an important tool for
measuring responsiveness and guiding law enforcement policy in
the future.
Empowering tribal law enforcement is also critical.
Criminal jurisdiction in Indian country is divided among
Federal, tribal, and State governments. Tribal law enforcement
officers are usually the first responders to crime scenes on
Indian land but their limited authority often prevents them
from arresting the perpetrators.
Section 301 would go a long way toward eliminating barriers
to law enforcement in Indian country. Special law enforcement
commissions have long been available to tribal police, but the
BIA has withheld the training and granting of commissions for
bureaucratic reasons.
This section expands the special law enforcement
commissions program and clarifies the standards required of
tribal officers. Section 301 also addresses a severe problem
that tribes face in recruiting and training police officers.
Another significant concern for tribal governments is their
inability to impose appropriate sentences. When U.S. attorneys
and States attorneys in PL 280 jurisdictions decline to
prosecute felonies in Indian country that responsibility falls
to the tribes despite their limited sentencing power.
The reality on the ground is that tribal courts are often
responsible for prosecuting felony crimes. There is a large gap
between the maximum sentencing authority of tribes and the
average sentence for the least serious felonies that are
prosecuted by the Federal Government. Section 304 would help
remedy this problem by increasing tribal sentencing authority
to a term of 3 years in prison and ensures protection of civil
rights by requiring the tribe to provide indigent defense
counsel.
NCAI supports a swift passage of the Tribal Law and Order
Act to address the critical shortcomings in Federal support for
tribal criminal justice. NCAI urges the Committee to
acknowledge the urgency of the public safety situation on
Indian lands and advance the bill as quickly as possible.
Native communities cannot afford another year of the status
quo.
I would like to thank the Committee for inviting us to
testify today. Ajugidaj. Thank you.
[The prepared statement of Mr. Levings follows:]
Prepared Statement of Marcus Levings
__________
Mr. Scott. Thank you.
Ms. Indritz?
TESTIMONY OF TOVA INDRITZ, CHAIR, NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS, NATIVE AMERICAN JUSTICE COMMITTEE,
ALBUQUERQUE, NM
Ms. Indritz. Mr. Chairman, Mr. Gohmert, Members of the
Committee, Tova Indritz on behalf of the National Association
of Criminal Defense Lawyers, and my testimony here today is
also endorsed by the New Mexico Criminal Defense Lawyers
Association and the National Association of Federal Defenders.
Most Americans would be completely shocked to know that
their fellow American citizens are not entitled to the
appointment of counsel when they are looking at going to prison
for any length of time. And it is our position that Native
Americans charged in tribal court who can be sentenced to any
time in prison should have the right to counsel, and if they
can't afford it, the right to appointed counsel. And we would
also ask that this Committee include in the bill some funding
for that, because in this bill there is $35 million per year of
funding for tribal jails and not one penny for the provision of
defense counsel.
Now, I believe that most Americans do understand that all
societies, including tribes, have a right to law, and the rule
of law, and social order, but that still has to be balanced, as
it is in the Federal and State systems, with respect for the
rights of individuals. And here we are 46 years after Gideon v.
Wainwright and 37 years after Argersinger v. Hamlin, which, Mr.
Scott, you had asked the gentleman from Department of Justice
if people are not entitled to counsel in misdemeanor cases, and
the answer is under Argersinger the Supreme Court says when
someone is facing any period of incarceration they have a right
to counsel.
But as we know, that doesn't apply in tribal court, which
now is restricted to a year. And so we would ask Congress to
authorize funds for some kinds of public defender systems.
I can tell you, I live in New Mexico and all 19 pueblos in
New Mexico do not have any kind of public defender system. One
of the two Apache tribes does and the Navajo tribe has a public
defender that represents well less than 10 percent of the
people who go to court with a staff of only two professional
lawyers and four paralegals.
