[Senate Hearing 112-434]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-434
 
TRIBAL LAW AND ORDER ACT ONE YEAR LATER: HAVE WE IMPROVED PUBLIC SAFETY 
                 AND JUSTICE THROUGHOUT INDIAN COUNTRY?

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



                                HEARING

                               before the

                      COMMITTEE ON INDIAN AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 22, 2011

                               __________

         Printed for the use of the Committee on Indian Affairs





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                      COMMITTEE ON INDIAN AFFAIRS

                   DANIEL K. AKAKA, Hawaii, Chairman
                 JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
KENT CONRAD, North Dakota            LISA MURKOWSKI, Alaska
TIM JOHNSON, South Dakota            JOHN HOEVEN, North Dakota
MARIA CANTWELL, Washington           MIKE CRAPO, Idaho
JON TESTER, Montana                  MIKE JOHANNS, Nebraska
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
      Loretta A. Tuell, Majority Staff Director and Chief Counsel
     David A. Mullon Jr., Minority Staff Director and Chief Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on September 22, 2011...............................     1
Statement of Senator Akaka.......................................     1
Statement of Senator Johnson.....................................     3
Statement of Senator Tester......................................     2
    Prepared statement...........................................     3
Statement of Senator Thune.......................................    30

                               Witnesses

Echo Hawk, Larry, Assistant Secretary, Indian Affairs, U.S. 
  Department of the Interior.....................................    10
    Prepared statement...........................................    11
Eid, Troy A., Chairman, Indian Law and Order Commission..........    38
    Prepared statement...........................................    40
Hyde, Pamela S., J.D., Administrator, Substance Abuse and Mental 
  Health Services Administration, U.S. Department of Health and 
  Human Services.................................................    20
    Prepared statement...........................................    22
Johnson, Brendan V., U.S. Attorney, District of South Dakota, 
  U.S. Department of Justice.....................................    14
    Prepared statement...........................................    16
Johnson-Pata, Jacqueline, Executive Director, National Congress 
  of American Indians............................................    60
    Prepared statement...........................................    61
Perrelli, Thomas J., Associate Attorney General, U.S. Department 
  of Justice.....................................................     4
    Prepared statement...........................................     6
Posey, Hon. Ivan D., Council Member, Joint Business Council, 
  Shoshone and Arapaho Tribes, Wind River Indian Reservation.....    48
    Prepared statement...........................................    50
Pouley, Hon. Theresa M., Chief Judge, Tulalip Tribal Court.......    53
    Prepared statement...........................................    55
Weahkee, Rose L., Ph.D., Director, Division of Behavioral Health, 
  Office of Clinical and Preventive Services, Indian Health 
  Service........................................................    25
    Prepared statement...........................................    27


   TRIBAL LAW AND ORDER ACT ONE YEAR LATER: HAVE WE IMPROVED PUBLIC 
                     SAFETY AND JUSTICE THROUGHOUT 
                            INDIAN COUNTRY?

                              ----------                              


                      THURSDAY, SEPTEMBER 22, 2011


                                       U.S. Senate,
                               Committee on Indian Affairs,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:20 p.m. in room 
628, Dirksen Senate Office Building, Hon. Daniel K. Akaka, 
Chairman of the Committee, presiding.

          OPENING STATEMENT OF HON. DANIEL K. AKAKA, 
                    U.S. SENATOR FROM HAWAII

    The Chairman. The United States Senate Committee on Indian 
Affairs will come to order.
    Aloha and welcome to the Committee's oversight hearing on 
the Tribal Law and Order Act One Year Later: Have We Improved 
Public Safety and Justice Throughout Indian Country?
    Today, our Native communities face severe and 
disproportionate threats to their public safety. Nationwide 
Indian reservations suffer from a violent crime rate of more 
than two-and-a-half times the national average. And with some 
reservations facing a violent crime rate as high as 20 times 
the national average. And women in our communities are 
especially vulnerable to violence. More than one in three 
Native women will be raped in their lifetime and two in five 
will fall victim to domestic or partner violence.
    These grave statistics are the result of a complicated 
jurisdictional maze that often allows severe crimes to go 
unpunished in Native communities. Native justice systems are 
also extremely underfunded and lack adequate data, training and 
coordination with State and Federal agencies to deal with the 
problem.
    Signed into law on July, 29, 2010, the Tribal Law and Order 
Act, TLOA, was intended to address the law and order crisis in 
Native communities. It has now been over a year since passage 
and many of the deadlines to implement provisions of the TLOA 
have passed.
    Today, we will hear from three panels of distinguished 
witnesses to examine progress in implementation of this 
critical legislation. The witnesses include Federal officials 
who have been charged with implementing the law, the Chair of 
the recently established Indian Law and Order Commission, 
Tribal leaders, Justice officials, and representatives from 
Native organizations.
    We are here to listen and to consider how we can continue 
to improve Native justice systems beyond the TLOA. Our children 
and those generations who follow rely on the decisions made 
today to ensure the safety and success of the communities in 
the future.
    The Chairman. And I would like to now ask other Members of 
the Committee for their opening statements.
    Senator Tester?

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

    Senator Tester. Thank you, Mr. Chairman.
    I want to welcome the witnesses today on all the panels. I 
am glad we are following up on this issue. Too often, we pass 
legislation. We move on. We never look back. And this is too 
important an issue not to look back on and assess who we are 
doing.
    Soon after I arrived in the U.S. Senate, I met with Tribal 
leaders across the Country to prioritize their needs. Their 
needs were so many that I said, wow, rank them. And they did. 
And of course, health care was the top. Public safety was 
number two on that particular day.
    Businesses have told me that because of a lack of law 
enforcement, customers never come through the door and it is 
hard for them to find good employees. Hospital directors have 
told me they can't find docs. They can't find nurses because 
their families don't want to live in communities that are 
dangerous.
    Schools tell me they can't educate kids because they come 
from violent homes, as so many of the students do in Indian 
Country.
    So I was proud to work with Chairman Dorgan in getting 
right to work on this bill. Our hearings revealed what Native 
Americans already knew. We haven't done a very good job 
protecting Indian Country and the disparities were incredibly 
disturbing. Indian communities are no where as safe as our 
American communities.
    The Chairman talked about some of the statistics. American 
Indians are two and a half times more likely to experience 
violent crime. The incidence of crimes upon women is incredibly 
high. Detention facilities are overcrowded, understaffed. 
Declination on the ability to prosecute crimes in Indian 
Country were way too high. Some reservations didn't even have 
24-hour coverage for police and they had one person to cover 
literally hundreds of square miles in Indian Country.
    There are other examples, but the bottom line is we need to 
do better. That is why we passed the bill, to give you the 
support that is needed in Indian Country to really keep our 
families safe, our communities safe, our businesses with the 
ability to succeed.
    The bill we passed requires agencies to share evidence and 
information better. It allows Tribal Courts to give stiffer 
penalties, as long as protect our Constitutional rights. It 
encourages different law enforcement agencies to share 
information and work together, and provides high-level domestic 
and sexual violence training. It authorizes programs designed 
to respond to infrastructure needs and substance abuse 
prevention.
    But with more support comes expectations. We are a year 
out. I look forward to hearing the progress. I hope there has 
been progress. And quite frankly, just to let you know as a 
little tip going in, saying we are working on it is not going 
to cut it. We have to have things where we have seen positive 
results as they impact Indian Country because it is just that 
important.
    Look, we have unemployment rates in Indian Country that are 
through the roof. I think this is a big part of that. It is not 
the only solution to it, but it certainly is a big part of it. 
We are never, ever going to see economic growth, job creation, 
as long as communities are unsafe. I think it is my job. It is 
your job. And I look forward to hearing about the progress as 
we work together to make Indian Country all it can be.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Tester.

    Prepared Statement of Hon. Jon Tester, U.S. Senator from Montana
    Thank you Mr. Chairman and welcome witnesses. I'm glad we're 
following up on this critical issue. Too often in this body, we pass 
legislation, move on to the next issue, and never look back.
    As soon as I arrived in the U.S. Senate, I asked Tribal leaders to 
prioritize their needs. After healthcare, public safety was the most 
important. Businesses told me that a lack of law enforcement was 
driving customers away and made it hard for them to find good 
employees. Hospital directors told me same--they can't get good 
doctors, because they and their families didn't want to live in 
dangerous communities. Schools told me they can't educate the kids who 
come from violent homes--and too many of their students do.
    So, I was proud to join former Indian Affairs Committee Chairman, 
Senator Byron Dorgan, in getting right to work. Our hearings revealed 
what Indians already know: we've done a terrible job of protecting 
Indian communities from crime. The disparities were disturbing.
    Indian communities were nowhere near as safe as most other American 
communities. American Indians were two and a half times more likely to 
experience a violent crime than non-Indians. 40 percent of Indian women 
will experience intimate partner violence; and 30 percent will be 
raped. Detention facilities were overcrowded and understaffed. U.S. 
Attorneys declined to prosecute over 60 percent of all crimes in Indian 
Country and 70 percent of serious crimes. On some reservations, they 
didn't even have 24-hour police coverage. On others, they had one 
person to cover hundreds of square miles.
    There are other examples of failure, but the lesson is that we can, 
and must do better. Giving you folks the support you need is important, 
because we rely on you to keep our families and communities safe.
    The bill we passed requires agencies to share evidence and 
information better. It allows Tribal courts to give stiffer penalties, 
as long as they protect constitutional rights. It encourages different 
law enforcement agencies to work together. It provides high-level 
domestic and sexual violence training. And it authorizes programs 
designed to respond to infrastructure needs and substance abuse 
prevention.
    But with more support, come higher expectations. Now, more than one 
year later, I look forward to hearing about your progress. I don't just 
want to hear that ``you're working on it''. I want to hear about 
positive results.
    The bottom line is that we can't expect anybody in Indian Country 
to succeed, unless we provide safe communities. That is my job and that 
is your job. I look forward to hearing about your progress today.

    Senator Johnson?

                STATEMENT OF HON. TIM JOHNSON, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Johnson. Mr. Chairman, thank you for holding this 
hearing today. This issue is critically important to my home 
State of South Dakota.
    I would like to thank all of our witnesses for joining us 
today. I would like to especially thank U.S. Attorney Brendan 
Johnson from my home State of South Dakota for testifying here 
today. I have followed his career closely.
    [Laughter.]
    Senator Johnson. And look forward to his testimony, as well 
as all the other witnesses.
    Throughout this hearing today, we will hear about the 
higher than average crime statistics affecting Indian Country. 
Crime in Indian Country in South Dakota is no exception. We 
have serious issues in South Dakota.
    I was proud to have supported the Tribal Law and Order 
bill. It is my hope that this legislation has and will provide 
the tools to correct some of these problems.
    I look forward to the testimony today to see how 
implementation of this law is progressing.
    Thank you again, Mr. Chairman, for holding this hearing 
today.
    The Chairman. Thank you very much, Senator Johnson.
    With that, I welcome the witnesses. I appreciate that you 
all have traveled so far to get here today and I look forward 
to hearing your testimony on this very important matter.
    So I ask that you limit your oral testimony to five 
minutes. Your full written testimony will be included in the 
record.
    Also, the record for this hearing will remain open for two 
weeks from today, so we welcome written comments from any 
interested parties. So thank you very much.
    Our first panel of witnesses today is Mr. Tom Perrelli, 
Associate Attorney General for the Department of Justice; Mr. 
Larry Echo Hawk, the Assistant Secretary of Indian Affairs for 
the Department of Interior; Mr. Brendan Johnson, U.S. Attorney 
for the District of South Dakota; Ms. Pamela Hyde, who is 
Administrator for the Substance Abuse and Mental Health 
Services Administration at the U.S. Department of Health and 
Human Services; and Dr. Rose Weahkee, Director of Behavioral 
Health in the Office of Clinical and Preventive Services for 
Indian Services in Rockville, Maryland.
    I want to welcome all of you again.
    And Mr. Perrelli, will you please proceed with your 
testimony?

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

    Mr. Perrelli. Thank you, Chairman Akaka and Members of the 
Committee. I appreciate the opportunity to appear before the 
Committee again and to report on the Justice Department's 
implementation of the Tribal Law and Order Act of 2010.
    This landmark law takes important steps toward improving 
the delivery and administration of criminal justice services in 
Indian Country, which is a top priority of the Attorney 
General. Even before the Tribal Law and Order Act passed, the 
Department began implementing key aspects of the proposed 
statute and going beyond the statute, we sought to deepen our 
engagement with Tribal nations.
    The Department is committed to fulfilling its trust 
responsibilities to Tribal nations, both by improving its own 
performance and by working with and investing in Tribal 
communities because we believe those communities are often best 
able to address the public safety challenges that they face.
    I am honored to be here from the Department of Justice with 
Brendan Johnson, the United States Attorney for the District of 
South Dakota and the Chair of the Native American Issues 
Subcommittee of the Attorney General's Advisory Committee. 
Brendan has shown extraordinary commitment to working with 
Tribal nations and improving public safety and he has been a 
tremendous leader for the Department.
    Since enactment of TLOA, we have worked hard to implement 
both its spirit and its letter. Because it covers so much 
ground, I will only hit a few of the highlights here in my oral 
testimony, but there is more in my written testimony.
    Under TLOA Section 212, FBI investigators and Federal 
prosecutors are now more effectively than ever coordinating 
with Tribal law enforcement officials on decisions not to 
pursue or to pursue criminal investigations or prosecutions in 
Indian Country. We will be submitting our first annual set of 
disposition reports as required by Congress early next year.
    Under Section 213 of the TLOA, we have already appointed 
eight Tribal prosecutors as Special Assistant United States 
Attorneys to assist in prosecuting Federal offenses committed 
in Indian Country and there are 10 other SAUSA's in the 
pipeline for later this year.
    We have at least one Assistant United States Attorney that 
will serve as a Tribal liaison in every district with Indian 
Country. We have established the Office of Tribal Justice as a 
permanent component of the Department and we have appointed a 
Native American Issues Coordinator to assist the United States 
Attorneys, all of which are requirements of the Tribal Law and 
Order Act.
    Under Section 221 of the Act, we have prepared regulations 
for assuming concurrent jurisdiction over crimes committed on 
certain Public Law 280 reservations. Those regulations are at 
OMB currently and we expect to have them out and begin 
receiving applications from Tribal nations in the coming 
months.
    Under Section 234, the Department's Bureau of Prisons has 
established a four-year pilot program for accepting offenders 
convicted in Tribal court under TLOA's enhanced sentencing 
provisions. And there are a series of reports and memoranda of 
understanding, including ones with SAMHSA on alcohol and 
substance abuse; our work with Interior on Tribal detention 
facilities; the work of our COPS office, all deadlines in the 
statute, all of which have been met in the last several months.
    Earlier this year, pursuant to Section 251 of the statute, 
our Bureau of Justice Statistics submitted to Congress a 
compendium of Indian Country crime data, and I think anyone 
reading that compendium would say that it tells us both that 
there are tremendous public safety problems in Indian Country 
and that we are a long way of having fully researched them to 
fully understand their scope.
    Finally, separate from, but as an extension to the Tribal 
Law and Order Act, we have worked with Tribal leaders to 
propose legislation to address the issue that Tribal leaders 
have repeatedly identified to us as one of, if not the most 
significant issue that they face, the scourge of domestic 
violence.
    That legislation, which we have talked about with this 
Committee before, follows the path that Congress blazed in the 
TLOA by offering Tribal law enforcement and prosecutors 
additional authority, if they implement procedural safeguards 
set forth by Congress and the Constitution and it fills 
critical gaps in the criminal justice response to domestic 
violence in Indian Country. We are hopeful that Congress gives 
us serious legislation as the natural next step following the 
Tribal Law and Order Act.
    I want to thank the Committee again for its work in this 
area and for constantly keeping the spotlight on these issues. 
We want to ensure, and the Department is fully committed to 
ensuring the Native Americans can live in safer communities in 
the months, years, and decades ahead.
    Thank you again. I look forward to your questions.
    [The prepared statement of Mr. Perrelli follows:]

 Prepared Statement of Thomas J. Perrelli, Associate Attorney General, 
                       U.S. Department of Justice
    Chairman Akaka, 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 report on 
implementation of the Tribal Law and Order Act of 2010, Title II of 
Public Law 111-211 (TLOA). This landmark law includes important steps 
toward improving the delivery and administration of criminal-justice 
services in Indian country, which is a top priority for the Attorney 
General. The Department has worked hard to implement both the spirit 
and the letter of the law.
    The Tribal Law and Order Act of 2010 covers an extraordinary range 
of important policies, organized into six subtitles: Federal 
accountability and coordination (Subtitle A, sections 211 to 214); 
State accountability and coordination (Subtitle B, sections 221 to 
222); empowering Tribal law-enforcement agencies and Tribal governments 
(Subtitle C, sections 231 to 236); Tribal justice systems (Subtitle D, 
sections 241 to 247); Indian country crime data collection and 
information sharing (Subtitle E, sections 251 to 252); and domestic 
violence and sexual assault prosecution and prevention (Subtitle F, 
sections 261 to 266). In my testimony this afternoon, I will address 
the sections of the Act that have most directly involved the Department 
of Justice.
    TLOA section 212, in Subtitle A, deals with disposition reports. 
Specifically, it requires Federal investigators and prosecutors to 
coordinate with Tribal justice officials concerning decisions not to 
pursue investigations or prosecutions of alleged violations of Federal 
criminal law in Indian country, and to compile and report annually to 
Congress data concerning such decisions.
    Throughout 2011, the first calendar year following enactment of the 
TLOA, the Department of Justice has been gathering data for its first 
set of disposition reports to Congress. Both the Executive Office for 
United States Attorneys (EOUSA) and the Federal Bureau of Investigation 
(FBI) have been working to improve the quality of the data they 
maintain on investigation and prosecution decisions regarding alleged 
crimes in Indian country. We expect to deliver the initial disposition 
reports in early 2012, to cover data from January to December 2011.
    Moreover, the type of Federal-Tribal coordination and communication 
that TLOA section 212 requires has been a focus of the Department's for 
the last few years. In January 2010, the Deputy Attorney General issued 
a memorandum directing that every U.S. Attorney's Office with Indian 
country in its district, in coordination with our law-enforcement 
partners, engage at least annually in consultation with the Tribes in 
that district to develop operational plans for addressing public safety 
in Indian country and to work closely with law enforcement to 
prioritize combating violence against women in Indian country. 
Typically, these operational plans provide that U.S. Attorney's 
Offices, upon declining to prosecute an alleged crime, must coordinate 
with Tribal justice officials about the status of the investigation and 
the use of potentially relevant evidence. This engagement has helped 
foster better communication about ongoing cases and matters in Indian 
country.
    Increased consultation has been central to Attorney General 
Holder's approach to working with Tribal nations. In October 2009, the 
Attorney General convened the Department's Tribal Nations Listening 
Session on Public Safety and Law Enforcement in St. Paul, Minnesota. 
Nearly 300 Tribal leaders representing approximately 100 Tribes 
attended the session. In addition to the three top leaders of the 
Department and representatives from nearly all the Department's 
components, representatives from the Departments of the Interior, 
Health and Human Services, Housing and Urban Development, Education, 
and Homeland Security also participated. In 2010, the Attorney General 
established the Tribal Nations Leadership Council, composed of Tribal 
leaders selected by the Tribes themselves and charged with advising the 
Attorney General on issues critical to Tribal governments and 
communities, including public safety. The Department also has engaged 
in dozens of consultations with Tribal leaders on specific issues 
affecting public safety.
    TLOA section 213 deals with two key sets of players in prosecuting 
Indian-country crimes: Special Assistant U.S. Attorneys and Tribal 
Liaisons. Subsection 213(a) codifies the Attorney General's authority 
to appoint Tribal prosecutors and other qualified attorneys as Special 
Assistant U.S. Attorneys (SAUSAs) to assist in prosecuting Federal 
offenses committed in Indian country. While such appointments had been 
made occasionally in the past, U.S. Attorneys are now proactively 
recruiting Tribal prosecutors for these assignments. Currently, there 
are eight Tribal prosecutors serving as Special Assistant U.S. 
Attorneys. And at least ten more Tribal prosecutors have been selected 
by U.S. Attorneys, in consultation with Tribes, to serve as SAUSAs; 
these individuals are presently undergoing background checks, and it is 
expected that they will be appointed to serve as SAUSAs by the end of 
the calendar year.
    Subsection 213(b) requires the U.S. Attorney for each district that 
includes Indian country to appoint at least one Assistant U.S. Attorney 
to serve as a Tribal Liaison in the district. While the appointment of 
Tribal Liaisons has been a long-standing practice for many U.S. 
Attorneys, now every United States Attorney's Office whose district 
includes Indian country or a federally recognized Tribe has at least 
one Tribal Liaison, and some districts have more than one.
    TLOA section 214 focuses on two key administrative entities in the 
Department: the Office of Tribal Justice (OTJ) and the Native American 
Issues Coordinator. Subsection 214(a) requires the Attorney General to 
establish the Office of Tribal Justice as a component of the 
Department. OTJ was created in 1995 by then-Attorney General Janet Reno 
and has operated continuously since then, but was not made permanent 
until 2010. Even before enactment of the TLOA, the Attorney General had 
begun the process of making OTJ permanent. And on November 17, 2010, 
less than four months after TLOA's enactment, the Department published 
in the Federal Register a final rule fully implementing subsection 
214(a). The Office of Tribal Justice is now on the Department's 
organizational chart and is one of a half-dozen Department components 
that report directly to both the Deputy Attorney General and the 
Associate Attorney General. OTJ serves as the principal point of 
contact in the Department for federally recognized Tribes, promotes 
internal uniformity of Department policies and litigation positions 
relating to Indian country, and coordinates with other Federal agencies 
and with State and local governments on their initiatives in Indian 
country.
    Subsection 214(b) codifies the position of Native American Issues 
Coordinator in the Executive Office for United States Attorneys. The 
Coordinator assists both the United States Attorney's Offices whose 
districts include Indian country and the Attorney General's Advisory 
Committee's Native American Issues Subcommittee, which is currently 
chaired by the U.S. Attorney for the District of South Dakota, Brendan 
Johnson.
    Turning to Subtitle B, on State accountability and coordination, 
TLOA section 221 provides that, at the request of an Indian Tribe whose 
Indian country is subject to mandatory State criminal jurisdiction 
under Public Law 280 (18 U.S.C. 1162(a)), the United States may accept 
concurrent jurisdiction to prosecute violations of the General Crimes 
Act (also known as the Indian Country Crimes Act), 18 U.S.C. 1152, and 
the Major Crimes Act (also known as the Indian Major Crimes Act), 18 
U.S.C. 1153. Here, too, the Department has made great strides in TLOA's 
first year. After participating in six consultation sessions with 
Tribal leaders, the Department published proposed procedures for such 
requests in the Federal Register on May 23, 2011 (76 Fed. Reg. 29675), 
with a public comment period through July 7, 2011. A draft final rule 
establishing those procedures is currently under interagency review at 
the Office of Management and Budget.
    The next three TLOA sections that I will discuss are all found in 
Subtitle C, which deals with empowering Tribal law-enforcement agencies 
and Tribal governments. Section 233 requires the Attorney General to 
permit qualified Tribal law-enforcement officials access to Federal 
criminal information databases, such as the FBI's National Crime 
Information Center (NCIC) databases, so that these Tribal officials can 
both enter and obtain information. In addition, the Attorney General is 
required to ensure that qualified Tribal law-enforcement officials are 
permitted such access to other national criminal databases. Currently, 
qualified Tribal lawenforcement officials are permitted access to NCIC, 
as well as law-enforcement informationsharing resources such as the 
National Law Enforcement Data Exchange (N-DEx), the DOJsupported 
Regional Information Sharing Systems (RISS), and Law Enforcement 
Online's Tribal Public Safety Network (T-Net), to name a few. We know 
that some Tribal lawenforcement agencies face technical and other 
challenges in using the databases, and the Department has been actively 
assisting Tribal law-enforcement agencies to trouble-shoot and overcome 
challenges to access that may lie outside the Department.
    Section 234(c) requires the Director of the Department's Bureau of 
Prisons to establish a pilot program for accepting offenders convicted 
in Tribal court under the TLOA's enhanced sentencing provisions. In 
November 2010, the Bureau of Prisons launched the four-year pilot 
program that allows any federally recognized Tribe to request that the 
Bureau incarcerate a person convicted of a violent crime and sentenced 
to two or more years of imprisonment. Under TLOA section 234(c), the 
Bureau is authorized to house up to 100 Tribal offenders at a time, 
nationwide. However, as of today, no Tribe has made such a request.
    TLOA section 235 establishes the Indian Law and Order Commission, 
with members appointed by the President, the Majority and Minority 
Leaders of the Senate, and the Speaker and Minority Leader of the House 
of Representatives. Pursuant to section 235, the Attorney General 
provided recommendations to the White House for the Presidential 
appointees. Because of certain restrictions in the Continuing 
Resolutions enacted last year and earlier this year that restricted our 
ability to start new activities, the Departments of Justice and the 
Interior were prohibited until this spring from providing funding to 
the Commission as specified in the TLOA. As a result, the Commission 
was not able to begin its work as quickly as the Department or the 
Commissioners would have liked. But under the most recent 
appropriations acts, the Departments of Justice and the Interior have 
now moved forward with the Commission not only on funding matters, but 
also on issues of office space, administrative assistance, and 
personnel. The Commission held its first in-person meeting in New 
Mexico on April 6 and its first field hearing earlier this month on 
September 7 on the Tulalip Indian Reservation in Washington. The 
Department looks forward to continuing to work closely with the 
Commission in the months ahead.
    Subtitle D of the Tribal Law and Order Act deals with Tribal 
justice systems. TLOA section 241 adds the Department of Justice to the 
list of Federal agencies responsible for coordinating resources and 
programs to prevent and treat Indian alcohol and substance abuse. Under 
section 241(a)(1)(A) and after extensive consultation with Tribal 
leaders, Indian organizations, and professionals in the treatment of 
alcohol and substance abuse, in July 2011, the Departments of Justice, 
the Interior, and Health and Human Services entered into a Memorandum 
of Agreement. Under that agreement, the agencies will collectively 
determine the scope of the alcohol and substance-abuse problems faced 
by American Indians and Alaska Natives, identify the resources each 
agency can bring to bear on the problem, and set minimum standards for 
applying those resources. Also under TLOA section 241, the Justice 
Department's Office of Justice Programs joins the Bureau of Indian 
Affairs, the Indian Health Service, and the Substance Abuse and Mental 
Health Services Administration as a Federal agency partner to assist, 
in coordination with Indian Tribes, in developing and implementing 
Tribal Action Plans to combat alcohol and substance abuse on a Tribe-
by-Tribe basis.
    Sections 241(g), 244(b)(3), and 211(b)(5), collectively, require 
the Attorney General, in coordination with the Secretary of the 
Interior, acting through the Bureau of Indian Affairs, and in 
consultation with Tribal leaders, Tribal courts, Tribal law-enforcement 
officers, and Tribal corrections officials, to submit to Congress a 
long-term plan to address incarceration, as well as juvenile detention 
and treatment, in Indian country, including alternatives to 
incarceration and juvenile detention. After extensive Tribal 
consultation, the Departments of Justice and the Interior, with other 
Federal partners, developed the plan entitled, ``Tribal Law and Order 
Act (TLOA) Long-Term Plan to Build and Enhance Tribal Justice 
Systems.'' This Tribal Justice Plan provides short-, medium-, and long-
term action steps and recommendations to address incarceration, as well 
as juvenile detention and treatment, and alternatives to incarceration 
in Indian country, as well as the reentry of Tribal members from 
Federal, State, and Tribal jails and prisons to Tribal communities. 
Central themes of the Tribal Justice Plan include the need to 
prioritize alternatives to incarceration, to implement the Plan in 
consultation with Tribal leaders, and to support further coordination 
of Federal, State, and Tribal resources. The Departments of Justice and 
the Interior are working with other Federal agencies and with Tribal 
leaders, Tribal justice practitioners, and community residents to 
implement these action steps and recommendations.
    TLOA section 243 reauthorizes and amends the Tribal Resources Grant 
Program within the Justice Department's Community Oriented Policing 
Services (COPS) Office. This program provides long-term funding to hire 
and retain Tribal law-enforcement officers, and it removes matching 
requirements. Section 243 also requires the Department to report to 
Congress on the extent and effectiveness of the COPS program in Indian 
country, which the COPS Office did in December 2010, with a report 
entitled, ``COPS Office Report to Congress as required by the Tribal 
Law and Order Act of 2010.'' The report described and analyzed (1) the 
problem of intermittent funding; (2) the integration of COPS personnel 
with existing law-enforcement authorities; and (3) how the practice of 
community policing and the broken-windows theory can most effectively 
be applied in remote Tribal locations.
    TLOA's Subtitle E concerns Indian country crime-data collection and 
information sharing. Section 251(b) requires the Department's Bureau of 
Justice Statistics (BJS), together with the FBI and the Department of 
the Interior's Bureau of Indian Affairs Office of Justice Services, to 
work with Indian Tribes and Tribal law-enforcement agencies to 
establish and implement Tribal data-collection systems that will enable 
BJS to effectively collect and analyze statistical information about 
crime in Indian country. Section 251(b) then requires the Director of 
BJS to submit to Congress an annual report describing the data 
collected and analyzed relating to crimes in Indian country.
    In June 2011, BJS issued a compendium of crime data for Indian 
country entitled, ``Tribal Crime Data Collection Activities, 2011.'' 
The following are among the compendium's key findings:

