    [Senate Hearing 111-214]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-214

             EXAMINING S. 797, THE TRIBAL LAW AND ORDER ACT OF 2009

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

                                    HEARING

                                   before the

                          COMMITTEE ON INDIAN AFFAIRS
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 JUNE 25, 2009

                                   __________

             Printed for the use of the Committee on Indian Affairs

                          COMMITTEE ON INDIAN AFFAIRS

                      U.S. GOVERNMENT PRINTING OFFICE
    53-988                    WASHINGTON : 2009
    -----------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
    area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC
    20402-0001

                    BYRON L. DORGAN, North Dakota, Chairman
                     JOHN BARRASSO, Wyoming, Vice Chairman
    DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
    KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
    DANIEL K. AKAKA, Hawaii              TOM COBURN, M.D., Oklahoma
    TIM JOHNSON, South Dakota            MIKE CRAPO, Idaho
    MARIA CANTWELL, Washington           MIKE JOHANNS, Nebraska
    JON TESTER, Montana
    TOM UDALL, New Mexico
    _____, _____
          Allison C. Binney, Majority Staff Director and Chief Counsel
         David A. Mullon Jr., Minority Staff Director and Chief Counsel

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on June 25, 2009....................................     1
    Statement of Senator Barrasso....................................    23
    Statement of Senator Crapo.......................................     3
    Statement of Senator Dorgan......................................     1
    Statement of Senator Murkowski...................................    28
    Statement of Senator Tester......................................     3
    Statement of Senator Udall.......................................    30

                                   Witnesses

    Brandenburg, Hon. Anthony J., Chief Judge, Intertribal Court of
      Southern California............................................    49
        Prepared statement...........................................    51
    Coby, Alonzo, Chairman, Fort Hall Business Council, Shoshone-
      Bannock Tribes.................................................    32
        Prepared statement...........................................    34
    Echo Hawk, Larry, Assistant Secretary for Indian Affairs, U.S.
      Department of the Interior; accompanied by W. Patrick Ragsdale,
      Deputy Director, Office of Justice Services....................    14
        Prepared statement...........................................    16
    Eid, Troy A., Partner, Greenberg Traurig, LLP....................    37
        Prepared statement...........................................    39
    Perrelli, Hon. Thomas J., Associate Attorney General, U.S.
      Department of Justice..........................................     5
        Prepared statement...........................................     6
    Quasula, Theodore R., President, Quasula Consulting..............    53
        Prepared statement...........................................    56

                                    Appendix

    Artichoker, Karen, and Majel, Juana, Co-Chairs, National Congress
      of American Indians Task Force on Violence Against Women,
      prepared statement.............................................    95
    Adams, Bruce, Chairman, San Juan County (Utah) Commission,
      prepared statement.............................................    86
    Elliott, William V., Detective, Warm Springs Tribal Police
      Department (WSTPD), prepared statement.........................    81
    Ingram-Marshall, Jolanda E., Attorney; Executive Director of
      Niwhongwh xw E:na:wh Stop The Violence Coalition, Inc.,
      prepared statement.............................................   100
    Puyallup Tribe of Indians, prepared statement....................   102
    Response to written questions submitted to:
        Troy A. Eid..................................................   116
        Hon. Thomas J. Perrelli......................................   106
    Rhodes, William R., Governor, Gila River Indian Community,
      prepared statement.............................................    91
    S. 797 support letters, submitted by:
        Marieanne Canales, Member, Qualla Women's Justice Alliance...   124
        Lisalyn Jacobs, Chairperson, National Task Force to End
          Sexual and Domestic Violence...............................   130
        A. Jane McEwen, Executive Director, New York State Coalition
          Against Sexual Assault (NYSCASA)...........................   123
        Tina Olson, Co-Director, Mending the Sacred Hoop.............   129
        Germaine Omish-Guachena, Executive Director, Strong Hearted
          Native Women's Coalition, Inc..............................   125
        Thomas M. Susman, Director, Governmental Affairs Office,
          American Bar Association................................ 126, 127
    Smith, Chad, Principal Chief, Cherokee Nation, prepared statement    87
    Soler, Esta, President/Founder, Family Violence Prevention Fund,
      prepared statement.............................................    89
    Weich, Ronald, Assistant Attorney General, U.S. Department of
      Justice, letter, dated June 23, 2009, to Hon. Byron L. Dorgan..    69
    Written questions submitted to Hon. Larry Echo Hawk..............   120

             EXAMINING S. 797, THE TRIBAL LAW AND ORDER ACT OF 2009

                                  ----------

                            THURSDAY, JUNE 25, 2009

                                           U.S. Senate,
                                   Committee on Indian Affairs,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 2:15 p.m. in room
    628, Dirksen Senate Office Building, Hon. Byron L. Dorgan,
    Chairman of the Committee, presiding.

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

        The Chairman. I am going to call the hearing to order.
        This is a hearing of the Senate Indian Affairs Committee.
    The Committee meets today to receive views on S. 797, the
    Tribal Law and Order Act of 2009. Along with 17 of my
    colleagues, I introduced this legislation April 2 of this year,
    but the bill has really been developed over the past several
    years. The Committee co-sponsors include Vice Chairman
    Barrasso, Senators Tester, Udall, Johnson, Cantwell, Crapo, and
    Murkowski. Other cosponsors are Senators Begich, Boxer,
    Bingaman, Baucus, Kyl, Lieberman, Merkley, Stabenow, Widen, and
    we expect others to join as well.
        This bill originates from listening sessions that we have
    held all across the Country, dozens of meetings and listening
    sessions with tribal leaders, judges, police officers, city
    mayors, sheriffs, other interested parties on and off and
    adjacent to Indian reservations.
        In the 110th Congress, this Committee held eight hearings
    on a variety of public safety and justice topics. These
    meetings and hearings revealed what many in Indian Country have
    known for a long, long while, and that is while many Americans
    take for granted the safety that they experience every day,
    there are many living on Indian reservations that cannot take
    that for granted.
        Indian Country is suffering, we believe, an epidemic of
    sexual and domestic violence against women. We have had a good
    number of reports of that and studies that have been released.
    More than one in three Native American women will be raped or
    sexually assaulted during their lifetime. Two in five will
    suffer domestic violence.
        And for a number of reasons, victims of sexual violence on
    Indian reservations are often unable to bring their attackers
    to justice. In North Dakota, to cite an example, we have 11
    police officers on one of our reservations patrolling 2.3
    million acres on the Standing Rock Indian Reservation. Mr.
    Ragsdale knows that well. We have been together at the Standing
    Rock Reservation where I held a hearing and where I will hold
    another hearing next week.
        Because of the lack of adequate law enforcement in that
    area, a cry for help, a call saying a crime is being committed
    or has just been committed, could very well result in the law
    enforcement officer showing up an hour, perhaps 12 hours,
    perhaps a day later in response to an enormous cry for help as
    a result of a violent crime. That is just not acceptable and
    has to be changed.
        One BIA officer on the Standing Rock Reservation quit his
    job and said about his 10 years on the job as a Federal police
    officer, ``I felt like I was standing in the middle of a river
    trying to hold back a flood.'' He went on to say that his unit
    was forced to triage rape cases, taking only those in which a
    confession was present.
        More than a century ago, the Congress enacted something
    called the Major Crimes Act, which took authority away from
    tribes and placed a legal obligation on the part of the United
    States to provide public safety. And the fact is, we are just
    not meeting that obligation. I have a chart that will show, for
    example, declination rates for reservation violent crime
    between 2004 and 2007. I have met with the Justice Department
    and others, U.S. Attorneys, and there are always reasons that
    declination rates are where they are. Each case, I understand,
    is unique and different and separate. So I understand all that.
        Yet, to see a chart that shows a rate of 72 percent
    declining to prosecute child sex crimes raises very serious
    questions; aggravated assaults, 58 percent declination; murder/
    manslaughter, 50 percent declination.
        A U.S. Attorney summed up the problem with this current
    system. He said, ``The performance of my office will be
    compared to other U.S. Attorneys. My gun cases have to compete
    with other U.S. Attorneys. My white collar crime cases have to
    compete with other U.S. Attorneys. One criteria that is never
    on the list in my office is Indian Country cases.''
        Our bill takes steps to try to ensure that Indian Country
    crimes get placed on a priority list. The bill adds a measure
    of accountability at the Federal level. At the same time, the
    local tribal justice system is hampered, as most of us know.
    Federal laws place strict limits on tribal police arrest
    authority, and tribal courts can incarcerate offenders for no
    more than one year for any single offense.
        We heard from tribal court judges and prosecutors who try
    rape and homicide cases that were declined in Federal court,
    and who are limited to administer one year in jail as a penalty
    for serious and violent sexual crimes. Subjecting a murderer or
    a rapist to one year in prison does not in any way provide
    justice to the victims or to the community.
        So let me just summarize by saying the Tribal Law and Order
    Act of 2009 takes initial steps to address this concern. It is
    not a perfect piece of legislation, but it is a result of John
    Harte, the Policy Director for the Committee, and Allison
    Binney and others, going all around the Country, and that
    includes myself and Members of this Committee going around the
    Country and consulting and visiting and meeting with all of the
    interested parties to try to determine how can we fix this;
    what can we put together that addresses this crisis.
        And with that in mind, we introduced legislation with 17
    Senators, 18 including myself, that is bipartisan and I think
    very strong.
        I want to thank the witnesses who have agreed to come today
    to give us the benefit of their thoughts. I am encouraged by
    the presence of the Justice Department's Associate Attorney
    General and Assistant Secretary Echo Hawk, who has great
    experience in this area as well. And I want to thank all of the
    witnesses for being here.
        Let me call on my colleagues for a brief statement.
        Senator Tester?

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

        Senator Tester. I want to thank you, Mr. Chairman. I want
    to thank the witnesses for being here today. You are the
    experts. We look forward to hearing your perspective on the
    issue of safety.
        I also want to thank Chairman Dorgan for his leadership in
    this in putting forth this bill that I think is a good step in
    the right direction.
        For those of us that don't have to worry about our safety,
    sometimes we take it for granted. But if you take a look, and I
    know the Chairman talked about the number of hearings that we
    have had over the last couple of years that dealt with safety
    issues in Indian Country. There have been many. There have been
    many articles written about it.
        But if you think about if you are living in a situation
    where safety isn't assured and it is not respected, and the
    impacts it can have on quality of life, the impacts it can have
    on the family structure, the impacts it can have on
    unemployment, it is no surprise that when you look at Indian
    Country and see families that are broken apart, when you see
    issues of quality of life that are less than what we should be
    striving for, you see unemployment in Montana, 70 percent, 80
    percent, sometimes higher.
        We need to address it and we need to address it in a way
    that makes sense for Indian Country. In the long run, it will
    help everybody and in the short run it is going to help Indian
    Country, and they need some help.
        So we appreciate the folks testifying today and I look
    forward to the questions.
        Thank you, Mr. Chairman.
        The Chairman. Senator Tester, thank you very much.
        Senator Crapo?

                     STATEMENT OF HON. MIKE CRAPO,
                        U.S. SENATOR FROM IDAHO

        Senator Crapo. Thank you very much, Mr. Chairman.
        I also appreciate your hard work on this issue and look
    forward to working with you on this important legislation.
        I note that today is, if I am correct, Larry Echo Hawk's
    first appearance before this Committee since his confirmation.
    And Mr. Secretary, I congratulate you and look forward to
    continuing to work with you on important issues of this nature.
        I also want to recognize one of our witnesses who will be
    on the second panel, Mr. Chairman, our Chairman Alonzo Coby of
    the Fort Hall Business Council which represents the Shoshone-
    Bannock Tribes of Idaho. Chairman Coby and his fellow Council
    Members, many of whom are here today, have shown great
    leadership in the creation of a new Tribal Justice Center in
    Fort Hall and we look forward to the center's opening in coming
    months as it will provide great benefits to the Shoshone-
    Bannock Tribes and other tribes and to the surrounding
    communities.
        I also recognize Chairman Coby's leadership in advocating
    for the legislation that we are here evaluating today, the
    Tribal Law and Order Act, and I am proud, as you indicated, Mr.
    Chairman, to be a cosponsor of this important legislation, as
    are a number of our colleagues on this Committee.
        Unfortunately, I will not be able to stay here for the full
    hearing as I am scheduled to attend a ceremony on the House
    side in just a few minutes to present the congressional award
    of a gold medal to 15 young Idaho students. So Mr. Chairman, if
    I slip out it is not for lack of support or interest in the
    issue that we have here.
        Nevertheless, I want to indicate that I look forward to
    reviewing all of the testimony that we receive today and to
    help expeditiously move this legislation forward.
        Thank you, Mr. Chairman.
        The Chairman. Senator Crapo, thank you very much.
        I want to mention the Committee has received a number of
    statements on the Tribal Law and Order bill from a number of
    domestic and sexual violence prevention organizations. Many of
    those advocates, Amnesty International included--and that is
    one of whose reports I referred to in my opening statement--
    many of them are in the audience today and I want to welcome
    them to the hearing and thank them for their extraordinary work
    and let them know that your statements will be printed in their
    entirety in the hearing record.
        And I say to others who are interested in this subject that
    we will keep the record open for two weeks, and if you have
    submissions that you wish to include in the Committee record,
    we will certainly do that.
        And I want to mention as well that we have an
    Appropriations Committee markup at three o'clock. Senator
    Barrasso, the Vice Chair of our Committee, will be here at
    three o'clock while I have to go to the Interior Appropriations
    Committee downstairs briefly, and Senator Udall and some others
    will be here as well.
        Mr. Perrelli, thank you very much for being here, the
    Honorable Tom Perrelli, Associate Attorney General of the
    United States. I read about you in The Washington Post recently
    and, you know, almost swallowed my Grape Nuts whole there from
    that box of breakfast cereal. I was so pleased with what I
    read. You indicated that you and I believe also David Ogden,
    the new Deputy down at the Department of Justice, are taking a
    real interest in this issue of Indian tribal justice, and that
    is a healthy and a very refreshing thing for myself and Senator
    Tester and Members of this Committee to see.
        So we thank you for your being here and for your
    willingness to be here along with Assistant Secretary Echo Hawk
    and Mr. Ragsdale, who heads the appropriate area over in the
    BIA.
        Mr. Perrelli, we will call on you. The statements of all of
    the witnesses will be included in their entirety in the
    permanent record, and we will ask that the witnesses summarize.
        Welcome, Mr. Perrelli.

       STATEMENT OF HON. THOMAS J. PERRELLI, ASSOCIATE ATTORNEY
                  GENERAL, U.S. DEPARTMENT OF JUSTICE

        Mr. Perrelli. Thank you. Thank you, Mr. Chairman.
        I do appreciate the opportunity to speak to the Committee
    on the Tribal Law and Order Act of 2009, which we believe is
    comprehensive and important legislation that will improve the
    delivery of criminal justice services in Indian Country.
        I know our views letter on this is long and there are some
    provisions that we believe are problematic, but I don't want
    those comments and constructive concerns to diminish how
    important we think this legislation is. We very much look
    forward to working with you and this Committee on this issue,
    as well as other issues relevant to Indian Country, in the
    coming years, because I think we can all agree there is a great
    deal that needs to be done.
        Following up on your comments, I do want to express a
    little bit about the new leadership of the Department and their
    commitment to Indian Country. One of Attorney General Holder's
    first acts when he came on was to convene a summit of State,
    local and tribal law enforcement to find out what we were doing
    well, what we were doing poorly, and what we needed to learn.
        Coming out of that and recommendations from within the
    Department, we announced a series of sessions in Indian
    Country, as well as leading up to a Tribal Nations Listening
    Conference in the fall, which really hasn't occurred since
    1994, with the Justice Department trying to bring
    representatives of all of the tribes together. Our goal is not
    simply to listen, but to have action items and plans in mind
    when we get to that session. The sessions in the interim will
    hopefully help us with that.
        I think our commitment to Indian Country derives in many
    respects from the Attorney General's, the Deputy Attorney
    General's and my previous experience in the Department. The
    Deputy Attorney General, in fact, co-chaired the Indian Country
    Law Enforcement Initiative, and I know there has been a lot of
    discussion in prior hearings before this Committee about that.
    I succeeded him as the leader from the Department of Justice in
    that effort. I know that this Committee has heard testimony in
    the past from U.S. Attorneys who were discouraged for or
    penalized for appropriately enforcing the law in Indian
    Country. That will not happen under this Attorney General.
        In the leadership there is a tremendous understanding and
    commitment to the importance of law enforcement in Indian
    Country, and we recognize that we are only going to succeed if
    everyone in the Federal family, as well as with our tribal
    partners and State and local governments, works together.
        My written testimony lays out information about a variety
    of provisions that we support, that we suggest modifications
    to, or to which we object. I do want to talk a little bit about
    what is going on at the Department now. In addition to our
    intention to go through a process leading up to the Tribal
    Nations Listening Conference, we are actively seeking to get
    Recovery Act funds that are urgently needed out to Indian
    Country, particularly $225 million that were made available for
    correctional facilities through the Recovery Act.
        We are also working to get the Community-Oriented Policing
    services monies out, which are applicable to all communities,
    but which I know are desparately needed in tribal communities.
    And as you referenced, our Office of Violence Against Women is
    also working to get money out to Indian Country to address the
    longstanding problem of domestic violence in Indian Country.
        But we acknowledge that more needs to be done, and we are
    undertaking a comprehensive review of what we are doing in
    Indian Country with an eye towards what would be appropriate to
    propose to the President in the 2011 budget.
        With respect to the chart, I know that the issue of
    declinations has been a significant one for the Committee. As
    the Department has stated previously and stated again, we don't
    think that the declination rate provides a useful measure of
    the Department's commitment to law enforcement in Indian
    Country. We also think that in many circumstances, but not all,
    there is good coordination between Federal law enforcement and
    tribal law enforcement.
        But if nothing else, those statistics and the focus of this
    Committee on this demonstrate that there is a real perception
    problem, and that the Department needs to do more to
    communicate what we are doing, and what we are not doing, with
    our tribal partners. We need to communicate that when there is
    an opportunity to prosecute in whatever system--State, Federal
    or tribal--we take advantage of doing that.
        We also need to look at our data, the data that is the
    source of that chart and that we have often said we don't think
    demonstrates anything. We need to figure out how we can get
    more useful data, which I know you have asked us for
    repeatedly. We are now focused on trying to see if there is
    more that we can do to provide an accurate pictures, whatever
    that might turn out to be.
        I can't make any promises today. I have met with a number
    of people on this and I have been told how difficult it is, but
    it is something we are working on now.
        I appreciate the opportunity to provide this opening
    statement and I look forward to answering your questions.
        [The prepared statement of Mr. Perrelli follows:]