So while we respect and recognize the importance of tribal
sovereignty and the rights of tribes to follow traditional
methods of dispute resolution, our position is this: If a tribe
utilizes its court system for restorative justice and
restitution and making parties whole then maybe lawyers aren't
required, but once a person faces any time in prison or jail--
any loss of liberty--then they, as U.S. citizens, should have
the same rights as other U.S. citizens to counsel, to appointed
counsel if they are too poor to afford counsel.
And we believe that tribes can provide that and provide due
process and there should be funding to do that. So we would ask
the court to--this Committee to amend the law to guarantee
right to counsel for any time in jail and that to be provided
at the expense of the tribe, as is in the Senate version, and
then to provide funding.
It should be effective assistance of counsel, but it should
also be real lawyers, and that is people who have graduated
from law school and are a member of the bar of any State or the
District of Columbia. I know that some tribal bars allow people
to be a member of the bar who have not graduated from law
school and maybe not even graduated from high school.
And so we oppose increasing tribal sentences to 3 years
absent full right to counsel, right to appointed counsel and
funding, and full due process. And I would point out that some
tribes currently stack sentences, so someone gets 1 year plus 1
year plus 1 year for a series of misdemeanors. You would have
to be a kind of unimaginative prosecutor not to see how one
event could be more than one count, and that is done without
counsel. I attached one court opinion that says that to my
testimony and cited some others.
So we also think that the limitation of 1 year should be--
or 3 years--should be per course of conduct rather than per
count, as some tribes currently interpret. And we also think
that there should be real due process.
And I want to just give some examples of my own experience
with problems in some tribal courts. I have seen charges that
are not supported by any tribal ordinance or statute. I have
seen a proposed jury where all the juror--people who are
eligible to be on the jury--are all men--in that case my client
was a woman--because in that tribe that was their system. I
have seen a lack of access to actually a statute that the
client was charged with--moreover a lack of procedure. I would
call the counsel on the other side and say, ``So if we have a
jury trial does the jury have to be unanimous?'' And the other
lawyer would say, ``Well, good question. Let me figure it out
and call you back.''
So things happen--go along. No rules of evidence, no appeal
because the tribe chose not to participate in any kind of
appellate process, situations where the judge was not a lawyer,
situations where the judge had a real conflict of interest. In
one case I did in a tribal court the judge who was first
appointed was the person who had fired my client for the same
conduct that the client was then charged with. Or in another
case there was a family relationship between the victim and the
judge.
But the worst--there was a case I did in a tribal court
where after I won, the tribe retaliated against a witness--not
my client, but a witness who was a relative of my client. That
witness had been the former head of the tribe and the tribe was
mad that he had come and testified for the defendant, and so
they banished him, which meant he lost his job, he lost his
place to live and his community connections. He was a full-
blood member of the community.
And I don't know what that did to that witness, but in the
future anybody else who is called to be a defense witness at
trial has to think three times and say, ``Do I want to risk my
home, my livelihood, my job, my family and community
connections and all I hold dear just because someone is asking
me to be a witness?'' because of this retaliation that happened
in this particular case that I was a defense lawyer in.
So I would just say, we also oppose having tribes send
prisoners at no cost to the Federal Bureau of Prisons. Tribes
would have to pay for treatment and counseling options but they
could send people away for free to the Bureau of Prisons, which
is ill-equipped. And in my written testimony, which is much
more extensive, I list some of the problems with this Bureau of
Prisons approach having to do with good time, and habeas, and
all kinds of other things, not to mention that the BOP is very
overcrowded.
So we would also ask for some guidance so that people are
not prosecuted three times by the Federal, State, and tribal
governments.
And I just want to make one last comment in closing, and
that is about jury pools in the Federal court system. The
Federal courts, by their own statistics, admit that Native
Americans are underrepresented in Federal jury pools.
And if we are thinking of having more jurisdiction or
trials on Indian land there has to be a way to require Federal
courts to use supplemental source lists, such as driver's
license lists, so that the number of Native Americans in the
jury pools are proportionate in percentage to the Native
Americans in the over-18 population--over age 18 population--so
that Native Americans are not so underrepresented in Federal
jury pools as is the case now.