   Tribally operated law-enforcement agencies in 2008 employed 
        nearly 4,600 full-time personnel, including about 3,000 sworn 
        officers. Eleven of the 25 largest Tribal law-enforcement 
        agencies served jurisdictions covering more than 1,000 square 
        miles.

   In 2007, ninety-three State-court prosecutors' offices in 
        mandatory or optional Public Law 280 States prosecuted felonies 
        committed in Indian country under Public Law 280. Most of these 
        offices prosecuted at least one offense involving drugs (63 
        percent), domestic violence (60 percent), or aggravated assault 
        (58 percent). Seventy percent of these State prosecutors' 
        offices served judicial districts with fewer than 100,000 
        residents.

   From 2008 to 2009, the average daily jail population in 
        Indian country increased by 12 percent, as the average length 
        of stay increased from 5.1 days to 5.6 days. The percentage of 
        occupied bed space increased from 64 percent to 74 percent.

   In 2008, juveniles constituted a relatively small fraction 
        of the suspects referred to Federal prosecutors (315 out of 
        178,570 suspects) or of the offenders admitted to Federal 
        prisons (156 out 71,663 offenders). Tribal youth constituted 
        nearly half of all juveniles (70 out of 152) handled by the 
        Federal courts in 2008. About 72 percent of these Tribal youth 
        were investigated for violent offenses, including sexual abuse 
        (35 percent), assault (20 percent), and murder (17 percent). 
        Ninety-one percent of Federal district-court cases involving 
        Tribal youth resulted in a conviction. Admissions to Federal 
        prison among Tribal youth declined 10 percent per year from 
        1999 to 2008, while non-Tribal youth admissions declined 12 
        percent per year.

    The final subtitle of the Tribal Law and Order Act is directed to 
domestic-violence and sexual-assault prosecution and prevention. In 
accordance with Section 265, the FBI's Office of Victim Assistance is 
partnering with the Indian Health Service to expand and support Sexual 
Assault Nurse Examiner (SANE) and Sexual Assault Response Team programs 
in Indian country. The Department of Justice recognizes that simply 
funding services for victims of sexual assault does not adequately 
address the multidisciplinary and multijurisdictional challenges that 
complicate responses to victims of sexual assault in Indian country. 
Consequently, in 2011 the Office for Victims of Crime (OVC) implemented 
the American Indian/Alaska Native Sexual Assault Nurse Examiner-Sexual 
Assault Response Team Initiative, to enhance Native American 
communities' capacity to provide high-quality multidisciplinary, 
coordinated services and support for both adult and child victims of 
sexual assault. To date, OVC has evaluated potential demonstration 
sites, has funded a technical-assistance service provider and two 
Federal coordinating positions--one in FBI, the other in IHS--and has 
established a Federal advisory committee to ensure that the Initiative 
develops effective, culturally relevant services and programs that can 
serve as models for other Native American communities.
    As noted above, public safety in Indian country is a top priority 
of this Department of Justice, especially with respect to violence 
against women. In July 2011, the Department proposed legislation that 
would significantly improve the safety of Native women and allow 
Federal and Tribal law enforcement agencies to hold more perpetrators 
of domestic violence accountable for their crimes. The proposed 
legislation would address three legal gaps by (1) recognizing certain 
Tribes' authority to exercise concurrent jurisdiction over crimes of 
domestic violence, regardless of whether the defendant is Indian or 
non-Indian; (2) clarifying that Tribal courts have full civil 
jurisdiction to issue and enforce protection orders involving any 
persons, Indian or non-Indian; and (3) providing more robust Federal 
sentences for certain acts of domestic violence in Indian country.
    Furthermore, in June 2010, the Attorney General launched a Violence 
Against Women Federal and Tribal Prosecution Task Force composed of 
Federal and Tribal prosecutors. The Task Force was created to 
facilitate dialogue and coordinate efforts between the Department and 
Tribal governments regarding the prosecution of violent crimes against 
women in Indian country, and to develop best-practices recommendations 
for both Federal and Tribal prosecutors.
    In July 2010, the Executive Office for United States Attorneys 
launched the National Indian Country Training Initiative to ensure that 
Department prosecutors, as well as State and Tribal criminal-justice 
personnel, receive the training and support needed to address the 
particular challenges relevant to Indian-country prosecutions. The 
training effort is led by the Department's new National Indian Country 
Training Coordinator.
    Thanks in large part to the Chairman, Vice Chair, and members of 
this Committee, the Department has added significant new resources to 
address public safety in Indian country. Twenty-eight new Assistant 
U.S. Attorneys dedicated to prosecuting crime in Indian country have 
been added in nearly two dozen districts, and nine new FBI positions 
have been added to work on Indian-country investigations. And FBI's 
Office for Victim Assistance added 11 Indian Country Victim Specialists 
and one Forensic Child Interview Specialist for Indian Country, all of 
whom play an invaluable role in Indian-country investigations, 
particularly in cases of domestic violence and child abuse.
    Chairman Akaka, Vice Chair Barrasso, members of the Committee, we 
at the Department of Justice fully recognize that public safety in 
Indian country still is not what it should be, and that we bear a deep 
responsibility for ensuring that Native Americans can live in safer 
communities in the months, years, and decades ahead. But significant 
progress has been made in the less than fourteen months since Congress 
passed the Tribal Law and Order Act of 2010, and we at the U.S. 
Department of Justice look forward to working with the Congress to 
continue improving our efforts to fulfill our trust responsibility to 
Tribal nations.
    On behalf of the Department, I personally want to thank you for 
everything you have done to combat violent crime and to foster public 
safety in Tribal communities across our Nation. I look forward to 
continuing to work with you on these vitally important issues.
    I will be happy to attempt to answer any questions you may have.

    The Chairman. Thank you very much, Mr. Perrelli.
    Mr. Larry Echo Hawk, please proceed to your testimony.

   STATEMENT OF LARRY ECHO HAWK, ASSISTANT SECRETARY, INDIAN 
            AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Echo Hawk. Good afternoon Senator Akaka and Committee 
members, public safety is a top priority for President Obama 
and Secretary of Interior Ken Salazar. And I would also like to 
note that in our work in consulting with Tribal leaders in all 
regions of the Country with the Tribal Interior Budget Council, 
we have identified criminal law enforcement and Tribal courts 
as the top two priorities when it comes to crafting our budgets 
in Interior.
    And it was just over a year ago, on July 29th of 2010 that 
President Obama signed the Tribal Law and Order Act. The goal 
of the Act was to improve law and order and justice in Indian 
Country. And I am pleased to be here before this Committee to 
say that we are moving in the right direction in attaining that 
goal.
    I am also here today to provide this Committee with an 
update on what the Bureau of Indian Affairs has done over the 
past year to implement the directives of the Tribal Law and 
Order Act. I have asked two of my key senior officials to be 
with me today, and they are seated right behind me. That is 
Darren Cruzan, who is our Director of the Office of Justice 
Services, and Jack Rever, who is the Director of our Office for 
Facility Management and Construction.
    The Tribal Law and Order Act tasked the Bureau of Indian 
Affairs with a number of responsibilities and I would like to 
spotlight in my opening remarks four of those responsibilities.
    First, in Section 211 of the Act, the Bureau of Indian 
Affairs was directed to develop a list of unmet staffing needs: 
law enforcement, corrections, and Tribal court programs. Our 
first action was to assemble an unmet needs report team. We 
also established a web-based reporting tool to gather 
information from public safety departments in Indian Country. 
This web-based collection system will allow the Tribes to input 
their own data and we continue to work with Tribal leadership 
to complete this report.
    Also, in Section 211(b) of the Tribal Law and Order Act, we 
were directed to develop a long-term plan for Tribal detention. 
The Bureau of Indian Affairs, in cooperation with the 
Department of Justice, completed webinar work group meetings to 
determine what Tribes view as the need and the direction for 
corrections to move forward. The Department of the Interior and 
the Department of Justice finalized that report and it was 
signed by both Departments and submitted to Congress just last 
month.
    Then in Section 231(b) of the Tribal Law and Order Act, the 
BIA was directed to develop policies and procedures in order 
for BIA to enter into deputation agreements for the purpose of 
issuing BIA Special Law Enforcement Commissions. These policies 
and procedures were developed and enacted on January 25th of 
2011.
    And in Section 231(a)(4)(A), the BIA was required to, when 
requested by Tribes, to conduct background checks for Tribal 
law enforcement and corrections officials no later than 60 days 
after the date of the receipt of the request. The BIA developed 
a new background policy and is working to implement those 
background checks on a timely basis when requested through 
contracts or through direct service support.
    And lastly, due to the enhanced sentencing provisions in 
the Tribal Law and Order Act, the BIA was required to develop 
guidelines for long-term incarceration in Tribal corrections 
centers. And in consultation with Tribal officials, our Office 
of Justice Services developed a long-term plan for 
incarceration in Tribal corrections centers and those 
guidelines were enacted in a timely manner on January 25th of 
2011.
    That concludes my statement, and myself and my senior 
officials would be happy to respond to any questions the 
Committee may have.
    [The prepared statement of Mr. Echo Hawk follows:]

  Prepared Statement of Larry Echo Hawk, Assistant Secretary, Indian 
                Affairs, U.S. Department of the Interior
    Chairman Akaka, Vice-Chairman Barrasso, and members of the 
Committee, thank you for the opportunity to provide testimony before 
this Committee on the Tribal Law and Order Act (TLOA), Pub. L. No. 111-
211 (2010). President Obama signed TLOA into law just over a year ago 
on July 29, 2010. The goal of TLOA is to improve and address law and 
order and justice in Indian Country. Thus, I am pleased to be here 
before this Committee to provide an update on what the Bureau of Indian 
Affairs (BIA) has done over the past year since TLOA was enacted.
    In June of 2009, just over two years ago, before this Committee, I 
stated that this Administration acknowledged and was committed to 
honoring our longstanding government-to-government relationship with 
the Tribal Nations in this country. I also stated that, it was upon 
this foundation, that the Department of the Interior (Department) and 
American Indian Tribes and Alaska Natives must come together, through 
meaningful consultation, to develop plans to fight crime in Indian 
Country. That is why this Administration strongly supported, and 
continues to support, TLOA, and commits to fulfilling the goals of TLOA 
as we move forward.
    Several components comprise the United States Government's efforts 
to provide public safety and fight crime in Indian Country. These 
components range from putting law enforcement officers on the streets, 
arresting, detaining, and, in certain circumstances, adjudicating 
offenders, to the long-term incarceration of these offenders post 
adjudication. From my past experience as the Attorney General for the 
State of Idaho, I know that these components are necessary to meet 
those responsibilities. Indian Affairs provides a wide range of law 
enforcement services to Indian Country. These services include police 
services, criminal investigation, detention program management, Tribal 
courts, and officer training by the Indian Police Academy.
    At my confirmation hearing over two years ago, I emphasized the 
importance of addressing public safety matters, and I had, and continue 
to have, support from Secretary Ken Salazar to make and keep this a top 
priority. As a top priority, I focused my attention on the structure of 
the Office of Justice Services (OJS) in the BIA. We conducted a nation-
wide search for a new Director of OJS and we selected Darren Cruzan. 
Darren Cruzan is an enrolled member of the Miami Tribe of Oklahoma and 
comes to the OJS Director position from the Department of Defense, 
Pentagon Force Protection Agency.
    Darren Cruzan started his appointment on September 27, 2010, and 
under his leadership he has pulled together an OJS senior leadership 
team of core individuals with a combined law enforcement field 
experience of 120 years to address the public safety issues in Indian 
Country. Darren Cruzan brings a wide range of experience to OJS. He has 
served as State patrolman in Missouri as well as a Tribal police 
officer with his Tribe and an officer with the BIA in Oklahoma. Mr. 
Cruzan has been a supervisory police officer, a police academy 
instructor, a criminal investigator, and an Indian Country law 
enforcement liaison to the Department. Mr. Cruzan is a graduate of the 
Federal Bureau of Investigation National Academy, and holds a Bachelor 
of Science degree in Criminal Justice Administration from Mountain 
State University in West Virginia.
    As this summary of his qualifications and his selection to the OJS 
Director position evidences, we believe Mr. Cruzan is the right person 
to lead the OJS to assist myself and the Secretary for the Department 
of the Interior to improve and address law and order and justice in 
Indian Country, and to follow through with our commitment to fulfill 
the goals of TLOA as we move forward.
High Priority Performance Goals (HPPG)
    One of the most basic needs throughout Indian Country is the need 
for additional officers on the street in Indian Country. On many 
reservations there is no 24-hour police coverage. Police officers often 
patrol and respond alone to both misdemeanor and felony calls. Our 
police officers are placed in great danger because back up is sometimes 
miles or hours away, if available at all.
    On May 10, 2010, BIA-OJS began implementation of a Presidential 
Initiative known as the High Priority Performance Goal (HPPG) at four 
selected Indian reservations. Based upon an analysis report of high 
crime, four reservations were selected as the first four locations to 
implement the Initiative. Those locations include reservations for the 
Standing Rock Sioux Tribe in North Dakota, the Shoshone and Northern 
Arapahoe (Wind River) Tribes in Wyoming, Chippewa Cree (Rocky Boy) 
Tribe in Montana, and the Mescalero Apache Tribe in New Mexico.
    I am pleased to report that our statistics demonstrate that, 
through the 3rd quarter of Fiscal Year 2011 at the HPPG locations, the 
goal of a five percent (-5 percent) reduction in criminal offenses was 
met and, in certain locations, exceeded. We are in the last four months 
of the Initiative, and while we anticipate continued reductions in 
violent crime, the overall percentage of reduction can fluctuate based 
upon the number of violent crimes reported during that period.
    The goal of the HPPG Initiative is to achieve a reduction in 
criminal offenses (i.e., violent crime) by five percent within a 24-
month period. To achieve the intended results at the selected 
locations, a comprehensive approach was developed and implemented. This 
comprehensive approach involved intelligence led policing, traditional 
community policing techniques, crime reduction strategies, and 
interagency and intergovernmental partnerships. The lack of adequate 
law enforcement staffing at these locations resulted in a deficiency in 
addressing the violent crime rates on these reservations. Therefore, to 
succeed with this Initiative the number of law enforcement and 
corrections officers was increased to close the staffing gap with the 
national sworn staffing level averages and the actual staffing levels 
at the four selected HPPG reservations.
    In order to achieve our goal of reducing criminal offenses by at 
least five percent within 24 months on these four Indian reservations, 
OJS implemented a comprehensive strategy involving community policing, 
tactical deployment, and critical interagency and intergovernmental 
partnerships. At the beginning, OJS conducted an assessment at each 
location designed to ascertain the service provider's perception of the 
type of services provided, the availability of services, current 
infrastructure of programs, and identify constraints that affect 
services and resources needed to improve services provided to the 
community. The assessment also gathered information regarding quality 
of life issues that affect the community and the programs providing 
services to the community.
    Once the assessment was complete, each agency was tasked with 
identifying crime trends in their communities. At the beginning of the 
initiative, each agency analyzed current criminal activity data 
(previous 12 months) and historical crime data (previous 36 months). 
The purpose of the analysis process was to develop an accurate crime 
rate profile for each location. The analysis process began by examining 
the types of crime being committed, the locations where crimes are 
being committed, and the days of the week and times of day when the 
crimes were being committed most frequently.
    We are now in the implementation phase, and OJS has, and continues, 
to educate law enforcement personnel on the effects of proactive 
policing by using a crime trend analysis. By using the analysis, the 
law enforcement programs developed a crime reduction plan with multi-
faceted approaches to crime reduction through proper leadership/
management principles, adequate staffing and resources, accurate 
analysis of current and historic criminal activity/trends, community 
assessments, intelligence-based law enforcement assignments and 
proactive operations, crime prevention programs, and most importantly, 
accountability at all levels of the operation.
    OJS also worked in collaboration with the elected Tribal leadership 
at each reservation so the Tribes would have significant input into the 
strategies being implemented that directly affect their communities and 
Tribal members.
Office of Justice Services (OJS) activities post-TLOA
    Upon TLOA's enactment, BIA-OJS was tasked with a number of 
responsibilities under the law. Section 211 of TLOA directed BIA-OJS to 
develop a list of unmet staffing needs of the law enforcement, 
corrections, and Tribal court programs. OJS's first action was to pull 
together an ``Unmet Needs Report'' team comprised of courts, 
corrections, and law enforcement professionals. OJS also established a 
web based reporting tool (survey) developed to gather information from 
public safety departments in Indian Country. This web-based collection 
system will allow the Tribes to input their own data, and we continue 
to work with the Tribal leadership to complete this report. The survey 
is currently online and the due date for data submission by Tribes is 
the end of September.
    Section 211(b) of TLOA directed BIA-OJS to develop a long term plan 
for Tribal Detention. The OJS, in collaboration and cooperation with 
the Department and the Department of Justice (DOJ), completed Webinars 
and workgroup meetings to determine what Tribes view as the need and 
direction of Corrections moving forward, and to provide a broad base of 
information from Tribal corrections professionals across Indian 
Country. The Department and DOJ finalized the report and it was signed 
by the Department and DOJ, and submitted to Congress last month. 
Instead of traditional incarceration as the long-term goal, the report 
highlights rehabilitation and providing services.
    Section 231(b) of TLOA directed BIA-OJS to develop policies and 
procedures in order to enter into Deputation Agreements for the purpose 
of issuing BIA Special Law Enforcement Commissions (SLECs). These 
policies and procedures were developed and enacted on January 25, 2011. 
During the development of the policies and procedures, OJS conducted 
numerous consultations with Tribes across the country, and thereafter 
provided draft policies and procedures for continued comment via an 
email address. The new policy has been posted in the Federal Register 
and training is now available and being provided to OJS senior managers 
on the requirements and procedures for implementation of the policies 
and procedures to enter into Deputation Agreements for the purpose of 
issuing BIA SLECs.
    Although not a requirement under TLOA, but as a complement to the 
purposes of agreements between our law enforcement agencies, DOJ along 
with the OJS have created a Criminal Justice in Indian Country (CJIC) 
work group to review and update the training curriculum. The work group 
proposed a ``train the trainer'' course, which will be offered to 
Assistant United States Attorneys.
    Section 231(a)(4)(A) required OJS, when requested by a Tribe, to 
conduct background checks for Tribal law enforcement and correctional 
officials no later than 60 days after the date of receipt of the 
request. OJS has developed a new background policy and we are working 
to implement background checks when requested through contracts and 
through direct service support. We anticipate that this proposed policy 
will ensure thorough background checks as well as ensuring qualified 
candidates fill our enforcement positions in Indian Country. This will 
assist OJS in meeting its goal of getting more law enforcement 
personnel on the streets in Indian Country.
    Section 234(d) required OJS to develop guidelines for long-term 
incarceration in Tribal correctional centers. In consultation with 
Tribal officials, OJS has developed a long-term plan for incarceration 
in Tribal correctional centers. The guidelines were enacted January 25, 
2011.
Conclusion
    Thank you for holding this hearing on the Tribal Law and Order Act 
and for providing the Department the opportunity to discuss what we in 
the Department have done over the past year since TLOA's enactment into 
law. The Department will continue to work closely with this Committee, 
you and your staff, Tribal leaders, and our Federal and State partners 
to address the law enforcement, corrections and inter-agency 
cooperation issues in Indian Country in order to fulfill the goals of 
TLOA as we move forward.
    We are available to answer any question the Committee may have.