     Prepared Statement of Thomas J. Perrelli, Associate Attorney General,
                           U.S. Department of Justice
        Chairman Dorgan, Vice-Chair Barrasso and members of the Committee:
        I appreciate this opportunity to appear before the Committee on
    behalf of the Department of Justice to offer the Department's
    perspective on law enforcement issues affecting Indian Country. In
    particular, I'm grateful for the chance to convey the Department's
    position on S.797, the Tribal Law and Order Act of 2009. This
    comprehensive legislation would significantly improve the delivery and
    administration of criminal justice services in Indian Country, but it
    also contains several provisions to which the Department objects and
    which we believe must be modified. The Department's position on this
    legislation is contained in a letter conveyed to the Committee in
    advance of today's hearing. I will reiterate today some, but not all,
    of the expressions of support and concern contained in that letter.
        Before addressing specific parts of the legislation, however, I
    want to express the Department's unequivocal commitment to the mission
    of fostering public safety in Indian Country. As this Committee knows
    well, law enforcement in Indian Country is a shared responsibility.
    Whether a crime will be investigated and prosecuted by the Federal
    Government, a state government, or the tribe itself depends upon the
    nature of the crime, where the crime is committed, against whom, and
    whether the perpetrator is Indian or non-Indian. This jurisdictional
    patchwork can lead to inconsistent results, and often times frustration
    by those who perceive the Department's commitment to enforcing criminal
    law in Indian Country as itself being inconsistent. I want to assure
    you today from Attorney General Holder, Deputy Attorney General Ogden,
    and myself that such perceptions are wrong. Just last week, the
    Department announced that the Attorney General would convene a Tribal
    Nations Listening Conference later this year, at which we can consult
    with tribal leaders on how to address the growing public safety crisis
    in Indian Country and other important issues affecting tribal
    communities. Both the Deputy Attorney General and I plan to participate
    personally in smaller planning sessions, at which we will seek tribal
    representatives' input in setting the agenda for that Conference.
    Tribal communities have long-time supporters and friends in the
    Department's leadership.
        Our commitment to seeking justice for Indian Country communities
    and victims of crime is reflected in the myriad resources we devote to
    investigating Indian Country crime within the FBI, ATF, and DEA.
    Everyday, often in concert with their tribal police counterparts,
    federal agents operating in Indian country are pursuing cases involving
    violent crime, illegal drugs, and incidents of sexual assault and
    domestic violence. Everyday, in one or more of the 37 U.S. Attorney's
    Offices that have Indian Country within their boundaries, federal
    prosecutors are taking the results of those investigations and
    obtaining convictions that remove dangerous predators from Indian
    communities. In fact, in a typical year, approximately 25 percent of
    all violent crime cases opened by U.S. Attorneys nationally occur in
    Indian Country. Everyday, victim specialists employed by the Department
    and the tribes are working with Indian victims of crime, helping them
    rebuild their lives.
        I would like to offer a few relevant facts that demonstrate the
    depth of the Department's ongoing efforts to investigate and prosecute
    cases arising in Indian country. The FBI is the main federal law
    enforcement authority in Indian Country. Even with the heightened
    demands placed upon the FBI by its primary role in the fight against
    terrorism, Indian Country law enforcement remains a key priority for
    the FBI. The FBI's Safe Trails Task Force initiative--which focuses
    entirely on Indian Country crime--has grown steadily since its
    inception in 1994. There are now 17 Safe Trails Task Forces operating
    in Indian Country, and the FBI stands ready to expand that number as
    necessary.
        The FBI's Indian Country Special Crimes Unit routinely works with
    the Bureau of Indian Affairs (BIA)--Indian Police Academy in Artesia,
    New Mexico, to sponsor and promote core training for investigators.
    Each fiscal year, the FBI provides more than 20 training conferences
    for local, tribal, and federal investigators regarding gang assessment,
    crime scene processing, child abuse investigations, forensic
    interviewing of children, homicide investigations, interviewing and
    interrogation, officer safety and survival, crisis negotiation, and
    Indian gaming. Furthermore, the FBI's Office for Victim Assistance
    dedicates 31 Victim Specialists to Indian country, representing
    approximately one-third of the entire FBI Victim Specialist workforce.
        Also, the FBI recently deployed the Law Enforcement National Data
    Exchange (N-DEx) system with participation from tribal governments. N-
    DEx is a criminal justice information sharing system that will provide
    nationwide connectivity to disparate local, state, tribal, and federal
    systems for the exchange of criminal justice information. The N-DEx
    system provides law enforcement agencies with a powerful new
    investigative tool to search, link, analyze and share criminal justice
    information on a national basis to a degree never before possible. This
    information covers the criminal justice life-cycle and includes
    incident/case reports, incarceration data, and parole/probation data.
    Participating criminal justice agencies contributecopies of data from
    their record management systems to the N-DEx system. Agencies continue
    to ``own'' and are responsible for the data they submit, including
    updating the information on a regular basis. Utilizing a secure link
    via the internet through the Law Enforcement Online service,
    participating agencies access the system without continuing costs
    beyond the reasonable start-up cost associated with data conversion and
    connectivity.
        The Law Enforcement N-DEx has been endorsed and is supported by the
    International Association of Chiefs of Police, the National Sheriffs
    Association, the Major City Chiefs Association, and the Major County
    Sheriffs Association. The Oneida Nation Police Department (PD) is the
    first tribal law enforcement agency to participate in the N-DEx
    project. Currently,the Oneida Nation PD contributes data by manually
    entering incident information in the N-DEx system. The N-DEx Program
    Office is developing relationships with other tribal agencies to submit
    data to the N-DEx system. Toward that end, the office has met with
    various tribal law enforcement agencies, including those of the Paiute,
    Mashantucket Pequot, Mohegan, Eastern Band of Cherokee, and Navajo
    Tribes.
        My colleagues at the Bureau of Alcohol, Tobacco, Firearms, and
    Explosives (ATF) have also been committed to reducing violence in
    Indian Country. ATF has assisted tribal governments in combating
    firearms and gang violence through the Project Safe Neighborhoods (PSN)
    initiative. Project Safe Neighborhoods is a nationwide program aimed at
    reducing gun and gang crime in America by networking existing local
    programs that target gun and gang crime and providing these programs
    with additional tools necessary to be successful. This funding is being
    used to hire new federal and state prosecutors, support investigators,
    provide training, distribute gun lock safety kits, deter juvenile gun
    crime, and develop and promote community outreach efforts as well as to
    support other gun and gang violence reduction strategies In early 2009,
    EOUSA and ATF launched a Project Safe Neighborhoods Indian Country
    Pilot Project in the Eastern Navajo Nation Dlo'ayazhi community located
    in western New Mexico. The Navajo Nation PSN Pilot Project will allow
    the community, in partnership with the New Mexico U.S. Attorney's
    Office, ATF, BIA and FBI, to develop critical interdiction and
    prevention programs that will specifically address the problems
    experienced in that community.
        In addition, ATF has entered into Memoranda of Understanding (MOUs)
    with several tribes in order to increase cooperation with local tribal
    law enforcement and address the problem of gun violence in tribal
    areas. ATF also works closely with tribes in providing training and
    instruction on firearms and gang related issues. This training includes
    information on domestic violence and its impact on firearms possession.
        Furthermore, the Drug Enforcement Administration (DEA) proactively
    investigates significant national and international Drug Trafficking
    Organizations operating in, and within proximity to Indian Country. For
    example, in December of 2008, DEA concluded an investigation on the
    Tohono O'cdham Indian Reservation which resulted in thirty-six arrests,
    seizure of more than six tons of marijuana, eleven pounds of
    methamphetamine, one kilogram of cocaine, $491,000 in U.S. currency,
    and thirteen weapons. The DEA brings a number of investigative
    techniques to its Indian country operations, including the use of
    Title-III wire intercepts.
        While I have detailed the extensive investigative and prosecutorial
    work that the Department is doing in Indian Country, that is not
    intended to suggest that there is not more to be done or that the
    problems facing tribal communities are not enormous. We must do more,
    and the only way we will be successful is if we work in true
    partnership with tribal communities and the states.
        The American Recovery and Reinvestment Act (Recovery Act) is one
    way in which we are doing so. As the Committee is aware, through the
    Recovery Act, the Office of Justice Programs (OJP) will provide $225
    million for correctional facilities on tribal lands. These new
    facilities not only provide needed infrastructure for the criminal
    justice system on tribal lands, but provide additional benefits by
    offering employment opportunities, and by helping inmates' ties with
    family and other community members, which may have a rehabilitative
    effect, and may not be possible when the facilities are further away.
    OJP is also using Recovery Act funds to improve the quality of tribal
    crime data gathering and information sharing. In addition, OJP has
    encouraged tribes to apply for other Recovery Act funding to support
    tribal law enforcement agencies and court systems.
        Together with the U.S. Marshals Service, which assists tribes in
    locating and apprehending sex offenders who fail to comply with their
    sex offender registration requirements, and serves as the lead agency
    responsible for investigating violations of 18 U.S.C. Sec. 2250 and
    related offenses, OJP is also helping Tribes implement the Adam Walsh
    Child Protection and Safety Act. OJP provides, free of charge, access
    to the Tribe and Territory Sex Offender Registry System, which includes
    software that will allow tribes to meet all of the requirements for a
    public sex offender registry. OJP also worked with tribal lawyers to
    develop a Model Tribal Sex Offender Registration Code, which offers
    tribes sample language to help tribes comply with the key provisions of
    the Adam Walsh Act.
        OJP's Bureau of Justice Assistance (BJA) awarded grants to more
    than 100 tribal project grantees for drug courts, tribal courts
    assistance and court enhancements, gang resistance programs, alcohol
    and substance abuse programs, Safe Neighborhoods Initiative, justice
    assistance grants, tribal correctional facilities planning and
    renovation grants. Additionally, BJA provided $2.8 million for targeted
    training and technical assistance grants to support tribal projects,
    for more than $26.7 million.
        OJP's Office of Juvenile Justice and Delinquency Prevention (OJJDP)
    provides training and technical assistance through the Tribal Youth
    Program, the Tribal Juvenile Accountability Discretionary Grant
    Program, the Amber Alert Program and a National Tribal Youth Training
    and Technical Assistance Program. In addition, in FY 2009, OJJDP
    released a solicitation for the Tribal Juvenile Detention and Reentry
    Green Demonstration Program. This program furthers the Department's
    mission by enhancing opportunities for federally recognized tribes to
    provide comprehensive and quality programs for tribal youth who reside
    within or are being released from a tribal juvenile detention center.
    For the first time OJJDP is sponsoring an initiative that encourages
    funding recipients to partner with institutions and organizations to
    incorporate green technologies and environmentally sustainable
    activities as part of their educational, training, and reentry
    activities for youth participants. As part of this effort, OJJDP has
    also released a FY 2009 solicitation for Training and Technical
    Assistance for Tribal Juvenile Detention and Reentry Green Program.
    This program will provide training and technical assistance to help
    federally-recognized tribes reduce delinquency and recidivism among
    tribal juvenile detainees and will assist tribes as they develop
    partnerships with organizations to incorporate green technologies and
    environmentally sustainable activities into their reentry programs.
        OJP's Office for Victims of Crime awarded 47 tribal project grants
    to help develop and sustain crime victim assistance programs in
    American Indian and Alaskan Native communities. These resources are
    used to provide direct services to victims of crimes such as child
    abuse, homicide, elder abuse, driving while intoxicated, and gang
    violence. Additionally, the Office for Victims of Crime provided
    approximately $1.3 million for targeted training and technical
    assistance grants to support tribal projects, totaling over $6.4
    million.
        Finally, OJP's Bureau of Justice Statistics awarded 3 grants with
    over $200,000 for assistance in improving the quality, access, and
    ability of tribes to share criminal records. It also helped enable
    tribes to identify individuals for criminal justice and non-criminal
    justice programs. In addition, the Bureau of Justice Statistics
    provided over $300,000 for targeted training and technical assistance
    grants to support tribal projects, totaling more than $550,000
        The Department acknowledges that more needs to be done. More
    resources, more research, and more training will help. Some
    jurisdictional provisions should be re-examined, and perhaps modified
    to allow greater law enforcement options in Indian country. The Tribal
    Law and Order Act of 2009 takes meaningful steps towards enhancing
    public safety for Native Americans and we look forward to working with
    the Committee to improve this legislation and help achieve that goal.
    With those thoughts in mind, I would like to address several specific
    provisions of the bill.
        Section 101(c) would allow the Secretary of Interior to authorize
    BIA law enforcement officers to make arrests without a warrant for
    offenses committed in Indian Country if ``the offense is a Federal
    crime and [the officer] has reasonable grounds to believe that the
    person to be arrested has committed, or is committing, the crime.''
    Currently, BIA officers without a warrant are not authorized to arrest
    persons for Indian Country offenses that are not committed in their
    presence, unless the offense is a felony, or among certain misdemeanors
    involving domestic violence, dating violence, stalking, or the
    violation of a protective order. The Department would support
    increasing the categories of misdemeanors for which a warrantless
    arrest may be authorized by BIA officers when the offense is committed
    outside their presence. In particular, we support expanding BIA's
    warrantless arrest authority for misdemeanor controlled substances
    offenses, in violation of Title 21, U.S. Code, Chapter 13; misdemeanor
    firearms offenses, in violation of Title 18, U.S. Code, Chapter 44;
    misdemeanor assaults, in violation of Title 18, U.S. Code, Chapter 7;
    and misdemeanor liquor trafficking offenses, in violation of Title 18
    U.S. Code, Chapter 59. We do not support expanding BIA's warrantless
    arrest authority to encompass all ``Federal crimes'' committed in
    Indian Country, but outside the officer's presence. For minor offenses
    not involving a measureable risk to public safety, the Department
    believes an arrest warrant should be obtained.
        The Department also recommends that the standard for a warrantless
    arrest contained in 25 U.S.C. Sec. 2803(3) be modified to more closely
    track U.S. Supreme Court precedent. Currently, the statute requires
    that an officer possess ``reasonable grounds'' to believe that the
    person to be arrested committed the offense. We suggest that the
    officer should be required to possess ``probable cause'' to believe
    that the person to be arrested committed the offense. See Atwater v.
    City of Lago Vista, 532 U.S. 318 (2001).
        Section 102 requires that, when a federal law enforcement agency or
    a U.S. Attorney decides not to pursue an investigation or prosecution
    of an alleged violation of federal law committed in Indian Country, the
    agency and/or the U.S. Attorney provide its ``evidence,'' and ``related
    reports'' to ``appropriate tribal justice officials.'' For U.S.
    Attorneys, the obligation must be complied with ``sufficiently in
    advance of the tribal statute of limitations.'' The apparent intent is
    to allow tribal authorities to pursue the case in tribal court, should
    they choose to do so. It appears that the section is also intended to
    address the perception that U.S. Attorneys decline Indian country cases
    that should be prosecuted.
        The Department is both mindful of and attentive to the fact that
    certain cases may be more appropriately pursued in tribal court; or in
    some cases in both federal and tribal court. To that end, federal
    authorities routinely coordinate and cooperate with tribal authorities
    to ensure that, subject to applicable rules and regulations, any other
    jurisdiction with prosecution authority has the information and
    evidence it needs to pursue its case. The Department therefore believes
    that section 102 is designed to fix a problem--a perceived lack of
    federal, state, and tribal law enforcement coordination--that is
    atypical.
        However, to the extent there are instances in which coordination is
    lacking, this is not a problem that will be cured through legislative
    mandates. Only through the development of improved information sharing
    and strengthened intergovernmental relationships will we successfully
    address this issue. Likewise, we believe that the perception that U.S.
    Attorneys decline meritorious criminal cases is in general a
    misperception. Again, only by building improved lines of communication
    between federal and tribal law enforcement, as well as tribal
    communities, will these misperceptions be addressed.
        The Department is committed to improving communication between
    federal and tribal law enforcement and, more generally, is actively
    focused on criminal justice in Indian country. In the coming months we
    will work closely and collaboratively with tribal law enforcement to
    improve the exchange of information. While Section 102 is intended to
    address declination issues, the Department believes that the best
    solutions will come through discussions and communication between the
    parties. We are concerned that any solution that does not involve
    meaningful collaboration between the parties will, in the final
    analysis, not really address the issue. The leadership of the
    Department would like the opportunity to work through this issue with
    tribal leadership before we endorse legislation. To that end, we oppose
    section 102 at this time.
        Conversely, the Department is fully supportive of section 103(a),
    which will clarify that the categories of persons who can be appointed
    by the Attorney General to serve as Special Assistant U.S. Attorneys
    (SAUSAs) include tribal prosecutors. The Department has relied upon the
    assistance of SAUSAs employed by other federal agencies and state and
    local governments for decades in meeting its obligation to enforce
    federal criminal law. Clarifying that the pool should include tribal
    prosecutors is warranted. We know that many tribal prosecutors possess
    enough talent and experience to be valuable additions to the resources
    we can draw upon to prosecute Indian country crime. We also agree that
    before exercising this authority the Department should consult with
    tribal justice officials. While the Attorney General must retain the
    ultimate authority to decide who will represent the United States in
    court, it is inconceivable to me that a tribal prosecutor would be
    appointed as a SAUSA without the consent of the tribe with which he or
    she is otherwise employed.
        Section 103(b) addresses the use of tribal liaisons by U.S.
    Attorney's Offices with responsibility for Indian Country. This section
    would codify the duties and responsibilities of tribal liaisons, but it
    does so in a manner that fails to acknowledge or accommodate the
    diversity of tribes, issues, and resources that exist across the
    districts that work in Indian Country.
        As the Committee knows, tribal liaisons are Assistant United States
    Attorneys (AUSAs) who, in addition to prosecuting cases, are also
    responsible for coordinating Indian Country relations within a
    district. The Department fully recognizes the importance of tribal
    liaisons and currently has 44 tribal liaisons in districts with some
    Indian Country within their jurisdictions. Tribal liaisons have been
    effectively serving U.S. Attorney's Offices since we began designating
    them 1995.
        The key to successfully using tribal liaisons, however, is to
    recognize that one size does not fit all. While each tribal liaison may
    be an expert in Indian Country issues, those issues can vary greatly
    from tribe to tribe, and from district to district. Some districts may
    deal with only one tribe; others will be responsible for many. Some
    tribes have fewer than 200 members; others will have more than 100,000.
    Some districts contain vast amounts of Indian Country, others have
    relatively little. In some districts Indian gaming is prolific; in
    others it may be insignificant. Some districts have a multitude of
    AUSAs with substantial Indian Country experience; others may have few,
    or just one. These multiple layers of diversity make nationwide
    codification of the duties of tribal liaisons counterproductive, by
    reducing the discretion that each U.S. Attorney's Office must have to
    best serve the Indian community(s) in their districts. It is important
    to note that while the Tribal Liaisons are collectively the most
    experienced prosecutors of crimes in Indian Country, they are not the
    only AUSAs doing these prosecutions. The sheer volume of cases from
    Indian Country requires these prosecutions in most USAOs to be
    distributed among numerous AUSAs.
        The Department believes that each individual district is in the
    best position to evaluate the challenges presented by Indian Country
    crime within the district, the backgrounds, talents, and experiences of
    its AUSAs, and how the latter should best be employed to meet the
    former. It is essential that U.S. Attorneys maintain this discretion in
    tailoring the role and scope of the tribal liaison program in their
    districts, and the Department is therefore opposed to section 103(b).
    However, we do agree with the sentiment expressed in section 103(c)
    that the performance of tribal liaisons should be evaluated fairly on
    the full scope of their assigned duties, including those duties that
    are not case-related. We also support section 103(d), which encourages
    U.S. Attorneys to rely upon SAUSAs to provide enhanced attention to
    minor crimes occurring in Indian Country. The Department notes,
    however, that focusing these efforts in districts where ``declination
    rates'' exceed the national average is not a viable measuring stick. As
    we have conveyed to the Committee in the past, reliable statistics
    about ``declination rates'' in the federal system are unknown and
    realistically unknowable. The decision-making process that can result
    in an Indian Country case not being accepted for federal prosecution is
    too complex and individualized to produce meaningful comparative
    statistics.
        Section 104 of the Tribal Law and Order Act of 2009 is focused on
    reorganizing the Department's approach to managing its Indian Country
    responsibilities in Washington. Section 104(a) would direct the
    Attorney General to establish the Office of Tribal Justice (OTJ) as a
    ``permanent division'' within the Department, with specific assigned
    responsibilities. Section 104(b) would create the Office of Indian
    Country Crime within the Criminal Division of the Department.
        OTJ, which has been recognized in statute (25 U.S.C. 3653(6)), has
    functioned for some time with staff detailed to it by other components
    of the Department. We understand Section 104(a) as an effort to give
    prominence to OTJ by making it a separate component of the Department.
    The Department strongly supports Section 104(a) with some modification.
    First, OTJ should remain an ``office'' within the Department, not a
    ``division.'' Divisions within the Department are generally large
    litigating components. Instead, OTJ--like the Office of Legal Counsel
    or the Office of Legal Policy--should remain an ``Office.''
        Second, because OTJ exists in statute, the Department recommends
    that Section 104(a) direct that the Attorney General establish OTJ as a
    separate component. That would have the effect of placing it on the
    Department's organizational chart and giving it greater prominence.
    This may be accomplished by amending the directive in proposed
    Subsection 106(a) (the provision to be inserted into the Indian and
    Tribal Justice Technical and Legal Assistance Act of 2000) to read:
    ``the Attorney General shall establish the Office of Tribal Justice as
    a component within the Department.''
        Third, the Department recommends striking Subsection 106(b) (of the
    provision to be inserted) which addresses personnel and funding. The
    Department will continue the current personnel and funding arrangements
    until appropriations are provided.
        Finally, the duties identified in Subsection 106(c) (of the
    provision to be inserted) reflect what are currently OTJ's core
    functions. Accordingly, the Department recommends that the heading of
    this Subsection be changed from ``Additional Duties'' to ``Duties of
    the Office of Tribal Justice.'' In addition, the opening paragraph of
    proposed Subsection 104(c) should be replaced with ``The Office of
    Tribal Justice shall--''
        With the above modifications, the Department actively supports
    Section 104(a). OTJ has been effectively serving Indian Country for
    many years. OTJ was established to provide a single point of contact
    within the Department of Justice for meeting the broad and complex
    Department responsibilities related to Indian tribes. The Office
    facilitates coordination between Departmental components working on
    Indian issues, and provides a constant channel of communication for
    Indian tribal governments with the Department. The Department agrees
    that it is time to recognize OTJ as a critical and permanent entity
    within DOJ.
        We oppose, however, the creation of an Office of Indian Country
    Crime in the Criminal Division at the Department of Justice.
    Transferring resources would not make a measureable contribution to
    addressing the very real problems that the Committee is trying to deal
    with by this legislation. Those problems occur on the ground, in the
    districts containing Indian Country, and that, we believe, is where the
    focus of effort should be.
        Instead, creating an Office of Indian Country Crime in Washington
    could have the practical effect of weakening the Department's efforts
    to combat violent crime in Indian Country, not strengthening them.
    Foremost, creation of an Office of Indian Country Crime in the Criminal
    Division would take valued criminal justice resources away from the
    field, where they are needed most. Currently, a large majority of the
    Department's most experienced Indian Country professionals serve in
    Indian Country, where their expertise has the greatest impact. Bringing
    some number of those persons to DOJ headquarters will produce an
    experience gap in the field.
        Existing structures in the Department are more than sufficient to
    address Indian Country issues. In the fall of 2008, EOUSA created a
    permanent Attorney Advisor position titled Native American Issues
    Coordinator. The Coordinator was placed within EOUSA's Legal
    Initiatives Staff and serves as a principal legal advisor on all
    matters pertaining to Native American issues, among other law
    enforcement program areas; provides management support to the United
    States Attorneys' Offices (USAOs); and coordinates and facilitates the
    resolution of important legal issues. In addition, the Attorney
    General's Advisory Committee (AGAC), Native American Issues
    Subcommittee (NAIS), is a powerful voice for the U.S. Attorneys'
    community on all matters having to do with Indian Country, especially
    Indian Country crime. The NAIS is the longest-tenured subcommittee of
    the AGAC, and one of its most active. It consists of U.S. Attorneys
    whose districts include significant amounts of Indian Country, and it
    regularly holds meetings in Indian Country. The NAIS has historically
    dealt with the most pressing issues facing Indian Country, and often
    produces well thought out policy recommendations based upon what works
    in the field.
        We support Title II of the Tribal Law and Order Act of 2009, but
    would like to work with the Committee to ensure that section 201
    accomplishes its intended purpose. We understand that section 201 is
    intended to streamline the process by which tribes with land located in
    Public Law 280 states may retrocede concurrent criminal jurisdiction to
    the Federal Government. We support the concept, but are concerned with
    two aspects of section 201 as drafted.
        We are concerned that section 201 may inadvertently and
    automatically retrocede criminal jurisdiction to the United States in
    all P.L. 280 states upon enactment. We believe that was not the
    drafter's intent, and minor changes to the wording will remove any
    ambiguity. We are also concerned, however, that section 201 requires
    that tribes consult with the Attorney General before effecting a
    retrocession, but does not expressly require the Attorney General's
    consent. To ensure an orderly and methodical transition, the Attorney
    General must be allowed to determine the circumstances under which
    concurrent jurisdiction will be accepted. This is particularly
    important because federal criminal law cannot be enforced adequately
    without dedicating resources to that effort.
        Investigators, prosecutors, staff, and judicial resources are all
    necessary to the enforcement of federal criminal law. The Attorney
    General should be allowed to ensure that sufficient assets are
    available before having new enforcement responsibilities thrust upon
    the Department.
        Section 202 authorizes monetary incentives for enhanced cooperation
    between state, local and tribal governments to improve law enforcement
    effectiveness and reduce crime, both in Indian Country and in nearby
    communities. The Department is fully supportive of this initiative, and
    believes it holds great promise.
        Title III of the Tribal Law and Order Act of 2009 is directed at
    increasing a tribe's ability to respond to Indian Country crime. The
    Department supports those provisions of Title III that are directed at
    improving the quality, resources, training, and competence of tribal
    law enforcement professionals.
        Section 303 seeks to grant qualified tribal police officers access
    to national criminal databases. The FBI's Criminal Justice Information
    Services Division (CJIS) has long recognized tribal law enforcement
    agencies as qualified criminal justice agencies and has consequently
    assigned Originating Agency Identifier (ORI) numbers to tribal law
    enforcement agencies upon request. The ORI enables access to the
    National Crime Information Center (NCIC), which includes the ability to
    both view data and input data.
        The Department supports efforts to increase tribal access to NCIC,
    and believes such efforts are critical for public safety. The
    Department, however, requests the following modification to Section
    303(b) to insure that the provision is not interpreted to impose an
    affirmative, mandatory duty on the Attorney General to provide each
    tribe seeking to access the NCIC with the technical resources the tribe
    would need to do so: that Section 303(b)(1) be revised with the
    language used in Section 303(a), to read, ``The Attorney General shall
    ensure that tribal law enforcement officials that meet applicable
    Federal or State requirements be permitted access to national crime
    information databases.'' Section 304 increases the authority of tribal
    courts to sentence offenders to up to three years in prison (the
    current limit is one year), and authorizes tribal courts to direct that
    defendants convicted in tribal court serve their sentences in federal
    prisons. These provisions are significant changes to the status quo.
        The Department further notes that increasing the maximum tribal
    court prison sentence to three years may invite greater scrutiny if
    those convictions are challenged in federal court, unless indigent
    defendants are provided with counsel. As drafted, section 304 would
    prohibit tribes from denying defendants the assistance of counsel, but
    does not provide for such assistance if the defendant is unable to
    afford counsel.
        Moreover, the Department opposes section 304(a) to the extent it
    would permit tribal courts to direct that offenders convicted by tribal
    courts serve their sentences in federal prisons. The Bureau of Prisons
    (BOP) is responsible for the incarceration of inmates who have been
    sentenced to imprisonment for federal crimes. Based on continuing
    federal law enforcement efforts and limited resources for construction
    of new institutions, federal prisons continue to be overcrowded.
    System-wide, BOP is operating at 37 percent above its capacity, and it
    does not expect crowding to decrease substantially in the next few
    years. Crowding is especially significant at high-security institutions
    (operating at 49 percent above capacity) and medium security
    institutions (operating at 48 percent above capacity), where the
    majority of violent offenders are confined.
        Moreover, based on the location of BOP institutions and Federal
    inmate population pressures, confining tribal offenders in BOP
    facilities would frequently mean that such offenders would be confined
    at least several hundred miles, if not more than a thousand miles from
    their communities. For purposes of maintaining family ties, and to
    effect an optimal reentry back into the community after release, the
    Department believes that the incarceration of tribal court offenders is
    best handled by tribal detention centers or correctional facilities.
    The Department understands that the quantity and quality of existing
    tribal detention and correctional facilities are inadequate. Even so,
    the answer is to improve those facilities, not send tribal offenders to
    BOP facilities that are experiencing such significant crowding. As
    previously noted, the Recovery Act provided $225 million for the
    construction and renovation of tribal correction and detention
    facilities. Grant applications for that money have already been
    received by the Office of Justice Programs and award decisions should
    be forthcoming. The Department believes that this money will go a long
    way towards rectifying existing shortfalls in tribal facilities.
        The Department is generally supportive of Titles IV, V and VI of
    the legislation, which focus on monetary and non-monetary assistance to
    tribal law enforcement agencies, improving the manner in which Indian
    Country crime is reported and tracked, and prisoner release and reentry
    issues. The Department has mostly technical concerns about these
    provisions, which are identified in our June_, 2009 letter. However,
    the obligations imposed upon the BOP by section 601 with respect to
    sex-offender registration are both impractical and inconsistent with
    SORNA, the law that imposes registration obligations for offenders.
    Because we believe that the existing system works well, and will work
    well with offenders being released to tribal communities, section 601
    should be amended to be consistent with SORNA.
        Section 603 provides that the Director of Indian Health Services
    and the Director of the BIA's Office of Justice Services must approve
    or disapprove, in writing, any request or subpoena of their employees
    to provide testimony in a deposition, trial, or other similar
    proceeding regarding the performance of their duties. This provision,
    which fails to distinguish between requests or subpoenas for testimony
    in federal court, or in cases where the United States is a party, is
    too broad. It would treat these employees differently than their
    counterparts in other federal agencies, is likely to conflict with
    existing agency regulations, and could hamper the federal prosecution
    of sexual assault cases arising in Indian Country. We recommend that
    this provision be limited to subpoenas or requests for employee
    testimony arising in or from cases pending in tribal courts.
    Additionally, we note that HHS has concerns about this provision and we
    understand will be communicating those separately.
    Conclusion
        Chairman Dorgan, Vice Chair Barrasso, this concludes my statement.
    While the Department has a variety of significant concerns with the
    legislation that is pending before this Committee, we share the
    Committee's ultimate goal of increasing public safety in Indian
    Country. We look forward to working with the Committee in order to
    address our concerns and achieve that goal.
        I will be happy to attempt to answer any questions you may have.

        The Chairman. Mr. Perrelli, thank you very much. And please
    thank Attorney General Holder for us as well.
        Secretary Larry Echo Hawk, as I indicated when we moved
    your nomination to this Committee, I think your background
    serves you well in addressing some of these issues, especially
    this issue of tribal justice. We are pleased you are here, and
    pleased Mr. Ragsdale is here. And why don't you proceed?

     STATEMENT OF LARRY ECHO HAWK, ASSISTANT SECRETARY FOR INDIAN
      AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY W.
                       PATRICK RAGSDALE, DEPUTY
                  DIRECTOR, OFFICE OF JUSTICE SERVICES

        Mr. Echo Hawk. Thank you, Mr. Chairman and Committee
    members.
        Mr. Chairman, when you in your opening remarks talked about
    a person standing in a river facing floodwaters, that resonated
    with me. I have been on the job less than a month as Assistant
    Secretary, and I had an expectation that there would be a lot
    of critical business coming my way, but I think I
    underestimated the force of those issues.
        Nevertheless, I greatly appreciate the opportunity to
    participate in things that really make a difference in the
    lives of people living in Indian Country. At my confirmation
    hearing, I recall that I was asked to identify my top
    priorities, and I spoke of education and jobs, but also placed
    special emphasis on public safety in Indian Country.
        And besides me stating that was a high priority, on my
    first day on the job I was called into Secretary Salazar's
    office and he proceeded to outline his goals and vision of what
    he would like to accomplish, along with President Obama in
    making a difference for people living in Indian Country. Right
    at the top of the agenda was criminal law enforcement.
        So I applaud the sponsors of the Tribal Law and Order Act.
    S. 797 it is a good bill and I strongly support it. I am quite
    aware, as Mr. Chairman pointed out, that numerous hearings have
    been held. A lengthy bill has been crafted, so this effort is
    underway, and I would simply say that I am glad to join the
    fight against the crime and violence that is occurring within
    Indian Country.
        In particular, my highest priority would be safeguarding
    vulnerable victims, women and children. I have an extensive
    background in the area of criminal law enforcement. I started
    out being a defense lawyer in Federal court, taking court
    appointments to represent indigent Indian people charged with
    major crimes.
        I served as the tribal attorney for Idaho's largest tribe
    for nine years. I had the experience of serving as the state
    prosecuting attorney in Idaho's fourth largest county, and a
    part of my jurisdiction included reservation communities. For
    the last 14 years, I have taught criminal law, criminal
    procedure and Federal Indian law. I have been involved in
    training tribal judges, prosecutors and defenders.
        And so I welcome this opportunity to be a contributor in
    this important matter. I want to emphasize that in this breadth
    of experience that I have had, I learned some things. One of
    the things I learned in this process was the importance of
    intergovernmental partnerships. That applies in a lot of issue
    areas, but it is particularly critical for what we talk about
    today because this is very complex law, jurisdictional law,
    with various parties that have responsibilities. In order for
    us to succeed, it requires communication, cooperation and
    collaboration.
        And in that statement, I wanted to particularly voice my
    commitment to tribal consultation. These are the people that
    are the major interest holders. They had promises given by the
    United States of America that their lands, their communities
    that they maintain today would be their permanent homelands,
    and those communities need to be protected. Tribes need to be
    empowered to expand their criminal law enforcement authority
    and to be given the resources to be able to meet that
    responsibility.
        So I simply emphasize that when the Federal Government of
    the United States made the decision to become involved in
    criminal law enforcement back in 1885, that with that authority
    came the responsibility. And it is a very important
    responsibility and one that calls for collaboration that will
    assure the safety of these communities.
        I welcome the opportunity to participate in marshaling the
    resources of the Federal Government to partner with tribes to
    make a difference in the lives of people.
        Thank you, Chairman.
        [The prepared statement of Mr. Echo Hawk follows:]

     Prepared Statement of Larry Echo Hawk, Assistant Secretary for Indian
                    Affairs, U.S. Department of the Interior

        The Chairman. Secretary Echo Hawk, thank you very much for
    your testimony. We would like to inquire of you and Mr.
    Perrelli.
        Mr. Perrelli, we will hear from a witness in the second
    panel, former U.S. Attorney from Colorado, Mr. Eid, a U.S.
    Attorney whose work I have watched over the last couple of
    years and admired greatly, working on these justice issues. And
    Mr. Eid will testify on the issue of declination, how
    maintaining the data we are talking about should really be part
    of the job.
        Last year, we heard from Mr. Tom Heffelfinger, the former
    U.S. Attorney for Minnesota. He is someone who testified that
    he had a bad report from the Department of Justice because they
    felt he was spending too much time on Indian issues. He
    testified that he felt that keeping data on declinations and
    reports would be a common part of doing business.
        I still am not quite sure why you would not fully support
    the provision we have in this legislation on declination.
        Mr. Perrelli. Well, I think, Senator, and I think this is
    actually echoed by Mr. Eid's testimony, the key question is,
    ``what does the declination rate indicate about the commitment
    of Federal law enforcement to prosecution of crime in Indian
    Country? '' There are many different reasons for a declination
    to occur, including a crime may not have been committed,
    another prosecutor may have prosecuted the case, or
    difficulties with the evidence.
        So I think what we have been concerned about principally is
    that we don't believe that it measures what it is often thought
    to measure.
        That being said, I read the last two hearings before this
    Committee, and I very much understand the frustration and the
    concern about keeping statistics as part of what we should be
    doing at the Justice Department. And if we have statistics that
    we don't think are meaningful, maybe we should come forward
    with something we think is better.
        We are engaged in trying to figure out if there are better
    ways to keep track of information that will hopefully provide a
    better picture of what the Department is doing in Indian
    Country. I think we want to work through that process over the
    next several months, and I think we would prefer not to have a
    statutory mandate on that point at this time.
        The Chairman. Let me ask you about the issue of
    transferring prisoners from tribes, convicted in tribal courts,
    to the nearest Bureau of Prisons facility. I understand you
    have some concerns about that. You indicate that the Bureau of
    Prisons is for federally convicted prisoners. They are
    overcrowded now and the facilities are far from reservations.
        But when we talk about violent criminals, rapists,
    murderers and so on, the most violent offenders that fall
    through the cracks in this system of justice on reservations,
    the Bureau of Indian Affairs has testified on several occasions
    that tribal jails simply aren't equipped to handle these kinds
    of serious offenders. Your response?
        It seems to me that we have a requirement to do one or the
    other. That is, we have a trust responsibility for meeting
    these obligations. We either need to fund the detention
    facilities that can handle them, or make available the Federal
    facilities, the Bureau of Prisons facilities.
        Mr. Perrelli. A couple of points on that Senator, and I
    think the Department of Justice's preference is to fund the
    tribal facilities. I will explain why.
        With respect to the most violent offenders who are
    federally prosecuted in Federal court, those offenders will end
    up in a Federal prison. So what I think we are talking about is
    those individuals who are prosecuted in tribal court and there
    is tribal court jurisdiction and the tribal court actually
    metes out the sentence.
        It has been our view, and I think echoing maybe something
    that Senator Tester said before, that we need to address this
    in a way that makes sense for Indian Country. It has been our
    view that building capacity, building those detention
    facilities in Indian Country, is a better way to do it, because
    you will have the opportunity not only, in most circumstances,
    to be closer to home, but also to come up with the types of
    programs that will really recognize and reflect the unique
    nature of different tribal communities.
        The Chairman. Secretary Echo Hawk, I want to use the
    Standing Rock Indian Reservation as a microcosm of the set of
    issues here. I mentioned before, I think this Indian
    reservation in North and South Dakota is something close,
    perhaps, to the State of Connecticut in size, and they have 11
    full-time law enforcement officers. And it is the case that if
    you are way out in the remote area of the reservation and there
    is a violent crime occurring and you find a telephone line and
    you call, it may very well be the case that it is six hours
    before somebody gets to you, if they get to you that day.
        So Mr. Ragsdale put together a plan called Dakota
    Peacemaker, North and South Dakota, on the reservation. Move in
    I think 15 or so law enforcement officers, 25, but they are now
    gone, and what I want to ask you about is that was helpful to
    do. It dramatically reduced crime on that reservation which
    was, by the way, five times the rate of crime nationally. So
    not double or triple or quadruple the rate of violent crime
    nationally, but five times, a very bad situation for public
    safety.
        So those folks came in. I appreciate that, but now they are
    gone. And so the question is, what next? We can pass our tribal
    bill here today or this month or this year, but what about on
    the ground, the resources necessary? How do we find those
    resources? And how do you make sure that you have them
    apportioned?
        Mr. Echo Hawk. Well, first of all, Mr. Chairman, let me
    just say that I think the highest priority for extending
    resources is those communities that have the most serious crime
    problems, and I think that is what led to the Operation
    Peacekeeper. And if necessary, you know, we need to do similar
    things in other critical areas, but in the long term it seems
    reasonable that what we need to do is to make sure that all
    communities are protected, and that requires one of the most
    important components will be law enforcement officers on the
    ground, ready, available, 24/7 to be able to meet their
    responsibilities.
        And one of the things that I have been confronted with in
    my first month on the job is the reality that even though there
    may be money available, we still cannot recruit the people that
    will meet the standards to serve as law enforcement officers or
    detention officers. And this is something that we are giving
    immediate attention to to see if we can be creative and
    innovative to make sure that we are able to hire police
    officers and detention officers.
        Of course, it is always a resource issue. We are talking
    about dollars that need to be appropriated to give this kind of
    support. But we are on task to try to do something about this.
        The Chairman. Mr. Ragsdale?
        Mr. Ragsdale. Well, I would agree with my Assistant
    Secretary. With respect to Standing Rock, we increased the
    full-time authorized policing officers at Standing Rock by 12.
    We have bolstered their standing police department, but
    unfortunately we are not up to the 25 or 27 authorized
    positions. We have been successful in hiring several. When
    several of our selected persons came out to the reservation and
    reviewed family housing and facilities and so forth, they
    declined after they had actually been approved.
        So in addition to what the Assistant Secretary is talking
    about, we are trying to bolster our recruiting. We have hired a
    professional contractor to help us recruit and prepare people
    for the regimens of the academy life. They go to the Indian
    Police Academy or a State academy.
        We are looking at housing. We have some modest funding
    proposals that, depending on what our appropriations are in the
    future, will bolster housing selectively for police and public
    safety personnel. We are also trying to see whether or not we
    can streamline the process for bringing somebody on board as a
    Federal employee, which is relatively cumbersome, plus getting
    the security clearances done.
        The Chairman. But isn't it really--my colleagues need to
    ask questions and I will call on Senator Barrasso next--isn't
    it really the case that we are chasing our tails here? I mean,
    you have a police academy in New Mexico. I think you take 150
    people a year, roughly; 75 wash out. You actually graduate
    about half of the class. And we are desperately short. And it
    is not so much what your intentions are. It is what you
    accomplish or what we accomplish in terms of on the ground on
    the Standing Rock Reservation. I just use that as a metaphor
    for all reservations.
        If you are there this afternoon and someone is committing a
    violent crime today, the fact that we are trying hard is pretty
    irrelevant in terms of your ability to go find a law
    enforcement officer to come and help you.
        And so, we have 11 people to do 24/7 on an Indian
    reservation the size of Connecticut, that is totally
    inappropriate. And you know, the fact is it hasn't changed and
    it is not going to change until we just decide that we are not
    going to observe about it or make excuses for it. One way or
    another, this Country either meets its obligation or it
    doesn't. And the fact is, now it is not. And we don't have a
    plan.
        You know, it is your plate, of course, I mean that is the
    role you signed up for, but we don't have a plan at this point
    at the BIA or Justice to do what we should do to put those
    folks on the beat to provide public safety.
        And I will just mention one additional thing for the
    record. We have approved 57 additional FBI agents in the last
    decade, 57 additional FBI agents designated for Indian Country
    to deal with criminal justice issues in Indian Country. But in
    the time when we have designated 57 new agents, there are only
    14 new FBI agents on the beat in Indian Country. What happened
    to the other 43?
        Mr. Perrelli, would you, along with Eric Holder and the
    head of the FBI give us a detailed description of where the
    other FBI agents are? There are 43 of them that we designated
    for Indian tribal justice and they are not there. And I will
    put this in formal writing to you. But again, let me just say
    your statements recently have been very welcome with this
    Committee because you say you are going to pay a lot of
    attention to this because you care a lot about it. You didn't
    do that in response to me. I read it in the newspaper, so I
    thought that is welcome news for all of us.
        I appreciate all of you being here today.
        Let me call on Vice Chairman Barrasso.