I have other concerns and I have addressed them in my
fairly extensive written testimony. And I really appreciate the
opportunity for the defense bar to come forward and talk about
individual rights with respect to this bill affecting Native
Americans. Thank you very much.
[The prepared statement of Ms. Indritz follows:]
Prepared Statement of Tova Indritz
__________
Mr. Scott. Thank you.
Mr. Burns?
TESTIMONY OF SCOTT BURNS, EXECUTIVE DIRECTOR, NATIONAL DISTRICT
ATTORNEYS ASSOCIATION, ALEXANDRIA, VA
Mr. Burns. Chairman Scott, Ranking Member Gohmert, and
Members of the Subcommittee, thank you for inviting me to
testify today on behalf of America's National District
Attorneys Association. We represent and are the voice of some
39,000 prosecutors across the country and responsible for
prosecuting 95 percent--95 percent--of all criminal cases in
this country.
As a State and local attorney in a small town in the
Southwest for 16 years I became familiar with the unique
challenges that face Indian country that you, Chairman Scott,
and Congressman Lungren articulately set forth in your--forward
in your opening remark. I also had the honor and privilege to
serve initially as the deputy director for State and local
affairs in the White House Office of National Drug Control
Policy--the drug czar's office--and because acutely aware early
that there was something missing from the title. And I would
like to say that it was me, but it was a lot of pressure from
the National Congress of American Indians and others--and it
sounds small but it wasn't--that we changed the office to
Office of State, Local, and Tribal Affairs and began to try and
look at, in a comprehensive way, some of the issues that we
were facing in Indian country, and it was staggering.
Traveling to the Akwesasne Mohawk Reservation in upstate
New York, to Crow, to Wind River, to Net Lake, to--and Salt
River, to Navajo, and Hopi, and Yakima, and across the country,
the jurisdictional problems that, again, were addressed in the
opening remarks became clear. It also became clear that the
lack of training and the lack of penal resources and facilities
was staggering. It also became clear that the lack of
coordination between Federal, State, and local, and tribal, on
the issue that I was then addressing, the drug issue, was
almost depressing.
We got some initial money to try and bring to Indian
country something that had worked in non-Indian country--the
HIDTA program, High Intensity Drug Trafficking Area. First went
to five test areas and asked them--went to Indian country and
said, ``Would you be willing to look at this? Would you be
willing to waive sovereignty if we could leverage all of the
assets that each bring from their individual agencies and
entities and governments?'' and all five of them did. And the
money was so small--$500,000 for five different tribes--it is
hard to say whether that worked or not. But what did work was,
in my mind, a sense of commitment and the willingness to try
and work together.
I was going to talk about the staggering numbers, Chairman
Scott, that you talked about. I won't repeat it, but the
domestic violence, the sexual assaults, the crime,
methamphetamine, gangs now in Indian country is obvious and is
evident.
NDAA applauds Congresswoman Herseth Sandlin for introducing
H.R. 1924, the 11Tribal Law and Order Act of 2009'' and for
each of you for appreciating the importance of this bill. As
you know, during recent years all of the criminal justice
system, especially on a State and local, have been pinched by
States' budgets that are diminishing.
One of the things that we at the National District
Attorneys Association have prided ourselves in over the years
is providing the best training in the country for prosecutors--
for State and local prosecutors that do 95 percent of the
criminal cases at the National Advocacy Center in South
Carolina. And while the United States attorneys need it and
their cases are so important, their funding at the NAC has gone
to about $15 million. The funding for State and local
prosecutors from the authorized amount of $4.5 million, to less
than $2 million, to--in fiscal year 2010 I think it is $1.175
million, which extremely hampers our ability to give State and
local prosecutors appropriate training.