    The Chairman. Thank you very much, Mr. Echo Hawk.
    Mr. Johnson, please proceed with your testimony.

  STATEMENT OF BRENDAN V. JOHNSON, U.S. ATTORNEY, DISTRICT OF 
            SOUTH DAKOTA, U.S. DEPARTMENT OF JUSTICE

    Mr. Johnson. Thank you, Chairman Akaka, Members of the 
Committee. It is an honor to be here today in my capacity both 
as a United States Attorney for the District of South Dakota, 
as well as Chairman of Attorney General Eric Holder's Native 
American Issues Subcommittee.
    I am proud to report that over the past year, we have made 
significant progress in improving public safety and justice 
throughout Indian Country. Progress was put in motion by the 
passage of the important Tribal Law and Order Act, as well a 
very clear message from leadership at the Department of Justice 
that, one, public safety in Indian Country will be a top 
priority for every U.S. Attorney; and two, that every U.S. 
Attorney will consult with the Tribes in our Districts to 
formulate a new operational plan to improve public safety in 
Indian Country within eight months of assuming office.
    The consultations that we have been conducting have made it 
clear that a serious problem and serious challenges exist. Last 
year, I met with a group of approximately 100 Native American 
teenagers in South Dakota. This group consisted of Native 
Americans who were both honor roll students, as well as 
students who had been exposed to drugs, alcohol and gangs. At 
one point, I asked them to put their heads down, close their 
eyes, and to raise their hand if they felt safe in their 
communities. I can tell you that hardly a hand was raised. It 
wasn't just the honor roll students who didn't feel safe. It 
was also some of the kids who had been exposed to gangs, who 
had been involved in the gangs.
    So this is what from the U.S. Attorneys' Office perspective 
we have been doing over the last year to try to turn this 
situation around. One, as the Associate Attorney General 
mentioned, we have been involved in cross-designating Tribal 
prosecutors as Special Assistant U.S. Attorneys. Now, to 
provide some context on what that means.
    For example, in South Dakota, Rosebud's Tribal Prosecutor 
is now also a Special Assistant United States Attorney. In the 
short time that he has held that cross-designation, he has 
appeared twice in Federal Court where he successfully 
prosecuted two non-Indians who committed offenses on the 
Rosebud Reservation.
    Now, in addition, because he has this cross-designation, he 
has also been able to go to the National Advocacy Center in 
South Carolina and receive some of the top training available 
in the Country for prosecutors and bring those skills back to 
the other prosecutors that he works with on Rosebud.
    I think one of the important lessons that we learned during 
these consultations as well is that we are not going to 
essentially be able to arrest our way to safer communities in 
Indian Country. At the request of Tribal leaders, U.S. 
Attorneys and Assistant U.S. Attorneys have been going into the 
schools. They have been talking about subjects like violence 
against women, drug abuse, gangs, sexting. And frankly, we have 
learned as much as we have taught.
    We have also been trying to be aggressive when we hear from 
communities about emerging law enforcement concerns. For 
example, in South Dakota, one of the issues that we have is in 
the proliferation of the availability of prescription drugs on 
reservations. So in South Dakota, what we have been doing is we 
have attempted to address that concern not just by prosecuting 
offenders, but also by partnering up with both Tribal and 
Federal law enforcement officers to conduct community events on 
the reservations in South Dakota where unused prescription 
drugs can be dropped off without question and destroyed.
    Another program that we have up and running in South Dakota 
that we are particularly proud of is our Community Prosecution 
Program on the Pine Ridge Reservation. We recently had Attorney 
General Holder, Secretary Echo Hawk, Mr. Perrelli, the 
Associate Attorney General, join us. We started in Rapid City 
and then we also went to Pine Ridge with 30 different U.S. 
Attorneys from around the Country. And we took a look at the 
challenges and the progress that we have been making in that 
community.
    And what this program entails is one of our Assistant 
United States Attorneys spent three to four days each week with 
an office on Pine Ridge. His job is not simply to prosecute 
cases on Pine Ridge, but it is also to work with the community 
so that the community has someone to turn to when they have 
questions about cases or concerns about law enforcement. He 
also works to ensure that the lines of communication remain 
open between BIA, between the Tribal police, Federal law 
enforcement and prosecutors on the Federal and Tribal level.
    I want to conclude by assuring you that public safety in 
Indian Country is an absolute priority for U.S. Attorneys, and 
not just because of the leadership at the Department of Justice 
has told us that it is a priority, but because these are 
communities that we believe in. These are communities that we 
spend a significant amount of our time working with, and we are 
proud of the progress that we have made.
    We have learned a great deal from the communities about 
what needs to be done in the future. We have a long ways to go, 
but we are hopeful about the work that we have done and will 
continue to do.
    Thank you.
    [The prepared statement of Mr. Johnson follows:]

 Prepared Statement of Brendan V. Johnson, U.S. Attorney, District of 
                South Dakota, U.S. Department of Justice
    Good Afternoon, Mr. Chairman, and Members of the Committee. It is 
an honor for me to be here today in my capacity as United States 
Attorney for South Dakota and Chairman of the Native American Issues 
Subcommittee of the Attorney General's Advisory Committee.
    I want to open my remarks today by thanking the members of this 
Committee for your leadership in crafting the Tribal Law and Order Act. 
I am proud to join you in your efforts to provide Tribal members with 
the public safety and justice systems that they deserve. The U.S. 
Attorney community recognizes that the challenges facing Indian Country 
require continuing focus and commitment. It has been my experience that 
the enactment of the Tribal Law and Order Act, coupled with the 
Department's initiative to enhance public safety in Indian Country, has 
resulted in significant progress in public safety and justice 
throughout Tribal nations.
    In January 2010, then-Deputy Attorney General David Ogden issued a 
memorandum to all U.S. Attorneys declaring that ``public safety in 
Tribal communities is a top priority for the Department of Justice.'' 
He directed that (1) every U.S. Attorney's Office (USAO) with Indian 
Country in its district, in coordination with our law enforcement 
partners, engage at least annually in consultation with the Tribes in 
that district; and (2) every newly confirmed U.S. Attorney in these 
districts should develop or update the district's operational plan for 
Indian Country public safety within eight months of assuming office. 
This leadership from the Department of Justice set the stage for what 
has been a period of unprecedented dialogue between Tribal leaders and 
U.S. Attorneys regarding public safety.
    My experience in South Dakota serves as one example of how this 
directive has been put into action and why the provisions of the Tribal 
Law and Order Act are so important. In February 2010, we held a state-
wide Tribal Listening Conference that was attended by approximately two 
hundred Tribal leaders and law enforcement officers as well as Federal, 
State, and local law enforcement officers. We used this conference to 
listen to the public safety concerns of Tribal members, and we promised 
to continue that dialogue. We followed-up the conference by personally 
meeting with every Tribal chairman and Tribal council in South Dakota 
as well as with Tribal law enforcement and Tribal court officials. We 
have also held several public town hall meetings on reservations across 
the State over the past two years to ensure that we continue to receive 
guidance on public safety from the Tribal nations.
    Accordingly, the operational plan we designed in South Dakota is 
not a product of haphazard experimentation but rather a thoughtful 
response to the ideas that Tribal members had to improve public safety 
in their communities. Some of the highlights of our new operational 
plan in South Dakota include (1) the presence of a federal prosecutor 
in an office on the Pine Ridge Reservation approximately four days a 
week; (2) Tribal Prosecutors cross-designated to serve as Special 
Assistant United States Attorneys (SAUSAs) who prosecute cases in 
Federal court; (3) Tribal youth leadership programs that have been 
attended by approximately 400 Native American youth in South Dakota; 
(4) a cooperative Information Technology (``IT'') program that has sent 
USAO IT professionals to work with Tribal justice systems to provide 
technical advice and assistance; (5) facilitation of the creation of a 
South Dakota Tribal Prosecutors Association; (6) an Indian Country 
Advisory Group that advises me directly on law enforcement issues in 
Tribal nations; (7) Monthly Multi-Disciplinary Team (``MDT'') meetings 
where USAO personnel and Tribal law enforcement discuss cases involving 
sexual abuse against children; (8) a Tribal Youth Diversion Program 
that allows qualifying Native American youth to be adjudicated in 
Tribal court instead of Federal court; (9) a joint program with the 
University of South Dakota Law School to help update Tribal codes; and 
(10) continued outreach to Tribes including our second Tribal Listening 
Conference scheduled for September 29, 2011 which will focus 
exclusively on violence against Native American women.
    The progress in South Dakota has been matched by other U.S. 
Attorneys who have been working closely with their Tribal partners in 
their districts. For example, in June 2011, the North Dakota U.S. 
Attorney launched an Anti-Violence Strategy for Tribal Communities. 
This program included the assignment of an additional Assistant U.S. 
Attorney (AUSA) to handle Indian Country cases. Additionally, each of 
their four AUSAs working on Indian Country cases is assigned a specific 
reservation and required to visit that reservation several times a year 
to conduct MDT meetings, consult with Tribal leaders, provide law 
enforcement training, and coordinate cases with the BIA, FBI and Tribal 
prosecutors. The North Dakota U.S. Attorney reports that the open 
dialogue with Tribal members has significantly improved relations and 
he has pledged to continue his Tribal listening conferences as an 
annual event. The District of Arizona's operational plan focuses on 
frequent communication between the USAO and Tribal governments' law 
enforcement and other officials. The communication loop is intended to 
provide Tribal law enforcement all appropriate current information on 
the status of Federal matters in Indian Country, and access to 
investigative materials in those matters the USAO concludes it cannot 
charge. The policy mandates that within 30 days of receipt of a 
completed investigation, AUSAs must charge, decline or direct specific 
further investigative steps. If the AUSA declines the case, they must 
provide a copy of the declination letter explaining the reasons to the 
chief Tribal prosecutor, and make available appropriate evidence and 
case materials in the USAO's possession. Arizona's operations plan also 
focuses on maximizing investigative and prosecution resources through 
direct partnerships with Tribal agencies. In the past 15 months, 
Arizona USAO personnel have provided training to nearly 600 Tribal 
police officers in order to make them eligible to receive Special Law 
Enforcement Commissions (SLECs). With the SLEC, Tribal officers can 
enforce the provisions of the Major Crimes Act in Indian Country. The 
Arizona USAO also has developed a Tribal SAUSA program to appoint well-
qualified Tribal prosecutors as Special Assistant United States 
Attorneys who will handle Federal offenses occurring in Indian Country. 
The program has designated 12 Tribal prosecutors from 8 different 
Tribes.
    In New Mexico, the U.S. Attorney created a new Indian Country 
Crimes Section (ICCS) shortly after assuming office. The ICCS handles 
all manner of crime arising out of New Mexico's Indian Country, 
including the range of violent crime, particularly against women and 
children, as well as drug trafficking, white collar crime, and cultural 
resources cases. The development of this new section was based on (i) 
feedback from Tribal leaders who requested a section dedicated 
exclusively to Indian Country cases, and (ii) the U.S. Attorney's 
interest in having prosecutors who prosecute crimes in New Mexico's 
Indian Country become experts in this unique area of the law and also 
obtain a greater understanding of the communities they serve.
    The New Mexico USAO also implemented a community prosecution 
strategy to better serve the public safety needs of New Mexico's 
Tribes. The model contemplates immersion in the community--getting to 
know the community's leaders, the police and social services providers 
and developing a sense of confidence and trust in the community. The 
goal is that, by fostering relationships of trust and developing 
confidence in the justice system, members of New Mexico's Native 
communities will more readily report crimes and participate in the 
investigation and prosecution of these offenses. It is particularly 
important that victims of domestic violence trust that the USAO will 
vigorously seek justice for them. The community prosecution concept has 
been implemented in all 22 pueblos and Tribes in New Mexico. Each AUSA 
in the ICCS is assigned to one or more pueblos or Tribes and is 
responsible for building relationships so that the USAO is better 
equipped to meet their public safety needs. The AUSAs are also 
responsible for providing training to the Tribal police departments for 
the pueblos and Tribes they serve.
    The United States Attorney in Montana was instrumental in creating 
the new Montana Tribal Prosecutors Association. This program provides 
training for Tribal prosecutors. Currently Montana has one Tribal 
prosecutor who has been cross-designated as a SAUSA, and two additional 
Tribal prosecutors are undergoing background checks to be designated as 
SAUSAs. The U.S. Attorney also partnered with the FBI to launch the 
Fearless Justice Initiative in Indian Country. This program focuses on 
Tribal members who are victims of witness intimidation or obstruction 
and has produced positive results. In the short time since its 
inception, the USAO has already obtained two convictions. Additionally, 
the U.S. Attorney is focusing on curbing prescription drug abuse on 
reservations by working with Tribal and Federal law enforcement to 
reduce the availability of illegal prescription drugs and prosecute 
offenders who sell these drugs.
    The United States Attorney in Alaska has made the sex trafficking 
of Alaska Native women a top priority. The USAO recently prosecuted 
several significant human trafficking cases, including four defendants 
who are alleged to have used Craig's List to traffic twenty victims, 
causing many of them to engage in commercial sex acts. Several of the 
victims are Alaska Natives. In addition, the FBI and Anchorage Police 
Department recently conducted a joint presentation to several hundred 
attendees at a BIA Conference on the dangers of sex trafficking of 
Alaska Natives to raise awareness of this problem. The program was so 
wellreceived that it has been replicated in rural communities. The USAO 
recently received funding to hire a rural Federal prosecutor who is 
working with Alaska State Troopers to remove violent individuals from 
rural villages.
    Recent efforts by the District of Minnesota further demonstrate how 
the Department of Justice's commitment to Indian Country is improving 
public safety in Tribal nations. The number of Indian Country cases 
filed in Minnesota over the past two years has increased by 98 percent 
when compared with the previous two year period. The Minnesota USAO has 
worked to strengthen relations with Tribes by having the U.S. Attorney 
personally host a quarterly Indian Country Public Safety meeting that 
brings together the heads of Tribal police departments, the FBI, DEA, 
and ATF to discuss public safety concerns. The office also maintains 
regular contact with Tribal prosecutors, law enforcement, and Tribal 
government on the reservations, including AUSAs who travel to the Red 
Lake Reservation most weeks. During the month of September 2011, the 
Minnesota USAO is conducting a Criminal Jurisdiction in Indian Country 
training in Red Lake, and is working with the State of Minnesota, the 
National Criminal Justice Association and the National Congress of 
American Indians to plan an Intergovernmental Coordination Meeting. The 
Minnesota USAO is also concerned about the epidemic of prescription 
drug abuse on reservations and recently worked with the DEA to promote 
a multi-county prescription drug take back initiative.
    The District of Wyoming has also prioritized Tribal public safety, 
and specifically the issue of violence against Native American women. 
For example, during the month of September 2011, the USAO hosted an 
Empowering Native American Women conference that addressed issues, 
including how to recognize, avoid and report sexual assault and 
domestic violence. The following day, the USAO hosted a conference on 
Empowering Native American Youth that discussed avoiding and reporting 
``sexting,'' cyberbullying, dating violence and sexual assault. 
Approximately 600 junior and senior high school students from Wind 
River Reservation schools attended this event. The FBI in Wyoming now 
shares their office space in Lander, Wyoming with BIA Criminal 
Investigators and they share a rotating ``on-call'' system. This 
increased cooperation helps to ensure that fewer cases fall through 
jurisdictional gaps.
    The United States Attorneys in Washington have provided law 
enforcement training sessions on reservations across the State that 
focus on issues selected by the Tribes. The United States Attorney in 
the Eastern District of Washington reports that the cooperative efforts 
between Tribal and Federal law enforcement officers have been very 
productive. He estimates that in the past ten months their declination 
rate has dropped by approximately two-thirds and that there is easier 
and more frequent communication between the two.
    In the District of Idaho, the U.S. Attorney's Office meets bi-
monthly with Tribal police to conduct case reviews and address law 
enforcement issues; it has conducted training on jurisdictional and law 
enforcement issues, developed and distributed an Indian Country 
Resource Manual to Tribal police departments and prosecutors and to 
other law enforcement agencies that frequently interact with law 
enforcement issues on or near Idaho's Indian reservations, and 
partnered with the Department of Education to conduct anti-bullying, 
harassment and hate crime training. In November, the Idaho USAO will 
present, with Coeur d'Alene Tribal personnel, on domestic violence 
issues in Indian Country at the Idaho Summit on Sexual Violence, 
sponsored by the Idaho Coalition Against Domestic and Sexual Violence.
    The United States Attorney in Nebraska was recently appointed by 
Attorney General Eric Holder to Chair his Violence Against Women Tribal 
Prosecution Task Force in Indian Country. As Chairwoman of this Task 
Force, the Nebraska U.S. Attorney will work to reverse the high rate of 
violence against Native American women and children. The committee is 
producing a trial practice manual on the Federal prosecution of 
violence against women in Indian Country and working on developing 
``best practices'' for prosecution strategies involving domestic 
violence, sexual assault and stalking. This effort has been driven 
largely by input gathered from the Department's 2009 Tribal Nations 
Listening Session on Public Safety and Law Enforcement, the 
Department's annual Tribal consultation on violence against women, and 
from written comments submitted by Tribal governments, groups and 
organizations to the Justice Department.
    The Executive Office for United States Attorneys at the Department 
of Justice has in place a Native American Issues Coordinator who, in 
addition to the responsibilities set forth in the Tribal Law and Order 
Act, also provides assistance and support to U.S. Attorneys' Offices on 
legal and policy issues and serves as a liaison to various law 
enforcement agencies. In addition to the Native American Issues 
Coordinator, the Executive Office for U.S. Attorneys also has a full 
time Native American Issues Training Coordinator who creates, delivers 
and manages training for Federal, State, and Tribal criminal justice 
and social service professionals at the Department's National Advocacy 
Center in Columbia, South Carolina, and on reservations and cities 
throughout the United States. Training topics have included cultural 
property law, Indian gaming, violent crime, financial crimes, child 
sexual abuse, and violence against women.
    The special emphasis that U.S. Attorneys in Indian Country have 
placed on public safety in Tribal nations has led to successful 
prosecutions, some of which are described in a listing of some 
representative cases that will be submitted for the record.
    Thank you for the opportunity to appear before you today about our 
work to improve the safety and security of all those who live in and 
around Indian Country.