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

        Senator Barrasso. Well, thank you very much, Mr. Chairman.
        I very much appreciate the line of your questioning and the
    thoughts here, and I agree, it is time for us to take action.
    For far too long, violent crime and drug distribution and
    severe understaffing have plagued Indian Country. The tribes in
    my home State in Wyoming, the Eastern Shoshone and the Northern
    Arapaho face these exact same problems that you have been
    talking about, Mr. Chairman.
        According to the BIA's 2008 crime report, the Wind River
    Reservation in Wyoming had a crime rate that was three and a
    half times the national average. The same report indicates that
    an additional 22 law enforcement officers are needed to meet
    the community's needs. It is the same thing you talked about in
    your community, and I am sure it is the same thing that others
    are going to talk about on this panel.
        Just last month, I met with the Joint Tribal Business
    Council of these two tribes. Chairman Posey of the Eastern
    Shoshone Tribe identified BIA law enforcement staffing levels
    as their number one concern, their top concern. He told me the
    staffing shortage is taking a toll on the existing police
    offices who are currently working on the reservation.
        I have highlighted this understaffing problem time and
    again in the hearings before this Committee. And while all of
    us have received assurances from both the Secretary and the
    Assistant Secretary that they would look into these problems, I
    have yet to see an increase in the staffing levels on the Wind
    River Reservation in Wyoming.
        So at a hearing earlier this year, Secretary Salazar
    testified that he planned to address several key problems
    relating to law enforcement in Indian Country, including
    violent crime rates and staffing for detention facilities. So
    here we are again.
        We all know that you can't have public safety in a
    community that lacks a sufficient law enforcement presence. In
    previous hearings, I pointed out that law enforcement personnel
    shortages is a chronic problem. This is not something that is
    new. I have asked the Secretary to look into this and I am
    asking you as well. Yet, there are still law enforcement
    shortages and vacancies on the reservation. Senator Dorgan's
    staff came with me to Wyoming. My own staff was there, the
    staff of the Indian Affairs Committee, both sides of the aisle
    represented. We all saw the same thing.
        So my question to you is: What can you do today to address
    the law enforcement personnel shortages on the Wind River
    Indian Reservation?
        Mr. Echo Hawk. Senator Barrasso, as I already testified,
    you know, my first day on the job this was the subject that
    Secretary Salazar raised with me in very strong terms and gave
    me my marching orders. Since then, we have had meetings
    addressing criminal law enforcement and staffing has been, you
    know, at the top of that agenda.
        I talked in my opening statement about the importance of
    collaboration with the Justice Department and that is in the
    works. Attorney General Holder and Secretary Salazar have
    spoken. We look forward to something very concrete occurring in
    the near future that will bring Justice and Interior together
    to cooperate, communicate, and collaborate to address these
    issues.
        And certainly the message is clear here today that staffing
    of police officers and detention officers is a high priority.
        Senator Barrasso. I want to commend the Chairman. He and I
    are going to work together in a bipartisan way. I think every
    time you visit with us, we are going to ask about this, and we
    are going to continue to expect positive efforts to accomplish
    these goals.
        Another issue I wanted to ask about was enhanced sentencing
    authority. The Wind River Reservation is by no means alone in
    having high rates of violent crime. One thing that the
    introduced bill would do would be to raise the minimum
    sentencing authority of tribes that is currently at one year to
    three years.
        Last year, the Department expressed constitutional concerns
    about this aspect of the bill. Would you please both elaborate
    on those constitutional concerns and how Indian tribes might be
    able to overcome them?
        Mr. Perrelli. I am happy to speak first on that. I think
    our focus has been ensuring that if such a bill is enacted, the
    appropriate measures are in place to ensure that there is
    adequate due process. A concern we certainly have is that if
    there are insufficient funds for defense counsel, if there are
    procedures in place that wouldn't satisfy the Due Process
    Clause, there will be collateral challenges of tribal court
    convictions in Federal court.
        So I think we have moved a little bit and want to focus on
    what we need to do in terms of building tribal capacity, tribal
    court capacity and tribal justice system capacity so that this
    kind of extension will be possible.
        Senator Barrasso. Mr. Echo Hawk, anything you want to add?
        Mr. Echo Hawk. Yes, thank you, Senator Barrasso. I feel
    very strongly, as I said in my opening comments, that we need
    to further empower tribal governments to address these criminal
    law enforcement problems. And part of that is increasing their
    authorities. I strongly support this provision. And yes, there
    are legitimate due process concerns.
        Criminal defendants who cannot afford legal representation
    under constitutional law interpretation are entitled to court-
    appointed lawyers. And I support that provision that says that
    you cannot prosecute to imprison someone for three years if
    they have not had legal assistance. I think that is important
    and necessary.
        I believe that if tribes want to enforce this kind of
    heavier penalty, the courts are going to require that
    competent, well-trained judges. In this instance, you know, it
    is saying in the bill, as I recall, lawyer-trained judges must
    be available to hear the case. And I think that meets the due
    process concerns.
        In addition, I believe there are tribal courts that do not
    have presently well-developed appellate systems. I believe that
    the courts are going to require that that be the case. That has
    to be addressed to make sure that a person that is charged and
    convicted of one of these crimes where they are going to face
    possible three-year imprisonment has these due process
    protections.
        The Indian Civil Rights Act has a very express remedy, and
    that is Federal court review. So if tribes are deficient in
    this regard, there will be Federal court examination.
        Senator Barrasso. Thank you very much, Mr. Echo Hawk.
        Thank you, Mr. Perrelli.
        Thank you, Mr. Chairman.
        The Chairman. Senator Tester?
        Senator Tester. Thank you, Mr. Chairman.
        Mr. Perrelli, the Chairman put up a chart of declination
    rates and you had addressed that in your comments. What is the
    U.S. Attorneys' declination rate outside of Indian Country? And
    I am not talking about as it applies to Native Americans, as it
    applies to folks other than natives.
        Mr. Perrelli. I actually don't have that number. I would
    imagine it would be different because of the differences in
    jurisdiction, but it might be interesting to look at a
    jurisdiction with more on violent crime than many of the
    Federal districts have.
        Senator Tester. It occurs to me, and I appreciate your
    comments about your commitment to the problem, but one of the
    things you said in your statement was that the declination rate
    does not adequately reflect the Department's commitment; that
    there is a perception problem.
        I think it is more than perception. It is reality. And this
    is just a little newspaper that the University of Montana put
    out with half a dozen stories on six of the seven reservations,
    story after story about how crimes are committed and there was
    no action brought and how the families pushed and pushed and
    pushed and pushed, no actions being brought. And these vary
    from murders to repeated beatings, the list goes on and on.
        And so it brings me to the question, is punishment viewed
    by the Department as a deterrent to crime?
        Mr. Perrelli. Yes, it is.
        Senator Tester. So if the crimes go unpunished, how can we
    ever get a handle on this?
        Mr. Perrelli. In terms of talking about a perception
    problem, I did not mean to suggest that there is not a
    tremendous amount of unaddressed crime in Indian Country. The
    perception that I was focused on was the perception that U.S.
    Attorneys are refusing to work in Indian Country or choosing to
    let cases go that they think they can make in court, simply
    because they haven't been told to focus on it or there aren't
    sufficient resources.
        And I know there has been testimony in this committee
    before that U.S. Attorneys have not been given the right
    incentives in this regard. To the extent that that perception
    is out there, that needs to be changed and we intend to change
    it.
        Senator Tester. Good. The Chairman referenced the gentleman
    from Minnesota, I believe, Heffelfinger, that actually was
    relieved because he spent too much time in Indian Country. I
    mean, that is not going to be happening.
        Mr. Perrelli. No.
        Senator Tester. The issue of, and this is for you, Larry,
    the issue of law enforcement being on the top of the Department
    of the Interior's, Secretary Salazar's and President Obama's,
    right at the top of the list, if not at the top, right at the
    top, is good to hear. Both the Chairman and the Ranking Member
    talked about law enforcement, cops on the beat.
        Is there anything else that you are seeing that you can do
    in the near term that can have an impact, there is no need to
    bring up the cops on the beat. It has been brought up and
    beaten up on, and for good reason. But the question is, are
    there other things out there we can do?
        Mr. Echo Hawk. Mr. Chairman?
        Senator Tester. To curb the crime rate.
        Mr. Echo Hawk. Mr. Chairman and Senator Tester, I was just
    very pleased when I read this Senate bill, 797. As I went
    through provision by provision, this covers a very wide array
    of what I believe needs to be accomplished in Indian Country. I
    felt just gratified that the hard work has been done. Hearings
    have been held. This bill has been put together. As I said, I
    am welcoming the opportunity to join the fight. I want to
    commend the sponsors for the breadth of this bill.
        We talk about having more police officers, but there are
    numerous sections within this bill that I think are addressing
    some of the very critical needs across the board.
        Senator Tester. I agree. I have the same hearing I have got
    to go to, so I don't mean to cut you off. The bill is a good
    bill.
        Is there anything you can do outside this bill right now to
    attack the crime problem in Indian Country?
        Mr. Echo Hawk. That is a pretty big question. I am sure I
    will think of more things other than I am able to do right now,
    Senator Tester, but I have already emphasized the importance of
    collaboration with Justice Department, and I think that that is
    critical because both departments, Interior and Justice, have
    significant responsibilities. But it seems to me like sometimes
    there is failure to communicate. I have seen that already. We
    need to bridge that gap.
        Senator Tester. And you are probably right. And I will tell
    you that your answer to me isn't the important answer. What you
    do is what is important. If you are driving back and you said,
    if we did this, it is going to decrease the crime rate, do it.
    That is even better than answering my question. So that is
    okay.
        I have one other question for Mr. Perrelli, then I have to
    go. You talked about correctional facilities in your testimony.
    I don't know if you are familiar or not with the Fort Belknap
    Tribe. There are a lot of tribes in the U.S., so if you are
    not, it is okay.
        Mr. Perrelli. I am generally aware, and I know your staff
    raised it with my staff.
        Senator Tester. Oh, good. That is good.
        Mr. Perrelli. Not that I have an answer for you today.
        Senator Tester. Well, then we will ask the question anyway.
    They have an application in for stimulus dollars. You said
    there is about $225 million, which is good news, that is going
    out. It is to fix a long overdue dilapidated jail and we will
    facilitate a visit if you want to bear that out.
        Long story short, their application came in eight minutes
    late. It may have been their fault. It may have been your
    fault. It may have been my fault. But who cares? It was eight
    minutes late and they got denied and they are not in the mix.
        All I ask is this: Just put them in the mix. If they are
    not up to snuff, that is fine. And I know deadlines are
    deadlines and they need to be lived up to, but I think this was
    a problem with technology more than it was a problem with them
    or you. I honestly do believe that. They are in a very remote
    area, and we are talking remote.
        So if you could just take a look at it, consider it, that
    is all I ask.
        Mr. Perrelli. Senator, I will look at it, and we will find
    out what happened in more detail and get back to your staff and
    the tribe as well.
        Senator Tester. I appreciate that.
        I would just say before I buzz out is that I fly back every
    weekend, and my staff member gave me this article about
    Northern Cheyenne, Crow, Blackfeet, Rocky Boy. They are not
    glamorous stories. They are not stories that were written to
    what I would say make the truth any bigger than it is. They
    just reported on the stories.
        If any one of these things would have happened in my home
    town, which is only 25 miles from Rocky Boy Indian Reservation,
    the people would have been going wild. And it is just not
    acceptable. It is not acceptable to have different treatment.
    It is just not.
        And so anything you can do to fix that, we would certainly
    appreciate it. Thank you much for your testimony.
        The Chairman. Senator Tester, thank you very much.
        On the first floor of this building at 3 o'clock we
    yesterday had scheduled the full Interior Appropriations
    Committee markup, and Senator Tester and I are both members of
    that Appropriations Subcommittee.
        And that funds your agency, Mr. Echo Hawk, and your law
    enforcement and tribal colleges.
        And so the two of us have to go down to the first floor to
    be at the start of this Appropriations markup on the funding
    side. Senator Barrasso has agreed to begin chairing the
    hearing, and I am going to try to come back assuming the
    Appropriations Subcommittee gets done, Appropriations the full
    Committee, rather I should say.
        And let me now call on Senator Murkowski for questions.
        Senator Barrasso, thank you.

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

        Senator Murkowski. Thank you, Mr. Chairman.
        I want to acknowledge you before you leave, Mr. Chairman.
    It was a pleasure to work with you on this legislation last
    Congress, and I am pleased to see your leadership again on it.
    I, too, am going to be going down to the Appropriations
    meeting, so my questions to you will be relatively brief.
        It is just so frustrating from a jurisdictional perspective
    when somebody is in danger, when a family member can not get
    help. You call 911, and you expect somebody to be there. As
    Senator Tester mentioned, things happen in Indian Country that
    I hesitate to say we allow. Things happen there that would not
    happen in other parts of the Country, and that is not right. It
    is wrong and we must work to correct it. I think that this
    legislation does take a step forward in that respect.
        Our situation in Alaska is quite complicated and quite
    difficult because of our geography, our remoteness and the
    isolation. When you have villages that are not connected by
    roads; and the only way in is to fly in; or if it is during the
    summer, to take a river boat in, and you are a victim of
    domestic violence, there is no where to go. There is no way
    out. It is a $400, $500 plane ticket.
        Your abuser is not only known to you, but to the whole
    community. The VPSO, the village safety officer that may be
    there to provide for your safety is not armed; has got good
    training, but the likelihood of them being a relative to either
    you or to the person that has violated you is extremely high.
        It is just very, very difficult. We struggle with the
    reality of our statistics, but I think we need to remind
    ourselves that these are not just statistics. Behind every
    number there is a person. There is a family, and we have an
    obligation to figure out how we can do better by them.
        I was up in the State this past weekend in our largest
    city, Anchorage, which is actually also our largest native
    village in the sense that there are more Alaska Natives in the
    Anchorage area than any other part of the State. Our women's
    crisis shelters are at or above maximum capacity. We have a 52-
    bed unit and we have 90 individuals in it, and we are maxed
    out. We are looking at how you respond.
        Our reality is that there has been such an in-migration
    from the villages into the cities, some for services, some for
    education, some for healthcare, but some because of the fact
    that there is little to no law enforcement out there and people
    need a way out. It is a very difficult situation for us.
        I wanted to make the point here. When we talk about putting
    more cops on the beat, more law enforcement, I think one of the
    things that we have had conversations about in the past is that
    it is one thing to get people trained and signed up. It is
    another thing to retain them. And on some of our reservations,
    if you don't have the housing, or it is just so remote, it is
    difficult to keep the people there. We certainly see that in
    Alaska.
        So as we look to how we address the need, we can't just
    look at the statistics and say, okay, we need to hire. We need
    to train X number of people in law enforcement. We have to
    figure out beyond that how we deal with the retention issues.
    It is not just about the recruitment.
        One of the questions that Senator Tester asked was what
    more can you do. I have posed this question to individuals who
    have been back visiting Washington, D.C. the past month or so
    that are involved in domestic violence programs and the like in
    the State of Alaska.
        And what we keep coming back with is so long as people in
    the communities, so long as those in the village turn a blind
    eye to the domestic violence, to the sexual assault, and say,
    well, that is what happens here. Again, kind of a level of
    acceptance that you might see in certain areas, but you would
    never accept anywhere else.
        We must within our own communities say no, it is not ever
    acceptable, never acceptable, and stop trying to protect those
    that are abusive, those that really destroy individuals and
    families.
        The question that I will put to you is as I have had
    individuals in the State of Alaska looking at this legislation
    and have asked for their comments, there are two things that
    have come up. As you know, in Alaska we do not have Indian
    Country as it is defined in the Lower 48. And we are using
    various terms to describe Indian Country within the bill. It
    caused some jurisdictional issues. And I would just ask for
    your assistance as we look to make sure that there is a
    consistency with the language.
        And then the second point that I would like to leave you
    with, there is some consideration being given now to perhaps,
    well, going beyond outlining, but putting together a
    demonstration project that would be administered by DOJ's
    Office of Tribal Justice. It would provide that you have to
    have an existing tribal court, a tribal code that includes
    courts notice, due process requirements. The tribes would share
    concurrent jurisdiction, then, with the State over alcohol,
    drug and domestic violence.
        Now, we are still in the formulation stage of all this, and
    I don't know if you have had an opportunity, Mr. Perrelli, to
    take a look at the possibility, or had any discussions, but I
    wanted to make sure that at a minimum you were aware that these
    conversations were happening and we would certainly like to
    include you in that.
        Mr. Perrelli. I think we would be very interested in
    participating. I did have a conversation with Heather Kendall
    Miller, with whom I have been friends for about 20 years now,
    and I think it is an interesting idea. I think it is very
    consistent with some of the other provisions of this bill that
    are seeking to expand the ability of tribal courts to deal with
    the significant problems that individual communities are
    facing.
        Senator Murkowski. Okay. Well, we would look forward to
    working with you on that as we advance it, if we should make
    that determination, but I appreciate it.
        And I appreciate the work and the commitment from all of
    you.
        Mr. Chairman, thank you.
        Senator Barrasso. [Presiding] Thank you, Senator Murkowski.
        Now, Senator Udall, and at the end of your questioning, you
    will assume the gavel to run the meeting. Thank you.

                     STATEMENT OF HON. TOM UDALL,
                      U.S. SENATOR FROM NEW MEXICO

        Senator Udall. Thank you, Senator Barrasso, very much.
        I just have one question for this first panel, and I think
    we then need to move on to the next panel.
        American Indian youth between the ages of 10 and 24 have
    the highest suicide rate of any racial group in the Nation.
    Suicide is linked to many factors directly related to crime,
    including alcohol and substance abuse, gang activity, isolation
    and child abuse.
        The incidence of Native American youth suicide has
    continued to reach epidemic levels 10 times the national
    average. In certain tribal communities, especially in the Great
    Plains, and in fact we had a hearing earlier this year where
    Senator Harry Reid, our leader, came and talked about a suicide
    in his family, in fact his father, and it was a very moving
    occasion, I think, for a lot of us here, talking about how it
    was important to talk about this and bring it out in the open.
        This bill would reauthorize two programs that would help
    build more youth shelters and establish youth activity
    programs. But my belief is more needs to be done within the
    justice system. The Federal court system is not equipped to
    deal with juveniles and tribal systems are sorely underfunded.
        Do you, Mr. Echo Hawk or Mr. Perrelli, have any
    recommendations for improving the justice system for Native
    American juveniles?
        Mr. Perrelli. I am happy to talk briefly, and let Mr. Echo
    Hawk follow.
        I do think, and I think this is highlighted in your
    question, that there needs to be really a comprehensive
    approach. That leaving it to the Federal courts or in many
    cases tribal courts to deal with the set of issues when someone
    commits a violent act is not a particularly effective way to
    deal with the set of issues.
        And I think what we need to do is draw in a broader range
    of partners, and look at prevention strategies, reentry
    strategies for those who may have been incarcerated in a
    facility or others, but also other resources that the Federal
    Government may be able to provide through SAMHSA and other
    entities because I think it is only by working in collaboration
    can we address the full range of problems.
        Senator Udall. Right.
        Mr. Echo Hawk. Senator Udall, problems beget problems. And
    I think you are well aware of the situation. If you have
    dysfunction in a home, that jeopardizes children that may be
    raised in that environment, and they deserve a healthy start.
        So outside of the criminal law enforcement system, there
    has got to be a social system that is prepared to assist
    parents and children to create safe environments. I certainly
    commend and welcome the provisions in this bill that address
    the issues of youth, but I am sure that more can be done.
        Mr. Ragsdale I had a follow-up comment.
        Senator Udall. Oh, sure, Mr. Ragsdale, please go ahead.
        Mr. Ragsdale. I am very sensitive to this issue. I think I
    heard at one hearing where it was reported that in some of our
    Indian communities that the suicide rate reached more than 25
    times the national average. Last summer when I was at Standing
    Rock, we had a young lady that hung herself in the closet on a
    Saturday night when we were on duty.
        But my sense of being on the streets of some of these
    communities where lawlessness has been too prevalent is that
    with respect to young people, they are starving for adult
    attention. When some of our young officers go down on the
    streets of some of these communities and hit their siren, kids
    swarm them because they are not looking for so much from a law
    enforcement guy who is passing out stickers and DARE badges and
    things of that nature. I mean, they are starving for human
    attention.
        And that is part of the concept of community policing which
    just really means bringing the community together and all the
    providers, and in particular the community to work out these
    problems. No matter how many officers that we hire, and we have
    too few, we are not going to work ourselves out of this problem
    until we get the communities organized.
        I am not talking about necessarily the Bureau of Indian
    Affairs. I am talking about a collective effort to work on this
    issue and give these young people hope in our society.
        Senator Udall. Well, I am glad that all of you agree that
    we need a broad-gauged approach to tackle this in all the
    areas, and as Mr. Echo Hawk has said, dealing with families and
    getting them involved. So I want to thank you all for those
    answers.
        At this point, unless, Senator Barrasso, you have anything
    else, I would excuse this first panel. I would thank Associate
    Attorney General Perrelli and thank Assistant Secretary Larry
    Echo Hawk. Larry, it is great to see you in the saddle and have
    you here today, and know that you are going to be working on
    these issues. And also excuse you, Mr. Ragsdale.
        And we would call forward the second panel at this point.
        I thank you all for testimony.
        Mr. Perrelli. Thank you, Senator.
        Senator Udall. [Presiding] Thank you all for being here
    today. We are very much looking forward to your testimony.
        Why don't we just start with Chairman Coby and we will just
    work down the aisle. We will have about five minutes for each
    of you, and then I am sure there will be a round of questions
    here.
        Please, go ahead.

    STATEMENT OF ALONZO COBY, CHAIRMAN, FORT HALL BUSINESS COUNCIL,
                        SHOSHONE-BANNOCK TRIBES

        Mr. Coby. Good afternoon, Mr. Udall. I am Alonzo Coby. I am
    the Chairman of the Shoshone Bannock Tribes located in
    Southeastern Idaho.
        First of all, with me today I have the Vice Chairman Nathan
    Small; Sergeant-at-Arms LeeJuan Tyler; Arnold Appenay which is
    the Law and Order Commissioner; and past Council Member Marlon
    Fellows our Project Coordinator; and Will Edmo, the past
    prosecutor and police officer for our tribe.
        Senator Udall. Thank you, all of you, for being here.
        Mr. Chairman?
        Mr. Coby. I am honored to be here today to speak on behalf
    of the Shoshone Bannock Tribe in support of S. 797 and to
    discuss our law enforcement needs and challenges.
        First, I just want to commend Senator Dorgan for his
    efforts, and all the Committee members that are working on this
    very important bill for Indian Country. And also thank Allison
    Binney and John Harte for taking a stop in Indian Country
    because it is very important for us as Indian people, and all
    the other tribal leaders that are in attendance today. I think
    we all have common issues on each reservation.
        The bill acknowledges the United States' trust obligations
    for public safety. Also the bill recognizes that tribal justice
    systems are best at handling law and order in their own
    communities. We face many law enforcement challenges. Crimes
    committed on reservations often go unprosecuted.
        For example, a tribal grandmother, mother and her infant
    child were brutally murdered on our reservation. Three
    generations were wiped out. Federal prosecutors struck a plea
    deal and declined to prosecute for the infant's death and did
    not explain their decision to us, and the victims were Marlon
    Fellows, who is in the audience with us today.
        On another occasion, an individual eligible for adult
    prosecution raped a young child on the reservation. The Feds
    refused to prosecute because the State was handling the case in
    the juvenile State court under Public Law 280.
        More recently, Federal prosecutors did not discuss with the
    tribes the decision not to prosecute suspects who killed a man
    on the Fort Hall Indian Reservation. This gives the impression
    that it is okay to kill Indian people on reservations.
        Our police officers are well qualified, but they can't
    address all the needs on the reservation due to limited
    manpower. Often, our police have only two officers at any given
    time covering a half million acres on our reservation.
        Provisions in the bill of particular note that we would
    support include: increased coordination between the Federal
    Government and tribes; greater prosecutions of reservation
    crimes and accountability for decisions not to prosecute;
    designation of SAMHSA as the lead on tribal substance abuse
    programs; targeting resources for drug enforcement; tribal
    youth; domestic violence; and cross deputization for tribal
    court sentencing; and expansion of jail construction programs
        Construction of law enforcement facilities is our top
    priority on the Shoshone Bannock Tribe's Indian reservation.
    Our current facilities are old and not equipped, with some of
    our buildings being over 100 years old. Our detention facility
    has been condemned for the past three decades. The conditions
    are terrible. For example, we have a continual problem where
    only one shower and two toilets work and the entire facility
    reeks with raw sewage.
        Because of this dire situation, the Shoshone Bannock Tribe
    borrowed $15.9 million and put $4 million of our own money into
    the project, for a total of around $20 million to build the
    justice center. For many years, we sought funding from the
    Federal Government, but were unsuccessful. It will house the
    Police Department, Fish and Game, courts, adult and juvenile
    detention facilities. The center will be complete this January.
        We need immediate Federal assistance to provide for the
    start-up operation and maintenance costs. We would like to
    thank Senator Crapo and the rest of the Idaho delegation for
    their assistance on this project.
        The center will allow detainees to remain in the facility
    for rehabilitation and educational services connected to our
    culture. The center will have bed space for detainees from the
    other reservations. The tribe seeks the BIA to designate the
    center as the regional detention facility.
        While some of our problems will be addressed by S. 797,
    many of our problems stem from Public Law 280. Public Law 280
    is an old law passed in 1953 when the Federal policy was to
    terminate tribes. This law allowed States to take without
    tribal consent jurisdiction over Indian affairs. Under Public
    Law 280, Idaho passed a law assuming concurrent jurisdiction
    over seven areas: juvenile delinquency, school attendance,
    neglected or abused children, mental illness, public
    assistance, and domestic relations and traffic jurisdiction on
    State roads.
        The State has utterly failed to provide assistance in all
    areas that it has jurisdiction on the reservation except in the
    areas of traffic jurisdiction because it is a revenue
    generator.
        Because of Public Law 280, we face many challenges. We are
    struggling to address the juvenile delinquency, even with
    concurrent Federal and State jurisdiction. The BIA has pointed
    to the State for responsibility for juvenile delinquency, while
    the State disregards the role. As a result, the needs for our
    people have gone unaddressed.
        As you can see, these issues create many challenges for us
    due to these problems. We seek retrocession for jurisdiction
    from the State and would appreciate assistance on this issue.
        Thanks for allowing me to testify today.
        [The prepared statement of Mr. Coby follows:]

        Prepared Statement of Alonzo Coby, Chairman, Fort Hall Business
                        Council, Shoshone-Bannock Tribes
        Good afternoon Chairman Dorgan, Vice-Chairman Barrasso, Senator
    Crapo, and other Members of the Committee. My name is Alonzo Coby and I
    am the Chairman of the Fort Hall Business Council, which is the
    governing body of the Shoshone-Bannock Tribes located on the Fort Hall
    Indian Reservation in southeast Idaho. I am honored to be here today to
    provide our views on S. 797 and to discuss the law enforcement needs of
    the Shoshone-Bannock Tribes.
        The Shoshone-Bannock Tribes are a federally recognized Indian tribe
    organized under the Indian Reorganization Act of 1934. The Shoshone and
    Bannock people are comprised of several related bands whose aboriginal
    territories include land in what are now the states of Idaho, Wyoming,
    Utah, Nevada, Colorado, Oregon, and parts of Montana and California. In
    1867, President Andrew Johnson by Executive Order designated the Fort
    Hall Indian Reservation for various Shoshone and Bannock bands that
    occupied the area since time immemorial. On July 3, 1868, the Shoshone
    and Bannock Tribes concluded the Second Treaty of Fort Bridger, which
    was ratified by the United States Senate on February 24, 1869. Article
    4 of the Fort Bridger treaty reserved the Reservation as a ``permanent
    home'' to the signatory tribes. Although the Fort Bridger Treaty called
    for the Reservation to be approximately 1.8 million acres, various
    ``surveying errors'' in 1873 reduced its actual size to approximately
    1.2 million acres.
        One of the United States' purposes in setting aside the Fort Hall
    Indian Reservation was to protect the Tribes' rights and to preserve
    for them a home where their tribal relations might be enjoyed under
    shelter of authority of the United States. Subsequent cession
    agreements with the United States reduced the Fort Hall Indian
    Reservation to the present day size of 544,000 acres. Of the 544,000
    acres, 97 percent of the land is Tribal land or held by the United
    States for the benefit of the Tribes or its individual members. The
    Tribes' territory is the largest Reservation in Idaho and forms a large
    cohesive geographic area that supports a population of over 6000 people
    and provides an irreplaceable homeland for economic activity and
    cultural practices based on strong religious traditions premised on the
    sacredness of land. Our current Tribal membership is approximately
    5,300 members.
        The Fort Hall Reservation is blessed with an extensive biodiversity
    including rangelands, croplands, forests, streams, three major rivers
    (the Snake, Blackfoot, and Portneuf), reservoirs, springs, and wetland
    areas, an abundance of medicinal and edible plants, wildlife (elk,
    deer, moose, bison, big horn sheep, etc.), various species of fish,
    birds, and other animal life. The Reservation lands are mountainous and
    semi-desert, and overlay the Snake River aquifer, a large groundwater
    resource. The culture and continued existence of the Shoshone and
    Bannock peoples depend on these resources.
        As you know, the United States government and its agencies have an
    important trust relationship with Indian tribes. The Shoshone-Bannock
    Tribes look to the Federal Government to fulfill this trust
    responsibility in areas of law enforcement, environmental protection,
    health, education, trust reform, land management, protection of treaty
    rights, and other areas of common concern to Indian County.
        The issue I speak about today is law enforcement in Indian Country,
    and specifically within the boundaries of the Fort Hall Reservation.
    First, I would like to commend Senator Dorgan on his efforts to address
    law enforcement in Indian Country in a meaningful and effective way.
    Senator Dorgan and members of this Committee have held several hearings
    on this issue, and we commend the Committee Chairman and co-sponsors of
    the Tribal Law and Order Act of 2009 for their efforts to address the
    law enforcement needs in Indian Country. We particularly appreciate
    that Senator Crapo, our Senator from Idaho, recently became a co-
    sponsor of the Tribal Law and Order Act as well as all his other
    efforts on our behalf. He has been a good friend to the Tribes.
        S. 797 contains acknowledgements that the United States has a trust
    obligation to provide for the public safety of tribal communities and
    that tribal justice systems are the most appropriate institutions for
    handling law and order in tribal communities. The present status of
    Indian Country law enforcement has resulted in unsafe communities,
    victimization of Reservation families, promoted drug trafficking, and
    has deterred economic development.
        The Fort Hall Reservation faces many law enforcement challenges
    common within Indian County. Tribal communities suffer from misdemeanor
    and felony crimes committed on the Reservation that often go
    unprosecuted because of the lack of federal resources or the
    jurisdictional limits placed on our Tribal Courts. In many cases, the
    lack of prosecution by federal and state authorities remains
    unexplained to Tribal leaders and the crime victims. For example, when
    a Shoshone-Bannock Tribal member mother and her infant child were
    brutally murdered on our Reservation, federal prosecutors struck a plea
    deal and declined to prosecute the defendant for the infant's death
    without first consulting the Tribes or explaining their decision to our
    Tribal leaders. \1\ On another occasion, where an individual eligible
    for adult prosecution raped a young child on the Reservation, the
    Federal Government refused to prosecute the case because the State was
    handling the case in juvenile State court under Public Law 280. And,
    more recently, federal prosecutors did not consult the Tribes or
    explain their decision not to prosecute suspects who killed a man on
    the Reservation by inflicting blunt force trauma to his head at a
    party. The unexplained failure to prosecute serious felonies on the
    Reservation gives the Tribal membership the impression that it is okay
    to commit serious crimes against Indian people on the Reservation.
    ---------------------------------------------------------------------------
        \1\ See United States v. Abel Hidalgo, Cr. No. 02-043-E-BLW (Idaho
    Federal District Court)
    ---------------------------------------------------------------------------
        While our Fort Hall Tribal police officers are well-qualified and
    properly trained to respond to all crime on the Reservation, Tribal
    police are presently limited in their ability to arrest all persons who
    violate applicable Tribal and federal laws and more officers are needed
    to address the law enforcement needs on our large Reservation. Many
    times our tribal police only have two officers available at any given
    time to cover half a million acres of Reservation territory.
        Effective law enforcement on our Reservation requires greater
    federal support for training, equipment, and access to the
    investigation and crime database tools available to federal and state
    law enforcement officers. Greater coordination and cooperation is
    needed between federal officials and Tribal law enforcement personnel.
    Local federal prosecutors need additional resources to fill
    jurisdictional gaps and to more fully prosecute Reservation crime that
    falls within federal jurisdictional statutes.
        The provisions of S. 797, known as the Tribal Law and Order Act of
    2009, address many of the law enforcement problems we experience on our
    Reservation. The bill provides for increased consultation and
    coordination between the Federal Government and tribes. It facilitates
    greater prosecution of Reservation crimes and provides for
    accountability for decisions not to prosecute crimes in Indian Country.
    The bill also establishes federal offices and funding sources
    specifically committed to Tribal law enforcement purposes. We are
    pleased that the bill specifically targets resources towards drug
    enforcement, tribal youth, and violence against women.
        Further, we support section 401 of the bill which directs the
    Substance Abuse and Mental Health Administration to take the lead role
    in interagency coordination on tribal substance abuse programs and in
    setting up the Office of Indian Alcohol and Substance Abuse. In the
    past, it has been difficult to access assistance from the various
    federal agencies to address the behavioral and mental health problems
    in our community, which often lead to alcohol and drug abuse and
    criminal activity, given the stove pipe and bureaucratic nature of
    agencies that administer federal alcohol and substance abuse programs.
    With SAMSHA designated as the lead agency on these issues, there will
    be clarity for tribes seeking this type of assistance and within the
    Federal Government in terms of the role that each agency plays on these
    issues.
        Importantly, the proposed bill recognizes the qualifications of
    Tribal law enforcement personnel to obtain the training and
    certification to act as federal law enforcement agents within the
    Reservation boundaries. And, the bill provides for increased tribal
    court sentences of up to 3 years for serious crimes committed within
    Indian Country.
        The Tribal Law and Order Act also prioritizes and increases funding
    for the construction of tribal detention centers under the DOJ Tribal
    Jails Program and would provide authorization for grants for the
    construction of juvenile detention and treatment centers and halfway
    houses under the Indian Alcohol and Substance Abuse Act. The current
    buildings used for the Fort Hall Tribal police station, jail, and
    Tribal Court are extremely old, nearly uninhabitable, out of code, and
    grossly insufficient for tribal law enforcement needs. Our present
    detention facility should be condemned. For example, on a recent tour
    of the Tribal jail there was only one shower and two toilets in working
    order and the entire facility reeked of raw sewage. The detention space
    is totally inadequate for the number of inmates ordered to serve
    detention, and it cannot be used for current needs and certainly not
    the increased sentences provided for by the proposed law and order
    bill. The inadequate detention facility poses health and safety risks
    that cannot continue in our Reservation community. The general lack of
    tribal justice buildings creates a backlog of hearings, inefficient
    case processing, and leaves Reservation residents without places to
    conduct hearings, mediations, and family consultations.
        Because of our Tribes' dire need for an adequate law enforcement
    building, the Shoshone-Bannock Tribes independently undertook the
    financing and construction of a Tribal Justice Center. The Tribes
    previously sought funding from the BIA and other federal agencies for
    many years without success for this project. The Tribes borrowed over
    19 million dollars to construct the Justice Center that will house the
    Tribal police department, Tribal Courts, Fish & Game, and separate
    adult and juvenile detention facilities. While we are happy to report
    that the Justice Center is expected to be completed in December of this
    year, we are in need of immediate federal assistance for start up costs
    and annual operational costs for the Justice Center. This funding
    should come in the form of enhanced 638 contracts for adult and
    juvenile corrections, law enforcement, and tribal courts as well as a
    new 638 contract for operations and maintenance for the Justice Center.
    We extend our gratitude to Senator Crapo and the other members of the
    Idaho congressional delegation, Senator Risch and Representatives Mike
    Simpson and Walt Minnick, for recently sending a letter to Secretary
    Salazar asking him to assist the Tribes in immediately securing annual
    operational and maintenance costs for the Justice Center from the
    Federal Government.
        The Justice Center now under construction will allow adult and
    juvenile inmates to remain in a local community facility that will
    accommodate educational and rehabilitation services connected to our
    Indian culture and traditions. I note that the Shoshone-Bannock Justice
    Center will have bed space for the BIA to utilize to detain inmates
    from other reservations, and the Tribes are willing to have the BIA
    designate the Justice Center as one of the regional detention
    facilities identified in the proposed Tribal Law and Order Act.
        While our Reservation's law enforcement problems will be addressed
    in part by the Tribal Law and Order Act, they are also the unfortunate
    product of the State of Idaho's assumption of partial jurisdiction over
    our Reservation affairs through Public Law 280. Public Law 280 in an
    antiquated law passed in 1953 during a time period when the policy of
    the United States was to terminate Indian tribes. This law allowed
    States to take, without tribal consent, jurisdiction over Indian
    affairs that should always have remained matters of Tribal self-
    government and the federal trust responsibility and jurisdiction. \2\
    Pursuant to Public Law 280, Idaho passed a law assuming concurrent
    jurisdiction over seven areas of jurisdiction in Idaho including
    juvenile delinquency, domestic relations, and traffic jurisdiction on
    state and county maintained roads. \3\
    ---------------------------------------------------------------------------
        \2\ The United States Congress subsequently passed Public Law 90-
    284 in 1968, requiring that the states desiring to assume jurisdiction
    after 1968 could do so only with the consent of the tribe affected.
    Pub. L. No. 90-284, Sec. Sec. 401, 402, 82 Stat. 78, 79 (1968)
    (codified in relevant part at 25 U.S.C. Sec. Sec. 1321, 1322 (1997)).
    Since that date, no tribe has consented to significant state
    jurisdiction over their reservations. In contrast, a number of states
    surrounding Idaho have ``retroceded'' or given back to the Federal
    Government and tribes the jurisdiction taken pursuant to Public Law
    280.
        \3\ The seven areas of concurrent jurisdiction assumed by the State
    of Idaho pursuant to Public Law 280 include: compulsory school
    attendance; juvenile delinquency; dependent, neglected or abused
    children; mental illness; public assistance; domestic relations; and
    vehicle operation on county or state-maintained roads. Idaho Code
    Sec. Sec. 67-5101 to 67-5103.
    ---------------------------------------------------------------------------
        Because of Public Law 280, Shoshone-Bannock Tribal members and
    Indian residents continue to face the assertion of State court
    jurisdiction over Reservation traffic offenses and domestic relations
    and receive unequal treatment in sentencing due the present system of
    confusing jurisdictional rules that apply to our Reservation. The Fort
    Hall Reservation also currently struggles to address juvenile
    delinquency through a Tribal system that lacks adequate support from
    the Federal Government or the State of Idaho. The State of Idaho has
    neglected its responsibility for juvenile matters within its assumed
    jurisdiction under Public Law 280. Further, the Federal Government,
    through the BIA, in the past has been reluctant to provide assistance
    to the Tribes for detention and rehabilitation of juveniles and has
    articulated the rationale that the State of Idaho should be providing
    this assistance under Public Law 280 and Idaho state laws pertaining to
    juvenile delinquency. Even though the jurisdiction set forth under
    Public Law 280 and Idaho state laws allows for concurrent jurisdiction
    over juvenile delinquency, the BIA has pointed to the State of Idaho as
    the entity responsible for juvenile delinquency matters while the State
    of Idaho utterly disregards these responsibilities. Due to the
    confusion created by Public Law 280 and Idaho state laws and lack of
    will at the state and federal levels, the needs of the Shoshone-Bannock
    Tribes and its troubled youth have gone unaddressed for far too long.
        For example, the Ft. Hall Indian Reservation is located within the
    counties of Bannock and Bingham, but both counties have refused to lend
    assistance with Native American juvenile runaways unless they commit
    crimes off the Reservation. Six months ago, a 16-year old Native
    American girl known to be a drug user ran away from home, and Tribal
    police contacted the Bingham County prosecutor to ask if the county
    would assist in finding her. The county prosecutor, Scott Andrew,
    stated that, unless she committed a crime off the Reservation, they
    would not get involved in trying to locate her. Bannock County also has
    the same policy. Further, Bannock County policy is to only house Native
    American juveniles in its jail at $150 a night if there is room in the
    jail.
        As you can see, issues such as these create many challenges for the
    Shoshone-Bannock Tribes in ensuring for public safety on our
    Reservation and for the safety of our people due to the failure of the
    federal and state governments to meet their responsibilities to assist
    us. Consistent with the principle of tribal sovereignty and self-
    determination, the Shoshone-Bannock Tribes seek to obtain retrocession
    of the jurisdiction taken by the State of Idaho without the Tribes'
    consent. We would appreciate assistance from this Committee on our
    retrocession efforts given that it directly impacts our ability to
    provide basic services designed to meet the health, safety, and well-
    being of our people. With the construction and proper funding of the
    Justice Center, the Shoshone-Bannock Tribes are willing and qualified
    to fully assume responsibility over Reservation affairs while working
    together with the Federal Government as our trustee.
        In sum, I am happy to express support for the proposed Tribal Law
    and Order Act of 2009 and the significant measures contained therein to
    address the serious law enforcement problems facing the Fort Hall
    Reservation and Indian Country in general. Thank you for this
    opportunity to participate in this hearing on this critically important
    subject.