I guess to wrap up, and prior to, again, thanking you for
your insight into these complicated issues, I tell you that I
can speak for 39,000 prosecutors in saying that we stand ready
to assist, to help, that we get it, that we appreciate the
issues are complicated. But good women and men who call
themselves prosecutors look forward to your leadership and we
stand ready to assist.
Thank you.
[The prepared statement of Mr. Burns follows:]
Prepared Statement of Scott Burns
__________
Mr. Scott. Thank you.
Ms. Creel?
TESTIMONY OF BARBARA L. CREEL, ASSISTANT PROFESSOR OF LAW,
SOUTHWEST INDIAN LAW CLINIC, UNIVERSITY OF NEW MEXICO SCHOOL OF
LAW, ALBUQUERQUE, NM
Ms. Creel. Good morning. Mr. Chairman, Ranking Member
Gohmert, distinguished Members of the Committee, my name is
Barbara Creel. I am a member of the federally-recognized tribe
Pueblo of Jemez, Walatowa, in New Mexico, one of 22 federally-
recognized tribes in New Mexico and one of the 19 pueblos.
I am a former Federal public defender, but I come to you
today not as a person speaking on behalf of my employer or my
tribe, but as someone who has seen crime and punishment on the
ground in Indian country and doesn't look at this from an
academic point of view but as someone who is a part of a
community and families who have been devastated by both crime
and punishment.
I commend the Committee for addressing the issue and
Congress for all of the efforts in trying to make Indian
country safer for Native Americans. It is part of the Federal
trust responsibility, as we know.
I cannot agree with the framing of the issue, though, as
one of simply addressing the Indian problem by locking up more
Indians, especially without the right to counsel. I am happy to
hear Mr. Perrelli say that this must be addressed
comprehensively and must include drug court, treatment program
for substance abuse, and reentry programs.
And there are effective drug treatment and reentry programs
today on the ground run by the tribes under their tribal
sovereign rights that are culturally sensitive and, again,
effective. The Muscogee Creek Nation has a drug treatment now
currently and a reentry program that reduces the ordinary rate
for recidivism from 68 percent to about 29 percent and it is
culturally sensitive.
The bill should be--the act should be amended to address an
Indian defendant's right to counsel in tribal court. They
should be afforded the right to counsel even if they are going
to be imprisoned for just 1 day.
I understand that the Committee and Congress is sensitive
to tribal sovereignty and the sovereign right to determine the
kind of justice system that is present for policing and
enforcing laws on the--in tribes and pueblos. However, I don't
know of any tribe that made a sovereign decision to no right to
counsel.
I know that tribes have a particular idea about what--maybe
that they want to counsel, as in no attorneys, but once they
have decided that--to set up a Western-style court system
usually the decision not to have a public defender office is
based solely on funds. The severe lack of resources and the
fact that tribes are dealing with many issues all at the same
time--poverty, unemployment, education, health issues--the
funds that they have to address these issues, which all funnel
into crime, are severely limited and they are severely
fractionated.
There is piecemeal--was mentioned the Indian Health
Service, Department of Education, as well as the Department of
Justice all have separate tribal offices which aren't always
coordinated with each other. I think the act itself, in
coordinating those different programs that are piecemeal
together is really important for investigation purposes, but
also for treatment purposes.
Fundamental fairness and due process requires parity in
tribal court justice systems, so once the tribe has decided to
enact their sovereign right to create a tribal court that has a
law-trained prosecutor I believe that the right to counsel for
those Indian defendants who are facing any imprisonment is
imperative. And I believe that the United States government,
who has held that the right to counsel is a human right and is
a bedrock principle for fundamental fairness in courts, should
apply to native people as U.S. citizens.
I say this because many times Indian defendants are facing
prosecution both in their tribal court and in Federal court.
Because of the Major Crimes Act they--tribal jurisdiction has
been preempted and displaced.