  Representative Sample of Recent Indian Country Prosecutions by U.S. 
                           Attorneys' Offices
    District of South Dakota: On February 9, 2011, Frederick One 
Feather, a/k/a Snow One Feather, age 62, was convicted of two counts of 
Sexual Abuse of a Minor by Fear and one count of Abusive Sexual Contact 
as a result of a federal jury trial. On May 16, 2011, One Feather, who 
has a past federal conviction for rape and felon in possession of a 
firearm, was sentenced to two life sentences to be served concurrently 
plus 36 months on the sexual contact charge.
    Eastern District of Michigan: On April 14, 2011, David Andrew 
Delacruz-Slavik, a Saginaw Chippewa Indian, was sentenced to 365 months 
in federal prison after pleading guilty to attempted murder and assault 
causing serious bodily injury to a child. During two and a half hours 
alone with the victim, his girlfriend's 23-month-old daughter, 
Delacruz-Slavik inflicted throttle marks consistent with strangulation 
on the child's neck, bruising to the chest and abdomen, head and brain 
injury, chest injury including a broken rib and bruised lung, blood in 
the pelvis, ruptured spleen and a broken nose.
    District of South Dakota: On May 2, 2011, Suzanna Valandra-Neiss, 
37, was sentenced, to 72 months of imprisonment for manslaughter. 
Valandra-Neiss and the victim were driving home after drinking at a bar 
when they began arguing. The victim stopped, got out of the vehicle, 
and began walking down the road. Valandra-Neiss, in anger and in the 
heat of passion, killed the victim by striking him with the vehicle.
    District of New Mexico: on May 16, 2011, Patrick Baptiste, 51, an 
enrolled member of the Navajo Nation was sentenced to a 25-year term of 
imprisonment based on his second degree murder conviction for killing 
Kathleen Francisco, a 71-year-old Navajo woman, within the boundaries 
of the Navajo Indian Reservation. Baptiste and the victim were running 
errands in her pickup truck. Baptiste attacked the victim by repeatedly 
striking her in the face with a closed fist, knocking out her dentures 
and breaking her glasses. Baptiste then drove around with the victim 
who was making gurgling noises and struggling to breath. He then pulled 
her out of the truck onto the ground by her hair, punched her with a 
closed fist, and kicked her at least 4 times. He then left her on the 
ground and drove off. Relatives discovered her body the next day.
    District of North Dakota: On May 23, 2011, John F. Wallette, 36, 
Belcourt, North Dakota, was sentenced to 30 years in federal prison 
after a jury found him guilty on a charge of aggravated sexual abuse of 
a child. The jury found that Wallette had engaged in various sexual 
acts with a child under the age of 12 from an unknown time to about 
July 2008. Additional evidence presented at trial indicated that 
Wallette also sexually abused other children while employed at a youth 
shelter facility in Belcourt.
    District of Arizona: On June 13, 2011, Rayfael Hershall Truax, 24, 
of Hon Dah, was sentenced to more than 51 months in prison following a 
guilty plea to two counts of Assault with a Dangerous Weapon. Truax 
assaulted the victim, his girlfriend at the time, by striking her in 
the back of the head with a piece of firewood, rendering her 
unconscious. The victim suffered permanent and life threatening 
injuries as a result of the assault. Previously, Truax had assaulted 
that same girlfriend by hitting her in the head with a beer bottle, 
then beating her with a towel rack he pulled from the bathroom wall, 
causing serious injuries.
    District of Montana: On August 10, 2011, Aldin Ray Two Moons, Sr., 
Lame Deer, Montana, was sentenced to 57 months imprisonment in 
connection with his guilty plea to domestic assault by a habitual 
defender. Two Moons and the victim have a number of young children 
together, including twins who were two weeks old at the time he struck 
their mother in the face with his fists repeatedly while several of 
their other children were watching. Two moons had ten Tribal arrests 
for domestic abuse, four of which had resulted in convictions.
    District of Arizona: On August 18, 2011, Paul Beebe, 28, and Jesse 
Sanford, 26, pleaded guilty to federal hate crime charges related to a 
racially motivated assault on a 22 year old developmentally disabled 
man of Navajo descent. A third defendant, William Hatch, 29, pleaded 
guilty in June 2011, to conspiracy to commit a federal hate crime. The 
defendants defaced the victim's body with white supremacist and anti-
Native-American symbols and recorded the incident on a cell phone for 
later play.
    District of Montana: On August 19, 2011, JoLaine Lee Flammond, was 
sentenced to 84 months in prison in connection with her guilty plea to 
possession with intent to distribute methamphetamine. Officers of the 
Blackfeet Safe Trails Task Force conducted an extensive investigation 
of numerous individuals trafficking large amounts of methamphetamine on 
the Blackfoot Reservation during 2009 and 2010. Another defendant, 
Rolan Hank ``Hunky'' Cobell, of Great Falls, MT, was sentenced on 
August 22, 2011, to 154 months imprisonment in connection with his 
guilty plea to distribution of methamphetamine.
    District of New Mexico: On August 30, 2011, Michael Harrison, 29, a 
member of the Navajo Nation, was sentenced to a 78-month term of 
imprisonment to be followed by three years of supervised release for 
his conviction on an assault with intent to commit murder charge. In a 
guilty plea, Harrison admitted that he attempted to murder his common-
law wife, also a member of the Navajo Nation, by slashing her throat.
    District of Nebraska: September 12, 2011, Mark Henry, 21, of 
Niobrara, Nebraska, was sentenced to 37 months in prison for his 
conviction of motor vehicle homicide and driving under the influence 
resulting in serious bodily injury. Henry drove at a high rate of speed 
onto the Santee Sioux Indian Reservation with two other people; he lost 
control of the vehicle, flipping it several times. Henry and his 
passengers were thrown from the vehicle. One passenger died from his 
injuries while the second passenger sustained serious bodily injuries. 
Henry's blood alcohol content was determined to be .295.
    District of Alaska: On September 15, 2011, Sabil Mujahid, 54, was 
sentenced to 480 months in prison for aggravated sexual abuse and abuse 
sexual contact against three Alaska Native victims who were inmates at 
the Anchorage Correctional Center with the defendant, who was 
incarcerated there as a prisoner. Mujahid was convicted by a federal 
jury on June 29, 2011, after an eight day trial. During sentencing, the 
judge described Mujahid's violent and abusive crimes as, ``They're 
bluntly, as bad as I have ever seen [in my 27 years on the bench].''

    The Chairman. Thank you very much, Mr. Johnson.
    Ms. Hyde, will you please proceed with your testimony?

       STATEMENT OF PAMELA S. HYDE, J.D., ADMINISTRATOR, 
          SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES 
  ADMINISTRATION, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

    Ms. Hyde. Chairman Akaka, Members of the Committee, thank 
you very much for inviting me today to testify at this 
important hearing on the implementation of the Tribal Law and 
Order Act.
    We all know that substance abuse is one of the most severe 
public health and safety problems facing American Indians and 
Alaska Native individuals, families and communities and more 
must be done to diminish these devastating social, economic, 
physical, mental and spiritual connections.
    We know that the connection between alcohol and other 
substance abuse to domestic violence and criminal justice 
matters is well documented and that police, courts and jails 
cannot do their mission without attention to the critical 
public health issues.
    Today, I am pleased to share with you the myriad ways in 
which SAMHSA is working, along with its Federal partners and 
Tribes, Tribal governments and organizations to implement the 
TLOA amendments.
    First, it is important to note that SAMHSA's number one 
strategic initiative is the prevention of substance abuse and 
mental illness. And included in this initiative is a strong and 
consistent focus on the prevention of alcohol and drug abuse in 
Indian Country. We have a number of programs, both generally 
and specifically, to address substance abuse, the needs of 
youth, suicide and other issues.
    SAMHSA has established, as required by the TLOA, the Office 
of Indian Alcohol and Substance Abuse, and I am pleased that 
its Acting Director, Dennis Romero, is at the hearing with me 
today, along with Angela Richardson, who has been assigned to 
work in that office as well.
    To date, our office, along with DOI and DOJ and additional 
operating divisions within DHHS is working on an Indian Alcohol 
and Substance Abuse Interdepartmental Coordinating Committee 
established to serve as a point of contact for Indian Tribes 
and the Tribal coordinating committees with respect to the 
implementation of the Tribal Law and Order Act and in 
collaboration with the Department of Interior and Department of 
Justice, the three secretaries finalized a memorandum of 
agreement on July 29th 2011, as directed by the law.
    The IASAI Committee, we always make an acronym for 
everything, serves as the interagency body composed of 
representatives from different Federal agencies whose 
responsibility it is to include addressing issues of alcohol 
and substance abuse in Indian Country, and the charter for that 
committee was also approved in July of 2011.
    In addition to the agencies named in the law, we have 
Education, USDA, the Department of Labor, and we have reached 
out to HUD and the Veterans Administration as well.
    The goals of the MOU are going to be achieved through the 
committee's efforts, and they are to increase awareness of what 
Federal agencies can do to help Tribal governments around 
substance abuse and mental illness issues and to reaffirm the 
Federal Government's recognition of the sovereign status of 
federally recognized Tribes, and also to promote the Federal 
Government's policy to provide greater access and quality 
services throughout Indian Country.
    Reaching far and wide, the Office of Indian Alcohol and 
Substance Abuse staff and I went to a number of Tribal 
consultations and listening sessions before we finalized the 
work. We also conducted outreach to the National Indian Health 
Board, the National Congress of American Indians, the National 
Council of Urban Indian Health, and many other organizations.
    As established in the TLOA, the governing body of any 
Indian Tribe may, at its discretion, adopt a resolution for the 
establishment of a Tribal action plan. We are in the time 
period right now for those resolutions to occur. That Tribal 
action plan, called a TAP, is to coordinate available resources 
and programs in an effort to combat alcohol and drug abuse 
among its members. The TAP guidelines in four models are in 
process and are almost complete.
    As part of the implementation of the Tribal Law and Order 
Act and in line with SAMHSA's priority, our number one priority 
in the President's fiscal year 2012 budget was a new formula-
based grant program called Behavioral Health Tribal Prevention 
Grants. Unfortunately, I understand that that may not have been 
included in the Senate Appropriations Committee's markup 
yesterday, but it was proposed as a formula grant program that 
would be available to all 565 federally recognized Tribes in 
recognizing our obligation to help Tribes deal with physical 
and behavioral health issues, specifically substance abuse and 
suicide.
    Additionally, one of the key changes we made in the block 
grants for our States is that they are encouraged and required, 
and we are providing training, on how the States can and should 
do Tribal consultations for the use of those dollars.
    So I want to thank you again for this opportunity to 
testify and to share with you our efforts, and to assure you 
that we will continue with our Federal partners to reduce the 
impact of alcohol and drug abuse in Indian Country.
    Thank you.
    [The prepared statement of Ms. Hyde follows:]

 Prepared Statement of Pamela S. Hyde, J.D., Administrator, Substance 
  Abuse and Mental Health Services Administration, U.S. Department of 
                       Health and Human Services
    Chairman Akaka, Ranking Member Barrasso and members of the Senate 
Indian Affairs Committee, thank you for inviting me to testify at this 
important hearing on the implementation of the Tribal Law and Order Act 
of 2010 (TLOA). I am pleased to testify along with my colleagues at the 
Indian Health Service (IHS), Department of Interior (DOI) and 
Department of Justice (DOJ). We all know that substance abuse is one of 
the most severe public health and safety problems facing American 
Indian and Alaska Native (AI/AN) individuals, families and communities 
and more must be done to diminish the devastating social, economic, 
physical, mental and spiritual consequences.
    The TLOA amended the Indian Alcohol and Substance Abuse Treatment 
Act of 1986 (Pub. L. 99-570). The TLOA amendments called for the 
Substance Abuse and Mental Health Services Administration (SAMHSA) to 
establish an office tasked with improving coordination among the 
federal agencies and departments responsible for combating alcohol and 
substance abuse among the AI/AN population. \1\ The TLOA also instructs 
the Department of Health and Human Services (DHHS) to collaborate with 
DOI and DOJ on determining the scope of the ongoing problem; 
identifying and assessing national, state, Tribal, and local alcohol 
and drug abuse programs and resources; and creating standards for 
programs. Today, I am pleased to share with you the myriad ways in 
which SAMHSA, along with its federal partners and in coordination and 
consultation with Tribal governments and organizations, is implementing 
the letter and spirit of the TLOA amendments codified in Title 25, 
Chapter 26 of the United States Code.
---------------------------------------------------------------------------
    \1\ While the TLOA refers to alcohol and substance abuse among the 
AI/AN population, alcohol is a powerful substance of abuse itself. 
Given this distinction, this testimony will discuss this issue in terms 
of the prevention and treatment of alcohol and drug abuse.
---------------------------------------------------------------------------
Office of Indian Alcohol and Substance Abuse
    First, it is important to note that SAMHSA's number one strategic 
initiative is ``Prevention of Substance Abuse and Mental Illness.'' 
Included in this initiative is a strong and consistent focus on 
prevention of alcohol and drug abuse among the AI/AN population. As 
required by TLOA, SAMHSA has established the Office of Indian Alcohol 
and Substance Abuse (OIASA) and I'm pleased that its Acting Director, 
Dennis Romero, is at the hearing with me today. In addition, SAMHSA has 
assigned an experienced program officer to the OIASA and is in the 
process of hiring a permanent Indian Youth Programs Officer.
    OIASA has done an excellent job carrying out its responsibilities. 
To date, OIASA, along with DOI, DOJ, and additional DHHS Operating and 
Staff Divisions has ensured the establishment of the Indian Alcohol and 
Substance Abuse Interdepartmental Coordinating Committee (IASA 
Committee); served as a point of contact for Indian Tribes and the 
Tribal Coordinating Committees with respect to the implementation of 
TLOA; and, in collaboration with DOI and DOJ, finalized the Indian 
Alcohol and Substance Abuse Memorandum of Agreement (MOA) by July 29, 
2011 as directed by the TLOA.
IASA Committee
    The IASA Committee serves as an interagency body composed of 
representatives from the Federal agencies whose responsibilities 
include addressing issues of alcohol and drug abuse in Indian Country 
and its Charter was approved in July 2011. The Director of OIASA serves 
as the Committee Chairperson while senior level representatives from 
IHS, DOI's Bureau of Indian Affairs (BIA) and Bureau of Indian 
Education (BIE), and DOJ's Office of Justice Programs (OJP) and the 
Office of Tribal Justice (OTJ) serve as the Committee Co-chairs. In 
addition, the IASA Committee includes representatives from the 
Administration on Aging and Administration for Children and Families 
within DHHS, Department of Education, the Office of National Drug 
Control Policy, the Department of Agriculture, and the Department of 
Labor. The IASA Committee provides a forum for these agencies, bureaus, 
and offices to collaboratively assist AI/AN communities in achieving 
their goals in the prevention, intervention, and treatment of alcohol 
and drug abuse. The IASA Committee will: (1) help to identify 
opportunities and programs relevant to alcohol and drug abuse among 
Tribes and Native communities; (2) address issues of concern to Tribes 
and Native communities related to alcohol and drug abuse; (3) serve as 
a focal point within the Federal government for coordination, 
collaboration and outreach on alcohol and drug abuse issues affecting 
the American Indian, Alaska Native population nationwide; and (4) serve 
as a liaison advisory body to the federal partners responsible for 
providing programs and services in Indian Country relative to alcohol 
and drug abuse.
    The goals of the IASA Committee will be achieved through the IASA 
Committee's efforts to: (1) formalize a structure for Interdepartmental 
coordination and collaboration as it relates to AI/AN alcohol and drug 
abuse; (2) educate committee members and increase awareness of what 
federal agencies are currently doing to address all AI/AN alcohol and 
drug abuse issues; (3) reaffirm the Federal Government's recognition of 
the sovereign status of federally recognized Indian Tribes as domestic 
dependent nations and the adherence to the principles of government-to-
government relations; (4) promote the Federal Government's policy to 
provide greater access to and quality services for AI/AN individuals 
throughout the Federal government and in Indian Country; and (5) 
promote the Tribal-Federal government-to-government relationships on a 
Federal Government-wide basis.
    The IASA Committee is comprised of an Executive Steering Committee 
for which SAMHSA's Director of the OIASA serves as the Chair. In 
addition to the Executive Steering Committee, the IASA Committee 
includes five workgroups: (1) MOA; (2) Tribal Action Plan (TAP); (3) 
Inventory/Resource Workgroup; (4) Newsletter Workgroup; and (5) 
Educational Services Workgroup. Each of the workgroups is chaired by 
one of SAMHSA's federal partners.
Indian Alcohol and Substance Abuse Point of Contact
    Within SAMHSA, the OIASA has actively engaged our cross-Center 
Tribal Liaison Workgroup and convened conference call meetings with the 
SAMHSA Tribal Technical Advisory Committee which is composed of 14 
elected/appointed Tribal leaders. OIASA has also worked with the White 
House Domestic Policy Council--Native American Affairs and, in order to 
improve the coordination and conduct other efforts necessary for the 
implementation of the requirements under TLOA, SAMHSA arranged for 
Acting Director Romero to serve a part-time detail to the Office of 
Justice Programs (OJP) for a limited engagement.
    Reaching far and wide to the Tribal community, OIASA staff and I, 
as SAMHSA Administrator, have attended, presented and participated in 
Tribal consultations/listening sessions in partnership with DOI, DOJ 
and IHS staff and leadership. OIASA also conducted outreach to the 
National Indian Health Board (NIHB), National Congress of American 
Indians (NCAI), National Council of Urban Indian Health (NCUIH) as well 
as many other organizations. The OIASA staff and TLOA partners have 
provided presentations at conferences for AI/AN groups such as the 
InterTribal Court Justice Council, Affiliated Tribes of Northwest 
Indians, National American Indian Court Judges Association, Tribal 
Justice Safety Wellness Sessions and The Center for Native Youth.
    SAMHSA also established and funds the Native American Center for 
Excellence (NACE) to address issues related to alcohol and drug abuse 
in AI/AN communities. The three principles that direct the approach, 
attitude, and activities of the NACE are: (1) bringing cultural 
attention, sensitivity, and regard to our interactions and 
relationships with AI/AN communities, service providers, researchers, 
and Native people as we invite them to participate in technical 
assistance, trainings, and gatherings; (2) providing training, 
technical assistance, meetings, and tools that are accurate in 
cultural, scientific, technical, and statistical terms; and (3) 
developing and producing trainings, technical assistance, and services 
for AI/AN communities that are high quality and user-friendly in a 
timely, efficient, and cost-effective manner.
    Finally, in an effort to improve the communication, dissemination 
of information, and to serve as a point of contact for Indian Tribes 
and the Tribal Coordinating Committees regarding alcohol and drug abuse 
issues across the Federal government, OIASA established and launched a 
new website page at http://www.samhsa.gov/tloa/.
MOA
    An interdepartmental workgroup, convened as a precursor to the MOA 
Workgroup of the IASA Committee, oversaw the development, including the 
policy and legal review, of the MOA. This group also established and 
managed the overall coordination of comments from the various federal 
departments and other entities; shepherded the MOA through partner 
department clearance processes; secured final signatures; and 
coordinated the submission of the MOA to Congress, its dissemination to 
Indian Tribes, and its publication in the Federal Register, as required 
by law. The MOA was signed by Secretary Sebelius, Secretary Salazar, 
and Attorney General Holder on July 29, 2011.
    Prior to finalization of the MOA, OIASA posted draft versions of 
the MOA and TAP documents on-line at NIHB, NCAI, NCUIH, and NACE 
websites for input from Tribal Leaders and in preparation for a formal 
consultation. As noted above, federal partners also held a formal 
consultation on the MOA on December 8, 2010.
    Moving forward, the MOA Workgroup will provide leadership in the 
required annual review of the MOA.
TAP
    As established in the TLOA, the governing body of any Indian Tribe 
may, at its discretion, adopt a resolution for the establishment of a 
TAP to coordinate available resources and programs in an effort to 
combat alcohol and drug abuse among its members. If a Tribe does not 
adopt such a resolution, HHS, DOJ, and DOI will identify and coordinate 
available resources and programs for the Tribe, as directed by TLOA. 
The TAP Workgroup of the IASA Committee will establish the operating 
framework of the TAP, develop an inventory of current evidence-based 
practices, coordinate Tribal requests for assistance in the development 
of a TAP, coordinate assistance and support to Tribes as deemed 
feasible, and collaborate with the Inventory Workgroup of the IASA 
Committee in developing appropriate responses to Tribal entities 
seeking assistance.
Behavioral Health--Tribal Prevention Grants
    As part of the implementation of the TLOA, and in line with 
SAMHSA's priority of ensuring that all Tribes have access to funding 
for bringing alcohol and drug abuse and suicide prevention activities 
to scale, the President's FY 2012 Budget for SAMHSA proposes a new 
formula-based grant program titled Behavioral Health--Tribal Prevention 
Grants (BH-TPG). The BH-TPG program is intended to increase SAMHSA's 
ability to support Tribes and Tribal entities. The BH-TPG, to be funded 
from the Prevention and Public Health Fund, would represent a 
significant advance in the Nation's approach to the prevention of 
alcohol and drug abuse and suicide in Tribal communities, and is based 
on the recognition that behavioral health is a part of overall health. 
As a formula grant program, its reach will extend to all of the 565 
Federally-recognized Tribes. Recognizing the Federal obligation to help 
Tribes deal with physical and behavioral health issues, SAMHSA will 
work in consultation with Tribes, working toward the establishment of a 
single coordinated mental health and substance abuse program for all 
Federally-recognized Tribes. SAMHSA also will consult and work closely 
with Tribes and Tribal leaders to develop a comprehensive, data-driven 
planning process to identify and address the most serious behavioral 
health issues in each Tribal community.
    The BH-TPGs will enable Tribes to develop a comprehensive plan to 
address the most pressing prevention needs based on Tribal data as well 
as in consultation with SAMHSA. The TAP would address the prevention 
and treatment of substance abuse including related issues such as 
suicide. As noted above, this planning activity is one of the basic 
components of the TLOA. Tribes will continue to be eligible for these 
BH-TPG prevention funds beyond the three-year timeframe so long as they 
meet the requirements of renewal applications, provide the necessary 
annual reports, and show continued progress toward implementing their 
approved plans.
Uniform Block Grant Application
    On July 26, SAMHSA announced a new application process for its 
Substance Abuse Prevention and Treatment Block Grant (SABG) and 
Community Mental Health Services Block Grant (MHBG) programs. The 
change is designed to provide States greater flexibility to allocate 
resources for substance abuse and mental illness prevention, treatment 
and recovery services in their communities. One of the key changes to 
the block grant application is the expectation that States will provide 
a description of their Tribal consultation activities. Specifically, 
the new application's planning sections note that States with 
Federally-recognized Tribal governments or Tribal lands within their 
borders will be expected to show evidence of Tribal consultation as 
part of their Block Grant planning processes. A webinar and other 
technical assistance for States to meet this expectation are being 
planned. It is important to note that Tribal governments shall not be 
required to waive sovereign immunity as a condition of receiving Block 
Grant funds or services.
Conclusion
    Thank you again for this opportunity to share with you the 
extensive efforts SAMHSA and its federal partners are undertaking, in 
collaboration with the AI/AN community, in order to implement the TLOA 
and to reduce the impact of alcohol and drug abuse on AI/AN 
communities. I would be pleased to answer any questions that you may 
have.

    The Chairman. Thank you very much, Ms. Hyde.
    Ms. Weahkee, would you please proceed with your testimony?