        Senator Udall. Thank you, Mr. Chairman. Good to have you
    here.
        Please go ahead, Mr. Eid.

       STATEMENT OF TROY A. EID, PARTNER, GREENBERG TRAURIG, LLP

        Mr. Eid. Thank you very much. My name is Troy Eid. I am the
    former U.S. Attorney from Colorado. It is good to see you
    again, Mr. Chairman. I think I last saw you at Chelle's
    Restaurant in Gallup. It is gone, but we are still here, so it
    is great to see you.
        [Laughter.]
        Mr. Eid. Very briefly, I am a former prosecutor. I am a
    current practitioner. I practice in this area at Greenberg
    Traurig in Denver. I represent the Ute Mountain Ute Tribe as
    Special Counsel, and I am a Professor at the University of
    Colorado School of Law. I teach criminal and civil jurisdiction
    in Indian Country.
        This is a great bill. I strongly support it. Mr. Chairman
    and Committee Members, don't give up on this. And I want to
    especially talk briefly in my time about section 102, which is
    the provision that deals with case declinations.
        Now, I know that there are colleagues here, former
    colleagues, members who are in the Justice Department today who
    feel differently than I do about this bill. And I respectfully
    disagree with them, and I appreciate all their service.
        The bottom line is that we have got to get on with this
    declination reporting, Mr. Chairman. We have an obligation to
    be accountable to the American people and the native tribes
    that we serve should expect of us, as the temporary stewards of
    the Federal trust responsibility, that we will tell them what
    we are doing.
        When I was appointed, just by example, I met with the
    tribal council of the Southern Ute Indian Tribe. I met with the
    council and they said, we would like you to take a look at the
    declinations your office did before you got here, Mr. Eid. And
    I did. And guess what? I found two cases right out of the
    blocks. We declined them because the Federal system ``is not
    very good at handling juveniles.'' Well, guess what? Where else
    do native people go when the Major Crimes Act has required them
    since 1885 to go to the Federal system?
        So we took those cases up again. We got convictions out of
    both of them. They were both declined with no explanation to
    the tribes. That is not right, and after 1885, we should have
    figured out a way to get it correct.
        And so we have to start reporting. Frankly, with all due
    respect, this Committee ought to expect better, and you ought
    to require of any Administration, including the past one and
    the current one, that they report this information to Native
    people. They have to depend on us as local prosecutors. U.S.
    Attorneys have a different role in Indian Country and we need
    to be locally accountable, like a D.A. would be locally
    accountable. And that is the point and that is the difference.
        Now, it is true that it is not an all-inclusive metric. It
    is not a perfect measure. It never measures, in a case that is
    declined, the cases you never got because the law enforcement
    gap in terms of resources is so bad. The tribe I represent now,
    Ute Mountain Ute, on a good day has a total of five BIA
    officers. They do a wonderful job by the way, but they patrol
    an area that is bigger than Rhode Island. Our response times,
    on average, can be as much as an hour and a half at night. That
    is from when they get the call to the time they get out to
    where they need to go.
        So we need to have some local accountability, Mr. Chairman,
    and section 102 is the way to do it. If there is a separation
    of powers issue, and with all due respect I have never bought
    it and I don't buy it now, but if there is, then the Department
    today should start figuring out a way to do case declinations,
    and they ought to start doing this reporting. Figure out what
    to measure and start measuring it, and quit making excuses.
    Since the year 1885 is a long time to be making excuses, and I
    think we can do a lot better than that.
        I also want to talk very briefly about section 301, Special
    Law Enforcement Commissions. Your State, Mr. Chairman, a great
    State, but, when last I checked, out of the 22 tribes and
    pueblos, there were only three agreements to do Federal
    deputation for three tribes in the entire State of New Mexico.
        I worked with the Director of the Justice Department at
    Southern Ute, Janelle Doughty, and she just said enough is
    enough. She said we need to work with people in the BIA, figure
    out how to do onsite deputation training. And through our
    office, the Colorado U.S. Attorney's office, the U.S.
    Attorney's offices in South Dakota and New Mexico, the National
    Congress of American Indians and the Justice Department
    National Advocacy Center, we had a partnership. We trained 400
    officers in less than two years, and many of them were
    federally deputized, representing 35 tribes from 17 States.
        We can do a lot better, and that part of the bill will
    create the expectation that the Departments of Interior and
    Justice will finally partner on deputation. Deputation simply
    means give the officer in the field the Federal tool kit so
    they can also arrest non-Indians. They can arrest Indians if
    the Major Crimes Act so provides. That is all it is for, and it
    needs to be respected and used.
        When the Supreme Court took away the tribes' jurisdiction
    over non-Indians in 1978 in Oliphant, Justice Rehnquist
    essentially said, ``Don't worry. We will rely on Federal
    deputation. That will solve the problem.'' Well, you know,
    three tribes out of 22 in New Mexico, we can do better than
    that, and the same condition exists around Indian Country.
    Emphatically, it is nobody's fault, but we can and we should do
    better.
        And so I strongly endorse this bill. I hope that this
    Committee will act. I greatly appreciate your time, Mr.
    Chairman. I appreciate Chairman Dorgan. He has been a true
    leader in this, and all the supporters of this bill.
        Thank you.
        [The prepared statement of Mr. Eid follows:]

       Prepared Statement of Troy A. Eid, Partner, Greenberg Traurig, LLP
        Mr. Chairman, Committee members, thank you for the opportunity to
    testify in support of S. 797, the Tribal Law & Order Act. My name is
    Troy Eid and I live in Golden, Colorado. I recently returned to private
    life after serving as the United States Attorney for District of
    Colorado. I've worked in and around Indian country for more than two
    decades. This includes public service as an aide to former U.S.
    Representative Jim Kolbe of Arizona, a cabinet secretary to former
    Governor Bill Owens in my home state of Colorado, and most recently as
    Colorado's U.S. Attorney.
        Currently I'm a shareholder in the Denver office of Greenberg
    Traurig LLP, where I co-chair our American Indian Law Practice Group.
    The firm's tribal clients include the Ute Mountain Ute Tribe of
    Colorado, which I represent as Special Counsel, and the Seminole Tribe
    of Florida. We also advise organizations and individuals doing business
    with Indian nations, operating on tribal lands, and investing in Native
    American-owned assets.
        Besides practicing law, I teach as an Adjunct Professor in the
    American Indian Law Program at the University of Colorado School of Law
    in Boulder. I'm also active in the Navajo Nation Bar Association and
    serve on its Training Committee. This includes teaching Continuing
    Legal Education classes for tribal judges, attorneys and advocates,
    along with the semi-annual bar review course for candidates seeking
    admission to practice law before the Navajo Supreme Court and district
    courts. Additionally, I'm a consultant to Fox Valley Technical College
    of Appleton, Wisconsin. Fox Valley is a contractor to the U.S.
    Department of Justice and develops law enforcement training curriculum
    and programs for nearly 200 federally recognized Indian tribes and
    nations. My own work for Fox Valley focuses on the implementation by
    tribal justice departments of the National Sex Offender Notification
    and Registration Act or SORNA, which as you know is Congressionally
    mandated by the Adam Walsh Act of 2006.
    S. 797 and the Challenges it Addresses
        I'm very encouraged by this bill and strongly support it. S. 797,
    the Tribal Law & Order Act of 2009, is a necessary first step toward
    strengthening criminal justice for people living and working on Indian
    lands. After brief introductory remarks, my testimony will discuss how
    this legislation can address three of the most significant challenges
    to making Indian country safer:

            1. Overly complicated jurisdictional rules that undermine
            criminal investigations, preventing far too many prosecutions
            from going forward and, in the memorable phrase of an April
            2007 report by Amnesty International, can create a ``maze of
            injustice.''

            2. A chronic resource deficit in which Indian tribes have
            access on average to less than one-half of the law enforcement
            resources available to comparable off-reservation communities,
            and which extends to the entire criminal justice system.

            3. A lack of respect for tribal sovereignty and how it can
            reinforce the fundamental American value of localism--the
            expectation that governmental decisions, including those
            involving public safety, are best made closer to citizens by
            officials who are directly accountable to them.

        My testimony will explore how specific provisions of S. 797 can
    help address each of these challenges in order to make Indian country
    safer. This legislation is vitally important and long overdue. Yet it
    is still just a first step on a much longer journey that has never been
    and will never be easy. So I will conclude my remarks today by raising
    some additional ideas that this Committee might consider in its quest
    to make equal access to justice a reality for all Americans, including
    First Americans.
        Before I begin, Mr. Chairman, let it be said that you are a true
    champion in honoring the Federal Government's trust responsibility to
    Indian tribes and nations through enhanced public safety. Your
    sustained commitment to meaningful reform, and that of your co-sponsors
    and supporters--Democrat and Republican alike--is refreshing to many of
    us serving in the field. Your continued leadership is also essential to
    reversing the circle of violence and despair that prevails on far too
    many Indian reservations. It is also my observation that this Committee
    is very well-served by its professional staff.
        In terms of fulfilling Congress' federal trust obligations, this
    Committee has repeatedly recognized that there is no more urgent
    priority than strengthening criminal justice for people living and
    working on Indian lands. Much has been accomplished to make Indian
    Country safer, under both Republican and Democratic Administrations,
    since President Richard M. Nixon formally adopted Tribal Self-
    Determination as national policy. Yet far too much of the federal
    criminal justice system that is supposed to serve Indian Country--
    designed as it was to keep Native people isolated on reservations, with
    the real political power elsewhere--remains stubbornly frozen in the
    Termination Era.
        The need to make Indian country safer has also been a priority for
    President Obama, who declared during the last fall's campaign:

            The most fundamental function of all governments is to ensure
            the safety of their citizens and maintain law and order. The
            Federal Government has a legal trust responsibility to aid
            tribal nations in furthering self-government in recognition of
            tribes' inherent sovereignty. Unfortunately, the government has
            failed to live up to its obligation to help tribes maintain
            order.

        There are plenty of statistics to illustrate the President's point,
    but it is perhaps more meaningful for me as a former United States
    Attorney to relate it in human terms. We're talking, after all, about a
    federal criminal justice system in which one of the most basic legal
    questions of all--jurisdiction--depends on determining the ethnicity of
    the perpetrator as well as the victim, along with the intricacies of
    land status. This breathtaking inconsistency--using the ethnicity of an
    American citizen to decide which laws apply and who investigates and
    prosecutes a crime--gives rise to the so-called ``jurisdictional
    maze,'' a web of confusing and sometimes contradictory rules that
    attempt to determine who does what in Indian country.

    Navigating the Jurisdictional Maze
        The breathtaking jurisdictional complexity of federal Indian law--
    with both the adjudicative forum and applicable laws depending on the
    type of crime, status of the land where the offense occurred, and
    identity of the victim and the suspect--seriously impedes the effective
    administration of justice. There is also a perverse irony in the fact
    that people living in some of the poorest and most geographically
    isolated parts of our country must confront some of the most
    complicated legal rules anywhere during the ordinary course of their
    lives.
        Since 1885, United States Attorneys and tribal governments have had
    the primary responsibility for prosecuting violent crimes in Indian
    country. Yet even this basic division of labor has its arcane
    exceptions. For instance, crimes involving only non-Indians in Indian
    country are ordinarily subject to exclusive state jurisdiction.
    However, in states where Public Law 280 applies, state governments may
    or may not exercise criminal jurisdiction over Indians and non-Indians
    alike depending on the specific reservation and criminal offense at
    issue. Federal court decisions often add still another layer of
    complexity. For instance, in the 2001 case of Nevada v. Hicks, the U.S.
    Supreme Court ruled against tribal court jurisdiction over tribal court
    claims against state game officers who exceeded the scope a state-
    issued, tribal court-approved search warrant. Despite its narrow
    holding, widespread misperceptions about Hicks and its importance have
    seriously undermined the often-delicate cooperative policing
    arrangements forged among local, state and tribal law enforcement
    officers.
        In some investigations, it can be difficult or even impossible to
    determine at the crime scene whether the victim, the suspect, or both
    is an ``Indian'' or a ``non-Indian'' for purposes of deciding which
    jurisdiction--federal and/or tribal, or state--has responsibility and
    which criminal laws apply. In those crucial first hours of an
    investigation, this can raise a fundamental question--which agency is
    really in charge? This is the antithesis of effective government.
        By way of illustration, Colorado's U.S. Attorney's Office recently
    prosecuted a case on the Southern Ute Indian Reservation where two
    victims of a vehicular homicide were hit by a non-Indian drunk driver
    and tragically burned to death in their vehicle. The victims were an
    elderly woman, an enrolled member of the tribe, and her eight-year-old
    granddaughter. The child was not an enrolled member of the tribe, but
    had a sufficient degree of Indian blood to be considered an ``Indian''
    for federal jurisdictional purposes so long as the community in which
    she lived also considered her to be an ``Indian.''
        As our federal prosecution proceeded, defense counsel countered
    that despite having Native blood, the child victim was still not
    considered to be an Indian within the particular reservation where the
    crime occurred. It turned out that the little girl had received Indian
    Health Service benefits on the Southern Ute Reservation and was
    visiting her grandparents there at the time, but legally resided with
    her mother off-reservation. Literally dozens of people, ultimately
    including the tribal council, got involved to decide whether the child
    was really an ``Indian'' or not. There was considerable disagreement.
    After several months of jurisdictional gymnastics, the case involving
    the child's death was referred to the local District Attorney as a
    matter of exclusive state jurisdiction. Meanwhile, the U.S. Attorney's
    Office prosecuted the non-Indian driver of the vehicle for the death of
    the little girl's grandmother. The Southern Ute Tribe, incidentally,
    had no criminal jurisdiction whatsoever to vindicate its interest in
    the death of its own tribal member by a non-Indian defendant. This was
    because of the U.S. Supreme Court's 1978 ruling in Oliphant v.
    Suquamish Indian Tribe, which held that absent express authorization
    from Congress, Indian tribes lack criminal jurisdiction over non-
    Indians.
        As prosecutors we actually got a break in that case, in a way,
    because the defendant--a non-Indian drunk driver--happened to be
    operating his vehicle in a Colorado state right-of-way at the time of
    the accident. The reservation in question, the Southern Ute Indian
    Reservation, has its very own federal jurisdictional statute, Public
    Law 290, limited solely to that reservation, which clarifies when state
    jurisdiction applies within highway rights-of-way. This made it easy
    for two of the first-responders, a Colorado state trooper and a LaPlata
    County Sheriff's deputy, to make a valid state arrest. In other so-
    called ``checkerboard'' Indian reservations such as the Eastern Agency
    of the Navajo Nation, where Indian trust and allotted land parcels
    alternate with private fee lands and various other landholdings,
    highway rights-of-way are typically exclusive federal jurisdiction
    pursuant to the Indian country statute, 18 U.S.C. Sec. 1151. This means
    that a Navajo Nation tribal police officer responding to a similar
    accident on the Eastern Agency ordinarily could not arrest a non-Indian
    defendant without being trained and federally deputized by the Bureau
    of Indian Affairs.
        S. 797 addresses the jurisdictional maze in at least two ways.
    First, Section 305 of the bill creates an Indian Law and Order
    Commission (``the Commission''). This nine-member Commission is charged
    with undertaking a comprehensive study of law enforcement and criminal
    justice in Indian communities and reporting back to Congress within two
    years of the date of the bill's enactment. This includes an analysis of
    jurisdiction over offenses committed in Indian country and how the
    current rules affect criminal investigations and prosecutions. The
    Commission is expressly charged in Section 305(e)(1) with making
    recommendations to Congress for ``simplifying jurisdiction in Indian
    country[.]''
        Such an approach is welcome news. Second, another part of the bill,
    Section 301, takes direct aim at the maze of injustice by helping
    ensure that more tribal, state and local law enforcement officers are
    commissioned as federal officers--that is, federally deputized--to
    fight Indian country crime. There is already reason to believe that
    encouraging U.S. Attorney's Offices and the Bureau of Indian Affairs to
    provide expanded federal deputation training and commissioning, in full
    partnership with the Indian nations they serve, can increase law
    enforcement cooperation, strengthen prosecution, and save lives.
        I say this from direct personal experience as a United States
    Attorney. Between February 2007 and December 2008, the U.S. Attorney's
    Office in Colorado partnered with the Southern Ute Indian Tribe's
    Justice Department and its visionary director, Janelle Doughty.
    Together with our respective offices and the Bureau of Indian Affairs'
    Indian Police Academy, we developed a model curriculum and training
    program to teach and test tribal, state and local law enforcement
    officers on-site in Southwestern Colorado. Our goal was for these
    officers to be federally commissioned by the Bureau of Indian Affairs
    to enforce federal laws in Indian Country, thereby strengthening
    ``boots-on-the-ground'' law enforcement and fostering inter-
    jurisdictional collaboration. The curriculum focused on Indian Country
    jurisdiction, the federal judicial process, investigative techniques,
    officer criminal and civil liability, and other challenges routinely
    encountered by tribal, state and local law enforcement officers.
        The genesis of this unique partnership between a U.S. Attorney's
    Office and an Indian tribal justice department is worth noting because
    it attests to how Section 301 can reasonably be expected to help law
    enforcement officers navigate the jurisdictional maze and increase
    cooperation among different agencies. Ms. Doughty, who testified before
    this Committee last September on a previous version of this bill, is
    the first tribal member--and first woman--ever to direct the Southern
    Ute Indian Tribe's 100-employee Department of Justice & Regulatory,
    which includes the tribal police, wildlife rangers, corrections, and
    division of gaming. Her challenge to me as a new U.S. Attorney in 2006
    was to find a way for the Federal Government to conduct on-site law
    enforcement training and testing on the Southern Ute Indian Reservation
    and invite neighboring non-Indian agencies to participate in this
    effort. Qualified law enforcement officers who completed this training
    and passed the standard test administered by the BIA Indian Police
    Academy could then receive their Special Law Enforcement Commissions or
    ``SLEC'' cards from the BIA to enforce federal laws on the reservation.
        Ms. Doughty, a law enforcement officer with a master's degree in
    social work, had previously been the Crime Victims' Advocate for the
    Southern Ute Tribe. She knew that without valid SLECs cards, tribal law
    enforcement officers could not legally arrest non-Indian defendants who
    committed crimes against Native American victims there. In far too many
    instances, domestic violence laws on the reservation were under-
    enforced to the point that many victims failed to report crimes.
    Precious few Southern Ute law enforcement officers were federally
    commissioned by the BIA and therefore could not investigate crimes
    allegedly committed by non-Indians, to whom exclusive federal
    jurisdiction applies under the Indian Country Crimes Act, 18 U.S.C.
    Sec. 1152.
        Working together with our respective offices, Ms. Doughty and I
    gained the support of veteran Indian country prosecutor Christopher
    Chaney, who at the time directed the Bureau of Indian Affairs' Office
    of Justice Services. Chris proposed partnering with the BIA and its
    Indian Police Academy to develop our training as an on-site ``pilot''
    program. We began in February 2007 by successfully training and
    federally deputizing the first group of 40 tribal, state and local law
    enforcement officers on the Southern Ute Indian Reservation in Ignacio,
    Colorado.
        Word of our efforts quickly spread. What started as a local
    partnership in Colorado eventually led to the nationally recognized
    ``Criminal Justice in Indian Country'' pilot training program, a
    combined effort that included:

       Bureau of Indian Affairs/Indian Police Academy.

       National Congress of American Indians.

       Deputy District Attorney Bernadine Martin of the McKinley
            County-New Mexico District Attorney's Office.

       U.S. Department of Justice/National Advocacy Center.

       The U.S. Attorney's Office in Colorado, New Mexico and South
            Dakota.