Tribes don't know whether a case is going to go Federal or
not, so the fact that they may not have a public defender
system in place severely impacts the individual's civil rights
if that case then does become a successive prosecution. Also,
there are instances where there is an overlapping investigation
between the Federal and the tribal case and prosecution, and
there are some egregious lapses in protecting the individual
Indian's rights when he does not have defense counsel from the
moment he is being investigated. And those, then, can impact
his ability to create a fair defense in Federal court where he
is entitled to the right to counsel.
Thank you very much for the opportunity to comment on the
act and provide testimony, and I look forward to any questions
that you may have.
[The prepared statement of Ms. Creel follows:]
Prepared Statement of Barbara L. Creel
Barbara L. Creel
Assistant Professor of Law
University of New Mexico School of Law
__________
Mr. Scott. Thank you very much.
Ms. Creel, you indicated a number of things that needed to
be done. Who should pay for the court-appointed attorneys and
the training for judges, prosecutors, and other things
associated with the tribal courts?
Ms. Creel. I think tribes have chosen to have tribal courts
and prosecutors through funds allocated by Congress, so the
bill should include funding for the indigent defense counsel as
well. If there is any funds that are going to the tribe it
should be part of the trust responsibility to ensure that
tribes are fully funded to make the sovereign decisions that
they would like to with regard to what kind of justice system
they want, and that should include the right to counsel.
Mr. Scott. Mr. Burns, what should the qualifications be for
judges, prosecutors, and defense attorneys in tribal courts?
Mr. Burns. Well, on behalf of State and local prosecutors I
have to preface any response that we always have great respect
and deference for sovereign nations and the decisions that they
make within that nation. But I think prosecutors want law-
trained judges; prosecutors want law-trained and competent
defense counsel; and prosecutors want a system where you don't
call on the phone the night before and say, ``Hey, do we need a
unanimous jury or not?'' And we support a good system.
Mr. Scott. What about rules of evidence?
Mr. Burns. Same thing. I mean, if somebody's liberty is at
stake, if we are going to lock people up in the United States,
it should not be, ``Hey, what do you think?'' It should be
based upon----
Mr. Scott. Should the Federal rules be totally effective in
tribal courts?
Mr. Burns. Again, I think it depends on the system that is
in place and the individual portion of Indian country, as we
have talked about. It is so complicated, from PL 280 to non-,
to those that have concurrent and exclusive--it would depend
upon that particular are, in my opinion.
Mr. Scott. Ms. Indritz, you mentioned jury pools. What is
used for the jury pools today in tribal courts and in Federal
courts in tribal areas?
Ms. Indritz. Let me start by answering your question with
respect to Federal courts----
Mr. Scott. Is your mic on? I am sorry.
Ms. Indritz. I don't know.
Mr. Scott. Okay.
Ms. Indritz. Hello?
Mr. Scott. Okay.
Ms. Indritz. So in Federal court, under Federal law the
Federal court is required to make a jury plan that would be
approved by the circuit and they are required to use the voter
list. Then they may choose to use supplemental source lists,
and the supplemental source lists usually are a driver's
license list, but they can be other things, like tax rolls or
whatever.
In the State of--in the Federal courts in New Mexico I can
tell you that the courts have confronted this issue and chosen,
because they want what they see as a more sophisticated jury
pool, to only use the voter list, whereas in State court in New
Mexico we use the driver's license--the voter list supplemented
by the driver's list supplemented by the tax rolls. The State
does the computer work of combining those, eliminating the
people under 18, and eliminating the duplicates.
So the Federal court could get that list for free--I mean,
they have to get the voter list from the State anyway--but they
choose not to. And as a result, the underrepresented groups are
Hispanics, Native Americans, young people in the 18 to 30 age
range, men, and rural people, but particularly Native Americans
and Hispanics are underrepresented compared to their percentage
of the population.
So about a third of the Federal court districts have chosen
to use supplemental source lists and other have not. And I know
that this is also true for Arizona as well--Native Americans
are just underrepresented in the jury pool.
With respect to tribal courts, right now there are no
Federal regulations about that and tribes can make their own
choices about how they constitute jury pools, or if they have
juries or not. So there is no requirements with respect to
tribal courts that I am aware of.