        STATEMENT OF ROSE L. WEAHKEE, Ph.D., DIRECTOR, 
     DIVISION OF BEHAVIORAL HEALTH, OFFICE OF CLINICAL AND 
           PREVENTIVE SERVICES, INDIAN HEALTH SERVICE

    Ms. Weahkee. Mr. Chairman and Members of the Committee, 
good afternoon. Dr. Yvette Roubideaux was unable to be here 
today due to a meeting with the Office of Management and 
Budget. However, I am pleased to be here to testify on the 
Indian Health System's implementation of the Tribal Law and 
Order Act of 2010.
    The IHS plays a unique role in the U.S. Department of Heath 
and Human Services to meet the Federal trust responsibility to 
provide health care to American Indians and Alaska Natives. The 
IHS provides comprehensive health service delivery to 1.9 
million federally recognized American Indians and Alaska 
Natives through a system of IHS, Tribal and urban-operated 
health programs.
    Under the Indian Self-Determination and Education 
Assistance Act, many Tribes across the Country have assumed 
full authority for all health care delivery within their 
communities. Across Indian Country today, the high incidence of 
alcohol and substance abuse, mental health disorders, sexual 
assault, domestic violence and behavior-related chronic 
diseases is well documented. Each of these serious behavioral 
health issues has a profound impact on the health and well 
being of communities both on and off the reservation.
    The Tribal Law and Order Act signifies an important step in 
strengthening behavioral health efforts in Indian Country by 
helping the Federal Government better address the unique public 
safety and justice issues and challenges that confront Tribal 
communities.
    The Act also expands the number of Federal agencies who are 
required to coordinate efforts on alcohol and substance abuse 
issues. The new possibilities for behavioral health efforts 
brought about by the passage of this important legislation, 
along with the permanent reauthorization of the Indian Health 
Care Improvement Act, have significant implications for 
improving the health and well being of Tribal communities.
    The Act, as Ms. Hyde stated, breathes new life into Tribal 
action plans on substance abuse prevention and Federal agencies 
are coordinating our resources and programs to assist Tribes to 
achieve their goals in the prevention, intervention and 
treatment of alcohol and substance abuse.
    The Act also requires the IHS Director to provide written 
approval or disapproval of subpoenas or other requests from 
Tribal or State courts for the testimony of IHS employees. The 
IHS has drafted a revised delegation of authority to include 
the requirements under the Act and is developing additional 
guidance for its IHS programs and employees.
    The Act requires the IHS Director to develop sexual assault 
policies and protocols. The IHS has established a national 
sexual assault policy which is now the foundation for local 
policies at hospitals managed by the Indian Health Service.
    The Act also requires the Comptroller General to study the 
capability of IHS facilities to collect, maintain and secure 
evidence of sexual assaults and domestic violence incidents and 
to develop recommendations for improving those capabilities. 
IHS has worked closely with the Government Accountability 
Office in the development of the study and looks forward to 
their recommendations and incorporating those recommendations 
into our future efforts.
    Strategies to address public safety and justice issues 
include collaborations and partnerships with Tribes, Federal, 
State and local agencies. For example, the Indian Health 
Service and the Department of Justice Office of Victims of 
Crime entered into a partnership involving the Federal Bureau 
of Investigation and the Department of Interior to address the 
needs of sexual assault victims in Indian Country.
    As part of this effort, there will be two full-time 
positions, one within the Federal Bureau of Investigation and 
one within Indian Health Service to address issues around 
sexual assault nurse examiner and sexual assault forensic 
examiner issues. And as part of this, I would like to announce 
that we have selected a new individual, Ms. Beverly Cotton, who 
has extensive experience and is a subject-matter expert on 
sexual assault nurse examiner issues, as well as in adult and 
pediatric sexual assault abuses cases.
    In summary, the Tribal Law and Order Act of 2010 requires a 
significant amount of interagency coordination and 
collaboration and the leverage and the coordination of Federal 
efforts and resources will help to further prevention and 
reduction activities. No one individual, community or agency 
can do this alone. It will take all of us working together to 
make significant improvements.
    This concludes my remarks and I will be happy to answer any 
questions that you may have.
    Thank you.
    [The prepared statement of Ms. Weahkee follows:]
  Prepared Statement of Rose L. Weahkee, Ph.D., Director, Division of 
 Behavioral Health, Office of Clinical and Preventive Services, Indian 
                             Health Service
    Mr. Chairman and Members of the Committee:
    Good afternoon, I am Dr. Rose Weahkee, Indian Health Service (IHS) 
Director for the Division of Behavioral Health. I am pleased to have 
this opportunity to testify on the Indian health system's 
implementation of the Tribal Law and Order Act of 2010.
    The IHS plays a unique role in the U.S. Department of Health and 
Human Services to meet the Federal trust responsibility to provide 
health care to American Indians and Alaska Natives (AI/AN). The IHS 
provides comprehensive health service delivery to 1.9 million 
Federally-recognized American Indians and Alaska Natives through a 
system of IHS, Tribal, and Urban operated facilities and programs based 
on treaties, judicial determinations, and Acts of Congress. The mission 
of the agency is to raise the physical, mental, social, and spiritual 
health of American Indians and Alaska Natives to the highest level, in 
partnership with the population we serve. The agency aims to assure 
that comprehensive, culturally acceptable personal and public health 
services are available and accessible to the service population. Our 
foundation is to promote healthy American Indian and Alaska Native 
people, communities, and cultures, and to honor the inherent sovereign 
rights of Tribes.
    The IHS works in partnership with the communities it serves, and as 
such IHS hospital administration frequently includes Tribal 
representatives who closely participate, as key stakeholders, in the 
health care delivery system. Additionally, under the Indian Self-
Determination and Education Assistance Act (ISDEAA), many Tribes across 
the country have assumed full authority for all health care delivery 
within their communities, including hospital operations. Currently, 84 
percent of Alcohol and Substance Abuse programs and 54 percent of 
Mental Health programs are Tribally operated. Traditionally, behavioral 
health and medical programs, both IHS and Tribally operated, have been 
separately managed; however, it is now a major focus of the IHS to 
reintegrate these programs to provide more efficient and effective 
patient care.
Introduction
    Across Indian Country today, the high incidence of alcohol and 
substance abuse, mental health disorders, suicide, violence, and 
behavior-related chronic diseases is well documented. Each of these 
serious behavioral health issues has a profound impact on the health of 
individuals, public health, and community well-being both on- and off-
reservations. American Indians and Alaska Natives are at higher risk 
for certain mental health disorders than other racial/ethnic groups. 
For example, the Office of Minority Health, in the Department of Health 
and Human Services, reports that AI/ANs experience higher rates than 
all races in the following areas:

   Serious psychological distress;
   Feelings of sadness, hopelessness, and worthlessness;
   Feelings of nervousness or restlessness; and
   Suicide.

    Alcoholism, addiction, and alcohol and substance abuse are among 
the most severe public health and safety problems facing AI/AN 
individuals, families, and communities, resulting in devastating 
social, economic, physical, mental, and spiritual consequences. 
American Indians and Alaska Natives suffer disproportionately from 
substance abuse disorder compared with other racial groups in the 
United States. In a 2010 report from the National Survey on Drug Use 
and Health (NSDUH), the rates of past month binge alcohol use and 
illicit drug use were higher among AI/AN adults compared to national 
averages (30.6 vs. 24.5 percent and 11.2 vs. 7.9 percent, respectively) 
and the percentage of AI/AN adults who needed treatment for an alcohol 
or illicit drug use problem in the past year was nearly double the 
national average for adults (18.0 vs. 9.6 percent). \1\
---------------------------------------------------------------------------
    \1\ Substance Abuse and Mental Health Services Administration, 
Office of Applied Studies (June 24, 2010). The NSDUH Report: Substance 
Use among American Indian or Alaska Native Adults, Rockville, MD.
---------------------------------------------------------------------------
    Alcohol abuse and alcohol dependence contribute to high rates of 
mortality from liver disease, unintentional injury, and suicide. AI/AN 
communities suffer from some of the highest rates of Fetal Alcohol 
Spectrum Disorders (FASD) in the nation, and the damaging effects of 
alcohol use to an unborn baby during pregnancy are permanent. 
Methamphetamine and other drug abuse are increasingly significant 
problems among AI/AN people and have a devastating impact on families 
and communities. For instance, there are marked disparities in 
behavioral health morbidity and resulting mortality between the AI/AN 
population and the nation as a whole. The following are examples:

   The age-adjusted \2\ alcohol related death rate for AI/ANs 
        is 43.3 per 100,000 (2003-2005) and is over six times the U.S. 
        all races rate of 7.0 per 100,000 (2004). \3\
---------------------------------------------------------------------------
    \2\ Age-adjusted rate per 100,000 population. Rates have been 
adjusted to compensate for misreporting of AI/AN race on state death 
certificates.
    \3\ Unpublished data. OPHS/Division of Program Statistics (2003-
2005 AI/AN age-adjusted rates based on 2000 census with bridged--race 
categories.)

   The age-adjusted drug related death rate for AI/ANs is 15.0 
        per 100,000 (2002-2004) and is 1.5 times greater than the U.S. 
        all races rate of 9.9 per 100,000 (2003). \4\
---------------------------------------------------------------------------
    \4\ U.S. Department of Health and Human Services. Indian Health 
Service. Trends in Indian Health, 2002-2003 Edition. Washington: 
Government Printing Office, Released October 2009. ISSN 1095-2896. p. 
195.

    Domestic violence and intimate partner violence continues to be a 
serious and pervasive problem. Domestic violence often begins with 
intimate partner rape and can end in homicide. The statistics on 
domestic violence and sexual assault against AI/AN women are alarming. 
According to the Centers for Disease Control and Prevention, 39 percent 
of AI/AN women have experienced intimate partner violence--the highest 
percentage in the U.S. \5\ In addition, one out of every three AI/AN 
women will be sexually assaulted in her lifetime, \6\ and AI/AN women 
are more than five times as likely to die from domestic violence-
related injuries than women of any other race. \7\
---------------------------------------------------------------------------
    \5\ Centers for Disease Control and Prevention (2008). Adverse 
health conditions and health risk behaviors associated with intimate 
partner violence-United States, 2005. MMWR, 57(05), 113-117. Retrieved 
March 2, 2010, from http://www.cdc.gov/mmwr/preview/mmwrhtml/
mm5705a1.htm.
    \6\ Sacred Circle and the National Congress of American Indians 
Task Force on Violence Against Women in Indian Country (2006, 
September). Restoration of Safety for Native Women. Restoration of 
Native Sovereignty, 5.
    \7\ Department of Justice, Bureau of Justice Statistics National 
Crime Database.
---------------------------------------------------------------------------
    The numbers do not fully capture the tremendous physical and 
psychological toll that sexual assault and domestic violence take on 
individuals and society. Besides the obvious costs of medical care and 
evidence collection, there is increasing evidence that interpersonal 
violence is associated with many common health problems, including 
obesity, hypertension, chronic pain, headaches, gastrointestinal 
problems, complications of pregnancy, post traumatic stress disorder 
(PTSD), alcohol use disorders, depression, and anxiety. \8\ All of 
these health problems can impact an individual's family life and 
ability to work. The economic impact of the loss of work and 
productivity is enormous.
---------------------------------------------------------------------------
    \8\ Centers for Disease Control and Prevention (2008). Adverse 
health conditions and health risk behaviors associated with intimate 
partner violence--United States, 2005. MMWR, 57(05), 113-117. Retrieved 
March 2, 2010, from http://www.cdc.gov/mmwr/preview/mmwrhtml/
mm5705a1.htm.
---------------------------------------------------------------------------
Tribal Law and Order Act of 2010
    The President signed the Tribal Law and Order Act of 2010 (TLOA) on 
July 29, 2010. The Act signifies an important step in strengthening 
behavioral health efforts in Indian Country by helping the Federal 
government better address the unique public safety challenges that 
confront Tribal communities. The Act is one of many steps needed to 
address the public safety and justice challenges faced by AI/ANs. The 
TLOA has several health specific provisions which will be addressed in 
further detail below.
    The TLOA also expands the number of Federal agencies who are 
required to coordinate efforts on alcohol and substance abuse issues in 
Indian Country. Agencies included in coordinated efforts are the 
Department of Justice (DOJ) and the Substance Abuse and Mental Health 
Services Administration (SAMHSA), along with the Department of Interior 
(DOI), the Bureau of Indian Affairs (BIA), and the IHS. The Act 
promises improved Federal interagency coordination on substance abuse 
policy by the establishment of an Office of Indian Alcohol and 
Substance Abuse within SAMHSA. All these elements of the TLOA offer 
important policy support for health, wellness, and public safety in AI/
AN communities and a recognition of the multiple factors that influence 
behavioral health concerns. The new possibilities for behavioral health 
efforts brought about by the passage of important legislation like the 
TLOA, along with the permanent reauthorization of the Indian Health 
Care Improvement Act, have significant implications for increasing 
resources to improve the health and well-being of AI/ANs. In addition, 
the TLOA will provide important information which can be used in the 
development and implementation of the National Drug Control Strategy 
and in the Office of National Drug Control Policy's work when 
coordinating drug control activities and related funding across the 
Federal Government.
Memorandum of Agreement
    Section 241 of the TLOA amends the Indian Alcohol and Substance 
Abuse Prevention and Treatment Act of 1986, expanding the number of 
Federal agencies who are required to coordinate their efforts on 
alcohol and substance abuse issues in Indian Country. Specifically, 
TLOA directs the Secretaries of the Department of Health and Human 
Services (DHHS) and the Department of the Interior, together with the 
Attorney General, to develop and enter into a Memorandum of Agreement. 
The Memorandum of Agreement was signed on July 29, 2011 and among other 
things: (1) determines the scope of the alcohol and substance abuse 
problems faced by Tribes; (2) identifies and delineates the resources 
each entity can bring to bear on the problem; (3) sets standards for 
applying those resources to the problems; and (4) coordinates existing 
agency programs with those established under the 1986 Act.
    This provision also breathes new life into Tribal Action Plans 
(TAP) on substance abuse prevention, first authorized in 1986. The TLOA 
mandates that DHHS' IHS and SAMHSA, DOI's BIA and Bureau of Indian 
Education (BIE), and DOJ coordinate resources and programs to assist 
Indian Tribes to achieve their goals in the prevention, intervention, 
and treatment of alcohol and substance abuse. It was determined that 
there is a need to align, leverage, and coordinate Federal efforts and 
resources at multiple levels within each agency to effectuate 
comprehensive alcohol and substance abuse services and programs for AI/
AN individuals, families, and communities. With this knowledge, the 
agencies have developed a TAP Work Group to establish the operating 
framework and guidelines of the TAP.
Testimony and Production of Documents by Federal Employees
    Section 263 of the TLOA requires the IHS Director to provide 
written approval or disapproval of subpoenas or other requests from 
Tribal or State courts for the testimony of IHS employees or for the 
production of documents by IHS employees under the Director's 
supervision. The IHS has drafted a revised delegation of authority to 
permit IHS Area Directors to authorize testimony by Federal employees 
in criminal and civil cases at the local level. The draft delegation of 
authority notes that: (1) subpoenas and requests may be approved if the 
request is consistent with DHHS' policy to remain impartial; and (2) 
subpoenas or requests for documents or testimony in violent crime cases 
which would include sexual assault and domestic violence must be 
approved or disapproved within 30 days after receipt or the subpoenas 
and requests will be deemed approved. The draft delegation of authority 
pertains to factual information obtained by Federal employees in 
carrying out their official duties. It does not apply to requests for 
expert testimony from Federal employees.
IHS Sexual Assault Policy
    Section 265 of the TLOA adds a new section to the Indian Law 
Enforcement Reform Act requiring the IHS Director to develop sexual 
assault policies and protocol based on a similar protocol established 
by the DOJ. In response, IHS established a national sexual assault 
policy, which is the foundation for local policies at hospitals managed 
by the IHS as they develop their own standard operating procedures and 
protocols on sexual assault medical forensic examinations. The policy 
establishes a uniform standard of care for sexual assault victims 
seeking clinical services. The policy ensures that the needs of the 
victim are addressed, care is culturally sensitive, patient-centered, 
and community response is coordinated. The policy also includes 
evidence collection guidance which aligns with criminal justice system 
response and subpoena regulations. The IHS consulted with Tribal 
leaders and Urban Indian health directors and reviewed comments for 
incorporation in future revisions of this policy.
Study of IHS Sexual Assault and Domestic Violence Response Capabilities
    Section 266 of the TLOA requires the Comptroller General to conduct 
a study of the capability of IHS facilities, including facilities 
operated pursuant to contracts or compacts under the Indian Self-
Determination and Education Assistance Act, to collect, maintain, and 
secure evidence of sexual assaults and domestic violence incidents and 
develop recommendations for improving those capabilities. This section 
also requires a Report to Congress to assess current readiness and 
propose recommendations for improving response capabilities. IHS has 
cooperated with the GAO in the development and completion of this 
study.
IHS Partnerships
    IHS has devoted considerable effort to develop and share effective 
programs throughout the Indian health system. Strategies to address 
public safety and justice issues include collaborations and 
partnerships with consumers and their families, Tribes and Tribal 
organizations, Urban Indian health programs, Federal, State, and local 
agencies, as well as public and private organizations. We believe the 
development of programs that are collaborative, community driven, and 
nationally supported offers the most promising potential for long term 
success and sustainment. Our partnership and consultation with Tribes 
ensure that we are working together in improving the health of AI/AN 
communities. Examples include the Indian Health, HHS, Bureau of Justice 
Assistance and the Alliance of States with Prescription Monitoring 
Programs partnership to create a prescription drug data export solution 
capable of exchanging data with State Prescription Monitoring Programs; 
the IHS-VA Consolidated Mail Outpatient Pharmacy program that improves 
medication use adherence and safety; Combined drug abuse, prescription 
drug abuse and alcohol abuse partnership trainings.
Summary
    In summary, the Tribal Law and Order Act of 2010 requires a 
significant amount of interagency coordination and collaboration. The 
leverage and coordination of Federal efforts and resources will help to 
further the prevention and reduction activities at the national, 
Tribal, State, and local levels. No one individual, community, or 
agency can do this alone. It will take all of us to prevent and reduce 
alcoholism, addiction, alcohol and substance abuse, domestic violence, 
and sexual assault across AI/AN communities, reservations, and urban 
areas.
    With the full weight of Tribal leadership, Federal agencies, 
individuals, and families working together, effective long-term 
strategic approaches to address behavioral health in Indian Country can 
be established and implemented. To adequately address the problem of 
public safety and justice, IHS is proactively focusing on behavioral 
health treatment and rehabilitation through partnerships and 
initiatives directed at minimizing the causes of such abuse (i.e., 
domestic violence, sexual assault, child sexual abuse, etc.). The IHS 
and its Tribal and Federal partners are committed to maximizing 
available resources to provide appropriate prevention and treatment 
services, as well as safe environments for AI/AN communities.
    This concludes my remarks and I will be happy to answer any 
questions that you may have. Thank you.

    The Chairman. Thank you very much, Ms. Weahkee.
    I am pleased that my colleague, Senator Thune, from South 
Dakota is joining us today.
    Senator Thune, welcome to the Indian Affairs Committee. I 
want to ask you whether you have any remarks you would like to 
make at this time.