        In less than two years, what began as a pilot training program
    limited to the Southern Ute Indian Reservation and surrounding
    communities had grown into 14 separate training sessions across the
    country, attended by more than 400 law enforcement officers and tribal
    leaders representing 35 Indian tribes and 17 states. Many of the
    officers who graduated from the program have since been federally
    deputized.
        In Colorado, the Criminal Justice in Indian Country program has
    already strengthened inter-agency cooperation and federal criminal
    prosecutions, including domestic violence cases. Last fall, Ms. Doughty
    testified before this Committee about how the program had succeeded. As
    an example, she described how a Southern Ute tribal officer had
    responded to a crime scene in a domestic-violence case on the
    reservation. The officer, Chris Naranjo, had received on-site training
    to renew his SLEC card, which otherwise would have expired long before
    he could have left his job to attend a week-long refresher course a
    full days' drive away at the Indian Police Academy in Artesia, New
    Mexico. ``Because he was federally deputized,'' Doughty told the
    Committee, ``Chris could arrest the non-Indian suspect who had
    allegedly victimized one of our Tribal members in that case, which is
    now being prosecuted by the U.S. Attorney's Office.'' A conviction has
    since been obtained in that case.
        S. 797 has the potential to build on such successes and increase
    SLEC training exponentially. Section 301(b) of the bill directs the
    Secretary of the Interior to develop a plan within 180 days of the
    bill's enactment ``to enhance the certification and provision of
    special law enforcement commissions to tribal law enforcement
    officials.'' This expressly includes regional SLEC training sessions
    such as those we developed in Colorado and later conducted in other
    states. As this plan takes shape, there would be minimal additional
    cost to enabling U.S. Attorney's Offices to offer such training in
    partnership with BIA and with the approval and support of the affected
    Indian tribes. This training should not be limited to tribal officials,
    but should include neighboring border communities for effective
    interagency collaboration, back-up and emergency response. In this way,
    law enforcement officers on and near reservations can have the tools to
    help navigate the jurisdictional maze.
    Closing the ``Resource Gap''
        The maze of injustice is not the only nemesis facing criminal
    justice professionals in Indian country. The chronic lack of federal
    resources has become a way of life on far too many reservations. S. 797
    addresses this problem in several important ways. Let me briefly
    discuss just two.
    1. Measuring the Resource Deficit
        First, Section 101 includes detailed reporting requirements to
    track federal criminal justice expenditures and programs provided to
    Indian country every fiscal year. These annual reporting obligations
    extend across the system to include law enforcement, corrections and
    judicial human and financial resources. Section 101 is a critical tool
    to help address the resource deficit that has plagued much of Indian
    country for decades. On average, Indian country has roughly half as
    many police officers per capita as similarly situated rural
    communities. This was the case in 1997, according to a report that year
    by the Clinton Justice Department, and in 2006, when the BIA
    commissioned its own analysis by a private consultant. While economic
    times are tight, it is essential that Congress work with the Obama
    Administration work to close this gap in a systematic and sustained
    way.
        Section 101 can and should be used as part of an internal process
    to estimate what it would actually take for Congress to erase the
    resource gap entirely, in all major categories, by a reasonable date
    certain, and then budget accordingly. The resource deficit is all too
    familiar across much of Indian country. This includes the Ute Mountain
    Ute Reservation in Southwestern Colorado, which borders the Southern
    Ute Indian Reservation I spoke of earlier. The name of the Ute Mountain
    Ute Tribe comes from a local landmark called Sleeping Ute Mountain,
    which resembles a giant warrior lying on his back. It is said that one
    day this warrior will arise and defend the remnant of his people. For
    the time being, members of the Ute Mountain Ute Tribe, unlike their
    neighbors at Southern Ute, must rely exclusively on the Bureau of
    Indian Affairs Office of Justice Services for their law enforcement,
    corrections and judicial services.
        The people of the Ute Mountain Ute nation live in an area of
    remarkable natural beauty that is home to the world-famous Ute Mountain
    Tribal Park. For those who have visited nearby Mesa Verde National
    Park, the Ute Mountain Tribal Park and its extensive ancestral Pueblo
    ruins are among the most spectacular places in the American West. In
    terms of criminal justice services, however, the Ute Mountain Ute
    people deserve far better than what the Federal Government provides
    them. On any given day or night, there are just one or two BIA law
    enforcement officers on duty to patrol the entire reservation, which
    extends into three states and is bigger than Rhode Island. The life-
    and-death mission performed by these and other BIA law enforcement
    officers, and the many sacrifices by their families, deserves our
    gratitude and respect. The entire BIA Police Department for Ute
    Mountain usually consists of just five officers who often work 12-hour
    shifts for days at a time. Nationally, the average police response time
    in the United States is about six minutes. On Ute Mountain Ute,
    response times of an hour or more are the norm.
        The same resource deficit extends to the entire criminal justice
    system. As I testify here today, the BIA has failed to provide a public
    defender on the Ute Mountain Ute Reservation for more than two years.
    This means that virtually all criminal defendants appearing before the
    Court of Indian Offenses lack any legal representation, and cases are
    routinely dismissed, resulting in an almost total lack of misdemeanor
    law enforcement. Earlier this decade, the BIA detention center on the
    reservation also shut down entirely for several months due to lack of
    federal funds. Other key positions, including the BIA tribal
    prosecutor, have been unfilled during much of this same time. Section
    101 can help Congress to quantify and address this continuing mockery
    of the federal trust obligation.
    2. Reporting Case Declinations by U.S. Attorneys
        S. 797 addresses another symptom of the larger criminal justice
    resources deficit: Case declinations by federal prosecutors. The term
    ``declination'' in this context means a decision by a United States
    Attorney's Office not to seek criminal charges after being presented
    with the confidential findings of a law enforcement investigation of a
    suspected federal offense arising in Indian country. Section 102 of the
    bill establishes mandatory reporting requirements for all U.S.
    Attorneys when cases are declined in such instances. What is now
    Section 102 has been criticized in previous versions of this
    legislation by several former and current U.S. Attorneys for whom I
    have great respect, and by the Justice Department in the previous
    Administration in which I served. I respectfully disagree with these
    former colleagues and strongly encourage this Committee to support
    Section 102. At the same time, it is vitally important for this
    Committee to explain to the American why declination reports have
    useful but limited value so that the entire matter is kept in proper
    perspective.
        I support Section 102 as a way to bring greater accountability to
    U.S. Attorney's Offices, and to individual U.S. Attorneys themselves as
    Presidential appointees serving as temporary stewards of the federal
    trust responsibility. Declination reports that respect individual
    privacy and the legal confidentiality of investigative information, as
    the language of Section 102 clearly envisions, would be extremely
    valuable in helping U.S. Attorneys set Indian country enforcement
    priorities and make the case for additional resources in specific
    areas. These reports would also assist the Justice Department in its
    supervisory role of monitoring case trends and aligning national
    prosecution priorities based on more complete criminal justice
    information than currently exists today.
        Rather than fear such enhanced accountability, U.S. Attorney's
    Offices should embrace it as an opportunity to ease suspicions among
    some critics that Indian country cases are somehow treated less
    seriously than other federal criminal prosecutions. Such rumors are
    unfounded. In my experience, the vast majority of Assistant U.S.
    Attorneys serving Indian country are committed to achieving equal
    justice for all Americans, including First Americans living and working
    on Native lands. Tracking case declinations and developing other ways
    to measure the performance of the criminal justice system can assist
    AUSAs and their offices by helping educate the public as to what
    prosecutors in the field really face.
        As I discussed earlier, the pervasive lack of available federal law
    enforcement officers is only a symptom of the relative lack of criminal
    justice resources in Indian country as compared with off-reservation
    communities. As Colorado's U.S. Attorney, I faced this problem
    frequently, especially in cases arising on the Ute Mountain Ute
    Reservation. The on-the-ground reality was sometimes ludicrous, as when
    I joined a police ride-along where the BIA officer had to leave the
    patrol vehicle motor running for his entire shift because it wouldn't
    start if he shut off the engine. The officer's innovative approach
    worked well until the vehicle ran out of gas.
        More often, the situation was grim or even tragic. I especially
    remember one night at Ute Mountain where BIA police dispatch received a
    report of an apparent homicide. By the time a patrol officer arrived, a
    crowd had converged at the crime scene. As often happens, the lone BIA
    officer simply could not establish a perimeter by himself. The mob
    broke into the apparent victim's home, some people literally climbing
    through the windows. The crime scene was hopelessly contaminated. It
    bears mentioning that the resident agent from the Federal Bureau of
    Investigation was 400 miles away in Denver at the time--preparing to
    testify before the nearest Article III federal judge--in another Indian
    country case. This cold case remains an ``unexplained death,'' and it
    is doubtful that sufficient legally admissible evidence will ever be
    collected to solve the crime.
        I mention this in context of declinations and what they can and
    cannot measure. According to the official U.S. Attorney's Manual,
    United States Attorneys may only bring a criminal prosecution if there
    is a reasonable probability of obtaining a conviction at trial. Such
    was not the case here, where the crime scene was compromised--again as
    so often happens--in the critical hours immediately after the crime.
    Reporting declinations is important to reinforcing the accountability
    of individual U.S. Attorneys and the vitally important offices with
    which they are temporarily entrusted. Unlike elected local prosecutors,
    U.S. Attorneys obtain their positions by political appointment--
    Presidential nomination, with the advice and consent of the Senate--are
    not directly accountable to voters.
        This lack of institutional accountability is magnified when U.S.
    Attorneys essentially function as local officials in the prosecution of
    major crimes. When I was teaching tribal law enforcement officers, I
    used to start my classes by asking how many had voted for me as their
    United States Attorney. The confused looks and occasional display of
    hands from the audience spoke volumes about the lack of direct
    institutional accountability between me as a politically appointed
    chief federal criminal prosecutor, acting in effect as a local district
    attorney, and my ``constituency'' hundreds of miles from Denver.
        This lack of local accountability means it is vital for Congress to
    enact meaningful performance measures for Indian country investigations
    and prosecutions. This leads to Section 102 and mandatory case-
    declination reporting. By definition, declinations can never tell the
    full story. Investigative information is highly sensitive and must be
    protected by law in order to safeguard Constitutional rights. An
    obvious example is grand jury information, the unauthorized release of
    which is appropriately punishable by criminal sanction, including
    imprisonment. It can be unreasonable, unethical and illegal for a
    federal prosecutor to attempt to explain why he or she declined to
    prosecute someone.
        Focusing on case declinations in and of themselves, without putting
    them into the larger context of the criminal justice system, can be of
    limited value for another reason. As I discussed earlier, the
    jurisdictional maze can wreck havoc in Indian country investigations.
    Not knowing which agency is supposed to what in a given set of
    circumstances means that too many crimes fall through the cracks. And
    much of Indian country suffers from scarce resources at every step in
    the process, including law enforcement, prosecution, indigent defense,
    courts and corrections. A weak link in any part of this chain can
    undermine the integrity of the entire system, to the point where
    victims simply fail to report crimes in the first place. This tracks
    with the findings of scholarly researchers, such as professor Barbara
    Perry of the University of Ontario, who recently estimated that no more
    than 5 to 10 percent of victims of all domestic violence in Indian
    country report their abuse to the relevant authorities.
        In sum, declinations are an under-inclusive metric that can never
    measure crimes that go unreported or investigations that fail to take
    place or are compromised. Yet that does not mean declination reports
    are somehow unimportant, especially in reinforcing the local
    accountability of U.S. Attorneys and their offices. During testimony on
    previous versions of this bill, it was suggested that mandatory case-
    declination reports might raise concerns with the Constitutional
    separation of powers by intruding on prosecutorial discretion and
    therefore Executive Branch authority. There can be legitimate debate on
    that issue. But even if a legal impasse does arise over this portion of
    the bill, I see no barrier to the U.S. Department of Justice simply
    adopting Section 102 as an internal policy statement and operating
    accordingly.
    Respect for Tribal Sovereignty
        Let me briefly address one final aspect of S. 797: Section 304,
    which deals with tribal court sentencing authority. Among other things,
    this section amends the Indian Civil Rights Act of 1968 to give tribal
    courts the sentencing option to impose terms of incarceration for up to
    three years, a fine of up to $15,000, or both for conviction of a
    single tribal offense. This compares with a maximum penalty of one year
    imprisonment, a $5,000 fine, or both under current law. Consistent with
    the Supreme Court's Oliphant decision, tribal courts could not impose
    these increased penalties on non-Indians. With respect to Indians,
    Section 304 would only permit tribal courts to impose these enhanced
    penalties if they guarantee the defendants' due process of law. The
    bill further requires that the presiding judge and defendants' defense
    attorney be ``licensed to practice law in any jurisdiction in the
    United States.''
        This language attempts to strike a balance between respect for
    criminal defendants' federal Constitutional rights and the sovereignty
    of tribal courts to enforce their own laws. However, it is reasonable
    to expect that should the provision pass, the ball would be hit into
    federal court. Increasing the maximum sentence of imprisonment that
    tribal courts could impose would almost certainly be interpreted by
    federal judges to expand tribal court jurisdiction over Indians beyond
    misdemeanor sentences to include felonies. Additionally, Section 304
    purports to permit tribal courts to ``stack'' offenses to increase
    aggregate penalties for multiple offenses. There is a significant legal
    question, in my judgment, as to whether the U.S. Supreme Court would
    uphold tribal criminal jurisdiction over felonies in cases involving
    non-member Indians and perhaps all Indians. Rather than test these
    legal waters and obtain an adverse interpretation of federal
    Constitutional law that could not be amended later by statute, the
    Committee should consider amending Section 304 to retain the current
    one-year cap under the Indian Civil Rights Act--thus continuing to
    limit tribal courts to misdemeanor sentencing authority only--but
    increase the maximum fines.
        Another issue concerns the representation of criminal defendants
    and the judges who preside over their cases. I read the text of Section
    304(b)((1)(C)(2)(A) as enabling tribal court judges who are tribally-
    licensed but not necessarily attorneys to impose the enhanced penalties
    permitted by the bill. In contrast, no Indian tribe may deny a criminal
    defendant the assistance of a defense attorney, as opposed to lay
    advocate, but that the attorney need not be state-licensed so long as
    he or she is admitted to practice in tribal court.
        What the bill is really trying to do here is not just ensure that
    criminal defendants receive due process of law, but also specify how
    much process is actually due. Here again, it seems likely that the
    federal courts will ultimately confront the issue of tribal judges' and
    defense attorneys' professional qualifications if this portion of
    Section 304 passes. For those of us practicing in tribal court and our
    clients, the point is critically important on several levels. For one
    thing, not all tribal bar admission processes and licensing
    requirements are alike. On the Navajo Nation, for example, just one of
    20 tribal court judges is a state-licensed attorney. One Navajo
    District Court judge is an attorney but not state-licensed. The rest of
    the bench consists entirely of non-lawyers who were admitted to
    practice before the Navajo Nation Supreme Court after passing the
    required eight-hour examination administered by the Navajo Nation Bar
    Association (``NNBA'').
        As a member of the Training Committee of the NNBA, I can attest
    that the Navajo bar examination is rigorous. While lawyers and lay
    advocates may both take the test, the bar passage rate for non-
    attorneys is comparatively low. The admission and continuing legal
    education requirements closely track state attorney licensing
    requirements in some respects and differ in others. And the integrity
    and professionalism of the Navajo Nation judiciary is admired
    throughout Indian country. Yet it is also true that the approach taken
    at Navajo bears little resemblance to some other tribal court admission
    requirements with which I am familiar, in which a non-attorney need
    only fill out a form and pay a fee. Section 304 should be amended to
    reflect such realities. One way might be to set minimum qualifications
    for tribal admission requirements for those tribal courts that decide
    to adopt the heightened sentencing provisions.
        Despite these concerns, Section 304 properly seeks to reinforce the
    critical importance of tribal courts in misdemeanor enforcement. This
    section could be further strengthened in two ways. First, I suggest
    adding language encouraging support for tribal sentencing based on the
    traditional and customary law of each Indian community. Second, the
    expanded sentencing authority in Section 304, no matter what form it
    eventually takes, ought to be extended to the BIA Courts of Indian
    Offenses, which serve as the primary source of misdemeanor adjudication
    on ``BIA-only'' reservations such as Ute Mountain Ute. This section,
    like the rest of the bill, will also require reasonable funding. In
    recent years, the BIA court and detention center at Ute Mountain have
    functioned only sporadically. Besides preventing misdemeanor
    enforcement, violent crimes sometimes go unpunished under federal law
    because potential witnesses cannot be detained locally while
    investigations are completed and federal charges filed. Such systemic
    neglect must not continue.
        S. 797 has many other worthwhile provisions. Time does not permit a
    comprehensive analysis, but I welcome the Committee's questions either
    at this hearing or later in writing.
    Looking Forward
        The Tribal Law & Order Act merits the strong support of the
    Congress and the Obama Administration. Looking forward, several related
    issues are also worthy of continued attention by this Committee, either
    as additions to S. 797 or in the days ahead.
    1. U.S. Attorney Qualifications
        While the Senate Judiciary Committee handles the confirmation
    process for United States Attorneys and federal judges, the perspective
    of the Committee on Indian Affairs on such appointments is absolutely
    critical, as is the role of Indian tribes and nations in informing that
    process. Perhaps a personal story helps illustrate this point.
        As Colorado's U.S. Attorney, I vowed to make Indian country a top
    priority. I had worked extensively in Indian Country and vowed to act
    like a local District Attorney when dealing with the two Indian nations
    headquartered in Colorado. This meant meeting every month with both
    tribal councils and working daily with tribal justice department
    leaders. I asked the Governor of our state to appoint me to the
    Colorado Commission of Indian Affairs and participated actively in that
    body. The U.S. Attorney's Office partnered with the Southern Ute Indian
    Tribe as discussed above and became actively involved in teaching
    tribal law enforcement officers and their state and local counterparts,
    negotiating inter-governmental agreements for mutual assistance and
    emergency response, and cutting through bureaucratic red tape. Our
    office secured funding from the Justice Department for an additional
    Assistant U.S. Attorney position to increase Indian Country
    prosecutions, as well as a second Victim Witness Coordinator position
    to support our cases. I traveled to Albuquerque, Washington, DC and
    elsewhere to seek more BIA law enforcement resources. Each quarter, I
    invited a senior law enforcement leader to join me in visiting the two
    Indian nations headquartered in Colorado. Supervisory Agents-in-Charge
    from the Federal Bureau of Investigation, Drug Enforcement
    Administration, U.S. Marshal's Service, Bureau of Alcohol Tobacco and
    Firearms, Bureau of Land Management, the Internal Revenue Service, U.S.
    Environmental Protection Agency, and other federal agencies all
    participated in these site visits and briefings.
        Yet the fact remains that my Indian country agenda as a United
    States Attorney was largely self-imposed. I could just as easily have
    taken a limited interest in the topic and perhaps not experienced any
    adverse repercussions. This became perfectly clear to me during my
    nomination and confirmation process to become Colorado's U.S. Attorney.
    Not once was I questioned by anyone in Washington as to how I would
    prioritize Indian Country law enforcement and prosecution. I then asked
    to meet with members of the two tribal councils after my nomination but
    prior to my Senate confirmation. The response from officials in both
    the Executive and Legislative branches of government was that it would
    be inappropriate for me to meet with Indian tribal leaders prior to
    taking the oath of office.
        To me this is exactly backwards. The Constitutional separation of
    powers properly places the confirmation process with the Senate.
    However, as part of the government-to-government consultation process
    required by executive order, each President should consult directly
    with the affected tribal governments before nominating any U.S.
    Attorney. The same process should apply to all potential nominees for
    other Presidential appointments requiring Senate confirmation,
    including candidates for the federal bench. Once a candidate is
    nominated, both the Justice Department and the Senate should actively
    encourage tribal leaders to meet and question the nominees who aspire
    to become their next chief federal prosecutor or judge. The U.S.
    Constitution recognizes three sovereigns: The Federal Government,
    states and Indian tribes. Tribal governments should be guaranteed a
    full and fair opportunity to meet face-to-face with would-be U.S.
    Attorneys and federal judges before they are confirmed by the Senate
    and take the oath of office, and regularly thereafter.
    2. Expanding Federal Judicial Access
        A second vitally important issue concerns expanded federal judicial
    access on and near Indian reservations. On December 13, 2005, a federal
    criminal trial was held on the Navajo Nation. This little-noticed
    trial, convened in Shiprock, New Mexico and involving tribal members,
    apparently marked the first time a U.S. District Court had heard a case
    on the country's largest Indian reservation. The Navajo Nation covers
    an area nearly the size of West Virginia--a state, incidentally, with
    nine separate federal courthouses for the convenience of its citizens.
        The lack of federal judicial access for Native people living on
    Indian lands is one of the great civil rights issues of our time. As
    discussed earlier, American citizens rightly value localism--having
    government officials who are accountable and accessible to them, and
    who live and work in their communities. It would be unthinkable off-
    reservation for a crime victim to travel hundreds of miles just to
    participate in a criminal case. Yet this is commonplace in Indian
    Country, as is the lack of jury pools with meaningful Native American
    representation. As Janelle Doughty of the Southern Ute Tribe testified
    to the Senate last fall:

            It is totally unacceptable that the nearest U.S. District Court
            Judge in Colorado is 350 miles away from the Southern Ute
            Indian Reservation, and even farther from our sister tribe to
            the west, the Ute Mountain Ute Reservation. We have been
            pushing for a federal courthouse and judgeship in our area.
            Trying cases that meet the elements of the Major Crimes Act 350
            miles from the jurisdiction in which they occur stands as a
            road block to justice and must be resolved. Federal juries in
            Colorado rarely include a single American Indian, yet they
            decide purely local crimes. And we have never had a federal
            grand jury in Western Colorado in my lifetime.

        The federal judiciary is a separate branch of government
    responsible for administering its own affairs. Yet Presidents and the
    Congress influence judicial policy through authorizing legislation and
    appropriations for judges and judicial resources. It is time to
    recognize and start reversing this injustice.
    3. Thinking Beyond Oliphant
        A final topic concerns tribal criminal jurisdiction over non-
    Indians and the limits of federal deputation. As an Oliphant
    jurisdictional work-around, Special Law Enforcement Commission
    (``SLEC'') agreements are not nearly as practical or plentiful as one
    might conclude from reading about them in federal court decisions.
    Effective law enforcement over non-Indians who commit crimes in Indian
    Country varies widely depending on the reservation, and in practice
    sometimes does not exist. In New Mexico, for example, just three of 22
    Indian tribes and pueblos currently have SLEC agreements with the BIA
    that permit federal deputation. One of those is the country's largest
    Indian reservation, the Navajo Nation, which has entered into some
    state cross-deputation arrangements but which still lacks an SLEC
    agreement with the BIA even though Oliphant was decided more than 30
    years ago.
        This, in turn, has prompted a searching review by several
    commentators into whether Oliphant itself should be modified or
    repealed. There are deeply held and often passionate views on both
    sides. Certainly a Congressional repeal of Oliphant would give non-
    Indians a far greater stake in the future of Indian country than would
    otherwise exist during our lifetimes. The possibility that a non-Indian
    might someday face criminal proceedings in tribal court, unlikely
    though it might be for most Americans, would nonetheless be real. Over
    time, that potential exposure of non-Indians to tribal courts and
    police departments, and federal and tribal policy-makers' concern about
    such matters, will time will create an invaluable off-reservation
    constituency to support tribes in improving their criminal justice
    systems. But we must also be realistic about the scope, magnitude, and
    difficulty of what we are talking about. To me, ending Oliphant means
    extending tribal court jurisdiction to all citizens in a way that fully
    protects their rights under the U.S. Constitution.
        In my view, any serious discussion of what a post-Oliphant world
    might look like starts with a simple premise: The depth and consistency
    with which tribal courts protect criminal defendants' civil rights must
    be on a par with that of defendants in state court criminal
    proceedings. Otherwise, federal habeas corpus relief from tribal court
    decisions alleged to have violated federal constitutional rights might
    not realistically be a sufficient remedy. Defendants would presumably
    expect to be retried de novo in U.S. District Court on tribal criminal
    code violations--essentially imposing a costly and frustrating
    exhaustion requirement for all concerned and, from the tribes'
    perspective, a serious infringement on tribal courts' sovereignty, with
    federal judges applying tribal law.
        A better approach would be to ensure that the tribal courts
    themselves--based on their own assessment of their sovereign
    interests--meet federal Constitutional requirements in terms of due
    process and providing a full and fair forum by an independent, neutral
    arbiter. Several tribal court systems, such as the Navajo Nation
    Supreme Court and District Courts, are already meeting that threshold
    standard in some respects but not all, such as judicial independence.
    This is promising given that these court systems were not designed, and
    are not currently configured, to adjudicate criminal matters involving
    non-Indian defendants. Others could probably make the transition in
    time, provided the tribe's leadership decided it was priority. Still
    other tribal courts are not ready and may not be for the foreseeable
    future, whatever their intentions.
        All this suggests that tribes might be given the freedom to opt-in
    to a post-Oliphant world on a case-by-case basis. Those tribal courts
    wishing to exercise criminal jurisdiction over non-Indian defendants
    could be supported in doing so starting on a certain date, provided
    they agree voluntarily to integrate federal constitutional substantive
    and procedural protections into their justice systems. This would mean,
    as in state courts, that the definition of what constitutes a
    permissible search and seizure under tribal case law, say, would be
    separate and distinct from its federal counterpart, provided again that
    all federal constitutional requirements were met as a ``floor'' on
    permissible rights. The Indian Civil Rights Act would necessarily need
    to be modified in several critical respects, such as providing under
    tribal law (unlike ICRA) that indigent criminal defendants are entitled
    to legal representation. Another concern--one raised by the Oliphant
    Court--involves jury pools. At the time the case was decided, the court
    for the Suquamish Tribe did not allow non-Indians to participate in
    juries. That situation has changed dramatically for some tribal courts,
    which now require a ``fair cross-section of the community'' standard
    for jury selection and service.
        Still another matter that might arise should Oliphant be repealed
    is the sovereign immunity of government officials in the civil context.
    The combined effect of Section 1303 of the Indian Civil Rights Act and
    the U.S. Supreme Court's 1978 decision in Santa Clara Pueblo v.
    Martinez is to limit federal review of tribal court decisions to habeas
    corpus. This expansive definition of tribal sovereign immunity is
    greater than that afforded to the states, where defendants have the
    alternative remedy under 42 U.S.C. Sec. 1983 to challenge alleged
    misconduct by state and local police and other governmental officials.
    In conjunction with repealing Oliphant, Santa Clara Pueblo might be
    modified to provide a waiver of qualified sovereign immunity in such
    cases, again to ensure greater governmental accountability and
    protection of defendants' civil liberties.
    Conclusion
        Whatever reforms this Committee ultimately chooses to pursue, the
    dialogue is timely and extraordinarily important given the
    disproportionately high violent crime rates in Indian Country and the
    need for expanded law enforcement. A greater emphasis on reinforcing
    tribal sovereignty and self-determination in tribal criminal justice
    policy is the same approach that has so dramatically improved the
    delivery of many other essential governmental services on Indian
    reservations in recent years. That approach holds enormous promise for
    making Indian Country safer for all, provided there is no compromise on
    the rights of the accused in federal criminal proceedings. The status
    quo--and the lingering public-safety gap between Indian Country and
    similarly situated rural communities--was never acceptable, and the
    time to end it is now.
        Thank you.

        Senator Udall. Thank you very much for your testimony.
        Judge Brandenburg, please go ahead.

        STATEMENT OF HON. ANTHONY J. BRANDENBURG, CHIEF JUDGE,
                INTERTRIBAL COURT OF SOUTHERN CALIFORNIA

        Mr. Brandenburg. Please thank the other Members of the
    Committee for allowing me to be here today.
        As you said, my name is Anthony Brandenburg. I am the Chief
    Judge of the Intertribal Court of Southern California. Now, the
    Intertribal Court of Southern California is a consortium of
    tribes. It is a court system where it works as a circuit court
    on that concept, whereby the judge travels from one reservation
    to the other, presiding over assigned cases. The rules are
    based essentially on tribal laws, ordinances, customs and
    historical precedent.
        The Intertribal Court provides the tribes with a judge, a
    court administrator, court clerks, bailiffs and case management
    system. Court hearings are held at the respective tribal
    facilities as an exercise of that tribe's civil regulatory
    jurisdiction.
        Prior to my appointment as Chief Judge of the Intertribal
    Court, I spent approximately 17 years on the State bench in San
    Diego, California, with both the Municipal and Superior Courts.
    Because I had worked so many years pro bono in Indian Country,
    somehow I got the reputation of being the Indian judge.
        I think you heard the many complaints about Public Law 280
    and how it has injured and affected negatively the sovereignty
    of our tribes. Well, let me tell you about the practical
    effects of a guy in the trenches, first-hand at the State and
    tribal level what is going on.
        Until recently, there were absolutely very few, in some
    cases no tribal courts in Southern California to speak of. Yet,
    in San Diego County alone, there are 17 federally recognized
    tribes. If you add in our neighboring tribes in the local
    counties--Riverside, San Bernardino and Imperial--you can add
    another 17 tribes just about.
        Basically, when I was on the State court, whenever an
    Indian case came along, I got the call. If you were to ask 20
    of our judges about Public Law 280, 19 would tell you they
    essentially knew very little or nothing about it at the State
    level. In fact, I recall one of our presiding judges telling me
    when an Indian case came up, now it's a Federal case. It goes
    to Federal court. Forget about it.
        Actually, he was serious. The trouble is, you can't blame
    the judges because in reality they are simply not schooled on
    the issues of Public Law 280 at the State level. During my
    entire career on the bench, I was never offered a case, or a
    program I should say, on Indian law, nor did I ever hear of one
    on Public Law 280.
        Allow me to offer you a sobering fact that I am sure you
    are aware of. The highest crime rate in the United States is
    not in the inner city. It is not Black. It is not White. It is
    Indian-on-Indian crime. And addressing Public Law 280 and the
    law enforcement gap that it was supposed to close some 50-odd
    years ago, it has only made it worse. The very often confusing
    jurisdictional issues, coupled with a pervasive distrust of
    local law enforcement and State courts, has left our Indian
    Country a virtual legal no-man's land.
        For example, Public Law 280 does not allow local or State
    law enforcement to enforce tribal law, nor can county
    ordinances be enforced on tribal courts. In short, what this
    means very often is that local law enforcement simply refuses
    to come on to the Indian reservations.
        Public Law 280 has been a failure. As I stated earlier, as
    a judge and as an individual who has worked and lived in Indian
    Country, we need help. The first job of government is to
    provide public safety. That is what Indian Country needs. Our
    tribes have to exercise their jurisdiction and provide law and
    order to the individuals, and fundamentally that is a
    significant legal power that tribal governments must do and can
    do, but they need this type of legislation to do that.
        Providing safe, healthy communities where our elders, our
    children, are safe; where families are able to work and thrive,
    and where people can provide for themselves in the community,
    all in a manner that is consistent with and reinforced by
    tribal values and cultures, is the most significant power as
    sovereigns a tribe can exercise.
        I have to skip over some things here. Providing the
    resources for tribal custodial facilities would be a first in
    California. This would allow for the development of culturally
    appropriate facilities that can have a direct and lasting
    impact on rehabilitation and the reduction of recidivism in our
    communities.
        The Intertribal Court as a consortium is in the unique
    position to benefit from all this because it allows the pooling
    of resources, which is particularly relevant to our tribes
    because so many of them share not only a common heritage, but
    common goals.
        The people of Native America, the people of our native
    communities, want to feel safe and secure in their homes and
    their properties and on their ancestral homelands. They want
    nothing more than any other person in any other neighborhood in
    any other part of this Country, and they should get nothing
    less. With the help of this legislation, we can do good things.
    In addressing the cross-deputization and cooperation and mutual
    aid agreements, we have come a long way.
        In conclusion, I am very encouraged by what this Committee
    is trying to do. I am totally supportive, as are our tribes.
    Let me add one caveat, however. The true goals and intent of S.
    797 will only be realized if the Federal Government makes a
    long-term commitment to provide the resources, and equally as
    important, the influence to encourage all of law enforcement
    jurisdictions, be it tribal, Federal, State or local, to join
    in the effort.
        The time is now for everybody to step up to the plate. This
    is an opportunity and we can't let it pass by. Tribes need your
    support and appreciate your suggestions and support and
    encouragement in improving their relationships with the
    Federal, State and local agencies to protect our women,
    children and elders, and most of all to provide native people
    with equal access to justice.
        This legislation goes a long way in closing the gap I spoke
    of, and I respectfully pray that you encourage Congress to
    support it. It deserves your support.
        Thank you, Mr. Chairman. Thank you, Mr. Udall.
        [The prepared statement of Judge Brandenburg follows:]

        Prepared Statement of Hon. Anthony J. Brandenburg, Chief Judge,
                    Intertribal Court of Southern California
        Chairman Dorgan, Vice Chairman Barrasso, honorable Members of the
    Senate Committee on Indian Affairs, thank you for this opportunity to
    appear before you this afternoon to provide testimony on matters of
    such great importance. My name is Anthony Brandenburg, and I have the
    privilege and honor of serving as the Chief Judge of the Intertribal
    Court of Southern California.
        The Intertribal Court of Southern California (the ``Intertribal
    Court'') is an inter-tribal court system, which works on a ``circuit
    court'' format whereby a judge travels from one Reservation to the next
    presiding over assigned cases. Rulings are based on tribal laws,
    ordinances, customs and historical precedent. The Intertribal Court
    provides a judge to each tribe, court administration, court clerks,
    bailiffs, and case management. Court hearings are held at the
    respective tribes' reservations, as an exercise of that tribe's civil
    jurisdiction.
        Prior to my appointment as Chief Judge of the Intertribal Court, I
    served almost 17 years on the Superior and Municipal Court Bench in San
    Diego County, California. Because I had worked so many years on a pro
    bono basis in Indian Country, I had gotten the reputation as the
    ``Indian Judge.''
        I think you have heard many complaints from tribes about P.L. 280
    and how it has injured their sovereignty. Let me tell you about the
    practical effects that I have witnessed as a state judge and tribal
    judge.
        Until very recently, there were no tribal courts to speak of in all
    of Southern California. Yet in San Diego County alone there are 17
    federally recognized tribes. Add in our neighboring Southern California
    counties of San Bernardino, Riverside and Imperial, and we have almost
    another 17 tribes.
        So when a case regarding Indians or Indian Reservations came along
    I usually got a call. If one were to ask twenty local judges about P.L.
    280 nineteen would not know nothing or very little about it. ``It's a
    federal issue,'' I was once told by one of my presiding judges. ``It
    belongs in federal court,'' he went on to say, and he honestly believed
    so. In fact, you can't blame the judges, the reality is they simply
    have not been schooled on the issues. During my entire tenure on that
    bench, not once did I hear of nor was I offered a program on Indian
    Law. Consequently, I knew of no judges who were familiar with P.L. 280.
        Allow me to offer this sobering fact. The highest crime rate in the
    United States per capita does not occur in our inner cities nor is it
    black or white. It is Indian on Indian crime.
        In addressing P.L. 280, and the law enforcement gap it was supposed
    to close some 50 years ago, I can only say things have gotten worse.
    The very often confusing jurisdictional issues, coupled with a
    pervasive distrust of local law enforcement and state courts has left
    our Indian Country a virtual legal no man's land. For example, P.L. 280
    does not allow local or state law enforcement to enforce tribal laws,
    nor can county or municipal laws or ordinances be enforced on tribal
    land. In short, this means that local and state law enforcement is
    frequently reluctant to even come on the reservations.
        I think we can all agree that P.L. 280 has been an abject failure.
    But today we can do something about this! As I stated earlier, as a
    judge and individual who has lived and worked in Indian Country, I
    believe the topic of this hearing is a matter of great importance to
    Indian Country. The first job of any government is public safety. For
    our tribes, exercising their jurisdiction to provide law and order is a
    fundamentally significant legal power that tribal government must do
    and can provide. Providing safe, healthy communities where our elders
    and children are safe, where families are able to work and thrive,
    where people can provide for themselves and the community, all in a
    manner that is consistent with and reinforced by the traditional values
    and culture of our tribes, is the most significant power the tribes, as
    sovereigns, can exercise.
        While P.L. 280 did not remove tribal criminal jurisdiction over
    Indians, the practical effect of removing federal jurisdiction was the
    elimination of federal resources, and the states have not filled the
    gap. Without those resources, it was all but impossible for tribes to
    develop and maintain effective justice systems. What our tribes have
    done in response has been to decriminalize activities to fit within a
    civil jurisdictional scheme. The result has been that tribes in P.L.
    280 states like California have not developed the type of justices
    systems needed to exercise criminal justice. Our tribes have no
    criminal codes to speak of, tribal court staff are not trained in
    criminal matters, and tribes have no custodial facilities.
        Among the goals of S. 797, is a fundamental effort to not only do
    away with the various misconceptions of P.L.280, but to educate and
    train at the tribal, local and state level our judges and staffs, while
    at the same time bringing the Federal Government back into the
    equation. The result, if effective, being that tribes will be empowered
    in their efforts to reestablish and maintain law and order on our
    reservations. It also serves in allowing the tribes and tribal courts
    to re-enforce their laws by including cultural and traditional values
    in their judicial decision-making processes.
        In my view as a judge, S. 797 will help us to accomplish these
    necessary goals by: (1) repealing of the P.L. 280 provisions removing
    federal jurisdiction; (2) Authorizing and encouraging cross-
    deputization, mutual aid, and other cross-jurisdictional agreements
    through the cooperative assistance grants; (3) giving expanded
    sentencing authority for tribes; and (4) providing resources for tribal
    custodial facilities. I cannot emphasize enough the positive benefits
    that would be achieved by expanding tribal sentencing authority, and
    allowing tribes to provide realistic, culturally appropriate sentencing
    which would actually deter behavior. And providing resources for tribal
    custodial facilities would be a first for California. This would allow
    for development of culturally appropriate facilities that can have a
    direct and lasting impact on rehabilitation and the reduction of
    recidivism in our communities.
        The Intertribal Court, as a consortium of tribes, is uniquely
    positioned to benefit from this legislation. It allows for the pooling
    of resources, which is particularly relevant to our tribes since many
    of them share not only a common heritage, but common goals.
        The people of our Native Communities want to feel safe and secure
    in their properties and on their ancestral homelands. They want nothing
    more than any other person in any neighborhood in any other part of
    this country, and they should accept nothing less. With the help of
    this legislation we can continue our work on winning the trust and
    confidence of our people in a tribal judicial system, as well as our
    state and federal systems. But we can not do this alone any more than
    local, state or federal agencies have succeeded in doing this on their
    own.
        In addressing cross-deputization, cooperation and mutual aid
    agreements this bill suggests that these agreements are critical to the
    success of our efforts, and I whole-heartedly agree. I know this from
    first hand daily experiences. I am in the trenches. If any efforts are
    to succeed you must first have the trust and respect of the members of
    your tribal community. This can only happen with a fair and effective
    law enforcement system.
        Recently I had the privilege of meeting with the California Joint
    State/Federal Judicial Council. Members of this group include the Chief
    Justice of the California Supreme Court, the Senior Judges of the 9th
    Circuit Court of Appeals. In essence, I can tell you they agree that we
    must work together in our efforts as we approach issues of law in
    Indian Country.
        In conclusion, I am very encouraged by your efforts as reflected
    thus far in S. 797. This legislation can help create a seamless state,
    federal and tribal law enforcement procedure to the mutual benefit of
    all. Let me add this as a caveat though: the true goals and intent of
    S. 797 will only be realized if the Federal Government has a long term
    commitment to provide the resources and, as important, the influence to
    encourage all the law enforcement jurisdictions--tribal, federal, state
    and local--to join in this effort.
        The time is now once and for all for everyone to step up to the
    plate. Whether it is expanding the tribal courts' sentencing authority
    or the building of tribal custodial facilities, we have not only have
    an opportunity here, but an obligation to act. Tribes need your support
    in their efforts at improving their relationships with state and
    federal agencies in helping them protect our children, woman and
    elders, and most of all in providing our Native Peoples with an equal
    access to justice.
        This legislation goes a long way in closing the gap and,
    respectfully, I pray that Congress gives it the support it deserves.
        Thank you, Chairman and Members of the Committee. I stand ready to
    answer any questions you may have.