Mr. Scott. You mentioned people were ostracized for
testimony.
Ms. Indritz. I mentioned an instance I am personally aware
of, your----
Mr. Scott. What is the difference between that and what
goes on in Federal court?
Ms. Indritz. If that had happened in Federal court I would
have immediately gone back to court and----
Mr. Scott. You are aware of the campaigns against
``snitching''?
Ms. Indritz. I am aware that I would have gone back to a
Federal judge immediately and gotten this resolved, but there
was no way for me to do anything about it in tribal court. And
my concern is not only for that individual who got banished,
which was a very sad situation--there was sort of a small tribe
that had kind of two factions, and one faction was mad at the
other faction, but it was clearly retaliation for coming in and
testifying and there was no question about--this witness had
clearly told the truth. That wasn't the issue. It was that he
had testified, as they saw it, against the tribe. But my
concern is also for future people who are----
Mr. Scott. Does that problem--has that problem been unique
to tribal courts? Because you have people who are ostracized
for ``snitching'' and are discouraged in any number of ways
from testifying----
Ms. Indritz. There is a remedy in Federal court, and there
is a remedy in State court, and there is no remedy in tribal
court.
Mr. Scott. Okay.
Chairman Levings, can you say what about what you would--
what is available in tribal areas in terms of crime prevention
activities and whether or not more is needed in that area?
Mr. Levings. Well, the Three Affiliated Tribes, the Mandan,
Hidatsa, and Arikara, we work with all of the counties--the
sheriffs and the State highway patrol and our policing.
We have a unique circumstance up in North Dakota: The
western North Dakota, as you know, is very much thriving on oil
and gas development. We are going gangbusters 24/7 oil and gas
development and the Williston Bakken Formation. Our problem,
Mr. Chairman, is that we have a shortage of FBI agents. We have
one agent for half of the State of North Dakota, and right now
we are working with the associate----
Mr. Scott. Does the tribe have law enforcement officials?
Mr. Levings. We entered a 638 contract with the Bureau of
Indian Affairs for law enforcement on December 7, 2007. It has
made a tremendous se improvement. So we are unique, as I say,
as we are going through this issue today.
We have technical assistance that is working out the best
it has ever been. Maybe it was the key 10 years ago; we wish we
would have did it then because now we have got the attention of
the Washington, D.C. office. Pat Ragsdale just moved on, I
know, to Fort Snelling, Minnesota, but before that 638 contract
our law enforcement was poor, next to none.
There was one evening our COPS FAST grant officer--she had
the whole reservation--1 million acres on her own behalf, and
she was trying to police six segment sets separated by Lake
Sakakawea that inundated Elbowoods, North Dakota, which was our
homeland--90 percent of our people live there. Now we are 2, 3
hours apart segment to segment.
Our hub is New Town. They flooded Elbowoods so they come up
with this new town sign and it said this is where the new town
is going to be located, and that is where we are at today. And
then Four Bears is where our tribal complex is at, and that is
where our tribal chambers is and our council quarters.
So we are distance--just to get around the reservation, I
think, would probably take you 4\1/2\ hours to make a round
trip. That is how far it is apart.
So when we contracted in December 7, 2007 we made a unique
circumstance work, and District 1 Commander Alma Fordance, I
have got to commend him. The technical assistance he has given
us since that contract--I guess going on maybe nine, 10 months
now--has been second to none. And his coordination and
collaboration with the tribe on a criminal investigation made
it a better working relationship.
So our tribe is experiencing different attention. I feel
for the rest of Indian country, but it just takes time and you
need to work through those things.
We still have crime though, Mr. Chairman. It is ironic I
sit here in front of you; less than 3 weeks ago my daughter was
sexually assaulted on November 19 and she was in the hospital
for 15 days. And she is home now and she has got a colostomy
bag, and she is going to be home for 3 months recovering.