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Mr. Chairman, whenever it is appropriate, I 
have a couple of questions I would like to ask the panelists.
    The Chairman. You are very welcome when we get to that. 
Thank you.
    I know that my colleagues are limited in how long they will 
be able to stay for today's hearing, so I am going to ask each 
one of the witnesses on the first panel one question, and then 
defer to my colleagues to ask their questions. If time permits, 
I will have a second round. I know this topic is very, very 
important.
    Mr. Perrelli, how many Tribes in Public Law 280 
jurisdictions have requested that the Federal Government 
exercise concurrent jurisdiction over reservation crimes? And 
what is the state of the final rule to implement this important 
provision?
    Mr. Perrelli. Thank you, Senator. The review will be 
published in the Federal Register. So no Tribes have yet 
requested pursuant to the regulation. We have had a number of 
Tribes, probably less than 10, approach us with different 
levels of detail of their requests, indicating that they may 
seek a request that we take concurrent jurisdiction.
    So I think we expect to see a relatively small number 
initially, and then over time, it is possible that number would 
grow. But we would expect to be receiving these applications in 
the fall and then making decisions on them probably in the 
early part of next year.
    The Chairman. Mr. Echo Hawk, fixing the Carcieri decision 
is a top priority for the Administration. Do you see any 
implications for law enforcement due to this decision?
    Mr. Echo Hawk. The Carcieri clean fix legislation is a top 
priority of the Administration and strongly supported by 
Secretary Salazar, and for good reason because it has 
implications in a lot of different areas that reach into Indian 
Country.
    With regard to what we are talking about today, criminal 
law enforcement, as a law professor and former prosecutor and 
defender, I can tell you that it is very complex, the 
jurisdictional rules that apply under normal circumstances. And 
Carcieri, unfortunately, adds another layer of uncertainty in 
the way that the law applies, creating what has been described 
as a jurisdictional maze that people have to navigate through.
    This would, of course, be of particular concern to any 
Tribes that were taking land into trust after 1934 that 
arguably may not have been under Federal jurisdiction at that 
time. So it creates problems, particularly I think for landless 
Tribes that may have been recognized recently, that are 
desiring to now have some territorial jurisdiction over a 
portion of what was once their homeland.
    But in addition to the jurisdictional problems, we probably 
have, and I can get you accurate information on this, maybe 
1,000 or more pending applications for land-into-trust, and 
very few of those, by the way, relate to gaming, just a 
handful. And these other applications deal with opportunities 
that Tribes have to develop their economies, to build medical 
facilities, housing and criminal law enforcement facilities. 
And without having the ability to take those lands into trust 
and develop their community infrastructure as a result of 
Carcieri, that is a significant problem.
    Thank you.
    The Chairman. Thank you.
    Mr. Johnson, you mentioned issues with sex trafficking in 
your testimony. In our recent hearing on Native women, we heard 
from other witnesses that this is a serious and growing problem 
in Native communities. What else can be done at the Federal 
level to combat sex trafficking in these communities? What data 
currently exists about these cases?
    Mr. Johnson. In terms of data, I can tell you that Alaska, 
for example, recently had a very successful prosecution of a 
sex trafficking case. We have had a sex trafficking case in 
South Dakota that we recently concluded, but that did not 
involve women on the reservation.
    We know, Senator, very clearly that this issue exists and 
we know that it has a terrible effect on communities where this 
occurs. So we have been trying to be very aggressive with both 
Tribal law enforcement, as well as Federal law enforcement in 
terms of training so that folks recognize signs and evidence of 
human trafficking and that when we have a report, that we 
follow up. But also that we look at a case that might appear on 
the face of it to be a prostitution case on the reservation.
    Well, what we in law enforcement need to do is make sure 
that we are following that up, so what may appear to be a 
prostitution case could be a much larger human trafficking 
operation.
    And so I think a big part of this is education. It is 
training for both law enforcement, as well as the community. 
Because frankly, we often hear about this first from community 
members. So that is really our focus, I think, is on training 
and education.
    The Chairman. Thank you.
    Mr. Johnson. Thank you, Senator.
    The Chairman. Ms. Hyde, can you explain how SAMHSA and the 
other agencies at DOJ and DOI will determine the scope of 
alcohol and substance abuse problems faced by Tribes as they 
operate in the new MOU?
    Ms. Hyde. Thank you, Mr. Chairman. There are a couple of 
ways that we are going to go about that. Each one of the 
agencies have several pieces of information themselves. We are 
going to try to compile that information that we have across 
the agencies.
    And then we are also going through the Tribal action plans 
to determine what each Tribe indicates are the scope of the 
problem.
    So as you well know, there are issues about data or lack of 
data or how data is collected or used to identify that. We have 
a number of grant programs, as do our partners, that tell us 
what some of those problems are within Indian Country. We are 
trying to compile that through the interagency committee and 
make that available.
    We really want to try to make this Tribally specific, 
however. This is the whole point, I think, of this law and of 
our efforts is to recognize that each Tribe has within it its 
own understanding of what the scope is and what the needs are. 
And we want to be respectful of that and we want to support 
each Tribe in identifying their own needs, and not trying to 
generalize that across all of Indian Country. And yet we know 
there are some common issues and common scope that we are 
trying to make resources available not in just one agency, but 
across all of these agencies touching the Tribes.
    So the Tribal action plans will be very important in that 
process as well.
    The Chairman. Thank you.
    Ms. Weahkee, in implementing the new sexual assault 
protocol at IHS, how do you plan to ensure accountability and 
quality control locally at all your facilities, to ensure you 
are meeting the needs of the sexual assault victims?
    Ms. Weahkee. This issue also came up as part of the 
Government Accountability Office study looking at the 
capability of IHS and Tribal facilities. And so as part of that 
feedback and input, it became evident and important to note 
that we really needed to develop an implementation and 
monitoring plan. And so that is something that we are working 
on to ensure that our IHS facilities are implementing the 
protocol successfully and also looking at the witness testimony 
and assessing that employees are testifying in court.
    So that is a part of our future plans and something that 
our new sexual assault nurse examiner national coordinator will 
be working on, is developing that implementation and monitoring 
plan.
    The Chairman. Thank you very much.
    Let me call on Senator Johnson for any of his questions. 
Then I will call on Senator Thune and Senator Tester.
    Senator Johnson. Mr. Perrelli, as you stated, the Bureau of 
Prisons has implemented a four-year pilot program to work with 
Tribal courts to incarcerate persons convicted of violent 
crime. You indicated that no Tribe has made such a request. Is 
there a reason why no Tribe has participated?
    Mr. Perrelli. I think the pilot project at BOP is really 
intended for hard-core offenders where the Tribal court has 
exercised the extended jurisdiction that is available under the 
Tribal Law and Order Act.
    As yet, across the Country, you see Tribes amending their 
Tribal code and putting together funding and other things they 
will need to exercise that enhanced sentencing authority, but 
it hasn't been occurring very much. We would expect that as 
Tribes begin using that authority, they have their codes up to 
date, and they have put in place all of the procedural pieces, 
that we will start to see the flow of prisoners into the BOP.
    Senator Johnson. Mr. Perrelli, two Tribes in my State of 
South Dakota are diminished reservations, resulting in random 
areas of Tribally owned lands and locally owned land. How is 
the Department of Justice facilitating the intergovernmental 
relationship between Tribes, local and State law enforcement 
and court systems?
    Mr. Perrelli. This is a problem in a number of different 
places, South Dakota, Oklahoma, also in California, but not 
exclusively there, where you have Tribal land interspersed with 
other land. There are many places across the Country where 
Tribal law enforcement and State or local police departments 
have effective working relationships and we have been 
encouraging cross-deputation agreements so that there is no 
debate or dispute about when a Tribal officer may pursue off 
the reservation, off Tribal land, or a county official may 
pursue on reservation land.
    So we have been encouraging that across the Country. We 
just recently had a meeting with Tribes in California where 
this is a significant issue to talk with them about the 
challenges they are seeing. And our COPS Office is funding a 
pilot project with a cross-deputation agreement in California 
to see if we can come up with best practices that we could then 
go out and work with the State and local law enforcement 
community and the Tribal law enforcement community to hopefully 
implement in a broader range of places.
    Senator Johnson. Mr. Johnson, I am very interesting in 
hearing about the Tribal Youth Leadership Program. As you know, 
in South Dakota many of our reservations lack after-school 
programs and other after diversionary activities. How are these 
program going?
    Mr. Johnson. Well, thank you, Senator. We recently in South 
Dakota conducted four Native American youth listening sessions. 
We had over 400 Native American teenagers who attended these 
sessions. And their concern is exactly what you have raised: 
concerns about jobs, about safe basketball courts, safe 
baseball fields where they could go and play, after school 
programs, cultural programs.
    And there remains real concerns about what there is for 
Native American youth to do, especially when many of these 
youths have to travel distances to get to the center of town. 
So that remains a concern.
    I can tell you what our office is doing is trying to get 
into the schools, listening to the youth. We have had a 
national Native American youth session out in New Mexico. So 
there is a real effort to listen to the Native American youth, 
to take their concerns, particularly as it relates to law 
enforcement.
    But when it comes to after school programs and those issues 
that you mentioned, really the best that I can do for the kids 
who attend these listening sessions is to tell them I will make 
sure to pass that along to our Congressional delegation because 
it is a huge issue.
    Senator Johnson. During your consultation with Tribal 
leaders, what is the feedback on implementation of the Tribal 
Law and Order Act, Mr. Johnson?
    Mr. Johnson. I think right now the number one issue that 
some of our Tribes in South Dakota are having when it comes to 
the Tribal Law and Order Act is funding the licensed attorneys 
who are necessary to have the increased sentencing 
jurisdiction. Several of the Tribes in South Dakota have 
licensed attorneys who are prosecutors. Far fewer have licensed 
attorneys who are also public defenders.
    So I think that several Tribes are getting close to using 
that sentencing jurisdiction, but there are still funding 
issues.
    Senator Johnson. My time has expired.
    Mr. Johnson. Thank you.
    The Chairman. Thank you very much, Senator Johnson.
    Senator Thune?
    Senator Thune. Thank you, Mr. Chairman. I do appreciate 
very much your allowing me to participate today in the hearing, 
and I want to thank our witnesses for being here and for 
sharing their thoughts.
    I think we were all delighted after working on it for about 
three years that the Tribal Law and Order Act finally passed 
last year. The conditions on many of our Nation's reservations, 
including in our home State of South Dakota, are not 
acceptable. And the enactment of the Tribal Law and Order Act 
isn't going to be a silver bullet in solving all those 
problems, but I do believe it was an important step in the 
right direction in improving public safety and justice.
    And so I am very interested in your reaction, obviously, 
and getting an assessment a year later about how some of these 
things are working.
    Mr. Echo Hawk. if I might direct this question to you. I 
want to commend Deputy Director Darren Cruzan for all the hard 
work at the Office of Justice Services and the things that have 
been done in the area of law enforcement and correction officer 
hiring, because one of the issues that we have been identifying 
is getting people trained through the process, getting them out 
on the reservations.
    And I think the common sense idea of holding job fairs has 
been very well received by the nine Tribes in South Dakota. It 
seems to be speeding up the hiring process. But my 
understanding is that there is still a bottleneck in hiring 
when it comes to the applicant getting to the background check 
stage. And so I am wondering if you could explain that 
background check process from the time the applicant is given 
the paperwork for the background check, until that individual 
is fully hired.
    Mr. Echo Hawk. Mr. Chairman and Senator Thune, I am of 
course not the expert when it comes down to actually describing 
the details of the procedure. But one of the tasks given to us 
was to make sure that we are performing the background checks 
in a timely manner.
    And since the Tribal Law and Order Act was passed, we have 
adopted new policies and procedures, and we are doing 
background checks. I am told that we have done since the Act 
came into law about 35 of those we were able to do in a timely 
manner. But in terms of actually the specific processes, I 
think I would have to defer to someone else like Darren Cruzan 
to respond to your question.
    Senator Thune. Maybe if we could get that for the record, 
but it seems to me that some of the delays could be eliminated 
if there was some basic pre-screening that was done, maybe at 
the job fair sometime prior to the conditional offer of a job. 
And so I am wondering maybe if some of those ideas have been 
considered. And so if you might furnish that for the record, 
too.
    Mr. Echo Hawk. Senator, in response, we will continue to 
look for opportunities to speed up the process, but I think the 
numbers show that we have improved greatly the hiring. I have 
some figures, like in 2007 we had an increase of seven in 
personnel. I am talking about corrections and law enforcement 
officers. In 2008, four, so seven and four. But since 2009, we 
increased by 39 and then in 2010 by 52; and then thus far in 
2011, 31.
    So we are moving forward. And law enforcement offices on 
the ground, out there in the streets and in the communities, 
are very important and we have had a 20 percent increase. And 
of course, I have to express appreciation to the Congress for 
providing the appropriations for us to move forward in this 
area of hiring. But even with the money, when I first came in 
we were struggling with getting people selected, through the 
background process, and trained. But we have made some very 
significant advances in that regard and we will continue to 
look for ways to improve.
    Senator Thune. Good. Sounds like you are heading in the 
right direction anyway.
    The Tribal Law and Order Act included a provision 
increasing the maximum hiring age from 37 to 47. Has that been 
implemented?
    Mr. Echo Hawk. As far as I know, yes. And that is something 
that we identified was needed because of the recent history 
prior to 2009 where we were struggling to get people in there.
    Senator Thune. I am going to direct this to Mr. Perrelli 
quickly here, if I might. The Tribal Law and Order Act also 
included a provision that would allow magistrates to hold 
trials and other court proceedings in Tribal courtrooms, as 
opposed to Federal courts. Has that been implemented?
    Mr. Perrelli. Well, I think, and that is principally in the 
Judiciary bailiwick. We have been encouraging courts across the 
Country to do this, whether it is in Tribal courts or to move 
magistrates closer to reservations. We have reservations in 
this Country that are the size of States, with less than 10 
police offices patrolling at any one time. If two of them have 
to go testify in Federal court 200 miles from the reservation, 
that is an enormous impact on their ability to protect public 
safety.
    So I will try and find out the answer to you about how many 
instances or when that has happened, but I think it is 
important for us to, where we can, bring the courthouse closer 
to the reservation in many communities across the Country.
    Senator Thune. And that was the intent of that provision, 
so thank you.
    I see my time is expired. Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Thune.
    Senator Tester?
    Senator Tester. Thank you, Mr. Chairman.
    And by the way, thank you all for testifying. I appreciate 
your testimony.
    This question is for Larry. You can kick it over to Tom if 
you want. We do a lot of things here in Washington, D.C. and 
you are expected to implement them. And Tribes on the ground, 
many of them are a long ways away from here.
    What kind of outreach did you do to let folks know on the 
ground what was available to them? Or did you do any outreach 
to let them know what was available to address any issues that 
they might have?
    Mr. Echo Hawk. Specifically with regard to the provisions 
of the Tribal Law and Order Act we have responsibility for?
    Senator Tester. Correct.
    Mr. Echo Hawk. We conducted six specific consultation 
sessions, so we had that face-to-face interchange with Tribal 
leaders and other interested people. And then beyond that, we 
held focus groups, webinars, opportunities for additional 
comment. So we have had good communication flow.
    Senator Tester. And I assume these consultations weren't 
just with one Tribe. You didn't have six consultations with six 
Tribes. They were with leaders from many different Tribes, each 
consultation?
    Mr. Echo Hawk. Senator Tester, these were regional sessions 
located in different cities where a lot of Tribal leaders 
attended.
    Senator Tester. That is great.
    Tom, could we talk about declinations for a second? I mean 
the information that was given to us last year was pretty 
amazing, actually, and no amazing in a good way. Could you give 
me an idea if you have made any inroads into that 60 percent, 
70 percent declination issue?
    Mr. Perrelli. And Senator, I think we are improving. Our 
first report on this is going to come at the beginning of next 
year, but let me break it into two parts.
    First, there is what I would call just a core communication 
aspect of this, which is our agents and prosecutors 
communicating with Tribal law enforcement and Tribal 
prosecutors, as well as community members, about what is going 
on in particular cases. That was a directive that came from our 
Deputy Attorney General, that we needed to improve in that 
regard and we have been doing that all across the Country. It 
is a specific element of every U.S. Attorney's operational 
plan.
    And I would say the U.S. Attorney in Montana is leading 
this effort and he has a very simple operational plan, which is 
on a regular basis, his prosecutors sit down with the 
prosecutors of law enforcement of each Tribe and go through 
every case so that everyone knows either what is going on or 
makes sure things don't fall through the cracks.
    On the numbers, we are hopeful that the numbers that you 
will see at the beginning of the year are going to show real 
improvement. As we have said before, there are lots of reasons 
for a declination. It could be there was just no crime. It 
could be there was no jurisdiction. It could be someone else 
prosecuted. But all that being said, we know that the numbers 
are too high and we know that we need to do a better job of 
tracking them and explaining them.
    Senator Tester. Yes, it also could be that as we heard last 
year, that the evidence gathered was insufficient. Has there 
been anything done to address that?
    Mr. Perrelli. Among other things, we are obviously working 
with training Tribal police officers and moving more resources 
closer to the reservation so we can get that evidence earlier, 
but also working with State crime labs and developing 
partnerships with them so that some more crime analysis can be 
done in the field.
    Senator Tester. Okay, well, we will be looking forward to 
those reports that are coming out after the first of the year.
    Mr. Johnson, you probably have the toughest question I am 
going to ask today, but you said you are here to report that 
you have made progress. You talked about consultations. You 
talked about cross-designation. And you also said we can't 
arrest our way out of this, which by the way I agree with.
    Can you give me some specific examples of how you have made 
progress as far as the Tribal Law and Order Act and how it 
applies? Tom said there are studies that are going to come out 
at the end of the year.
    The bottom line is: Are communities being made safer? And 
what are you using for metrics to judge that? Okay, go ahead.
    Mr. Johnson. It is a very fair question, Senator. I look at 
the example of Rosebud Sioux Tribe. Where were we a year ago 
and where are we today?
    A year ago, I sat down with the Tribal prosecutor. They had 
one-and-a-half licensed attorneys who were prosecuting cases 
there. Today, they have seven. I think if you were to talk with 
their Attorney General, who would probably be in the best 
position to tell you about the changes in the last year, he 
would describe, for example, our office once a month we have 
our Assistant U.S. Attorneys, two of them, and two of the best 
prosecutors in our office, who go to Rosebud; who sit down with 
Tribal prosecutors, the Tribal police department, BIA, FBI, and 
we go through each one of these cases individually.
    And I think one of the biggest differences, and this was a 
major theme of the Tribal Law and Order Act, is there needs to 
be collaboration. We can't have the Federal side over here and 
the Tribal side over here. We need to be working together on 
these cases and really addressing them.
    A lot of these cases in Tribal court need to be addressed 
before the simple assault becomes the aggravated assault, and I 
think that is one of the hallmarks that we have seen in the 
last year is greater collaboration.
    Senator Tester. Okay. Well, thank you very much.
    Thank you, Mr. Chairman.
    I also want to thank Pamela for her testimony.
    Rose, thank you very much for coming to Montana and 
testifying on youth suicide in Indian Country. I very much 
appreciate that.
    And we may enter some questions for the record for you 
guys. Thank you very, very much.
    The Chairman. Thank you very much, Senator Tester.
    Let me just ask my colleague if you have any further 
second-round questions.
    If not, then I will move on. In the interest of time, I 
will be sending my remaining questions to the panel. Thank you 
very much.
    I would like to invite the second panel to the table, Mr. 
Troy Eid, Chair of the Indian Law and Order Commission from 
Denver, Colorado.
    Good to have you as the second panel. And Mr. Eid, will you 
please proceed with your testimony?

   STATEMENT OF TROY A. EID, CHAIRMAN, INDIAN LAW AND ORDER 
                           COMMISSION

    Mr. Eid. Thank you, Mr. Chairman, Committee Members. I 
guess I am the panel of one and I am honored to be here.
    My name is Troy Eid. I am the Chairman of the Indian Law 
and Order Commission. My day job is I am a law partner at the 
firm of Greenberg Traurig in Denver. When I am not practicing 
law, I am an Adjunct Law Professor and teach Indian law at both 
the University of Colorado and the University of Denver. I am 
Chair of the Training Committee of the Navajo Nation Bar 
Association, which does the training for Tribal court judges 
and Tribal advocates and attorneys on a reservation that is 
bigger than the State of West Virginia.
    I am here to represent our Commission. This Commission as 
you know was established by the Tribal Law and Order Act. There 
are nine of us. We are all volunteers. We appreciate greatly 
the bipartisan support of this Committee, and I want to thank 
you personally and I want to thank the staff. They have been 
fantastic to us.
    I also want to thank the Department of Justice, the 
Department of the Interior, the panel that was just here. They 
have provided to resources. Because of the budget situation, it 
took until this last month for us to be funded. We paid our own 
way for most of the time and we were honored to do so, given 
the statutory requirement.
    I would tell you that we lost a year. We were supposed to 
have two years to report to the President and to the Congress 
but we don't have a year to get our work done. We just started 
our field hearings the week before last at Tulalip in 
Washington State.
    So we will be sending you a letter, Mr. Chairman, 
respectfully asking for a one-year extension, which would not 
cost the taxpayers anything, so we could continue our work, and 
we appreciate your consideration of that.
    The Tribal Law and Order Act did, as you know, three basic 
things, and I want to try to give you a report in the three 
areas.
    The first was it tried to increase and enhance Federal 
accountability and transparency. Secondly, the Tribal Law and 
Order Act focused on helping Tribes have more freedom and 
flexibility for their own justice systems, designing them, 
running those systems. And third, the role of the Act was to 
increase cooperation among State, Federal and Tribal officials, 
areas like crime reporting; the ability to have 
interoperability of systems; law enforcement training and so 
on.
    Very briefly, Mr. Chairman, in the three categories. Number 
one, Federal accountability. I think that is where we are 
seeing the most progress because of the Act. And in this 
regard, I believe very strongly that the Tribal Law and Order 
Act has increased the trend that was happening particularly 
within the Executive Branch to focus on making this more of a 
priority which is, of course, what we should do, what we must 
do.
    And I would simply say that everywhere I go in Indian 
Country, and I have traveled most weeks of the year since 2004 
without a break to Indian Country, I hear and I see the change. 
I know that it is happening and it is great to see.
    But, Sir, having said that, we are just now beginning to 
get this job done and accomplished. There are way too many 
places where it is not happening. Case declinations, which I 
would be delighted to talk about, are a great example. What is 
a case declination? What is a case?
    When, as happened a few weeks ago in my home State of 
Colorado, the Bureau of Indian Affairs, which often does a good 
job, but in this case did not, when they sit on a case for 
three years. And the U.S. Attorney's Office gets five case 
files: arson with a confession; sexual assault. And they show 
up on the desk of a U.S. Attorney after five years. The U.S. 
Attorney never saw it before. Is that a case declination? 
Because who is going to take that to court? Who is going to be 
able to go to a Federal judge with that stale evidence and be 
able to say we are going to meet the ethical and legal 
standards for prosecution?
    So how do you define that? Does the U.S. Attorney suffer 
because he or she does not record that case declination 
statistic appropriately? Was that ever a case to decline? Those 
issues are very important. And I have to commend U.S. Attorney 
Johnson because he has reached out to us and we are going to 
sit down in November and go through declination criteria, see 
what we can do to make it fair across the FBI, the BIA, the 
Justice Department; try to make sure the public knows what this 
is about.
    Second category, which was the strengthening of Tribal 
justice systems, more freedom. It is great to have enhanced 
sentencing authority. Hardly anybody is doing it. You may see 
it from time to time, but frankly, there are probably 20 Tribes 
in this Country that are really set up right now to do that. 
For the vast majority of Tribes, they are going in a very 
different direction.
    At Navajo Nation, we have 144 total jail beds. We have 
235,000 Tribal members. How much more incarceration are we 
going to do? And that is the reality of what we face in the 
field. Without the money and the resources, the prospects for 
more incarceration are very limited. So great to have the 
freedom. Great to respect defendants' constitutional rights 
also. It must be done, but very limited in terms of impact 
except for specific areas where it can be implemented, which is 
great, like the Tulalip Nation that we visited last week.
    And then finally, just to close, Mr. Chairman, cooperation. 
Wonderful to see more of it between the Federal Government and 
Tribes, just what should happen. But what I would say to the 
Committee respectfully is that Tribal Law and Order Act did 
nothing to help with relations between the States and Tribes, 
nothing. And you see this in Washington State this last week. 
The Washington Supreme Court ruled there is no hot pursuit. 
When a non-Indian is DUI and drives off the reservation, that 
Tribal cop can't even detain that person off-reservation under 
a mutual aid agreement to allow for that county sheriff to show 
up and get that person behind bars. And drunk driving knows no 
jurisdictional boundaries.
    You see this time and time again. We must fine ways to 
incentivize cooperation between States and Tribes.
    So with that, I will be happy to take questions. Thank you, 
Sir.
    [The prepared statement of Mr. Eid follows:]