        Senator Udall. Thank you very much, Judge Brandenburg, for
    your testimony.
        President Quasula?

    STATEMENT OF THEODORE R. QUASULA, PRESIDENT, QUASULA CONSULTING

        Mr. Quasula. Good afternoon, Mr. Chairman.
        I deeply appreciate this opportunity to offer my thoughts
    and remarks regarding the Law and Order Act of 2009. By way of
    introduction, I am Ted Quasula, an enrolled member of the
    Hualapai Tribe in Arizona. The reservation consists of nearly
    one million acres and a tribal enrollment of about 2,500. The
    Hualapai Tribe is also the home of the Skywalk, a glass-bottom
    walkway over the west end of the Grand Canyon.
        I have spent most of my entire adulthood in law
    enforcement, beginning as a patrol officer in the city of
    Flagstaff. After a couple of years, I moved on to the Bureau of
    Indian Affairs as a criminal investigator, and eventually
    worked up the ranks, becoming Director for the last 10 years of
    my 26-year career in the BIA.
        After retiring from Federal service in 2001, I started a
    consulting business to work with Indian criminal justice
    systems. However, I still had the itch to be active in law
    enforcement so I became Chief of Police for the Las Vegas
    Paiute Tribe in Las Vegas, Nevada for the next five years. It
    is a small tribe, but its location in downtown Las Vegas kept
    things pretty lively, as you can imagine.
        I have tracked the formation of Senate Bill 797 since
    Chairman Dorgan sent a letter to tribal leaders with a concept
    paper back in November, 2007. I commend this Committee and its
    staff for the listening sessions, meetings and previous
    hearings on what could be the most comprehensive and complete
    legislation ever to modernize Indian Country criminal justice
    systems. There is obviously considerable thought and effort
    that went into the formation of the bill.
        On June 12, 2008, Senator Dorgan, Senator Thune, Senator
    Johnson, and Senator Tester signed a letter seeking comments on
    the proposed legislation. In the letter, the Senators concluded
    that ``Many tribal communities are in the midst of a public
    safety crisis.''
        After reading and re-reading the Tribal Law and Order Act
    of 2009, I thought to myself this is deja vu all over again. In
    1997, Attorney General Janet Reno and Secretary of the Interior
    Bruce Babbitt were directed by President Clinton to come up
    with a plan to improve law enforcement in Indian Country. There
    were meetings and listening conferences with tribal leaders and
    many others involved in the Indian Country criminal justice
    systems.
        The beginning of that report, which is named The Report of
    the Executive Committee for Indian Country Law Enforcement
    Improvements of October 1997, starts out ``There is a public
    safety crisis in Indian Country.'' The findings of 1997 and the
    findings in S. 797 are nearly identical. The only change is
    that the crisis has worsened, if that is possible, as a result
    of the surge or scourge of methamphetamine use on Indian
    reservations. There was a public safety crisis before 1997.
    There was a public crisis in 1997. And there is a public safety
    crisis today.
        In the BIA, we all knew what needed to be done, but funding
    was so inadequate that the aforementioned public safety crisis
    continued to grow right before our eyes. In a nutshell, there
    were not enough cops and the jails were antiquated and
    overcrowded.
        If it were not for the many tribes that utilize their own
    funding resources for criminal justice systems in Indian
    Country, the problems would certainly be worse than what they
    are today. S. 797 proposes sincere and greatly needed changes
    in Indian Country law enforcement. I provided specific comments
    which are submitted in my written testimony. I offer you my
    views based on my professional and personal experience.
        There must be accountable policing. In 2001, the Hualapai
    Tribe asked that I start a Police Department for the tribe. The
    BIA had the same problem then as it does today. It could not
    attract and hire police officers. There was always a shortage
    of officers and criminal activity was increasing. The tribe
    thought it could do better, so it contracted with the BIA to
    operate the Police Department.
        The BIA funding was limited, but the tribe was desperate
    for adequate and sufficient law enforcement protection. Today,
    the tribe supplements the Federal Government funding and
    provides for 50 percent of the Police Department's operating
    budget. The tribe understood that attracting and retaining
    officers would not be cheap. The tribe pays its officers a
    little more than the surrounding communities and counties.
        The Hualapai Police today participate in the State of
    Arizona public safety retirement system, the same as any city,
    county and State law enforcement in Arizona. Arizona is the
    only State that I know of that has passed legislation
    authorizing tribes, tribal police and firefighters to
    participate in the State's public safety retirement system.
    This allows officers from other departments to transfer to the
    Hualapai Police Department without losing their retirement.
        Hualapai Police are required to complete the Arizona State
    peace officer standards, Arizona POST, background checks, and
    training requirements. When tribal officers graduate from
    Arizona POST basic training, they are authorized to enforce
    State law. I advocate State training in that it gives the
    tribal officers the opportunity to train side by side with
    State, county and local law enforcement officers. We find that
    sheriffs and chiefs of police realize that tribal police are
    required to meet the same standards as their officers.
        Hualapai Police are also required to complete the BIA
    certification course and hold BIA special law enforcement
    commissions.
        Now, we all know that criminals have no respect for
    reservation boundaries. The Hualapai Tribe has established
    interagency governmental agreements with the Arizona Department
    of Public Safety, Mohave County and Yavapai County for mutual
    aid and assistance. The IGAs did not happen overnight. It took
    open communication, a lot of give and take with State and
    county officials. But in the end, everybody fully agreed that
    there is a great need to coordinate and work together in the
    interest of public safety for all.
        The Hualapai Police was located in a renovated residence
    which is wholly inadequate, not to mention unsafe. Like many
    other reservations of comparable size and enrollment, a
    criminal justice center is necessary to house the courts, the
    police and detention.
        There also must be competent court systems. The Hualapai
    Tribe operates its tribal court through a contract with the
    BIA. The tribe supplements the BIA contract with its own funds.
    In fact, it covers 62 percent of the operating costs. Judges
    and prosecutors are not required to be licensed attorneys. The
    law and order code is five years old and needs some updates.
    And the court, too, is located in a renovated community center
    that is 35 years old and was never designed to be a courtroom.
        The adult detention facility in Peach Springs is operated
    by the BIA. The BIA has chronically been unable to fill its
    correctional officer positions primarily because of the lack of
    housing in the community and the lengthy recruitment process,
    which often exceeds a year. The fact that the BIA only posts
    its vacancies on a Federal website prevents many people on
    reservations from accessing the vacancy information.
        The low pay in comparison with surrounding county jails is
    another obstacle. As of two weeks ago, the BIA had four
    correctional staff to staff a 45-bed facility which is always
    filled to capacity.
        Tribal police yesterday had 197 arrest warrants that are
    not processed because there is simply no place to book or house
    prisoners. Because of staff shortages and unsecure outdoor
    recreation yards, prisoners are not allowed to go outdoors to
    exercise or to even see the sunlight. They are confined to
    cells or day rooms 24 hours a day.
        In September, 2005, through February, 2007, the BIA closed
    the jail on a one-day notice. It was a monumental disaster. If
    there was jail space available, tribal police could house
    prisoners in Flagstaff, Arizona, 115 miles away. If no space
    was available, officers were forced to take prisoners to
    Gallup, which is 300 miles away one way. BIA had a contract
    with those facilities.
        Because the jail closure created so many problems for
    tribal officers and the community in general, we truly believed
    it would never happen again. However, earlier this month BIA
    detention officials contacted the tribe and said it was closing
    or suspending the operation of the jail again.
        You know, S. 797 increases sentencing from one year to
    three years. For us, it doesn't really matter. Unless there is
    a detention facility available, increased time makes little
    sense, although we fully agree with it.
        We have a new juvenile detention facility. The tribe is
    operating it under contract, and quite frankly, we are off to a
    great start, although it, too, is already underfunded. Out of
    necessity because the BIA could not open the facility, the
    tribe took over via contract and we are operating it and I
    think we are off to a great start.
        In closing, I want to say that tribal governments have
    equal responsibility to ensure public safety in Indian Country.
    I have said repeatedly that if tribes expect Washington, D.C.
    to fix all the social ills on the reservation, they will be
    waiting forever. Tribal governments must ensure that all local
    service providers, including those in the criminal justice
    system, collaborate to ensure that maximum effective services
    are provided.
        Too many times the police are blamed. Police cannot arrest
    their way out of community problems. Finger-pointing, placing
    blame is a waste of time. I say Washington can provide the
    tools, but it is the tribes that must do the work.
        You know, section two in the Tribal Law and Order Act lists
    a number of findings that we have heard over and over and over.
    Commitment is the next finding that we need.
        Honorable Members of the Committee, again thank you and
    your staff for the outstanding work in introducing S. 797. We
    all agree that there is a public safety crisis that affects the
    lives of our citizens living and working on the Indian
    reservations. Let us get the legislation passed and signed into
    law because there is a lot of work to do to make all of Indian
    Country safe and secure.
        Let's not let the next generation of tribal criminal
    justice practitioners read about another fruitless effort. I
    commend you for striving to enact effective comprehensive
    legislation which finally addresses all the needs for public
    safety in Indian Country.
        Thank you very much.
        Before I quit, I would like to introduce the Chairman of
    the Hualapai Tribe, Mr. Wilfred Whatoname.
        Senator Udall. Thank you for being here, Mr. Chairman.
        [The prepared statement of Mr. Quasula follows:]

         Prepared Statement of Theodore R. Quasula, President, Quasula
                                   Consulting
        Good afternoon Chairman Dorgan, Vice Chairman Barrasso and Members
    of the Committee. I deeply appreciate this opportunity to offer my
    thoughts and remarks regarding S. 797, the Tribal Law and Order Act of
    2009. By way of introduction, I am Ted Quasula, an enrolled member of
    the Hualapai Tribe in Arizona. The reservation consists of nearly 1
    million acres, and the tribal enrollment is about 2,500. The Hualapai
    Tribe is also home of the Skywalk, a glass bottomed walk way over the
    west end of the Grand Canyon.
        I have spent most all my entire adulthood in law enforcement,
    beginning as a patrol officer in the City of Flagstaff, Arizona. After
    a couple of years I moved on to the Bureau of Indian Affairs as a
    criminal investigator and eventually moved up the ranks, becoming
    director for the last 10 years of my 26 year career in the BIA. After
    retirement from federal service in 2001, I started a consulting
    business to work with Indian criminal justice systems. However, I still
    had the itch to be in active law enforcement so I became chief of
    police for the Las Vegas Paiute Tribe for the next five years. It is a
    small tribe, but its location in downtown Las Vegas kept things pretty
    lively as you can imagine.
        I have tracked the formation of S. 797 since Chairman Dorgan sent a
    letter to tribal leaders with a concept paper back in November 2007. I
    commend this Committee and its staff for the listening sessions,
    meetings and previous hearings on what could be the most comprehensive
    and complete legislation ever to modernize Indian Country criminal
    justice systems. There was considerable thought and effort that went
    into the formation of the bill. On June 12, 2008, Senator Dorgan,
    Senator Thune, Senator Johnson and Senator Tester signed a letter
    seeking comments on the proposed legislation. In that letter the
    Senators concluded that ``many tribal communities are in the midst of a
    public safety crisis.''
        After reading and re-reading the Tribal Law and Order Act of 2009,
    I thought to myself, ``This is deja vu all over again.'' In 1997
    Attorney General Janet Reno and Secretary of the Interior Bruce Babbitt
    were directed by President Clinton to come up with a plan to improve
    law enforcement in Indian Country. There were meetings and listening
    conferences with tribal leaders and many others who were involved with
    criminal justice systems. The beginning of that report, named Report of
    the Executive Committee for Indian Country Law Enforcement Improvements
    of October 31, 1997, starts out with, ``There is a public safety crisis
    in Indian Country.'' The findings in 1997 and the findings in S. 797
    are nearly identical. The only change is that the crisis has worsened,
    if that is possible, as a result of the surge of methamphetamine use on
    reservations. There was a public safety crisis before 1997, there was a
    public safety crisis in 1997, and there is a public safety crisis
    today.
        In the BIA we all knew what needed to be done but funding was so
    inadequate the aforementioned public safety crisis continued to grow
    right before our eyes. In a nutshell, there were not enough cops, and
    jails were antiquated and over-crowded. If it were not for the many
    tribes that utilize their own funding resources for criminal justice
    systems, the problems would certainly be worse than what they are. I
    must note that the BIA was created for the purpose of effecting
    treaties and obligations stemming from the unique trust responsibility
    established by the United States Constitution and centuries old United
    States Supreme Court cases.
        And now for specifics. S. 797 proposes sincere, greatly needed
    changes in Indian Country law enforcement. I offer you my views, based
    upon my professional and personal experience.
    Police
        There must be accountable policing.
        In 2001 the Hualapai Tribe asked that I start a tribal police
    department for the tribe. The BIA had the same problem then as it does
    today--it could not attract and hire police officers. There was always
    a shortage of officers and criminal activity was increasing. The tribe
    thought it could do better so it contracted with the BIA to operate the
    police department. The BIA funding was limited but the tribe was
    desperate for adequate law enforcement protection. Today the tribe
    supplements the Federal Government funding and provides for 50 percent
    of the police department operating costs. Law enforcement is expensive.
    Hualapai law enforcement officers are required to meet professional
    standards for hiring and training. Officers undergo an intense
    background check including a polygraph examination.
        The tribe understood that attracting and retaining officers would
    not be cheap. The tribe pays its officers a little more than the
    surrounding counties and communities. Hualapai police participate in
    the State of Arizona Public Safety Retirement System, the same as city,
    county and state law enforcement officers. Arizona is the only state
    that I know of that passed legislation authorizing tribal police and
    firefighters to participate in the state public safety retirement
    program. This allows officers from other departments to transfer to the
    Hualapai Tribal Police Department without losing their retirement.
    Hualapai tribal police officers are required to complete the State of
    Arizona Peace Officers Standards and Training (AZPOST) background
    checks and training requirements. When officers graduate from AZPOST
    basic training they are authorized to enforce state laws. I advocate
    state training in that it gives tribal officers the opportunity to
    train side-by-side with state, county and local law enforcement
    officers. Sheriffs and chiefs of police realize that tribal police are
    required to meet the same standards as their officers. Hualapai tribal
    police are also required to complete the BIA certification course and
    all hold BIA Special Law Enforcement Commissions. The problem is that
    the BIA does not regularly offer the required course and takes up to a
    year to get officers BIA trained and certified. All Hualapai law
    enforcement officers must also complete annual in-service training of
    no less than 40 hours.
        Criminals have no respect for reservation boundaries. The Hualapai
    Tribe has established Interagency Governmental Agreements with the
    State of Arizona Department of Public Safety, Mohave County and Yavapai
    County for mutual aid and assistance. The IGAs did not happen
    overnight. It took open communication and some give and take with state
    and county officials but in the end everyone involved agree that there
    is a need to coordinate and work together in the interest of public
    safety for all. The fact that tribal police were state trained and
    certified may very well have been the deciding factor.
        The Hualapai police department is located in a renovated residence
    which is wholly inadequate not to mention unsafe. Like many other
    reservations of comparable size and enrollment a criminal justice
    center is necessary to house the courts, police and detention programs.
        Las Vegas Paiute tribal police officers are Nevada POST certified
    and hold BIA Special Law Enforcement Commissions. The Las Vegas Paiute
    Tribe has an Intergovernmental Agreement with Las Vegas Metropolitan
    Police Department and Clark County. The location of the tribe's
    headquarters in downtown Las Vegas created numerous situations
    involving fresh pursuit onto tribal lands. Like the Hualapai Tribe, the
    Las Vegas tribe supplements the Federal Government funding. The tribe
    contributes 90 percent percent of the police and dispatch operating
    costs. The tribe contributes 100 percent of contract detention costs
    with the City of North Las Vegas. There is no BIA jail in southern
    Nevada.
    Courts
        There must be a competent court system.
        The Hualapai Tribe operates its tribal court through a contract
    with the BIA. The tribe supplements the BIA court contract with its own
    funds. The tribe's portion covers 62 percent of the operating costs.
    The judges and prosecutors are not required to be licensed attorneys.
    The law and order code is five years old and needs some updates and
    revisions. The court is located in a renovated building that is 35years
    old and shares the building with the tribe's mental health program. The
    BIA jail is 100 yards from the courtroom so prisoners are marched to
    attend court.
    Adult Detention
        There must be adequate detention.
        The adult jail in Peach Springs is operated by the BIA. The BIA has
    chronically been unable to fill its correctional officer positions
    primarily because of the lack of housing in the community and the
    lengthy recruitment period that often exceeds 12 months. The fact that
    BIA only posts its vacancies on www.usajobs.gov prevents many people on
    reservations from accessing the vacancy information. The low pay in
    comparison with surrounding county jails is another obstacle. As of two
    weeks ago, the BIA had four correctional staff to staff a 45-bed
    facility which is always filled to capacity. Tribal police have 197
    arrest warrants that are not processed because there is simply no place
    to book or house prisoners. Because of staff shortages and unsecure
    outdoor recreation yards, prisoners are not allowed to go outdoors to
    exercise or to even see sunlight. They are confined to cells or
    dayrooms 24 hours per day. One prisoner from the Pascua Yaqui Tribe is
    serving a sentence to 2014.
        In September 2005 through February 2007, the BIA closed the jail on
    a one-day notice. It created a monumental disaster. If there was jail
    space available tribal police could house a prisoner in Flagstaff,
    Arizona, 115 miles away. If no space was available tribal police were
    forced to take prisoners to Gallup, New Mexico, 300 miles away. The BIA
    had contracts with these county jails.
        Because it created so many problems for tribal police and the
    community in general we truly believed this cannot happen again.
    However, earlier this month BIA detention officials notified the tribe
    it was closing the jail again because it could not hire staff.
        Last week the Hualapai Tribe sent a letter to the Assistant
    Secretary--Indian Affairs asking for meaningful consultation between
    the BIA and tribe hopefully to work out a practical solution.
        S. 797 increases sentencing from one year to three years. Unless
    there are detention facilities available increased time makes little
    sense.
    Juvenile Detention and Rehabilitation Center
        There must be a comprehensive juvenile delinquency program.
        The Juvenile Detention and Rehabilitation Center, located on the
    Hualapai Reservation is proving to be a great success after 10 years of
    planning and efforts to secure funding for construction and operations.
    The Center was opened on May 15, 2009 and now provides a safe, secure
    detention and rehabilitation option on the reservation. Prior to this
    time, youth were transported hundreds of miles to contract facilities
    in nearby states.
        The Department of Justice, Bureau of Justice Assistance, provided
    $4.65 million for the design and construction of this facility. $3.5
    million was initially awarded and another $1.15 million was provided to
    complete the project as it now stands. Importantly, the Hualapai Tribal
    Council provided an additional amount of nearly $1million of cash in
    addition to all of their in-kind contributions of land, staffing and
    support services. In addition, BJA provided technical assistance for
    over five years through the Native American and Alaskan Technical
    Assistance Project.
        The BIA entered into a P.L. 93-638 contract with the Tribe in July
    2008 which enabled the Tribe to manage and operate this program. In
    addition to annual operating funds which amount to nearly $1.9 million
    in FY 2009, funds were also provided for start-up expenditures to
    furnish offices and housing units. Although there is currently funding
    for partial operations, the BIA has yet to make requests of Congress
    for complete funding for the actual operating expenditures. When the
    facility is fully staffed and operational, the costs are calculated to
    be $2.5 million per year, some $600,000 short of the current funding
    level. In addition, the BIA will not pay for any treatment and/or
    educational programming in the juvenile center. As we all recognize, it
    is not practical to house youth for lengthy periods of time without
    affording them access to education and treatment programs to address
    the issues that resulted in their delinquent behavior.
        All components in criminal justice systems must work effectively
    and cohesively. At Hualapai we have a good tribal police department, a
    tribal juvenile detention and rehabilitation facility that promises to
    be a success and a competent court system; however, the downfall is
    adult detention services. The tribe is interested in contracting with
    the BIA for the operation of the adult jail program but it is extremely
    underfunded. The tribe is not about to take over another ill funded
    federal program and be forced to use its scarce funding resources for
    adequate operation and service.
        Tribal governments have equal responsibility to ensure public
    safety in Indian Country. I have said repeatedly that if tribes expect
    Washington DC to fix all the social ills on reservations they will be
    waiting forever. Tribal governments must ensure that all local service
    providers, including those in the criminal justice system, collaborate
    to ensure maximum effective services. Too many times the police are
    blamed. Police cannot arrest the way out of community problems. Finger
    pointing and placing blame is a waste of time. Washington can provide
    the tools but it's the tribes that must do the work.
        I have some specific remarks about S. 797 as follows:

       Federal Accountability and Coordination--I have a problem
            with creating an office in the BIA where one person is in
            charge of police and courts. This goes back to pre-1975 when
            the BIA had such an office called Judicial, Prevention and
            Enforcement Services. It did not work effectively, especially
            when a person with strictly a ``police'' mentality is placed in
            charge. Courts and juvenile services always came in second.
            Even the BIA then decided it was better to separate enforcement
            and detention from the courts. Ideally they should be separate
            and distinct offices at equal levels. Many tribes have amended
            their constitutions to separate the two arms of government.

       DOJ COPS grants are a giant welcome back especially for
            overtime, equipment and training. The main issue with the
            hiring grants is that many times tribal governments do not have
            a steady income base to ensure they can pick up these costs
            when the hiring grant funds expire. Instead additional funds
            should be made available to the BIA on a permanent basis.

       NCIC access for tribal police is a standard practice at some
            tribal police agencies. The Las Vegas Paiute police dispatch
            center has access to NCIC information. It is an important and
            life-saving tool for law enforcement. The tribe was required to
            meet certain security standards and the Nevada Department of
            Public Safety conducts periodic training, inspections and
            audits. This requirement cannot be disregarded because it
            ensures professionalism, security and trust.

       I have an issue with housing tribal misdemeanor convicts in
            Bureau of Prisons detention facilities. From my experience, BOP
            houses felons. Moreover, the nearest BOP facility from Peach
            Springs in over 225 miles away. In any case, tribal court
            offenders must be incarcerated somewhere whether it is in a
            county, city, federal or tribal jail. Of equal importance is
            for tribes to have the ability to house these offenders in
            close proximity to their families and potential employment
            options upon release.

       Year after year tribes request additional funds from the
            BIA. They are told there is no money available yet it is widely
            known that BIA law enforcement continues to carry over unspent
            funds at the end of the fiscal year. There is simply no
            transparency or accounting on how BIA law enforcement spends
            appropriations. Legislation requiring annual accounting reports
            from the BIA may resolve this problem.

       A funding formula for the distribution of funds is fine
            except that the pot of money must be sufficient in the first
            place. Back when law enforcement was a part of the Tribal
            Priority Allocation process many tribes prioritized law
            enforcement funding. Other tribes did not. It is unfair to take
            money from the tribes who prioritized law enforcement to offset
            those that did not.

       A uniform database for crime data collection and information
            sharing is absolutely necessary; however, in the past some
            tribes objected to publicizing their crime information saying
            it had negative impact especially when they were dealing with
            economic development.

       If it takes legislation to get all U.S. Attorneys to appoint
            Assistant U.S. Attorney liaisons this may assist in promoting
            continuity of prosecutions in Indian Country. Federal
            prosecutors serve an important function in building trust by
            serving tribal communities, much like a local district
            attorney. We all recognize that violent crimes cannot be
            addressed except by them.

       The Indian Law and Order Commission should be a low
            priority. It seems to me that if the Administration and
            Congress agree there is a crisis in Indian Country there is no
            need to study it some more.

       Do all federal law enforcement agencies have foundations to
            subsidize their operations or are they sufficiently funded with
            federal funds? Or will Indian Country Law Enforcement be alone
            in taking gifts and donations to fund their law enforcement
            programs? There cannot be a double standard.

       The Office of Indian Country Crime is necessary for ensuring
            uniformity with prosecuting federal crimes. Currently it varies
            from district to district. Many times there will be prosecution
            in one case then declination of a similar case--sometimes from
            the same reservation. Some districts have thresholds on the
            dollar amounts stolen or amount of drugs involved. For felony
            crimes by or against Indian people, the United States has
            exclusive jurisdiction.

       Reauthorizing past legislation is fine but I have learned
            that sometimes there is a huge disconnect between authorization
            and appropriation. Unfunded authorization means failure for
            promising ideas.

       If the Federal Government is going to build jails, it must
            ensure adequate funding for safe and effective operations.
            There must be a well coordinated effort between DOJ and DOI.
            Too many jails are left empty or in partial use because of
            insufficient funding.

       There is a lot of responsibility in the Tribal Law and Order
            Act of 2009 that falls on the BIA. I can honestly say the Act
            requirements are doomed for failure if additional resources are
            not made available to the BIA to carry out its responsibilities
            under the Act.

        I have had the opportunity to work with Indian Tribes all over the
    Country. I have met with numerous tribal leaders and tribal chiefs of
    police throughout the years. I have read accounts of criminal justice
    on Indian lands going back to the 1930's. I have attended numerous
    meetings and conferences regarding public safety in Indian Country. I
    have provided testimony to the Congress about the dire needs in Indian
    Country. I have met with Federal and state officials in an effort to
    better law enforcement in Indian Country. My point is that it all comes
    down to lack of, or shortages of resources. Section 2 in the Tribal Law
    and Order Act of 2009 lists a number of findings that we have all heard
    over and over. Commitment is the next finding that we need.
        Honorable Members of this Committee, again thank you and your staff
    for the outstanding work in introducing S. 797. We all agree there is a
    public safety crisis that affects the lives of our citizens living and
    working on Indian reservations. Let us get the legislation passed and
    signed into law because there is a lot of work to do to make all of
    Indian Country safe and secure. Let's not let the next generation of
    tribal criminal justice practitioners read about another fruitless
    effort. During the last century, scholar and solicitor Felix Cohen
    observed that Indian people have been the canary in the coal mine for
    Congressional ideas. I commend you for striving to enact effective,
    comprehensive legislation which finally addresses this public safety
    crisis in Indian Country.

