[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


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                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 *
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    * 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 *
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    * Response to written questions was not available at the time this 
hearing went to press.






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