   Prepared Statement of Troy A. Eid, Chairman, Indian Law and Order 
                               Commission
    Thanks for the opportunity to testify on how the Tribal Law and 
Order Act of 2010 (``the Act'' or ``TLOA'') is affecting Indian 
Country. My name is Troy Eid and I chair the Indian Law and Order 
Commission (``the Commission''). This is the independent national 
advisory commission Congress created when passing the Tribal Law and 
Order Act in July of last year. The President and Congress appointed 
the nine Commissioners, who are all volunteers, last winter. The 
Commission received funding from the U.S. Departments of Justice and 
Interior late this summer to carry out our statutory responsibilities. 
Our role is not just to assess how the Tribal Law and Order Act is 
being implemented, but to recommend additional ways to strengthen 
justice and public safety for people living and working on and near 
Native American communities and lands throughout the United States.
Introduction
    By way of brief introduction, the Senate Majority Leader, Senator 
Harry Reid of Nevada, appointed me to the Commission, and the other 
Commissioners elected me Chair. I returned to private law practice in 
January 2009 after serving as the United States Attorney for the 
District of Colorado, appointed by President George W. Bush. I'm a 
partner in the Denver office of the law firm of Greenberg Traurig LLP, 
where I co-chair our American Indian Law Practice Group, which 
represents both Indian Tribes and companies doing business with them. 
I'm also an Adjunct Professor at both the University of Colorado School 
of Law in Boulder and at the University of Denver College of Law, where 
I teach civil and criminal justice and jurisdiction in Indian Country 
as well as energy, natural resource, and environmental law. My other 
volunteer activities include the Navajo Nation Bar Association 
(``NNBA''), where I chair the NNBA Training Committee. This includes 
preparing Tribal court judges, attorneys and lay advocates to sit for 
the semi-annual Navajo Nation bar examination in order to gain 
admission to practice law before the Navajo Supreme Court and district 
courts.
    The Commission does not have offices. We operate virtually--by 
teleconference, email and the web at 
www.indianlawandordercommission.com--and on the road by convening field 
hearings in Indian Country, as we did earlier this month at the Tulalip 
Tribes of Washington, north of Seattle. The U.S. Department of Justice 
has graciously loaned us two distinguished career federal employees, 
recruited by the Commission, to discharge our statutory duties. 
Assistant United States Attorney Jeff J. Davis, a member of the Turtle 
Mountain Band of Chippewa Tribe, recently joined the Commission as our 
Executive Director. He is a veteran Indian Country prosecutor and 
Tribal liaison with the United States Attorney's Office for the Western 
District of Michigan in Grand Rapids. Eileen Garry, the Deputy Director 
of the Justice Department's Bureau of Justice Assistance, is also 
graciously serving as the Deputy Executive Director of the Commission. 
We're grateful to the Justice Department for the support of these two 
extraordinarily talented and hard-working public servants. The Tribal 
Law and Order Act likewise provides that the U.S. Department of the 
Interior is to detail one or more loaned officials to the Commission, 
and we look forward to having that conversation with my friend 
Assistant Secretary Larry Echohawk and his team.
    Finally, I want to acknowledge the tremendous bipartisan support 
that the Commission has received from this Committee. The professional 
staff has encouraged our work at every stage, providing ongoing advice 
and counsel and enabling us to navigate unfamiliar waters while 
maintaining the Commission's independence as envisioned by the Act. We 
are exceedingly grateful.
    Keeping in mind our gratitude for the support that the Commission 
has received, we face a very short deadline for our final report to the 
President and Congress. Due to funding and budget restrictions, we were 
not able to organize until last month. This means we have just one year 
to accomplish our mission, instead of the two years envisioned by the 
Tribal Law and Order Act. We respectfully ask this Committee to 
consider extending the life of the Commission, at no additional cost to 
taxpayers, another year to meet the goals of all involved. We will send 
a letter to you at the earliest opportunity to set forth our request 
more formally, and thank you for your consideration.
Is TLOA Working?
    Now to the business at hand: Has the Tribal Law and Order Act 
improved public safety and justice throughout Indian Country?
    The answer is yes, but we're just getting started.
    The Act's passage last year took many people by surprise, not only 
among the usual Beltway skeptics here in Washington, DC but across 
Indian Country, where a generation of leaders had been disappointed by 
previous reform efforts. Given these very low expectations, the 
enactment of the Tribal Law and Order Act was something of a watershed.
    I don't say this lightly. On the contrary, I know from my own 
experience over the past 25 years that making meaningful changes to law 
and policy concerning Indian Country can be extremely difficult. We're 
dealing with the intersection of all three sources of sovereign power 
recognized by the U.S. Constitution: The Federal Government, the 
several states, and Indian Tribes and nations that pre-date the 
Constitution itself but have been shaped and reshaped radically over 
the years by the other sovereigns. The relationships among the three 
sovereigns never remain static for very long. Even within each 
sovereign, different constituencies may result in competing or 
contradictory priorities.
    Against that backdrop, TLOA's enactment was no small achievement. 
The Act attempts to do many things. Yet having been involved with it as 
a volunteer since 2007 when the then-Chairman of this Committee, 
Senator Byron L. Dorgan, and his staff first invited me to get involved 
in what became TLOA, I believe its basic purpose is threefold. First, 
TLOA was intended to make federal departments and agencies more 
accountable for serving Tribal lands. Second, the Act was designed to 
provide greater freedom for Indian Tribes and nations to design and run 
their own justice systems. This includes Tribal court systems 
generally, along with those communities that are subject to full or 
partial state criminal jurisdiction under Public Law 280. Third, TLOA 
sought to enhance cooperation among Tribal, federal and state officials 
in key areas such as law enforcement training, interoperability, and 
access to criminal justice information. Let me briefly address these 
three areas and look to the future.
Federal Transparency and Accountability
    TLOA's first major purpose was to bolster the Federal Government's 
accountability to Indian Tribes and nations that, since the passage of 
the Major Crimes Act in 1885, have largely depended on federal police, 
prosecutors and judges for protection from the most serious crimes. It 
is in this area, among the three major purposes of the Act that I've 
just listed, where the Federal Government appears to be making the most 
progress. Nearly everywhere I travel in Indian Country--and I do so 
most weeks of the year, and have since 2004--Tribal and federal 
officials say they're getting more encouragement from Washington to 
make Indian Country issues a priority. Extending this awareness to 
state and local officials in neighboring jurisdictions is perhaps the 
most urgent priority, as I'll discuss a little later. The Tribal Law 
and Order Act, and the many follow-up activities it requires of the 
Executive Branch, is contributing to this larger trend among federal 
and Tribal officials. This positive energy, and the perception of 
forward motion from Washington in at least acknowledging problems that 
were often previously dismissed as intractable, is refreshing.
    Yet we must also be realistic about how difficult it will be to 
achieve lasting reform in this area. The issue of publicly reporting 
so-called ``case declinations'' by federal prosecutors in Indian 
Country cases, as the Tribal Law and Order Act requires, is just one 
example. Achieving meaningful accountability and transparency in this 
area is harder than it looks. The underlying statutory responsibilities 
are split between two cabinet departments. The Department of Justice 
through the Federal Bureau of Investigation and the United States 
Attorney's Offices and the Bureau of Indian Affairs (BIA) Office of 
Justice Services, which provides law enforcement on many reservations, 
are both responsible for serving Indian Country.
    Simply put, the Justice Department's assessment of whether a given 
case should be publicly reported as ``declined'' for prosecution may 
differ markedly from that of the BIA which is administratively housed 
in the Department of the Interior. Despite the manifest good intentions 
of Darren Cruzan, who directs the Office of Justice Services, the BIA 
often lacks enough patrol officers and investigators to build criminal 
cases that are sufficiently strong to survive the rigors of federal 
court. BIA officers and investigators are not always properly trained 
and are frequently detailed or transferred from one community to 
another. Overall staffing levels for patrol and investigations, which 
TLOA did nothing to address, remain woefully inadequate on many, if not 
most, Indian reservations that are subject to primary BIA jurisdiction 
and the federal Courts of Indian Offenses.
    Consequently, case intake and reporting can be inconsistent, and 
even the most serious felony investigations often languish. Last 
summer, the BIA Police Department on the Ute Mountain Ute Reservation 
in my home state of Colorado delivered investigative files for five 
previously unknown criminal cases to the U.S. Attorney's Office in 
Durango. The files in all five BIA felony investigations, ranging from 
arson to sexual assault, were more than three years old and had never 
been previously disclosed to the Justice Department. They just ``fell 
through the cracks,'' as one Assistant U.S. Attorney told me last week 
as so often happens in Indian Country.
    In such instances, the U.S. Attorney might understandably conclude 
that the admissible evidence obtained during these BIA investigations 
is either so minimal or stale that it does not establish a reasonable 
likelihood of the defendant's conviction at trial. That is the legal 
and ethically required standard that guides U.S. Attorneys in 
determining whether to proceed through the federal judicial process. In 
terms of casedeclination reporting, is there really a prosecutable 
``case'' to decline?
    This example attests to how challenging it can be to bring greater 
accountability and transparency to federal agencies serving Indian 
Country as TLOA requires. Department of Justice leaders are grappling 
with these issues, and they should be commended for doing so. Let me 
especially thank Brendan Johnson, the United States Attorney for the 
District of South Dakota and Chair of the Native American Issues 
Subcommittee of the Attorney General's Advisory Committee. U.S. 
Attorney Johnson has reached out to the Commission and invited us to 
engage with his colleagues in a dialogue on the case-declination issue.
    The stakes are high. To victims of violent crime in Indian Country, 
who depend on federal officials to perform what would otherwise be 
purely local policing and prosecution decisions, seemingly arcane 
issues such as case-declination reporting and accurate Tribal crime 
data collection and reporting systems have profound real-world 
consequences. Crime statistics help drive federal criminal justice 
resources throughout Indian Country. Just last week, a senior BIA 
official assured me that the official crime statistics on the Ute 
Mountain Ute Reservation do not seem to justify additional federal 
resources there. Underreporting of criminal justice information at Ute 
Mountain and many other reservations remains a chronic problem, along 
with the BIA's frequent inability to keep accurate and readily 
accessible records for those offenses that are actually reported.
    This is changing in some parts of Indian Country, but slowly. TLOA 
requires the Bureau of Justice Statistics (BJS) of the U.S. Department 
of Justice to establish and implement a Tribal data collection system 
and to support Tribal participation in national records and information 
systems. In June, BJS issued its first required report summarizing the 
Department's efforts to improve Tribal law enforcement reporting to the 
FBI's Uniform Crime Reporting (UCR) Program. Bear in mind that accurate 
crime reporting in Indian Country has been the exception to the rule. 
2009 was the first year when BIA submissions to the UCR were actually 
broken down according to Indian Tribe and reported in the FBI's Crime 
in the United States report. I participated last year in one of several 
training sessions that BJS held for Tribal leaders, in conjunction with 
the FBI and the BIA Office of Justice Services, on the use of UCR 
systems. Such training is vital, especially for Tribes that are not 
meeting FBI data quality guidelines or are not submitting complete 
crime data to the BIA. In this and many other ways, the Departments of 
Justice and the Interior are working to make Tribal criminal justice 
data more accurate, complete and accessible, and more effectively 
integrated with state and federal records and reporting systems. Some 
of these initiatives probably would have moved forward even without the 
Tribal Law and Order Act. But the Act is focusing and accelerating 
these efforts far beyond what would have otherwise occurred.
More Flexibility for Tribal Courts
    A second major purpose of TLOA was to strengthen Tribal justice 
systems, especially through enhanced sentencing such as longer terms of 
incarceration for the most serious criminal offenses under Tribal law. 
On balance, these provisions appear to be working, but only for the 
relatively small number of Indian Tribes and nations that are in a 
position to take advantage of them in the foreseeable future.
    The Act amended 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 compared with the previous maximum penalty 
of a year in jail and/or a $5,000 fine. The statutory language 
attempted to strike a balance between respect for criminal defendants' 
federal Constitutional rights and the sovereignty of Tribal courts to 
enforce their own laws. In time, the federal courts may review and 
recalibrate that balance based on the efforts by those comparatively 
few Tribes that might be expected to assert what amounts to felony 
sentencing jurisdiction over Indian offenders.
    The ground truth in most of Indian Country is that only a minority 
of Tribal courts currently imposes jail sentences of even up to one 
year. The Tribal Law and Order Act required the Departments of Justice 
and the Interior to develop a long-term plan to build and enhance 
Tribal justice systems. The most striking feature of the August 2011 
report produced as a result of that statutory mandate is the number of 
Tribal courts that are pursuing alternative sentencing options, such as 
wellness courts and restitution programs, as opposed to longer terms of 
incarceration. Many of these programs hold the potential of reducing 
recidivism and saving public money. This is extremely important within 
the context of corrections where, according to a 2009 estimated by the 
National Institute for Corrections, for every one dollar spent on 
building detention facilities, between nine and 15 dollars is spent on 
continued operations and maintenance.
    Because TLOA did not change any aspect of the U.S. Supreme Court's 
1978 Oliphant decision, Tribal courts still cannot assert any criminal 
jurisdiction over non- Indians. With respect to Indians, TLOA permits 
Tribal courts to impose these enhanced sentences of incarceration 
through licensed judges who are not necessarily lawyers. However, 
Tribes must provide licensed attorneys, at Tribal expense, to all 
indigent Indian defendants facing jail sentences of more than one year, 
the traditional threshold for felony jurisdiction at common law.
Inter-Government Cooperation
    A third key purpose of the Tribal Law and Order Act was to enhance 
cooperation among Tribal, state and federal officials in order to 
create a more seamless and effective criminal justice system. On the 
positive side, U.S. Attorneys and the BIA Indian Police Academy both 
report that TLOA has resulted in a greater emphasis on Indian Country 
law enforcement training. This includes ensuring that more Tribal, 
state and local law enforcement officers are commissioned as federal 
officers--federally deputized--to fight Indian Country crime. Based on 
past experience, there is every reason to believe that encouraging U.S. 
Attorney's Offices and the BIA 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--and as described in 
the report of this Committee that accompanied the Tribal Law and Order 
Act--the U.S. Attorney's Office in Colorado partnered with the Southern 
Ute Indian Tribe's Justice Department and its visionary former 
director, Janelle Doughty. Together with our respective offices and the 
BIA 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-theground 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 working 
in the field.
    We started by training officers in Southwestern Colorado, but with 
assistance from the National Congress of American Indians, the program 
eventually went national. In less than two years, our pilot program 
expanded into 14 training sessions across the country attended by more 
than 400 law enforcement officers representing 35 Indian Tribes and 17 
states. Testifying before this Committee, Director Doughty described 
how a Tribal officer had responded to a domestic violence case on the 
Southern Ute Indian Reservation. The officer had been deputized through 
our pilot program and earned his Special Law Enforcement Commission 
(SLEC) card. He used his federal arrest power to apprehend a non-Indian 
who had repeatedly terrorized a Tribal member. As a direct result, the 
U.S. Attorney's Office prosecuted that case. The perpetrator went to 
prison.
    These and many other successes attest to what can be done when the 
federal and Tribal law enforcement officer and prosecutors work more 
closely together and have the tools they need to serve the public 
regardless of land status or the race or ethnicity of victims and 
defendants. Yet TLOA is doing little to improve law enforcement 
cooperation between Indian Tribes and nations, on the one hand, and 
state and local officials on the other.
    Earlier this month, for instance, the Washington Supreme Court 
ruled that Tribal police officers in that state lack ``fresh-pursuit'' 
authority. This means that Tribal officers in that Public Law 280 
jurisdiction are prohibited from arresting criminal suspects who flee 
the reservation, even for the limited purpose of detaining them under a 
mutual aid agreement until the proper jurisdiction can arrive at the 
scene. In the actual case, State of Washington v. Eriksen, No. 80653-5 
(Sept. 1, 2011), the suspect's blood alcohol content (BAC) exceeded the 
legal limit in both jurisdictions. Yet the effect of the Court's 
decision is to prevent Tribal officers from engaging in fresh-pursuit 
even when it means apprehending suspected drunk drivers who are no less 
dangerous on- or off-reservation.
    As a former state cabinet official, I'm profoundly respectful of 
state and local law enforcement prerogatives. Yet we simply must do 
more--much more--to encourage Tribes and states to work more closely 
together. Just a few days ago, a Tribal police officer in PL-280 
jurisdiction contacted the Commission to report the following:

        One of our officers pulled over a driver, on the reservation, 
        for DUI. The driver was a non-Indian. The State Patrol was 
        unable to respond. The County Sheriff's Office was then 
        requested. They refused to come out. Their watch commander then 
        ordered us to let the suspect go--on the reservation. I took a 
        breath sample in the field prior to the person being released. 
        He blew a .133 BAC. He also had two children in the car with 
        him. Instead of having him drive off as we were ordered to do 
        by the County, one of our officers took the keys from him and 
        gave him a ride so that he wouldn't kill himself, the kids or 
        someone else.

    For too many communities, scenarios like this are the rule, not the 
exception. The same goes for domestic violence cases. The Commission 
has already received hours of public testimony from state and Tribal 
court judges about the lack of reciprocal enforcement of restraining 
orders in domestic violence cases. We cannot rest until we find more 
effective ways to promote and reward Tribal-state cooperation on 
criminal justice issues.
Looking Forward
    Legislation is always the art of the possible--the specific 
improvements that can be achieved in the near future. The passage of 
TLOA was indeed a milestone. But many of the greatest challenges to 
securing equal justice for Native Americans living and working on 
Indian lands are structural. They're rooted in a system of federal 
institutions, laws and practices that pre-date the modern era of Tribal 
sovereignty and selfdetermination, and which TLOA does little or 
nothing to change.
    That's why TLOA created the Indian Law and Order Commission: to 
look beyond the status quo and recommend long-term structural 
improvements in Indian Country criminal justice.
    We all know that there have been times when reports by blue-ribbon 
panels do little but gather dust. Yet national commissions have 
sometimes been vitally important to the development of law and public 
policy concerning Native Americans and Tribal homelands. For instance, 
a nine-member national commission in 1928 published a landmark report, 
The Problem of Indian Administration. Commissioners visited 95 Indian 
reservations, documented deplorable conditions and failed federal 
policies, and advocated systemic changes ranging from education to 
Tribal self-governance. The ``Meriam Report,'' named for chief 
investigator Lewis Meriam, prompted President Franklin D. Roosevelt and 
the Congress to enact the Indian Reorganization Act of 1934. This 
signaled a critical policy shift, despite many later setbacks, from the 
longstanding national policy of forced assimilation and the unrelenting 
assault on Native American people, culture and institutions by federal 
and state governments.
    In our own time--and with the continued support of this Committee, 
the Congress, and this Administration--the Indian Law and Order 
Commission has the potential to ``think big,'' strengthening justice in 
Indian Country.
    Juvenile justice is a case in point. At least one-half of all 
juveniles held in federal criminal detention are Native American. This 
is due in large part to two federal laws: The Major Crimes Act of 1885, 
covering felonies involving Indians on reservations, and the Juvenile 
Delinquency Act of 1938, which transfers jurisdiction over most 
felonies involving Tribal youth from Indian nations to the Federal 
Government.
    In contrast to the vast majority of state and local governments in 
the United States, which have separate justice systems and programs for 
youth offenders, there is no separate juvenile justice system at the 
federal level. Tragically, Native American youth often enter the 
federal criminal justice system by operation of these outmoded federal 
statutes--based solely on their ethnicity and where they live--and 
often do not have access to diversion, drug court, and other 
rehabilitative programs. They're transferred from Tribal justice 
systems to federal criminal custody based on purely local offenses--
even when Tribal courts assert jurisdiction and have rehabilitative 
programs available for them.
    Once confined to the federal criminal justice system, Native 
American juveniles face harsher punishments for the same or very 
similar offenses. There is no parole in the federal system and no 
``good time'' credits, which means comparatively longer sentences. On 
average, federal sentences for juveniles are about twice as long as 
those imposed by state courts. And because there is no separate 
juvenile justice system at the federal level, Native American youth are 
disproportionately sentenced as adult offenders. Less than 2 percent of 
all juveniles processed in state courts are sentenced as adults, 
compared to an amazing one-third of all juveniles in the federal 
courts.
    In addition to the ongoing national tragedy involving Native 
American juvenile offenders, there are many other significant 
challenges to making Indian country safer. They include:

        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 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 the importance of Tribal sovereignty 
        in our federal Constitutional system 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.

    To gain insight into these and other systemic challenges, the 
Indian Law and Order Commission is visiting communities throughout 
Indian Country to develop recommendations for continuing reform and 
continuous improvement. In addition to support from the Department of 
Justice and the Interior as required by the Tribal Law and Order Act, 
the University of California at Los Angeles has voluntarily stepped 
forward with a generous gift of research support to assist our efforts. 
The breadth and depth of experience of the Commission's members is its 
greatest asset:

   Former U.S. Representatives Stephanie Herseth-Sandlin (SD) 
        and Earl Pomeroy (ND), who were instrumental in writing and 
        enacting TLOA.

   Jefferson Keel, Lieutenant Governor of the Chickasaw Nation 
        and President of the National Congress of American Indians

   Chief Judge Theresa Pouley (Colville) of the Tulalip Tribal 
        Court

   UCLA Law Professor Carole Goldberg, Indian law scholar and a 
        Justice of the Hualapai Tribal Appellate Court

   Affie Ellis (Navajo), public policy expert and a former 
        Assistant Attorney General for Wyoming

   Attorney Tom Gede, the former head of the Conference of 
        Western Attorneys General

   Ted Quasula (Hualapai), the General Manager of Grand Canyon 
        Skywalk Development Corporation and the former leader of the 
        BIA Office of Justice Services

    Time does not permit me to address the many other issues affecting 
criminal justice in Indian Country, such as the retrocession process 
for Tribes in PL-280 jurisdictions; the implementation of the Adam 
Walsh Act's Sex Offender Notification and Registration System, and 
other challenges. I welcome your questions and thank you again for your 
support and the opportunity to testify today.

    The Chairman. Thank you very much, Mr. Eid.
    Mr. Eid, do you believe the Carcieri decision further 
complicates Federal criminal jurisdiction?
    Mr. Eid. Mr. Chairman, thank you. Yes, absolutely. It needs 
to be fixed. And one reason why it needs to be fixed, Sir, is 
that any ambiguity about whether a conviction took place in a 
jurisdiction, was it under Federal jurisdiction or not, that is 
a post-conviction problem. Someone could challenge that in 
terms of habeas corpus later on and clog up the court system.
    So for that reason, and because it is a cloud right now 
prospectively for Tribes trying to acquire land and put it into 
trust, I would respectfully suggest it needs to be acted on and 
passed. That is a personal opinion, by the way.
    The Chairman. Mr. Eid, what role do you think will the 
Commission play in recommending alternatives to incarceration 
to BIA and DOJ?
    Mr. Eid. Thank you, Mr. Chairman. I think we have got to 
give Tribes more flexibility to deal with what they are 
actually facing. Typically, they are not locking people up for 
longer periods of time. It costs too much money. It is also in 
many cases not consistent with the values they have.
    We need to allow for more support for things like wellness 
courts, diversion programs based on restorative justice, 
whatever the Tribes are finding fights recidivism and protects 
the community. It is really up to them. And I appreciate the 
efforts that are being done to fund those programs, but it 
needs to be a conscious movement toward respecting those Indian 
nations.
    We have this value of localism in America. We respect local 
government. We want to be able to know that somebody is being 
treated in our community and helped. And if they need to be 
punished, they need to be punished. And believe me, I 
understand that issue.
    But we need to have more respect for what the Tribes are 
actually trying to do and accomplish. I appreciate the fact 
that some Tribes may want to lock people up longer, and it can 
certainly be appropriate. It is great that the BOP, the Federal 
Bureau of Prisons has provided some spaces for people, but 
nobody is really going in that direction yet, with very few 
exceptions.
    We need to go the other way where Tribes want to do it, and 
respect that their needs must be supported.
    And may I say please, Sir, in closing, we have got to begin 
to enforce domestic violence restraining orders off-
reservation. We have this huge problem and the Commission has 
heard lots of testimony on this, Sir. And the issue is that 
when somebody is a domestic violence perpetrator. They get a 
restraining order against them in the Tribal court. You take it 
to a State judge. The State judge may or may not enforce that. 
And frankly, the problem can be reciprocal, too, back the other 
way.
    The Congress needs to really encourage this cooperation; 
find incentives to get States and Tribes to enforce these 
orders so that we can protect people. Domestic violence 
perpetrators don't care where the victim is. They are going to 
hunt that victim down. So we have to try to protect that 
person.
    The Chairman. Mr. Eid, where else will the Commission hold 
field hearings? What issues do you expect to focus on?
    Mr. Eid. Well, I appreciate that very much, Sir. Sorry to 
interrupt.
    We are going to be hearing public testimony all over the 
Country and look forward, Sir, to going to both Alaska and 
Hawaii and other parts of the Country throughout Indian 
Country, East Coast, West Coast and in between.
    What I would tell you, Sir, is that juvenile justice is a 
huge issue for us. We are very concerned about the Federal 
system. As you may know, more than half of all the young people 
in the entire Federal criminal justice system for juveniles are 
Native American. And just one statistics, off-reservation the 
average rate for being sentenced as an adult in the State or 
Local court is between 1 percent and 2 percent. If you are a 
Native American person, you are in the Federal system, your 
odds are one-third of them are going to be sentenced as adults.
    On average, we know from the empirical research that Native 
American young people serve at least twice as long sentences of 
incarceration than anybody else. I think it is an equal 
protection problem and I think we have to try to address that 
issue.
    And it is not to blame any one person. We just have got to 
realize that the law has been frozen since about 1938 on 
juveniles and we need to come back and help them and treat them 
like everybody else in terms of other juveniles in this 
society.
    The Chairman. Yes, my final question to you is, can you 
tell us about some of the issues you heard at your recent field 
hearing? What should be focus on in the coming months?
    Mr. Eid. Well, thank you, Mr. Chairman. What I would say is 
in addition to the issues that I have just mentioned, 
particularly with respect to young people and domestic 
violence, a lot of concern about not just inadequate funding, 
of course we all hear that, we all know that, but how the 
Federal Government funds Tribal programs through grants. The 
grants are too hard to use. And we have heard this, too, with 
support from the Justice Department as well. They brought this 
issue to us. The grants are too hard to use. Oftentimes, only a 
small percentage of grants for criminal justice are even used 
by the Tribes because they can't meet all the red tape. They 
can't cut through it.
    So we want to make sure that when the Congress says here is 
a program; we are going to fund it in this tough time; that the 
money actually goes to those who need it. And that will be 
looking at fiscal reform in terms of grants and other funding 
mechanisms. I know that is very arcane, Sir, but we really want 
to try to help make recommendations in that area.
    The Chairman. Well, I thank you very much, Mr. Eid, for 
your testimony and also your responses. It will be helpful as 
we try to get a feeling from different groups as well, so that 
we can move in the right direction on this.
    Thank you very much.
    Mr. Eid. Thank you, Mr. Chairman.
    I would like to invite the third panel to the witness 
table. Serving on our third panel is the Honorable Ivan Posey, 
Council Member of the Joint Business Council of the Shoshone 
and Arapaho Tribes of Wind River Indian Reservation in Wyoming. 
I want to say, Mr. Posey, that our Vice Chair, Senator 
Barrasso, as you now, is not here but wanted to be here today, 
and had to return to Wyoming for the funeral services for 
former Senator Wallop. That is why he is not here.
    I also want to welcome the Honorable Theresa Pouley, Chief 
Judge of the Tulalip Tribal Court in Washington; and Ms. 
Jacqueline Johnson-Pata, Executive Director of the National 
Congress of American Indians in Washington, D.C.
    Welcome to all of you to this hearing.
    Councilman Posey, will you please proceed with your 
testimony?