And it is heart-to-heart for me because the perpetrator got
away the first time. But this time the FBI agents and the DOJ
attorneys are doing it by the book and our thoughts and our
mindsets is that if the chairman's daughter isn't safe on Fort
Berthold who is?
So this is the time for me to be here to tell you how
important it is. These perpetrators and these breaking of
Federal crimes on Indian reservations is not discriminatory
because this is the second time for me. My daughter was put in
this circumstance in May of 2008 and it never got to any type
of prosecution.
In October 2001 my wife was in a drive-by shooting at the
high school. That never did go to any type of prosecution. And
we know who the individual is; the camera caught the incident
on live feed because as a school board former president of New
Town School Public District One--I was the president, and we
put in cameras outdoors and indoors. And they had the car, they
had it speeding away, they retrieved a bullet out of the door--
it was a nine millimeter bullet.
So these things happen. And that time I was the Four Bears
Segment Council representative. Now I am the chairman of the
tribes.
So this is paramount to me. Perpetrators need to be tried,
and we need to have a coordinated effort and it needs to be
funded to the point where we have enough agents to cover the
western North Dakota to maybe three instead of one.
So this is really important to me. I know there is a lot of
pros and cons to a lot of the issues, and we are the tribe that
is the most friendly as far as we know.
Mandan, Hidatsa, and Arikara, we are the tribe that saved
Lewis and Clark when they were coming through in 77 below
windchill factors back in the day they were coming out toward
exploration. And we saved them, got them fattened, got them
ready for the trek back out to Portland, and they moved right
along.
But we have not changed. So our tribe is made up of a lot
of members, not just from the Three Affiliated Tribes--the
Mandan, Hidatsa, and Arikara, but from other tribes.
I just told you about the Williston Bakken Formation. There
is more license plates of employees from other States than
there is from our own. So we have 4 percent unemployment, so we
have different circumstances, yes. But we still have Federal
crimes that need to be prosecuted, Mr. Chairman.
Mr. Scott. Thank you very much.
Mr. Rooney?
Mr. Rooney. Thank you, Mr. Chairman.
Mr. Levings, that was a very heartfelt testimony, and my
sympathies go out to you and your family. One of the things
that is sort of striking me with the testimony Ms. Creel
mentioned before about how we would fund criminal defense
attorneys--do you believe that the tribes are in a position to
pay for counsel for indigent defendants? And I guess where I am
going with this, if Ms. Creel's wish was granted is it a matter
of custom that we are faced up against here or is it a matter
of funding?
In other words, the way the court system works is it--are
the obstacles merely a matter of funding or are they a matter
of that is just the way that it is done and those things have
to be overcome too when you talk about the drive-by shooting
and nothing ever happened? Was that a matter of just people
purposely, you know, turning a blind eye, or because the
resources weren't there? Are there more obstacles than just
money here, I guess is the question.
Mr. Levings. I believe when we had first initial meeting as
the board president at that time, and as being a council member
I had dual roles, I met with the chief of police for the city,
I met with the chief of police for the Bureau of Indian
Affairs, and I thought I was in the best circumstance but it
just didn't happen. Maybe it was a shortage of agents. I am not
sure.
There were actually confessions, you know, there was
different things going on. But the tribe--we have a committee
as well. The Mandan, Hidatsa, and Arikara, we have a judicial
committee.
The judicial committee hears everything. They hear the
plaintiff's, the defendant's sides, and we actually kind of
give an opportunity for our members to vent. They come in and,
of course, the defendants are all, you know, in their own
mindset not guilty, and then the court is doing things that
they have to and the police department is doing things they
have to to incarcerate. But we hear everyone.
So we hear a lot of the issues. One of the main ones was
they wanted a public defender, so our tribe has been funding
one for several fiscal years now. There was a grant or two they
applied for; sometimes they are fortunate to get a few
thousands of dollars, maybe a grant $25,000.