        Senator Udall. Well, let me thank the whole panel here for
    your statements and for your passion. I think you make a very
    strong case for dramatic action, a strong case for reform. And
    so I want to probe a little bit with you on some of the parts
    of this Act to see if we have it right.
        President Quasula, you were a strong proponent of removing
    BIA police from the BIA superintendent system. The new line of
    authority has worked well in some districts. However, some
    tribes point to the change in authority as one of the main
    reasons for increased crime in the region.
        Tribal leaders have stated that their calls to special
    agents in charge go unanswered for days. Tribal members report
    making distress calls that go unanswered. The BIA police force
    is the local police. They are the only show in town to provide
    protection, yet our staff have heard stories about BIA police
    officers refusing to enforce tribal laws, claiming that they
    are only responsible for Federal crimes.
        Short of mandating a return to the old system, what can be
    done to provide greater accountability on the part of the BIA
    police to tribal communities?
        Mr. Quasula. Certainly, I can't speak for the Bureau of
    Indian Affairs, but professionally, personally, I think police
    ought to be in charge of police, and that was the whole purpose
    of the line authority under the Indian Law Enforcement Reform
    Act of 1990.
        If it is not working, I would think that folks are not
    being held accountable. I would think from what we have heard
    and read with this whole reason for this hearing is it is the
    lack of resources. But if officers are refusing to respond to
    calls, they wouldn't work under my watch.
        Senator Udall. You would take strong action to make sure
    that they would be eliminated from the system?
        Mr. Quasula. I think you have to.
        Senator Udall. Yes, yes. Now, one of the issues here has to
    do with the national crime databases, and we all know that
    tribal police have one of the toughest jobs in the Nation. As
    you stated, they are forced to patrol vast reservations alone
    without backup. In addition, the Committee has heard that
    tribal police often do not have access to national criminal
    databases. This means that when they make a routine traffic
    stop, they have no information on whether the suspect is
    driving a stolen car, has prior weapons convictions, or poses
    some other danger.
        In working with tribal police throughout the Nation, what
    is the barrier to accessing this critical information? Are you
    satisfied that our proposal would remove that barrier?
        Mr. Quasula. I think the legislation as written, you know,
    is going to work fine. I think the problem that I have
    experienced is the resources aren't there. Now, there are a
    number of the tribes that have access. The two tribes that I
    have just mentioned that I work for, Las Vegas Paiute and
    Hualapai, both have access.
        Nobody is going to come do it for you. You have to do it.
    You have to set it up. You have to make the communication with
    those in charge, but it can be done. The big difficulty is the
    lack of resources. It costs money to do those, and the two
    tribes that I am involved with, thank goodness, put the money
    on the table to make it happen. But it can happen, it has
    happened.
        And I think that the reason I took a little bit more of my
    time than I should have is that I want to explain that it can
    work if you put your mind to it and get the right people and
    hold people accountable. It can work. And I think every tribe
    should strive for that and most likely have that capability
    whether--and again, I don't want to beat it to death, but if
    you wait for somebody else to come do it for you, it is not
    going to happen.
        Senator Udall. Yes, yes. Thank you.
        Judge Brandenburg, this Committee is well aware of the
    broken jail systems that exist in Indian Country. The few
    tribal jails that exist are neither safe nor secure for
    corrections officers or inmates. While incarceration may be
    necessary punishment for violent offenders, it is simply not an
    option that is available to all tribal judges.
        What effective alternatives to incarceration have you
    employed? Have these alternatives been successful in reducing
    recidivism and rehabilitating offenders?
        Mr. Brandenburg. Well, first of all, you have to remember
    we have no criminal codes. We have no personnel that are
    trained in Southern California at least as to criminal matters.
    So we are completely lacking.
        What we have had to do is to decriminalize certain things
    and make them fall within the civil regulatory scheme so that
    if we have a particular gaming tribe, the result is if you are
    convicted of this particular offense, we call them civil
    infractions, we will take your money. And that is as far as we
    can go.
        Our problem has been with non-Indians. We have civil
    regulatory jurisdiction in California over non-Indians. Our
    problem is working with the State to use the State's collection
    remedies to get the money from these people. Other than that,
    we have one tribe that is working on a regional detention
    facility, and hopefully with this particular legislation we
    will be able to develop our criminal codes and to build that
    region detention facilities.
        Again, it goes back to us being a consortium of tribes and
    pooling our resources. That is where we can most benefit from
    this particular legislation.
        Senator Udall. Judge, the Department of Justice raises some
    concern with the proposal to enhance tribal court sentencing
    authority. They claim that it may invite greater scrutiny from
    Federal courts. Do you see any constitutional concerns with
    this proposal? Should it be amended?
        Mr. Brandenburg. I think if you have adequate codes, and I
    think if the due process requirements are met and your judges
    and staff are properly trained--and again, that comes through
    this legislation--I really don't see any key issues.
        There is always the habeas thing that Federal courts will
    hold onto, but other than that I don't see any major issues
    that will flow out of this if it is implemented properly.
        Senator Udall. Thank you. And thank you very much for your
    statement in your testimony where you said the first job of
    government is to provide public safety. I mean, that is really
    the issue that we are here about today, and that really
    resonates with me, and I am sure resonates with everybody here
    in this room.
        Mr. Brandenburg. And if I might add briefly, sir, with your
    approval.
        Senator Udall. Please.
        Mr. Brandenburg. There is no greater compliment to the
    sovereignty or autonomy of any tribe than an independent tribal
    justice system. This legislation is going to help.
        Thank you, sir.
        Senator Udall. Thank you.
        Mr. Eid, we have heard from some tribal leaders and from
    some former U.S. Attorneys that Federal prosecutors are
    strapped, just like everybody else in the tribal justice
    system. Some prosecutors hold caseloads of more than 100 active
    cases. To account for these caseloads, the bill encourages the
    Justice Department to deputize or appoint Indian law experts to
    serve as Special Assistant U.S. Attorneys to prosecute minor
    reservation crimes when they fall through the cracks in the
    system.
        What resources are needed for both tribes and U.S.
    Attorneys' Offices to make this proposal work on the ground and
    in these native communities?
        Mr. Eid. Thank you, Mr. Chairman. I think it is a good
    proposal, but I also want to talk about the downside. What this
    does, of course, is it authorizes U.S. Attorneys to designate
    tribal prosecutors as Special Assistant U.S. Attorneys. We call
    them SAUSAs in our lingo. And that means that they have the
    same kinds of powers that an Assistant U.S. Attorney would
    have.
        That is great. I did one of those arrangements with one of
    our tribes, the Southern Ute, and it was good because the
    tribal prosecutor and our office were able to act
    transparently. And by the way, we shared all declination
    information of every kind with our tribes. We didn't hold
    anything back. I still don't understand why that would ever be
    done. As long as you protect confidentiality and grand jury
    secrecy, there is no reason to hold it back.
        But having said that this is a good provision, I think the
    tribes have expressed concern, at least in my district they
    did, about the Federal Government yet again nickel and diming
    on the trust responsibility. If you have the right level of
    Assistant U.S. Attorneys, why do the tribes have to cough up
    yet more resources to do something the Feds should be doing in
    the first place? And so that is the downside of this.
        I happen to support declination reporting because I think
    it will be a powerful vehicle to help Assistant U.S. Attorneys
    in the field, particularly tribal liaisons who are struggling
    because they don't have the same level of resources as they
    really need to get their job done, in many instances. And I
    think as a friend of the prosecutor, we need to embrace this
    opportunity for transparency and not try to run away from it.
        Senator Udall. And you emphasized that in your testimony
    and in your statement here today on case declination. Can you
    describe a little bit in detail how you see that working? I
    mean, do you report on a three-month basis, a yearly basis, and
    then who gets the information? And then what are the feedback
    loops that make it work?
        Mr. Eid. Well, Mr. Chairman, I would just say that the bill
    in section 102 protects everything in terms of its
    confidentiality. And that is critical. And so we will remove
    that red herring from the debate because everyone wants to
    protect law enforcement privacy and secrecy.
        With that in mind, the declination system ought to report
    across the whole justice system. That is to say, when a matter
    comes in to the tribal police or the BIA and so on, you log it
    there. When it comes in to the FBI, you log it there, just like
    is currently done, by the way, for terrorism cases. I used to
    be on the Advisory Board for National Security and
    Antiterrorism.
        We do this in our offices. We are always logging things
    that come in. And we agree on a set of uniform measures that we
    use. If an agency, for example the FBI, decides that there is
    not a sufficient basis to continue an investigation, guess
    what? In most cases, they give us a letter. The IRS does it if
    they decide not to go after somebody. And so that never becomes
    a ``declination.''
        When it gets to the point where an agency is ready with a
    case and then the U.S. Attorney looks at it and says, there is
    not a sufficient quantum of admissible evidence here, then we
    have a legal, ethical and frankly moral duty not to prosecute
    that case.
        So all of that ought to be tracked. You don't have to
    disclose any confidentiality to be able to say when you look at
    those charts that we ought to be doing more in some of these
    areas. And it was often said on the Ute Mountain Ute
    Reservation, which I now represent, it was often said among
    tribal members, they would tell me when I was U.S. Attorney and
    they tell me now, do you just have to kill somebody or rape
    some woman in order to get the Federal Government's attention?
        That is not a criticism of anyone in the system. It is
    simply to say that too many cases are falling through the
    cracks. We had a case, Mr. Chairman, as a typical case to
    illustrate this point. We had a situation one night where we
    had an apparent homicide, and the one FBI agent assigned to our
    region was up in Denver, 400 miles away testifying in front of
    a judge. So he was not around. He is a great agent, by the way,
    but he was not there.
        There was no one to secure that crime scene but one BIA
    officer, because typically we have only two on duty and they
    work 12-hour shifts a lot of the time. Try working back to back
    12-hour law enforcement shifts. And by the time the one officer
    tried to establish a perimeter, he couldn't do so and the crime
    scene was compromised.
        That is a great example of a case that is not a
    declination, but that needs to be reported and factored into
    the system so that people understand at the community level
    that something will be done in the future to avoid that. So we
    should not fear this. We should get together and do what we do
    in terrorism cases, what we do in other kinds of cases, even as
    mundane as tax fraud, and simply decide which agency is going
    to report; what is sufficient for evidence; and make a
    determination. If it is not, if they refer it to the U.S.
    Attorney's Office, they will look at it. And if you say decline
    it, then decline it, and stand up, damn it all, for what you
    are supposed to do.
        Senator Udall. Yes, yes.
        Mr. Eid. Forgive my language, Mr. Chairman. It is a Western
    thing.
        [Laughter.]
        Senator Udall. It is a Western thing, right? Okay. Thank
    you.
        Chairman Coby, and this is really a question for you and
    Judge Brandenburg. The Department of Justice raises some
    concern with the proposal to enhance tribal court sentencing
    authority. They claim that it may invite greater scrutiny from
    Federal courts, this question.
        Do you see any constitutional concerns with this proposal?
    Or should it be amended?
        Mr. Coby. No, we support that amendment.
        Senator Udall. Great.
        Judge Brandenburg?
        Mr. Brandenburg. Do I see any conflict? Providing your
    judges are adequately trained, your staff is adequately
    trained. And this legislation provides for that. I say in terms
    of additional scrutiny, bring it on because you have to start
    at the tribal level first. I always used to say, and I still
    say this, as far as the appellate courts go, I am a very
    appealing guy. But let's make some decisions and let's move on.
    And if the appellate courts want to take it under, it can only
    help us because they will close the gaps for us.
        I know that is a different approach, but for too long
    Indian Country, the people in Indian Country have just sat back
    and taken a passive view. Someone tells them they can't do it,
    they just step away.
        Well, my approach is I am not stepping away. I am stepping
    up. And that is what we are asking the Federal Government to
    do. Let's step up. Let's get this done. If there are issues to
    resolve, as we move through the process, the legal issues, the
    due process issues, we will resolve them. But let's not back
    off of this because we are concerned. Let's move forward.
        Senator Udall. Thank you.
        Now, I have proceeded through a series of questions here to
    all of you. Just to close out here, if there are any of you
    that would like to comment on what has been said by others, or
    clarify, I would be happy to take some brief comments at this
    point.
        Please.
        Mr. Quasula. Well, thank you for the opportunity, first.
    You know, we all agree that folks out in Indian Country deserve
    and expect public safety for all. In my many years in Indian
    Country law enforcement, the problem is there isn't enough
    money. It is as simple as that. I don't know how more simple I
    could explain it.
        Senator Udall. The resources aren't there.
        Mr. Quasula. The resources are not there. And there is just
    no sense in revisiting this every 10 years or so and talk about
    the same things.
        Senator Udall. Right.
        Mr. Quasula. And the bill closes a lot of the gaps, but the
    resources are necessary. Otherwise, it is not going to work.
    Simple as that.
        Senator Udall. Yes, yes.
        Well, and I am very happy that Assistant Secretary Echo
    Hawk stayed here, and Mr. Ragsdale stayed here, sitting behind
    you to hear all of this. I am going to expect that this
    Administration will step forward and let us know the resources
    they need, so that the Congress can then step up and provide
    them. Because as several of you have said and reiterated and
    driven home the point with curse words and everything else,
    public safety is the most important thing in these communities.
    And we need to give the people there on the ground the
    resources in order to get the job done.
        Any other?
        Mr. Brandenburg. Yes, a comment was made by the Senator
    from Alaska with regards to somehow implying that reservations
    sometimes people, when some of these crimes are committed, the
    tribal members turn a blind eye, or it just goes away through
    the whole process of the tribal members.
        One of the fundamental things that we have to deal with
    here is that you have to develop--law enforcement, the courts,
    whoever works in Indian Country--has to develop a basic trust
    one on one with the people. You have to remember that there is
    an inherent distrust of not only the court system, particularly
    the State court system, but law enforcement, with tribal
    members. They just don't trust them. And it is because of all
    the things we have been talking about here today.
        Just for a moment think of every atrocity that has ever
    been committed in Indian Country, whether it is the taking of
    land, whether it is genocide, whether it is the taking of
    children, whether it is the taking of natural resources--every
    wrong that has ever been committed in Indian Country has been
    somehow approved by the Congress, by the courts, or by law
    enforcement.
        How can I trust those people? That is the issue, building
    trust. Once you build that level of trust, people will come
    forward. Our people don't to turn a blind eye to rape. They
    don't want to turn a blind eye to murder. But who are you going
    to trust? That is the issue. That is a key fundamental issue we
    have to deal with in Indian Country.
        And hopefully, this legislation will allow us the funds or
    the avenue to approach that and deal directly with it, building
    trust.
        Senator Udall. Excellent, excellent point.
        Please?
        Mr. Eid. Mr. Chairman, I just wanted to acknowledge a
    distinguished guest who is here today. That is the Chair of the
    Navajo Nation's Judiciary Committee of the Navajo Nation
    Council, Kee Allen Begay. Mr. Begay I hope will stand up.
        Well, he got on a plane. He was here before, and I wanted
    to use that to illustrate the point that out on Navajo where I
    am barred and I practice in the tribal courts, we have 20
    wonderful judges out there. We have one of those judges, the
    Chief Justice, who is admitted to a State bar. We have another
    judge, Judge Perry, who is a lawyer, but is not admitted to a
    State bar. The rest of these wonderful judges are not lawyers,
    but they do a fantastic job. And we need to make sure, as this
    bill attempts to do, to respect their role.
        And I have to say I practice law all over the United
    States. I have had only positive experiences and positive
    treatment in tribal court. And I appreciate the respect that
    this Committee has shown through this bill to tribal justice
    system. It is long overdue. Thank you.
        Senator Udall. Thank you.
        Chairman Coby, do you want to have the last word here?
        Mr. Coby. Yes, I will have the last word.
        I just want to thank Mr. Echo Hawk and Mr. Ragsdale for
    staying here to hear the testimony. I believe each tribal
    leader that is in the room today shares the same interest. It
    is the public safety of our respective reservations.
        And also I would like to thank the other testifiers that
    testified today for speaking up on behalf of Indian Country.
    And again, if you would share with Senator Dorgan I really
    appreciate him and the Committee for this very, very important
    bill for Indian Country.
        And also the young man and young lady behind you for their
    hard work and dedication, too.
        Senator Udall. The staff are absolutely incredible on this
    Committee.
        Mr. Coby. I just want to comment on the Public Law 280
    issue. I think if the States aren't going to uphold their
    issues with respective tribes, I think we better get those
    things retroceded, especially for our tribe, especially our
    juvenile delinquency issues. There are a lot of issues on
    Indian reservation, and they are our future. They may be
    getting into trouble now, but our younger generation is our
    future leaders and so hopefully we can get those things
    straightened out.
        And thank you.
        Senator Udall. Thank you very much, Chairman Coby. And
    please realize that Chairman Dorgan is very, very committed and
    interested in this issue and wants to move this along in an
    expeditious way.
        We have just started a roll call vote on the Senate Floor,
    a 15-minute vote. So I am going to wrap up at this point.
        I once again, like you did, Chairman Coby, thank Assistant
    Secretary Echo Hawk and Mr. Ragsdale for being here. I think it
    shows their commitment to this issue and getting to the bottom
    of what is happening.
        I want to thank all of the witnesses that have testified
    today. The Committee will submit follow-up written questions to
    witnesses and the record will remain open for two weeks.
        And this hearing is adjourned.
        Thank you.
        [Whereupon, at 4:13 p.m., the Committee was adjourned.]
                                A P P E N D I X

                                     ______

       Prepared Statement of William V. Elliott, Detective, Warm Springs
                        Tribal Police Department (WSTPD)
        Dear Senators,
        My name is William V. Elliott, and I am currently a Detective with
    the Warm Springs Tribal Police Department (WSTPD). Prior to becoming a
    detective for WSTPD, I was a Special Agent with the United States
    Department of the Interior (DOI). I initially served in the Bureau of
    Indian Affairs (BIA), finishing up my last 10 years with the Bureau of
    Land Management (BLM). Even though I am an enrolled member of the Kiowa
    Tribe of Oklahoma, I was raised in a relatively affluent off
    reservation environment.
        Both my personal and professional life experiences has given me an
    unique vision of tribal law enforcement, viewing it from both the
    inside out, and the outside in. In the testimony for this bill there is
    a lot of talk about Tribal self determination, yet all of the answers
    seem to be placed on more involvement by the Bureau of Indian Affairs
    (BIA), United States Department of Justice (DOJ), Federal Bureau of
    Investigations (FBI), and state agencies. This layering of bureaucracy
    already has a detrimental effect at the field level for Tribal Police
    Departments (TPD).
        Even though I strongly agree with the need for the United States
    Attorney's Office to have additional resources and incentives to
    prosecute major violations in Indian Country, federal enforcement
    agencies should be there to support The Tribal Police, similar to what
    occurs with non-Tribal departments off the reservation. The current
    situation depends too much on personalities, and sometimes federal
    response being used as a way to dictate policy and procedure to the
    Tribal Departments. In addition, TPDs are often held victim by state
    agencies, as the current federal grant (COPS and other Bureau of
    Justice Assistance (BJA)) and other funding support mechanisms are
    often funneled through the state.
        A couple of examples are the BJA funded Regional Information
    Sharing System (RISS), and the Presidents Office of National Drug
    Control Policy (ONDCP) High Intensity Drug Trafficking Area (HIDTA)
    programs. Incorporated in the RISS founding charter, and part of it's
    justification for federal funding, is the promotion of law enforcement
    information and intelligence exchange nationally between all federal,
    state, local, and TRIBAL police agencies. Yet, one the biggest
    participant in this system, the Western States Information Network
    (WSIN), refuses to let Tribal agencies participate. Thus the TPDs in
    California, Oregon, Washington, and Alaska are not allowed to connect
    into this federally funded national information network.
        The ONDCP HIDTA system is designed to provide funding for
    counterdrug programs throughout the country that have verifiable
    problems with drug related criminal enterprises. The HIDTA funding is
    controlled by each state through a board representing State, County,
    Local, and Federal enforcement interests in that state. Yet, even
    though the Tribes have demonstrated a growing drug problem in most of
    these states, occupy land areas bigger than most counties, and have an
    actual federal nexus for federal assistance, there is no Tribal Police
    representation on these boards. In addition, ONDCP allocated funding
    for ``Indian Country'' drug problems is routinely given to state or
    local enforcement agencies to ``help'' the tribes, rather simply
    funding the affected Tribal Police agency.
        Recently the Drug Enforcement Administration (DEA) ruled that
    tribes do not have access to their national Domestic Cannabis
    Eradication Program (DCEP). The DCEP program provides funding to all
    state, county, and local departments, but because the Tribes are not
    considered proper ``Peace Officers'' under the eyes of some states,
    they are excluded. This causes a problem in an era of growing concerns
    related to the intrusion on Tribal lands by Mexican Drug Trafficking
    Organizations (DTO). As a result of that finding, Indian Country such
    as the Colville Indian Reservation, which is larger than the State of
    Rhode Island, has no outside funding support for marijuana detection
    overflight missions, or access to the DCEP program for the same
    overtime and equipment funding as their off reservation peers.
        The Tribal law enforcement agencies, at least in the Pacific
    Northwest, have grown to a level of professionalism that is equal to,
    or surpasses their off reservation counter-parts as they normally
    attend both state and federal law enforcement academies. Yet, the
    tribal officers are automatically thought of as inferior. The United
    States Attorney's Office puts in criteria that all cases need to be
    vetted through the FBI on the assumption the Tribal Detective is going
    to make some critical mistake. I have worked in State, Federal, and
    Tribal enforcement environments. Yet, when I worked in the State and
    Federal environments the prosecutors' office just assumed I was
    competent until proven otherwise, it is only in the Tribal environment
    that this dynamic reversed.
        Most tribal departments are simply looking for some mutual respect,
    and to have access to all of the other tools, and support services as
    their state and federal counter-parts.
        I am truly impressed at the scope and detail of this legislation,
    and applaud the fact that Congress is addressing the root causes for
    the problems with law enforcement in Indian Country, instead of the old
    band-aid here, and band-aid there approach.
        This legislation will solve a number of issues which have been
    brewing for sometime in the Pacific Northwest, and quite frankly were
    nearing a critical state. By creating solutions to tribal
    jurisdictional and funding issues, there will be an easing of tension
    between tribal, state, and county law enforcement entities.
        The tribes in this region are committed to both an inter-agency and
    inter-tribal approach of meeting our enforcement needs and attacking
    the problems of drugs, gangs, and violent crime in Indian Country and
    neighboring communities. People on both sides of this issue need to
    move past old stereo types, and trust the professionalism which has
    grown over the last several years in tribal police departments and
    rural county law enforcement agencies. If the criminals can put aside
    personal differences for ``business,'' then we should be able to do the
    same.
        The tasks which have been set out in this legislation is massive,
    and I hope that Congress will authorize the Secretary of the Interior
    and the various committees to bring aboard consultants who have
    extensive Indian Country experience to help move the process forward
    quickly.
        For what is worth, here are some of my observations and
    recommendations concerning this Indian Law Enforcement Reform Act Bill.
    Section 102. Definitions
        Problem Statement:

        In subsection (c)--Inclusion of Case Files, the wording ``may''
    gives the contributing agency the prerogative of either doing it or
    not. This is sometimes necessary in that federal case files can be
    extensive, and contain information which is not relevant in supporting
    a specific tribal prosecution.

        Possible Solution:

        --Instead of case file, you may want to use the wording such as
    ``agencies shall submit a report outlining all pertinent evidence which
    will support tribal prosecutions.'' This requires an agency to provide
    needed information, yet allows the contributing agency to protect
    internal case file sensitivity, and come up with an alternate format
    which can meet tribal prosecutorial needs.
    Section 401. Assumption By State of Criminal Jurisdiction
        Problem Statement:

        One of the most pressing problems in Indian Country either under
    federal or state jurisdiction is the ability of the tribal or BIA
    police agencies to respond to instances of criminal conduct of non-
    Indian subjects. This portion of the bill more than adequately
    addresses the need to provide for a prosecutorial forum for felony
    events in Indian Country, but does not address the more common
    occurrences of misdemeanor violations.

        Over the last several years tribes have opened up their
    reservations through the introduction of casinos, opening up of
    campgrounds and hotels, and the development of cultural tourism. This
    has caused a dramatic increase in the number of misdemeanor, or lower
    level felony type events (simple assault, drunk driving, disorderly
    conduct, etc.) which occur that the tribes or Federal Government can
    not adequately address within current jurisdiction. This burden then
    fails on Sheriff's Departments which are already stretched thin.

        Possible Solution(s):

        --The most practical solution would be the implementation of a
    system which is already operational and proven successful in managing
    visitor conduct on Department of Interior Lands, such as the National
    Parks, Bureau of Reclamation, and the Bureau of Land Management. This
    is done through the use of Code of Federal Regulations (CFR) which the
    Secretary of the Interior has the authority to promulgate. CFR
    regulations provide law enforcement with another option other than
    making an arrest, or raising an incident to felony status to resolve
    the issue. Most CFR violations are resolved through the issuance of a
    Central Violations Bureau (CVB) citation, and the United States
    Attorney's Offices have bail schedules, and established CVB courts
    already in place. This option would not necessitate the creation of a
    separate mechanism to handle non-Indian violators, and would not result
    in a dramatic rise in case load for the affected U.S. Attorney's
    Office(s).
        This option would also provide the non-Indian violator with the
    ability to have the matter resolved in federal court. On the other
    hand, the use of CVB violation would insure that violators did not
    elude their responsibility for handling this matter, as a CVB citation
    is enforceable anywhere in the United States.
        This process could be accomplished through adding verbiage to 25
    CFR 11.102 or 11.104, or including it in this section, stating
    something to the effect; ``The Secretary of the Interior, acting in
    consultation with the Office of Indian Country Crime, can promulgate
    regulations in 25 Code of Federal Regulations (CFR) as to illegal
    conduct of non-Indian persons visiting or residing on Tribal Trust
    property. These regulations will be in conformity with already existing
    CFRs which govern conduct on Public Lands under the jurisdiction of the
    Department of the Interior.'' The Secretary will also have the
    authority to delegate the authority to enforce these CFR violations to
    any tribal, or at the request of the affected tribe, federal, state, or
    local law enforcement official who meet the training and certification
    criteria that shall be established by the Office of the Secretary.
        --The only other option would be to replace 18 USC 1153(b) with
    something to the effect ``Any felony or misdemeanor offense committed
    in Indian Country that is not defined by federal laws under the
    jurisdiction of the United States, that offense will be subject to the
    provisions of 18 USC 13 (Laws of States adopted for areas within
    Federal jurisdiction).''
    Section 202. Incentives for State, Tribal, and Local Law Enforcement
            Cooperation
        Problem Statement:

        The Tribes may ask if county and state law enforcement agencies are
    going to be required to include the tribe in their grant process if
    they feel there is tribal impact (This is just an ethical concern and
    not a practical one). However, as this section is kind of ambiguous,
    there may be concerns by the tribes that they will have to consult, or
    get the approval of the states on all federal law enforcement grants
    available to the tribes.

        Possible Solution:

        --You may want to consider some verbiage that this joint committee
    is only for funding or grants allocated under this provision and not
    generally extended to all federal grant processes available to Tribal
    Police Departments.
    Section 5. Special Law Enforcement Commissions
        Problem Statement:

        There are emergency situations when tribes need to mutually support
    one another, or there is a need to interface with the state and county
    law enforcement agencies and provide a mechanism for them to have
    authority to come onto the reservation, and for the tribal officers to
    travel off the reservation. These situations usually appear when you
    have fast breaking narcotics or violent crime investigations, civil
    unrest, national security such as border interdiction, or natural
    disaster scenarios.
        At this time it is easier to get emergency U.S. Marshal
    Deputations, than to try and process the layers of paperwork,
    background investigations, and training (months) required by the Bureau
    of Indian Affairs. By the time you get a special deputation with the
    BIA, the situation is already out of control, the case has been lost,
    or there is just no need as the fire has burned everything to the
    ground.
        The tribes also have the need to summon help from state and local
    agencies during life threatening situations such as shots fired calls,
    bomb threats, or hostage situations. However, local officers are
    exposed to civil liability and injury on the job coverage problems when
    working outside their jurisdiction.

        Possible Solution(s):

        --The Secretary, through the Bureau of Indian Affairs (BIA)
    Regional Directors, should be authorized to apply for emergency group
    deputations that will be valid for less than one year, or early if the
    situation(s) resolves itself in that time period, and specific to the
    situation for which it was issued. These emergency group deputations
    should adopt the same guidelines and policies as are in effect with the
    United States Marshal's Service. Section (c) would remain in effect for
    these deputations.
        --There also needs to be a provision which allows the tribal police
    to request local assistance in life threatening, or dire emergencies,
    and provide protection to the officers who respond. Some possible
    working would be ``In life threatening emergencies, or situations of
    dire circumstance, tribal law enforcement officials can request
    assistance from state or local law enforcement resources. The local
    officers who respond to the reservation, while acting under the
    direction of the tribe will be considered federal officers, and
    provided all of the rights and protections in this status for the
    limited duration of the requested assistance.''
    Section 301. Tribal Police Officers
        Problem Statement:

        In this section there is reference to ``National Peace Offices
    Standards of Training.'' There is no such standard, only models
    identified as National Standards, and I didn't see in the draft bill
    where the Secretary is authorized to set any standard that is so named.

        Possible Solution:

        --Each state has its own POST (Peace Officer Standards and
    Training), which most tribal officers attend and adhere, and a more
    feasible statement might be ``meets the standards set by the laws of
    the state within which the tribal lands are located, and/or in
    compliance with the standards established through the Federal Law
    Enforcement Training Center''. Adequate authority exists under this act
    to disallow state academy training if it does not meet BIA standards.
    Section 302. Drug Enforcement in Indian Country
        Problem Statement:

        The most pressing issue for tribes is the ability to access, and
    enter criminal intelligence information into two (2) primary
    counterdrug support systems which they are currently restricted from
    accessing. The first is the Bureau of Justice Assistance (BJA) funded
    program called the Regional Information Sharing System (RISS). This
    system interlinks all law enforcement units in the United States, and
    is critical to the tribes linking to the rest of this country's law
    enforcement matrix.
        The second problem is tribes being denied access, and direct
    intelligence and analytical support from the Office of National Drug
    Control Policy (ONDCP) High Intensity Drug Trafficking Area (HIDTA)
    program. This federally funded program is supposed to provide for
    funding, and assistance to all law enforcement agencies operating in
    their areas. However, since the states act as the fiduciary for the
    funding, those states that have determined tribal police officers are
    not ``peace officers'' by their definitions, have then excluded the
    tribes from these resources.
        Additionally, the tribes currently lack the ability to make direct
    requests of Department of the Defense, and other military agencies
    involved in the counterdrug support mission for such things as
    equipment, training, and aviation support.

        Possible Solution(s):

        --Change section (d)(1) to read ``to directly access and/or enter
    information into Federal criminal information databases and/or criminal
    intelligence databases which are fully or partially federally funded
    and designed to support regional law enforcement efforts.''

        --Include a section that mandates that federally recognized tribal
    law enforcement agencies will be allowed all access and services from
    the High Intensity Drug Trafficking Area (HIDTA) program as provided to
    other state and local law enforcement agencies of the State in which
    the tribe is located.

        --Include a section that ``allows federally recognized tribal law
    enforcement agencies the same access to Department of the Defense
    (DOD), and other federal agencies tasked with supporting counterdrug,
    and Homeland Security missions as provided to other Department of the
    Interior law enforcement units.''
    Section 303. Access to National Criminal Information Databases
        Problem Statement:

        Section 303, ``Access to National Criminal Information Databases'',
    will not necessarily guarantee tribal access to RISS databases in those
    places where they are currently being denied access. The section cited,
    28 USC 534, specifically refers to FBI information, which means it
    refers to criminal history information in the Interstate Identification
    Index (III), and not to the information available through the RISS
    projects.

        Possible Solution:

        --I suggest that the section numbering be changed so that (b) is
    entitled ``Authorized law enforcement agency''. The remaining wording
    in that section becomes subsection (1). I would suggest adding a
    subsection (2) that reads as follows:

            (2) Eligible tribal justice officials of a federally recognized
            Indian tribe exercising criminal authority over Indian country
            shall be deemed an authorized law enforcement agency for the
            purpose of being granted access to any federally funded
            information sharing system designed and used for the sharing of
            information between federal, state, and local law enforcement
            agencies.

    Section 304. Tribal Court Sentencing Authority
        Problem Statement:

        This section is very well done, and the only other need I can see
    from the tribes would be the ability to execute tribal arrest warrant
    off reservation, and allow state and local law enforcement agencies to
    detain persons found to have tribal warrants until the tribe can accept
    custody. In some instances tribal police officers are taunted by Indian
    offenders who have warrants, but who simple skip back and forth across
    reservations boundaries to avoid apprehension.
        If it is the intent of this legislation to allow tribal courts the
    ability to hand down harsher jail sentences, than there will be a
    greater likelihood of flight, and the need for the tribes to issue
    warrants that are recognized outside of the reservation boundary.
        There is a reciprocal problem in the presence of persons having
    outstanding state and local arrest warrants on the reservation. The
    tribal police, on reservations under full federal jurisdiction, lack
    the authority to arrest and extradite, and the state agency can not
    pursue onto the reservation.

        Possible Solution:

        This legislation would need to amend Title 18 USC 3182 by adding
    federally recognized Tribe along with State, and Territory.
        This amendment would satisfy both the needs of the tribe and those
    of the state.
    General
        In two separate places, the Indian Law Enforcement Reform Act is
    cited for amendment by adding a ``Section 11.'' Those two amendments
    are on page 9, and page 38, of the draft. The two amendments are
    numbered the same. If this is a drafting error, then if passed in its
    current form, it will complicate codification into the United States
    Code. If it is an error, than one of them needs to be amended to be
    called ``Section 12'' or some similar fix.
        I appreciate the opportunity to enter my opinions into the formal
    record.
                                     ______

      Prepared Statement of Bruce Adams, Chairman, San Juan County (Utah)
                                   Commission
    Introduction
        On behalf of the San Juan County Commission, I want to thank
    Chairman Dorgan, Vice-Chairman Barrasso, and all the Members of this
    Committee for allowing us to submit our testimony for the record. As a
    county government that shares geographic jurisdiction with tribal
    governments and Indian people, San Juan County, Utah is very concerned
    about Indian Country policy.
        San Juan County itself encompasses 7,821square miles, of which more
    than 1,155,000 acres is the Utah portion of the Navajo Reservation. Our
    county population is 15,055, with the majority of our residents, or
    53.6 percent, being American Indians. In addition to Navajo, our county
    also includes the White Mesa Ute community, a federal trust reservation
    that is a satellite of the Ute Mountain Ute Reservation in Colorado,
    and the landless, yet federally recognized, San Juan Southern Pauite
    Tribe.
        We hope that our testimony on S. 797, the Tribal Law and Order Act,
    can provide you with a local government's perspective about the impact
    the current state of law enforcement in Indian Country has on county
    residents who reside on federal trust reservation land. Law enforcement
    in Indian Country effects us all. Hopefully, our perspective will help
    your Congressional colleagues appreciate that tribal law and order, or
    the lack thereof, effects them too, no matter where there congressional
    district is located.
    Federal Neglect Permits Crime and Prevents Punishment in Indian Country
        San Juan County supports S. 797 because its call for federal
    coordination and accountability, and enhancement of tribal justice
    systems, and can help reverse the trend of unpunished crime in Indian
    Country.
        As elected county officials, we hear from our Indian constituents
    when a felony occurs on their reservation. Typically, after the local
    tribal police have completed their investigation, it takes several days
    for the FBI to arrive and begin their investigation. Months later, the
    U.S. Attorney usually opts not to prosecute because the evidence is
    old, the trail is cold, and it costs too much to transport suspects to
    federal court.
        In his testimony before this committee, Associate Attorney General
    Thomas J. Perrelli stated that, ``in a typical year, approximately 25
    percent of cases opened by U.S. Attorneys occur in Indian Country.'' On
    its face, this statement sounds like the U.S. attorney is committed to
    seeking justice in those 25 percent of cases. We beg to differ.
        On behalf of tribal constituents everywhere, we urge this Committee
    to request that Mr. Perrelli answer this follow-up question, in
    writing, for the congressional record: Of the 25 percent of cases
    opened by U.S. Attorneys that occur in Indian Country, how many do the
    U.S. Attorneys actually prosecute?
        We hope that this committee will insist that the U.S. Department of
    Justice (hereafter, USDOJ) provide more then just lip service to law
    enforcement in Indian Country. From our perspective, that is all USDOJ
    has done thus far. You need look no further for evidence of their
    indifference than to the staggering rate of crime victimization among
    Native Americans across the country.
        The 2003 U.S. Commission on Civil Rights report--A Quiet Crisis:
    Federal Funding and Unmet Needs in Indian Country--found that American
    Indians are crime victims at a rate more than twice that of all other
    U.S. residents. Indian women are victimized at a rate that is 50
    percent higher than the next highest group, African American males.
    Indian Country crime is twice as likely to be violent than in the rest
    of the U.S.
        Unbelievably, these extraordinary rates of crime victimization have
    not moved this Administration, nor any Administration before it, to use
    every opportunity available to invest federal resources into Indian
    Country. Just last year, your Committee colleague, Senator Tim Johnson,
    asked then President-Elect Obama to fully fund Indian Country programs
    enacted as part of the President's Emergency Plan for AIDS Relief
    reauthorization bill, which passed Congress earlier. Senator Johnson's
    amendment to that bill authorizes $750 million for public safety and
    criminal justice programs in Indian Country, but President Obama did
    not include such funding in his budget this year.
        The Federal Government's persistent neglect of law enforcement in
    Indian Country has given Mexican drug cartels carte blanche to operate
    on reservations throughout the nation, to use them as distribution
    points to congressional districts everywhere, but most especially the
    midwest and Northeast. Drug smugglers now use secondary routes, both
    tribal and county roads, throughout Indian Country for trafficking.
    According to the Arizona Criminal Justice Commission, 40 percent of all
    drugs entering the United States from Mexico travel along Interstate
    40, through the Navajo Nation, for disbursement across the country, yet
    in 2007, the Bureau of Indian Affairs had less than 10 certified drug
    investigators to cover all 55.7 million acres of Indian Country.
    Public Safety Must Become More Important than Public Relations
        A good faith commitment to law enforcement in Native American
    communities is long overdue. We all need the Federal Government to
    become more interested in keeping Indian Country safe from crime and
    injustice. Unfortunately, in San Juan County, Utah, it seems that USDOJ
    and the U.S. Department of Interior are less interested in prosecuting
    crimes against Indian people than using Native American culture as a
    pretext for high priced, high profile, public relations events.
        On the morning of June 10, 2009, over 240 federal law enforcement
    officers descended upon San Juan County, Utah to serve warrants on 10
    people and make arrests in a two-year undercover operation by the
    Bureau of Land Management and the Federal Bureau of Investigation to
    apprehend individuals who allegedly traffic Anazasi artifacts found
    throughout our remote county in southeast Utah. During that same two
    year period, violent crime and international drug dealing proliferated
    on the Navajo Nation because USDOJ and the U.S. Department of Interior
    are doing nothing to stop it. The public safety of the Navajo people
    did not seem to warrant any federal law enforcement officers, much less
    240.
        The same federal officials who cannot seem to ever find the
    resources to prevent and prosecute crimes in Indian Country had no
    problem finding the funds to descend upon Salt Lake City for a June 10
    press conference, in which Assistant Secretary for Indian Affairs Larry
    Echo Hawk boldly claimed that, ``Today's action should give American
    Indians and Alaska Natives assurance that the Obama Administration is
    serious about preserving and protecting their cultural property.''
        From our perspective, the only assurance the federal agencies'
    actions have provided thus far is that they care more about protecting
    artifacts of the dead than the safety of the living. This
    Administration, and this Congress, owe Native Americans more than
    talking points and press conferences. S. 797 is needed to require USDOJ
    and Interior to invest in the creation of modern law enforcement to
    keep Indian Country safe, rather than allowing federal agencies the
    discretion to lavish resources on high profile, headline-grabbing
    cases, that do not even involve living Indians.
    Conclusion
        San Juan County remains committed to working for the betterment of
    all of our people, and we thank you for the opportunity to provide
    testimony about S. 797 and the impact the lack of federal resources has
    on our tribal constituents.
                                     ______

       Prepared Statement of Chad Smith, Principal Chief, Cherokee Nation
        Mr. Chairman, Mr. Vice Chairman, and members of the Committee, I am
    pleased to provide a statement on behalf of the Cherokee Nation
    regarding Law Enforcement in Indian Country. Sharon Wright, Director,
    Cherokee Nation Marshal Service (CNMS) has provided information and
    support in the development of this statement. We thank you for
    accepting the Cherokee Nation's statements for the record on these
    important issues that impact the welfare of our citizens, our
    communities and other American Indians in Northeast Oklahoma.
        The Cherokee Nation has 286,323 citizens. Within the fourteen
    county jurisdictional boundaries there is a population of 268,761 with
    109,095 being Cherokee citizens. The CNMS is responsible for providing
    law enforcement services on approximately 105,922 acres of Indian
    Country checker-boarded throughout 7,000 square miles of northeast
    Oklahoma. The Cherokees also support law enforcement in the local
    jurisdictions through cross-deputations which provides a more seamless
    law enforcement service and public protection for our citizens residing
    off Indian Country. The Cherokee Nation has 49 cross-deputation
    agreements.
        Our officers are trained through the federal Indian Police Academy
    and the state Council of Law Enforcement Education and Training, and
    undergo 40 hours of continuing education each year. CNMS operates a
    department of 33 sworn officers and 12 security personnel to provide a
    full range of law enforcement services: public safety, protection of
    property, prevention, criminal investigations and narcotic
    investigations. The tribal justice system has an Attorney General's
    office and a two tiered court system with a district court and a
    supreme court. The funding sources used to promote justice and law
    enforcement in the Cherokee Nation are tribal finances, Department of
    Justice (DOJ), Department of Interior (Self-governance) and Housing and
    Urban Development (IHP-NAHASDA) allocations.
        The Cherokee Nation fully supports efforts to increase the
    capabilities of law enforcement in Indian Country. The Tribal Law and
    Order Act of 2009 is a promising start to combating the problems the
    Cherokee Nation faces in protecting our citizens and communities. Re-
    authorizing and funding the Indian Alcohol and Substance Abuse Act,
    Indian Tribal Justice, tribal jails, and tribal youth programs is
    essential to improving law enforcement and we are pleased that these
    are included in the proposed legislation. However, we believe these
    authorizations should be made permanent, or at the very least, not
    allowed to lapse as they have in the past.
        Requiring federal law enforcement officials and U.S. Attorney's
    Offices to submit reports stating their reasons for declining to
    investigate or prosecute offenders is also an essential provision to
    combating criminal violence in Indian territories. This condition will
    hold federal offices more accountable for declination rates in Indian
    Country, and also allow tribal attorneys to pursue action in tribal
    courts when appropriate.
        Explicit authorization allowing a U.S. Attorney to appoint tribal
    attorneys as Special Assistant U.S. Attorneys is a provision currently
    allowed by statue though it has rarely been utilized. Utilizing tribal
    attorneys in this manner would help greatly in alleviating the
    declination problem on the federal level. Unless there is a greater
    effort to actively involve more tribal attorneys in prosecuting crime
    in Indian Country, declination rates will not improve.
        Amending ICRA to allow tribes greater sentencing authority will
    help the Cherokee Nation better protect its citizens from Indian
    offenders. By also funding the creation of new jails and allowing
    convicted offenders to be housed in Bureau of Prisons facilities, this
    bill will help alleviate the costs of longer incarcerations. The
    Cherokee Nation is proud to say that we already provide legal
    assistance to all criminal defendants in tribal court, as this bill
    would require such for cases involving jail sentences over one year.
        While increased sentencing authority over Indians will help combat
    crime in Indian Country, crime committed by non-Indians must also be
    addressed. A Bureau of Justice Services report indicated that 70
    percent of domestic violence and sexual assaults against Native
    American women is committed by non-Indians whom tribes have no
    authority over. In addition to appointing tribal attorneys as Special
    Assistant U.S. Attorneys, Congress should state that tribes have the
    inherent authority to prosecute all criminals in Indian Country,
    regardless of their race. If Congress is unwilling to let non-Indians
    be tried in tribal court, then it should be allowed for tribal
    attorneys to bring charges against non-Indians directly in the federal
    courts.
        By increasing funding to many needed programs and initiatives, the
    proposed legislation will go far in addressing the problems the
    Cherokee Nation and all tribes face. While all improvements to tribal
    law enforcement agencies are greatly appreciated, until tribes have the
    authority to combat all crime in Indian Country, and not just those
    crimes committed by Indians, no amount of money will fully fix the
    problems we are facing.
        Mr. Chairman, we want to thank you for holding this hearing on such
    an important issue for Indian Country. We hope our testimony will
    assist you and your colleagues in making decisions to improve the
    safety of our people who reside on Indian lands. Because of the many
    cross-deputation agreements that CNMS has entered into, any
    improvements to our tribal law enforcement capabilities also improves
    law enforcement for all of Northeastern Oklahoma.
        We will be happy to answer any questions you may have.
                                     ______

     Prepared Statement of Esta Soler, President/Founder, Family Violence
                                Prevention Fund

                                     ______

     Prepared Statement of William R. Rhodes, Governor, Gila River Indian
                                   Community

                                     ______

       Joint Prepared Statement of Karen Artichoker and Juana Majel, Co-
     Chairs, National Congress of American Indians Task Force on Violence
                                 Against Women
        The National Congress of American Indians (NCAI) Task Force on
    Violence Against Women was formed in 2003 and represents a national
    movement of tribal organizations dedicated to the mission of enhancing
    the safety of American Indian and Alaska Native women. The NCAI Task
    Force works collaboratively with the National Task Force to End Sexual
    and Domestic Violence and other national organizations addressing
    implementation of the Violence Against Women Act (VAWA). The NCAI Task
    Force supports the various testimony submitted by these organizations
    and will focus on issues specific to American Indian tribes and women.
    The following recommendations have been made to the United States
    Department of Justice and the Obama administration.
        The USDOJ estimates that 1 of 3 Indian women will be raped, that 6
    of 10 will be physically assaulted and that Indian women are stalked at
    more than double the rate of any other population of women in the
    United States. This violence threatens the lives of Native women and
    the future of American Indian Tribes and Alaska Native Villages. Ending
    this historic pattern of violence requires that the institutional
    barriers that deny access to justice and related services for Native
    women are eliminated. No area of need is more pressing or compelling
    than the plight of American Indian women fleeing physical and sexual
    violence.
        Congress, led by the tremendous efforts of Vice President Joseph
    Biden, set forth essential steps to address the systemic barriers
    denying access to justice in such cases through the enactment of the
    Safety for Indian Women Title contained within the VAWA of 2005.
    Dedicated tribal leaders, advocates and justice personnel are prepared
    to implement these amendments to federal code and programs established
    under this Title. Unfortunately since passage of this landmark
    legislation in 2005, implementation of key provisions has been stymied
    and federal departments charged with the responsibility of
    implementation have minimized the need for immediate action. The
    demonstrated lack of will on the part of federal departments is not
    only demoralizing, but life threatening to the women the statute was
    intended to protect.
        A systemic change is needed to prevent violence in the lives of
    Native women. A complex set of social factors including federal/tribal
    jurisdictional issues, inadequate tribal resources and justice
    personnel, and poverty have resulted in the current level of danger
    that exist in the lives of American Indian women as a population.
    Perpetrators of domestic and sexual violence commit such violence
    because of the belief that no social consequences exist for their
    violent behavior. This perception stems from the reality that crimes of
    domestic and sexual violence are rarely prosecuted, and if prosecution
    occurs any sentence is so minimal that it is inconsequential to the
    life of the perpetrator. As one mother stated after the violent murder
    of her daughter, ``The system is broken. It did not protect my daughter
    during her life and I fear it will fail her daughters, my grand
    daughters in their lives.''
        Federal Indian law, including treaties, supreme court cases, and
    federal code, places a unique legal responsibility upon the United
    States to assist Indian tribes in creating safe and stable communities
    and for the safety of Indian women. We have identified critical issues
    and recommendations to assist with the prevention and prosecution of
    violence against Indian women. We respectfully request that the
    Judiciary Committee request a report of activities to implement the
    amendments to federal code under the VAWA and also a plan of action
    from the Department of Justice for implementation of these provisions.
    We recommend that such implementation plans provide for collaboration
    with Indian tribes and increased coordination between federal agencies
    charged with the handling of domestic and sexual violence cases.
        Given the urgent need to address the current epidemic level of
    violence committed against Native women we respectfully request that
    the Committee call for a joint hearing with the Senate Committee on
    Indian Affairs on the issue of violence against Native women.
    Reauthorization of VAWA is essential to the lives of American Indian
    and Alaska Native women. The outstanding concerns regarding
    implementation of VAWA and our recommendations are organized into the
    following three categories:

            I. Failed or inadequate implementation of amendments to federal
            code enacted under the Violence Against Women Act of 2005;

            II. Systemic barriers to the safety of Indian women that
            require immediate action by federal departments; and,

            III. Issues addressing the epidemic levels of sexual violence
            committed against Indian women.

    I. Implementation of the Safety of Indian Women Contained in the
            Violence Against Women Act of 2005
        The provisions contained in the Safety for Indian Women Title
    require action by the Departments of Health and Human Services,
    Justice, and Interior. Since passage of VAWA, these departments have
    failed to fully implement critical provisions of the Safety for Indian
    Women Title. The following is a section-by-section analysis of the most
    urgent issues--all of which need immediate action.
        a) Annual Consultation: Section 903 directs the Attorney General
    and Secretary of Health and Human Services to each conduct annual
    consultations with Indian tribal governments concerning the federal
    administration of tribal funds and programs established under the
    Violence Against Women Acts of 1994 and 2000. It requires the Attorney
    General, during such consultations, to solicit recommendations from
    Indian tribes concerning: (1) the administration of tribal funds and
    programs; (2) the enhancement of the safety of Indian women, including
    the protection from domestic violence, dating violence, sexual assault,
    and stalking; and (3) the strengthening of federal response to such
    violent crimes.
        The successful implementation of VAWA within tribal communities
    requires consultation and coordination between the respective federal
    departments and Indian tribes. Annual consultations were held in 2006,
    2007, and 2008. Unfortunately, the USDOJ has not fulfilled the
    requirement of this statute. Specifically; the Attorney General has not
    attended, has failed to require attendance of USDOJ leadership, and,
    has delegated this requirement to the Office on Violence Against Women.
    USDOJ leadership includes key players such as the Attorneys General
    from districts containing significant numbers of Indian tribes,
    Attorney General's Native American Issues Sub-Committee, Federal Bureau
    of Investigation, and others. The USDOJ has not responded to the
    majority of concerns and recommendations made during the 2006, 2007 and
    2008 consultations; and, in 2007 and 2008 the USDOJ scheduled
    consultations/meetings with Indian tribes that created a conflict with
    the attendance of some tribal leaders of the VAWA consultation.
        We do commend specific components of the Department, the Office on
    Violence Against Women and the National Institute of Justice, for
    recognizing the importance of the annual consultation and their on-
    going commitment to the successful implementation of this section of
    VAWA.

        Recommendation: The Attorney General immediately begin coordination
    with Indian tribes to schedule and establish the agenda for the 2009
    consultation.

        b) Access to Federal Databases: Section 905(a) amends the federal
    code to require the Attorney General to permit Indian law enforcement
    agencies, in cases of domestic violence, dating violence, sexual
    assault, and stalking, to enter information into, and obtain
    information from, federal criminal information databases. For decades
    Indian tribes have been denied access to life-saving information
    contained in the national sex offender and order of protection
    registries. Indian women enter and leave tribal jurisdictions
    continuously and a woman's life may depend on her order of protection
    being given full faith and credit by another jurisdiction. Currently,
    many tribal orders of protection and information regarding convicted
    sex offenders are not listed on the national registries.
        While the majority of Indian tribes lack access those having
    concurrent criminal jurisdiction with states (under Public 53-280 or
    similar federal law) experience additional barriers in that some states
    do not recognize tribal law enforcement authority. Submission of life-
    saving information from these tribal jurisdictions is blocked and
    endangers the lives of tribal women, law enforcement officers and
    members of tribal communities.
        The federal amendment to permit Indian law enforcement agencies
    access to enter and obtain information from the federal crime data
    systems was a tremendous step forward in creating safety for Indian
    women. Unfortunately, this lifesaving amendment to federal law has not
    changed in reality. Tribal law enforcement still cannot access the
    national system without permission of the state in which the tribe is
    located. Many state governments refuse Indian tribes access to their
    state system. As a result, tribal law enforcement officers cannot
    access criminal information on suspects which places the lives of
    officers and women at risk. In addition, some state governments, in
    conflict with federal law, do not allow tribal court orders of
    protection to be entered into their state registry. The amendment to
    the federal code was intended to remedy the barrier of Indian tribes
    accessing critical criminal justice information required to manage
    crime and protect women. The ability for Indian tribes to access the
    national registry would enable tribes to protect their communities from
    transient habitual perpetrators that prey on Indian women.

        Recommendation: The Attorney General direct the National Criminal
    Information Center to coordinate with all federally recognized Indian
    tribes to implement Section 905(a).

        c) Domestic Assault by an Habitual Offender. Section 909 amends the
    federal criminal code to impose enhanced criminal penalties upon repeat
    offenders who: (1) commit a domestic assault within the special
    maritime and territorial jurisdiction of the United States or Indian
    country; and (2) has a final conviction on at least two separate prior
    occasions in federal, state, or tribal court for offenses that would
    be, if subject to federal jurisdiction, an assault, sexual abuse, or a
    serious violent felony against a spouse or intimate partner, or a
    domestic violence offense.
        Domestic violence is a pattern of violence that escalates over time
    in severity and frequency. To prevent future violence and end the
    pattern, perpetrators must be held accountable immediately. Due to the
    combined factors of the sentencing limitation placed on Indian tribes,
    not more than one year per offense, and the lack of prosecution of
    misdemeanor domestic violence cases by the United States Attorneys
    General and states sharing concurrent jurisdiction with Indian tribes,
    this section was enacted to permit federal prosecution of misdemeanor
    domestic violence crimes. Unfortunately, since passage of the statute
    in 2005 it has been used only twice.

        Recommendation: The Attorney General mandate training on this
    statute for appropriate personnel handling cases of domestic and sexual
    violence and provide a report during the 2009 annual consultation of
    the number of cases prosecuted under Section 909.

    II. Outstanding Issues Not Addressed by the Violence Against Women Act
        The issues outlined below are not new and they were raised during
    the 2006, 2007 and 2008 consultation between the USDOJ and tribal
    leadership. These and other issues and recommendations are proposed in
    the Tribal Law and Order Act of 2009 (S. 797) authored by Senator Bryon
    Dorgan, Chairman of the Senate Committee on Indian Affairs. We provide
    the following issues and recommendations to inform the Committee of on-
    going gaps in the response of the criminal justice systems to domestic
    and sexual violence committed against American Indian women.
        1) Declination Reports: USDOJ personnel, law enforcement and US
    Attorneys, should be required to submit declination reports to tribal
    justice officials to coordinate the prosecution of crimes on the
    reservation, and in Indian Country. The USDOJ should be required to
    maintain records of such declination and make them available to
    Congress on an annual basis. Often times when a woman reports a sexual
    assault, months or years may pass without her being informed of the
    status of the case. Women often fear retaliation by the perpetrator for
    reporting sexual assault or domestic violence. The failure to notify
    the victim that the U.S. Attorney has declined to prosecute the case
    creates barriers to the safety of women. The woman, unaware that the US
    Attorney declined the case, may not take the appropriate steps to
    protect herself from future violence. In addition, tribal justice
    personnel, also uninformed of the status of the case, may not take
    appropriate steps to charge the perpetrator in tribal court. Given the
    public myth that sexual assault and domestic violence cases are not
    serious crimes, transparency in the statistical reporting of
    prosecutorial and declination rates for such crimes should be mandated.
    For all the same reasons noted above states that share concurrent
    jurisdiction with Indian tribes should also be mandated to report the
    same information to Congress.

        Recommendation: The Attorney General request United States
    Attorneys General and states to issue declination reports to tribal
    justice officials and victims of domestic and sexual violence. Further,
    during the annual consultation the Attorney General should provide an
    annual report of declinations and prosecution rates for cases of
    domestic and sexual assault cases committed against Indian women.

        2) State Accountability: Tribes within Public Law 53-280 or similar
    jurisdictions should be able to call on the United States to maintain
    federal concurrent jurisdiction and assist tribal governments in the
    prosecution of major crimes where the states have the authority.
        In 1953, during the termination era, Congress enacted laws that
    transferred federal criminal justice authority to particular state
    governments. The Department of Interior, as a policy interpretation,
    denied access to Indian tribes located within those states to federal
    funds to develop their respective tribal justice systems.
    Unfortunately, the state governments generally do not adequately
    respond to crimes of sexual assault and domestic violence within tribal
    communities. On a daily basis perpetrators of crimes of sexual and
    domestic violence are not held accountable for their crimes due to such
    jurisdictional barriers.
        As a result, when a woman is raped within an Indian tribe located
    within such states sharing concurrent criminal jurisdiction, no tribal
    criminal justice agency may be available to assist her or hold the
    rapist accountable. This gaping hole in the federal/state/tribal
    justice systems often results in an injustice in the lives of women and
    permits perpetrators to continue committing horrific violence against
    the same or a different woman.

        Recommendation: The Attorney General work in coordination with
    Indian tribes to address the unique jurisdictional barriers created by
    federal law and increase the accountability of state governments to
    coordinate with Indian tribes to enhance the safety of Indian women
    living within tribal jurisdiction; in particular an increased awareness
    of the authority of federally recognized Indian tribes to maintain
    tribal law enforcement agencies and tribal courts to issue orders of
    protection.

        3) Sentencing Authority of Tribal Courts: It is essential that the
    sentencing authority of tribal courts be increased beyond the current
    one year for any single offense. Between 2004 and 2007, the United
    States declined to prosecute 62 percent of Indian country criminal
    cases referred to federal prosecutors, including 75 percent of child
    and adult sex crimes. One the greatest barriers to the safety of Indian
    women is that in cases declined by the United States a perpetrator of
    rape, if prosecuted by the Indian tribe, only can receive a maximum of
    one year per offense. In every other jurisdiction in the United States
    rape is considered a felony offense with an average sentence of four
    years. It is also essential that federal law be enacted permitting
    Indian tribes to request the transfer of prisoners to the nearest
    appropriate federal facility at the expense of the United States. This
    would allow tribal courts to appropriately sentence perpetrators
    without the restraint of not having a facility or the budget to
    contract for bed space for prisoners convicted of domestic and sexual
    violence.

        Recommendation: The Attorney General coordinate and support the
    efforts of Indian tribes to address the current inadequate sentencing
    authority of tribal courts in cases of sexual assault, domestic
    violence, dating violence and stalking.

        4) Prisoner Release and Reentry: The USDOJ should be mandated to
    notify tribal justice officials when a sex offender is released from
    federal custody into Indian country. Every state and territory is
    required to provide notification when a sex offender is released and
    enters a community. Currently many Indian women receive no notification
    of the release of their convicted rapist from federal prison. This
    realization comes only at the moment when they see the offender in
    their grocery store, on their front porches, or when picking up their
    children at the school gate. It is a horrifying and frightening
    realization. The USDOJ should also be required to register sex
    offenders with the appropriate law enforcement agency including tribal
    registries.

        Recommendation: The Attorney General direct the Bureau of Prisons
    to notify tribal justice officials and victims of sexual assault,
    domestic violence, dating violence and stalking of the release of such
    an offender.

        5) Mandate of Specialized Training in Domestic and Sexual Violence
    for Federal Prosecutors and Law Enforcement Personnel: The Office on
    Violence Against Women has for the last thirteen years asserted the
    importance of specialized training for criminal justice personnel; yet,
    it has not applied this same standard to federal prosecutors and law
    enforcement personnel. Law enforcement personnel within departments
    such as the Federal Bureau of Investigation and the Bureau of Indian
    Affairs should be mandated to attend a minimum number of hours of
    training to enhance their expertise and skills in the handling of such
    investigations. Federal prosecutors should also be mandated to receive
    specialized training to enhance the prosecution of crimes of domestic
    and sexual violence. Lastly, resources and training should be provided
    to Indian law enforcement agencies 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.

        Recommendation: The Attorney General direct the appropriate
    departments to implement training in the handling and prosecution of
    sexual assault, domestic violence, dating violence and stalking cases
    committed against Indian women.

        6) Complex Federal Jurisdictional Barriers Preventing the Safety of
    Native Women. The current rates of sexual and domestic violence have
    been linked to jurisdictional gaps that allow perpetrators to face
    little or most often no criminal consequence for their crimes. Federal
    law, United States Supreme Court cases, Executive Orders, and Treaties
    with Indian Nations comprise what is known as Federal Indian law that
    has resulted in a body of complex jurisdictional laws that often
    operate as barriers to safety.
        One example of the concrete impact of current federal law upon the
    lives of Native women is the unique and difficult issues in Oklahoma
    Indian Country plaguing the 37 federally-recognized tribal governments
    in the state. Federal Indian policies of the past forced American
    Indians into Indian Territory prior to Oklahoma statehood. Under
    pressure from expansion of non-Indians into the west, the Federal
    Government opened up Indian Reservations for white settlement through
    passage of several allotment acts around the time of Oklahoma
    statehood. Oklahoma tribes today are left with a checker-boarded
    pattern of Indian lands commingled with non-Indian lands. Tribal courts
    have no criminal jurisdiction over non-Indians, and according to recent
    studies, the vast majority of offenders in Native-victim domestic
    violence cases are non-Indian. State courts do not have jurisdiction to
    prosecute non-Indians for crimes committed against Indians in Indian
    Country. Only the federal court system has jurisdiction to prosecute
    these perpetrators who commit crimes of domestic violence against
    Indian women on Indian land. Most often cited as a lack of resources,
    the United States Attorneys Offices in Oklahoma frequently decline to
    prosecute these offenses.

        Recommendation: It is of critical importance that the respective
    federal agencies coordinate with Indian Nations as governments to
    address these jurisdictional gaps and increase the safety of Native
    women.

    III. Need to Address the Epidemic Level of Sexual Assault
        Sexual violence committed against Native women is more than double
    that of any other population of women and the resources to respond to
    such violence are far less. On the Pine Ridge Reservation of the Oglala
    Sioux Tribe, the number of rapes for just one weekend can average 44
    cases. At present, reporting has virtually stopped, reflecting the lack
    of federal response and prosecution. Further, in Alaska, sexual assault
    is rampant and the current criminal justice system is unresponsive,
    thus failing Native women and Alaska Native Villages. Anchorage is
    ranked No. 1 in the nation per capita on the sexual assault of Alaska
    Native women. In the rural Alaska Native Villages advocates for women
    report that 100 percent of the women at some point in time have been a
    victim of sexual violence.
        The systemic response of the federal departments to sexual violence
    against Indian women is a failure and immediate corrective action is
    necessary. The tribal/federal and tribal/state response must be
    enhanced from the immediate response to the crime by first responders,
    including law enforcement and healthcare personnel, to post sentencing
    probation and reintegration of sexual offenders into tribal
    communities. No other crime better illuminates the disparate treatment
    between Native and non-Native women victimized by violence. In
    particular, the responses and availability of the Indian Healthcare
    Services providers to victims of sexual assault must be improved. The
    provision of the forensic sexual assault medical exams is insufficient
    and the refusal of personnel to testify in such cases due to
    understaffing is unacceptable. Further, the lack of rape crisis
    services and post-crisis services only increases the risk to Native
    women. The need for services does not end with the rape examination but
    only just begin. Current services for women victimized by rape are
    minimal or non-existent. The starting point for such reforms is the
    enhancement of community-based services available within tribal
    communities to assist Indian women and the authority of Indian tribes
    to hold perpetrators accountable.

        Recommendations: The respective federal departments coordinate to
    address the above concerns with Indian tribes. The Secretary direct
    Indian Health Service personnel to develop, in coordination with Indian
    tribes, a protocol for sexual assault medical forensic examinations and
    cooperate in the prosecution of sexual assault cases by agreeing to
    testify in such cases.

    IV. Summary
        We deeply appreciate and thank the Members of the Senate Judiciary
    Committee for supporting the Violence Against Women Act and our
    testimony. The recommendations above complement the other
    recommendations submitted by national advocacy organizations for the
    safety of women. We respectfully urge you to consider these
    recommendations with attention and care. The complex set of legal and
    social issues that mire efforts to address violence against Native
    women are of the utmost importance and indicate the need for a
    reauthorized and strengthened Violence Against Women Act. Together we
    can reverse the current pattern of violence and the institutionalized
    barriers discussed that prevent safety in the lives of Indian women.
    Change has come to America and we cannot go back; we must continue our
    journey until the day that Native women are held sacred once again and
    live free from violence within their homes and communities.
                                     ______

     Prepared Statement of Jolanda E. Ingram-Marshall, Attorney; Executive
       Director of Niwhongwh xw E:na:wh Stop The Violence Coalition, Inc.
        Dear Honorable Senate Committee Members & Chairman Dorgan: My 17
    year old daughter moved to the Salish-Kootenai (Flathead) Indian
    Reservation in northwestern Montana to attend college at the Salish-
    Kootenai College in January, 2009. She was a victim of a hate crime on
    the Salish-Kootenai (Flathead) Indian Reservation in March, 2009. A
    non-Indian man, who she did not know, threw a full commodity soup can
    over a fence and struck her on the head. She received a concussion and
    missed three days of school and had to have a CT scan. The Salish-
    Kootenai Tribal Police could not arrest the man because he was non-
    Indian. The Lake County Sheriff's Department refused to arrest him. A
    police report was sent to the Lake County District Attorney's Office
    and nothing was ever done. There were three witnesses and the victim
    present that evening. Each provided statements. The non-Indian suspect
    told the authorities that he did not mean to strike my daughter on the
    head and that it was an accident. The Lake County authorities decided
    to take the word of the non-Indian over my daughter and the three other
    witnesses.
        I want to ask each and every one of you listening to this testimony
    whether you would want your daughter to attend an Indian college on an
    Indian reservation where nothing would happen to the perpetrator of a
    crime against her. I have to ask myself this question each and every
    day now that my daughter and I have been personally affected by the
    senseless and lawless state of affairs on Indian reservations in this
    great country.
        Unfortunately, my story continues. In May, 2009, my daughter was in
    her dormitory room at the Salish-Kootenai College when she was attacked
    and raped by an acquaintance, who was attending college and residing on
    campus as well. This time her attacker was an Indian male. The crime
    rose to the level of a felony, so the Lake County Sheriff's Department
    arrested him. The next day the suspect was released from jail. My
    daughter and I received a phone call, during the second week of June,
    from a Lake County Sheriff's Detective who informed us that the suspect
    would not be prosecuted because there was not sufficient evidence. He
    stated that there were other witnesses who stated that my daughter had
    been observed earlier that evening hugging the suspect and having a
    beer with him.
        This situation presents a very sad state of affairs in this country
    on the issue of violence against women. God forbid a woman ever have a
    beer with someone or hug him, otherwise she is consenting to the act of
    rape!
        I am asking that the United States Congress recognize the danger
    facing Native women and act to strengthen the response to such crimes.
    More particularly in PL 280 states, Tribes have no control over whether
    the local county district attorney prosecutes a case. I believe that if
    a study were to be conducted, that the declination rates of cases
    coming from PL 280 Indian Tribes is at a very high rate. Native women
    living under concurrent state jurisdiction are at high risk because
    perpetrators have learned over many decades that county sheriffs and
    prosecutors will not believe or protect Native women.
        Proposed amendments to federal law contained in the Tribal Law and
    Order Act are critical to the safety of Native women. In particular
    Title II State Accountability that provides Indian tribes the option of
    requesting that federal concurrent jurisdiction be restored over such
    crimes as rape. If the county sheriffs refuse to hold perpetrators
    accountable for their violent crimes the United States must. Currently
    the failure of state governments to hold serial rapist accountable for
    their acts sends a green light that such conduct holds no legal
    consequence.
        Further, Indian Tribes as governments must be given the authority
    and resources needed to fully develop their justice systems to protect
    women and be comparable to the American justice systems. The average
    sentence for rape is four years in all jurisdictions of the United
    States except that of an Indian tribe. I strongly support the proposed
    amendment to increase the sentencing authority of tribal courts from
    one year to three years. Sentencing a rapist to one year is dangerous
    to the woman that survives this heinous crime but also an insult to all
    Native women.
        Lastly, I respectfully ask that the Senate Committee on Indian
    Affairs co-sponsor a hearing with the Senate Judiciary Committee to
    review the complicated issues preventing safety in the lives of Native
    women. The current epidemic of violence in the lives of American Indian
    and Alaska Native women requires immediate action by Congress.
        My daughter is not safe, and neither is anyone's daughter in Indian
    country! Please act now.
        Thank you very much.
                                     ______

              Prepared Statement of the Puyallup Tribe of Indians

                                     ______

      Response to Written Questions Submitted by Hon. Byron L. Dorgan to
                            Hon. Thomas J. Perrelli

                                     ______

       Response to Written Questions Submitted by Hon. John Barrasso to
                            Hon. Thomas J. Perrelli

                                     ______

         Response to Written Questions Submitted by Hon. Tom Udall to
                            Hon. Thomas J. Perrelli

                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                            Hon. Thomas J. Perrelli

                                     ______

       Additional Written Questions Submitted to Hon. Thomas J. Perrelli

                                     ______

         Response to Written Questions Submitted by Hon. Tom Udall to
                                 Troy A. Eid *
    ---------------------------------------------------------------------------
        * The report, entitled Improving Law Enforcement Services for the
    Crow Nation and Big Horn County, attached to Mr. Eid's responses has
    been retained in Committee files.

                                     ______

                        Written Questions Submitted to
                             Hon. Larry Echo Hawk *
    ---------------------------------------------------------------------------
        * Response to written questions was not available at the time this
    hearing went to press.

                                     ______