But in the end the council have made it a paramount issue
to have a public defender. So we fund it out of our general
funds from our casino revenue, our lease income, or any other
of our other means that we generate out of our profits, in this
case oil and gas probably. But we keep that as a law-trained
public defender.
Our judge is elected. He is elected just as we are as
council members, and then we appoint him for 2 years term, and
he has got to make his performance, or in the even years, as
this year coming up 2010, he has got to run for reelection. So
it is a kind of a fair process today in Fort Berthold.
The problem we have is we are getting probably more work
than there is so we have few and far between people applying
for these jobs because there is work to be had. So we do the
best we can with the limited applications.
Mr. Rooney. Does anybody else want to weigh in on that
question?
Ms. Creel. Thank you, Mr. Rooney.
When Chairman Levings was talking about 638 contracting for
law enforcement, that is Public Law 638, which allows the
tribes to apply to the Federal Government for funding and then
contract and determine how to use those funds in a on-the-
ground, culturally sensitive way. So funding a public defender
system is no different than any of the other services that flow
through the Federal trust responsibility through the Bureau of
Indian Affairs and on down.
Traditional justice systems would not be affected by the
right to counsel. The right to counsel obviously implies a
tribal court system in which you have a law-trained judge and a
prosecutor. That would--and the chance of imprisonment or
incarceration. That would trigger, then, the right to counsel.
If tribes are choosing a traditional form of justice--in my
home there are no advocates or attorneys allowed in the court
system at all. There is a traditional and then a contemporary.
If the contemporary court is going to imprison someone,
though, there should be a right to counsel, which would be
separate form the traditional court which is held in
traditional language and only those members who speak the
language and are subject to our tribal spiritual leaders
attend. So that wouldn't be impacted at all.
Ms. Indritz. Mr. Rooney, the vast majority of Native
American defendants who appear in tribal courts are indigent
and are unable to afford counsel. There are some Federal funds
now that could be used for public defenders but the problem is
they are not earmarked solely for public defenders.
And so many tribes have so many needs in their court
system, whether it is for computers, or judges, or whatever,
that there are funds that the Department of Justice has
sometimes awarded if the tribe wants to use--to ask for public
defenders--that is not precluded--but there are no funds
earmarked now solely for public defenders. And so we would ask
that there be that, that there be funds which are available to
tribes for public defense.
And it could work something like the Criminal Justice Act,
where there are a variety of ways of providing that, whether it
is a public defender office such as Chairman Levings spoke of,
or appointing counsel on an individual basis paid on an hourly
rate, or a private legal aid organization that also takes on
these kind of cases. So there are different ways to do it but
there is no earmarked funding just for this public defender
function.
Mr. Rooney. Mr. Chairman, I see my time is expired. If I
could take the liberty of just one more--just a follow up to
that with a simple yes or no.
So H.R. 1924--does it or does it not have the requirement
for the tribe--for counsel for these defendants?
No.
Ms. Indritz. No.
Mr. Rooney. Okay.
Ms. Indritz. The Senate version has better language on
that. Neither bill has funding.
Mr. Rooney. Okay.
Thank you, Mr. Chairman. I yield back.
Mr. Scott. Thank you.
And I would like to thank all of our witnesses for their
testimony today. Without objection written testimony submitted
by Amnesty International USA and the Judicial Conference of the
United States will be placed in the record.
Members will have--may have additional questions for the
witnesses, and if so we will forward those questions to you and
ask that the answers be available as promptly as possible so
that the answers will be part of the record.
Each witness's written statement will be entered into the
record in its entirety. Without objection the hearing record
will remain open for 1 week for submission of additional
materials.
And there is one other piece of business we would like to
do at this time, and that is to congratulate our counsel, Karen
Wilkinson, who has been with us for almost 2 years. She is on
leave from the public defender's office in Arizona and will--
unfortunately they need her back.
We want to thank you for almost 2 years of excellent
contribution to the Committee work.
[Applause.]
Without objection the Subcommittee stands adjourned.
[Whereupon, at 11:39 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record