STATEMENT OF HON. IVAN D. POSEY, COUNCIL MEMBER, JOINT BUSINESS 
    COUNCIL, SHOSHONE AND ARAPAHO TRIBES, WIND RIVER INDIAN 
                          RESERVATION

    Mr. Posey. Good afternoon, Senator. I would like to take 
this opportunity to thank for the opportunity to provide 
testimony to this important group. As you mentioned, our 
Senator also is a Vice Chairman of this group and all of our 
delegation if back in Wyoming for the funeral today for the 
late Senator Wallop.
    I have testified several times before on public safety in 
Indian Country. Today, I am pleased to make comments on the 
Tribal Law and Order Act.
    As you know, the Act was passed last July, and hasn't been 
fully implemented on our Indian reservation yet. I think it 
gives unprecedented authority to Tribal courts, law 
enforcement, and from what I heard and listened to today, I am 
very encouraged by the cooperation between the Federal agencies 
to address the many issues that make up a safe community on our 
reservations.
    Let me start by mentioning some history about the Wind 
River Reservation. We are 2.2 million acres, and we are the 
only reservation in Wyoming. It is the home to the Eastern 
Shoshone and Northern Arapaho Tribe. In 2010, we were selected 
under the HPPG, which is the high priority performance 
initiative, a Presidential initiative to look at public safety 
on our reservation.
    At the time, we had six law enforcement officers to cover a 
vast amount of area. Now, we have 22 officers, which has made a 
key difference. We appreciate the help of the local law 
enforcement for helping us to get there. We got more funding 
for our Tribal court system which allows it to function a 
little bit better, but we still have problems.
    Violent crime was one of the reasons we were selected for 
this initiative, and I think there are some aspects of the 
Tribal Law and Order Act that would be very beneficial to us. 
One is what SAMHSA is doing and also what the Indian Health 
Service is doing in terms of addressing substance abuse and 
alcoholism in our Tribal communities.
    Most violent crimes in our reservation are probably linked 
close to 100 percent alcohol related, whether it is domestic 
violence, a murder or whatever. Most of those are alcohol-
related, so I am glad to see the coordination and cooperation 
of those agencies to helping the country to address the 
underlying portion of our problems.
    One area that I am going to mention today is our need to 
have more focus on the juvenile justice system. We have a 
system now that exists that the original deterrent for younger 
kids if they get in trouble from truancy to more violent 
crimes, they get to be 18 years old and they end up going to 
Federal prison. As was mentioned earlier, they spend a lot of 
time in there and they come out hardened criminals.
    Part of our court system now consists of three judges. Our 
Chief Judges holds a juris doctor from University of Wyoming. 
He is the only lawyer that we have. We have two Associate 
Judges and we welcome the ability to sentence for a longer 
period of time, as mentioned in the Act. I understand that will 
take a MOA with rural prisons to start that process, and I 
guess no Tribe, from what I hear today, has really been 
implemented or used that agreement yet.
    It was mentioned earlier about the lack of follow up on 
some of the prosecution cases, and I think the ability for the 
U.S. Attorney to have a liaison with Indian Tribes would really 
help in that area. I think many times cases fall through the 
cracks. Some are not followed up, as the gentleman right before 
us mentioned. They may carry on for a long time, and there 
still needs to be more emphasis focused on white collar crime 
in Indian Country. It seems that there is more emphasis on 
violent crimes, which there should be, but there also needs to 
be more emphasis on some of the white collar crimes that take 
place in Indian Country every day.
    The Law and Order Act I believe will have positive effects 
throughout Indian Country in addressing our ability to govern 
ourselves as sovereign nations and assisting our ability to 
create and enhance public safety from our youngest babies to 
our oldest elders. We are prepared to do our part of make our 
community safer and it will be good for our communities.
    So with that, I will close. Thank you and God bless you.
    [The prepared statement of Mr. Posey follows:]

    Prepared Statement of Hon. Ivan D. Posey, Council Member, Joint 
   Business Council, Shoshone and Arapaho Tribes, Wind River Indian 
                              Reservation









    The Chairman. Thank you. Thank you very much.
    And now we will hear from the Honorable Theresa Pouley, 
your testimony, please.

   STATEMENT OF HON. THERESA M. POULEY, CHIEF JUDGE, TULALIP 
                          TRIBAL COURT

    Ms. Pouley. Good afternoon, Mr. Chairman. Thank you so much 
for allowing me to be here today. I can't tell you how honored 
I am as a Tribal Court Judge to get to appear to tell you about 
how the Law and Order Act is working in Indian Country, at 
least in the Northwest.
    I very often think about words of my ancestors when I 
reflect on those values. And in this case, Carlos Montezuma, 
who when he was talking about the state of oppression of Indian 
people in 1915 said, ``If it wasn't for the sturdiness, for the 
strength, and for the moral value of our ancestors, would we 
even be here today?'' That is one of the issues that I would 
like to address before the Committee today, the sturdiness of 
Indian people, how the Tribal courts view the enhanced 
sentencing provisions of the Law and Order Act.
    Second, the physical strength, how does the law other than 
the Law and Order Act support Tribes; and third, the physical 
strength, how do we treat our kids.
    The first is how does the enhanced sentencing provision 
actually impact Tribal court on a daily basis. I have to say 
that it is a difficult, at best, issue for Tribal courts and 
Tribal court judges. There is a great deal of planning that is 
involved in exercising the enhanced sentencing. And at the end 
of the day, Mr. Chairman, it is all about cost. Although the 
responsibility of public defense, although the responsibility 
of law-trained judges and law-trained prosecutors came with the 
Law and Order Act, the funds, Mr. Chairman, did not come with 
it.
    Particularly in terms of cost of incarceration, although 
the Bureau of Prisons rightly under the Act has promulgated 
regulations to allow us to use the Bureau of Prisons, it is 
only for major crime. Tulalip, like many Tribes in the 
Northwest, for most of our most serious offenders, uses 
exclusion tools to exclude them from the boundaries of our 
reservation. And if you violate that provision, you can then be 
cited with trespass. Now, we will be in the position of 
figuring out how to house those offenders on our own, because 
that is not covered by the Tribal Law and Order Act.
    The costs of incarceration are going to be substantial. And 
in Indian Country, we have to balance that with education and 
with health and with services that are needed by our community. 
Tulalip Tribe's full service court system, we have 1,000 new 
cases a year; 10 staff members; two judges; two probation 
officers; and the one thing that hasn't changed since 1980, Mr. 
Chairman, is that the Bureau of Indian Affairs provides Tulalip 
$30,000 to run that court system. It simply is not enough.
    Tulalip will be taking advantage of the enhanced sentencing 
provisions, but in a careful and methodically planned way so 
that we don't use the scarce resources our community needs for 
housing prisoners.
    The second thing I want to talk about is the physical 
strength of our ancestors, and that really is the law. I am 
absolutely grateful that the Law and Order Act recognized that 
Tribes can be given more authority and that comes with the 
responsibility. Unfortunately, the law sends cross-messages all 
the time. Just this month, the Washington State Supreme Court 
said that Tribal law enforcement officers cannot arrest drunk 
driving offenders who are driving drunk on the reservation if 
they happen to pull over on the side of the road that is the 
boundary of the reservation on non-reservation land. Chiefs of 
Police all over the State of Washington, from Tribal Chiefs of 
Police, are worried that it encourages persons to essentially 
flee to the border.
    So if the decision in Oliphant said that you can't stop 
those persons or arrest them within the boundaries of your 
reservation wasn't bad enough, now Eriksen says and you should 
flee to the border. How can we really say that we have 
increased safety when we sent that mixed message? We need to 
send the message that Tribes have full authority within the 
boundaries of their reservation.
    Last, the physical strength, which is the strength of our 
children. You heard the statistics from Chairman Eid. Half of 
the juveniles in the Federal system are Native. The part that 
we didn't hear is half of those kids were abused and neglected 
kids. We need to figure out how to beef up the provisions of 
the Indian Child Welfare Act to give notice to the Tribes so 
that they can look at all children the same, whether they are 
incarcerated or whether they are abused and neglected. Because, 
Mr. Chairman, they are the same.
    We do this for the future of our children in the ways of 
our ancestors.
    Thank you for allowing me to testify.
    [The prepared statement of Ms. Pouley follows:]

  Prepared Statement of Hon. Theresa M. Pouley, Chief Judge, Tulalip 
                              Tribal Court
    Mr. Chairman and members of the Committee, I appreciate the 
opportunity to provide testimony on the vital role that Tribal courts 
play in the effective administration of justice in Indian Country, to 
address the changes we have seen with the passage of the Tribal Law and 
Order Act and to discuss the measures that should be taken to build on 
this foundation. I speak from my experience as a long time Judge 
serving Tribes in the Northwest, the President of the Northwest Tribal 
Court Judges Association and a member of the Indian Law and Order 
Commission. Currently I serve as the Chief Judge of the Tulalip Tribal 
Court and Northwest Inter-Tribal Court System (NICS) and an Associate 
Justice of the Colville Court of Appeals. The Tribes I have had the 
honor to serve in Washington State range from urban to rural, and vary 
in size from small communities with a greatly diminished land base, to 
Tribes with expansive reservations. Although the governmental services 
and needs vary for these Tribes, I have found they all share a core 
commitment to fairness and justice for their communities. No government 
has a greater stake in effective criminal justice systems in Indian 
Country then the Tribes themselves.
    I was honored to testify before this body in July 2008 to support 
the legislation that would become the Tribal Law and Order Act. In 
2008, this body was considering measures that could be taken to address 
the alarming rates of violent crime occurring in Indian Country. At 
that time, the reports and studies that were being compiled and 
released confirmed what we in Indian Country already knew to be the 
tragic reality. I will not restate those statistics here, as they have 
been repeated frequently by many sources. Thankfully, there does not 
appear to be any further debate or dispute that Indian Country faces a 
crisis of violent crime. We are relieved and encouraged that the 
discussion has now turned to the more fundamental question of how we 
can reverse this trend and make Tribal lands safe for all of its 
citizens and visitors. I would also take this opportunity to thank the 
Congress and the President for the passage of the Tribal Law and Order 
Act, and the Administration for its remarkable steps to address this 
issue. The efforts to implement the Act are commendable, particularly 
the efforts of Attorney General Holder and the Department of Justice.
The Tulalip Tribes and Justice System Background
    The Tulalip Tribes consists of a confederation of several Coast 
Salish Tribes and is a signatory to the 1855 Treaty of Point Elliott. 
Today, the Tulalip community is located on a 22,000 acre Reservation 
bordering the Puget Sound 40 miles north of Seattle. This area has 
experienced rapid population growth and development. Tulalip has 4,000 
enrolled members, but the majority of Reservation residents are non-
Indian. A history of allotments on the Reservation created a 
checkerboard of Indian and non-Indian land ownership that is common to 
most Reservations in Washington State. The Tribe has in recent years 
re-acquired a great deal of its Reservation land, and today the Tribe 
or Tribal members hold approximately 60 percent of the Reservation 
lands with the balance held in non-Indian ownership.
    With great effort, the Tulalip Tribe retroceded criminal 
jurisdiction in 2001. Since then the Tribe has taken on the 
responsibility to build its own criminal justice system. In the last 
decade the Tulalip Tribal Justice system has made great strides, 
developing a full service police department and court system as well as 
a strong support system of prosecutors, probation officers and public 
defenders. In that time crime rates have dropped and the quality of 
life in the community has improved. During the same period of time, the 
Tribe underwent substantial economic development. The Tribes 
incorporated Quil Ceda Village to promote Reservation based business 
development including a casino, retail outlet mall, and most recently, 
a 400-room resort hotel. The success of this development has created 
thousands of new jobs, brought in millions of new visitors to the 
Reservation and provided much needed revenues to the Tribal Government.
    Retrocession of the Tulalip Tribes' criminal jurisdiction from the 
State of Washington was critical to establishing a substantial increase 
in public safety on the Tulalip Reservation. In Washington State 
retrocession of criminal jurisdiction is provided by state statute. 
There is a draft bill in Washington that would allow individual Tribes 
to ``opt in'' to taking full jurisdiction within their boundaries and 
the Tulalip Tribes supports every Tribe's ability to decide the 
exercise of its own authority and jurisdiction.
Tribal Efforts
    In 2008 I testified before this body that the Tulalip Tribe was 
eager to continue to develop its Tribal justice system and continue to 
provide the critical services needed by its population. We then 
supported passage of the Tribal Law and Order Act and, in particular, 
asked Congress to authorize enhanced sentencing authority to the 
Tribes. The Act was signed in July 2010 and I would like to update the 
Committee on the efforts that are being taken at Tulalip in response to 
passage of the Act.
    Since the Act passed I have had the opportunity to meet with many 
Tribal leaders and federal and state government officials interested in 
the development of Tribal justice systems. Congress should be 
encouraged that Tribes are patiently and methodically taking measured 
and reasoned steps toward exercising the additional sentencing 
authority granted by the TLOA. It is important that we not misinterpret 
the Tribes' lack of immediate implementation of this authority as a 
sign that the problems are not as bad as stated or that Tribes do not 
care to exercise this authority. We must understand that the TLOA, 
while offering only an incremental step to improving Tribal justice, 
presents Tribes with a substantial change in the way they operate their 
courts. This change presents risks and costs that the Tribes are 
measuring carefully before simply jumping forward.
    The wisdom of the ``opt in'' provisions of the TLOA is evident as 
some Tribes may judge the changes in TLOA coming at too high a cost to 
their sovereignty and independence. It is perceived that some of the 
requirements in TLOA, presumably adopted to protect defendants' due 
process, will push Tribal courts to be more like federal courts, and 
this is not typically a welcomed push. At Tulalip we have had to 
carefully study ways to implement the provisions of TLOA while still 
retaining our Tribal identity and balancing extended punishment 
philosophies with the holistic programs and methods that have been 
successful over the years. This has not been easy and it has required 
careful planning and cooperation of all the key players in our justice 
system.
    When Tribes take a realistic look at the provisions of TLOA, it is 
clear that exercising enhanced sentencing authority will require 
additional financial obligations. While the Act offers Tribes a method 
to exercise enhanced sentencing authority, it came with no new sources 
of funding and failed to address the substantial economic challenges 
Tribes are already facing in providing fundamental public services to 
their communities such as police and courts. Tribes that wish to build 
their own justice system are generally left to fund that system with 
only Tribal resources. Like the federal and state systems, Tribal 
resources are limited, and Tribes must make balanced decisions on where 
and how they will invest those resources. The Committee should be 
encouraged by the time invested by Tribes to ensure that the decisions 
they make are right today and right for the future of the Tribe.
Enhanced Sentencing Authority Requirements
    The Tribal Law and Order Act still leaves the Tribes reliant upon 
federal prosecution of many crimes, and the U.S. Attorney will still 
decline to prosecute some major offenses. In situations where the U. S. 
Attorney's Office chooses not to prosecute, expanded authority gives 
Tribal courts the capacity to more appropriately sentence violent 
offenders. As I acknowledged in 2008 although crimes requiring long-
term jail sentences are not a common occurrence at Tulalip, in those 
situations where the court is faced with prosecuting serious violent 
crimes, it is important for the Tribal Court to have appropriate 
sentencing authority. At Tulalip, our focus is on alternatives to 
incarceration aimed at promoting positive personal changes, healing and 
preventing recidivism. There are, however, times when the Tribal Court 
is faced with violent offenders in which longer incarceration periods 
are necessary and vitally important. Because we are mindful that 
expanded sentencing authority comes with increased infrastructure 
demands and incarceration expenses we are carefully reviewing and 
amending our Tribal code to apply the expanded authority to only the 
most serious of offenses.
    The expense of incarceration may be the highest hurdle for Tribal 
courts to clear before expanded sentencing will be imposed. The GAO 
Report on Indian Country Criminal Justice, published in February 2011, 
confirmed that detention space and the cost of detention are major 
issues for all surveyed Tribes. Unless the incarceration costs are 
assumed or reimbursed by the Federal Government, few Tribes will be 
able to bear that expense. Regionally, non-Tribal governments spend 
over 70 percent of their general fund resources on law and justice 
expenses, and jails are the largest line item in that budget. Few 
Tribes will be willing or able to divert those types of resources from 
funding sources desperately needed for housing, education, and 
healthcare. While the federal Bureau of Prisons pilot project to house 
Tribal inmates is notable, it is unlikely to offer a viable long-term 
solution for all Tribes to address this significant expense.
    At Tulalip, we are also mindful that cases in which a defendant may 
face up to three years in custody will carry the expectation that a 
defendant will receive even more robust prosecution and defense 
services. This will increase the costs of running the court, as the 
trials will be longer, requiring more time of the judges and court 
staff. Defense costs will also likely increase as the need for experts 
and other special trial preparation increases. Although the commitment 
to protecting defendant rights is a shared value throughout Indian 
Country, the ability to provide sufficient funding to justice systems 
varies greatly from Tribe to Tribe. Many Indian Tribes have extremely 
limited governmental budgets and sufficient Tribal funds are not always 
available for many essential government functions. If serious public 
safety issues on many reservations are going to be addressed, the 
Federal Government must fulfill its trust obligation by providing 
funding, or funding mechanisms to provide for public defenders in 
Indian Country.
    Tulalip has found creative ways to support outstanding public 
defense services for the accused. It has done so by creating a 
partnership with the University of Washington Law School and 
establishing a trial practice clinic at Tulalip Tribal Court. Through 
this partnership, the University of Washington Tribal Defense Clinic 
provides the first line of public defense services that are managed by 
two highly experienced and highly regarded former state public 
defenders. They, in turn, supervise law students at all phases of the 
criminal case. In cases where there are conflicts, the Court has a 
panel of counsel to assign to defendants who meet the financial 
criteria for a public defender. Success in meeting demands such as 
public defense will require support from the Federal Government and 
creative planning such has been done at Tulalip.
    I believe Indian Country is well positioned to exercise the 
expanded sentencing authority extended by the Tribal Law and Order Act. 
Some communities will be able to act quickly to amend their practices 
and laws as needed to implement the Act; others will take years. During 
that time, significant consultation with and assistance from the 
Federal Government will be needed.
Jurisdiction and Authority
    Although the Tulalip Tribes supported the changes brought by the 
Tribal Law and Order Act, those changes are realistically only a good 
first step to solving the major impediments to the development of vital 
and fully functioning Tribal justice systems. When we recognize the 
alarming level of violent crime in Indian Country, we must not forget 
that the majority of perpetrators of violent crime against Indians are 
non-Indian. Tribes have been stripped of jurisdiction over non-Indian 
offenders. Tribes seek the assistance of federal law enforcement to 
address these crimes, but given the few federal law enforcement 
officers assigned to Indian Country, many of these crimes go 
unpunished.
    The 2010 declination report from DOJ confirmed what those of us in 
Indian Country have reported for years; the Federal Government is 
prosecuting only a very small fraction of major crimes and crimes that 
are committed by non-Indians that are committed in Indian Country. 
There are many reasons for this disturbing fact, some more innocent 
than others, but one fact appears to be true and is most relevant to 
the discussion today. The Federal Government is not an appropriate or 
effective tool for local law enforcement. The very structure of the 
federal system makes it better suited to address issues of national 
security and nation-wide crime. The lack of local resources and lack of 
understanding and connection to Tribal culture, conditions and concerns 
render the federal system ill suited to effectuate truly meaningful and 
long-term public safety results. True change can only be achieved when 
Tribal governments and Tribal justice systems are given the ability to 
address the safety of their own communities.
    Currently Tribes have the ability to detain non-Indian perpetrators 
for a brief time and turn them over to state or federal authorities for 
prosecution. The Tribe may also exclude the offender from its 
territory, but the Tribe cannot prosecute non-Indians for crimes. We 
support the proposed VAWA amendments that will recognize Tribal 
authority over non-Indian perpetrators of domestic and sexual violence 
against Indian women occurring within the physical jurisdiction of the 
Tribe. Additionally we are pleased that VAWA amendments address the 
Tribe's civil jurisdiction over non-Indians who violate protection 
orders. We appreciate the Department of Justice's willingness to 
consult with Tribes on this issue and we greatly appreciate Associate 
Attorney General Perrelli's testimony in support of the amendments. But 
that is not enough. The Supreme Court's decision in Oliphant v 
Suquamish Indian Tribe, 435 U.S. 191 (1978) left open the possibility 
that Congress could change the presumptive rule that Tribal governments 
possess no criminal jurisdiction over non-Indians. The VAWA 2000 
amendments, however, did not do so as they addressed only Tribal civil 
jurisdiction and did not discuss Tribal criminal jurisdiction. While 
Congress didn't address it then, it is time to do so now.
    While Oliphant is one of the most notable court decisions impacting 
Tribal jurisdiction and authority, there are innumerable additional 
Supreme Court, federal and state court decisions that have thrown the 
question of Tribal authority into a constant state of confusion. In 
Washington State, for instance, there have been a number of Supreme 
Court decisions relating to Indian Country which send conflicting 
messages. Even if the reasoning of the decisions correctly interprets 
the law, the unpredictable nature of the decisions is disruptive and 
dangerous.
    In September of 2011 the Washington Supreme Court issued its third 
decision in the case of State v. Eriksen. In the first two decisions in 
2009 and 2010 the court affirmed the authority of Tribal police to 
pursue a non-Indian DUI suspect driving on a Reservation road off the 
Reservation and to stop and detain the suspect until state authorities 
can arrive on the scene. This decision followed an earlier opinion that 
authorized Tribal police to stop and detain non-Indian criminal 
suspects on Reservation and turn them over to the state authorities for 
prosecution. In September of 2011, after a change of Supreme Court 
justices, the Eriksen decision was reconsidered and this time reversed. 
With this decision, Tribal police are powerless to stop criminal 
suspects that successfully flee beyond the Reservation boundaries.
    The Eriksen majority noted that Tribal officers that successfully 
complete comprehensive state training, in addition to required federal 
or Tribal training, may be cross-deputized and therefore gain state law 
enforcement authority to pursue non-Indian perpetrators off-
Reservation. Unfortunately, this solution ignores Tribal officers' 
inherent authority under Tribal law and discounts their already 
considerable qualifications. It also creates a dangerous situation. The 
message to non-Indian offenders is that Tribal police have no authority 
to arrest and if you commit a crime on Reservation you should race to 
the border to escape prosecution. Even in cases where the Tribal police 
have been cross-deputized, this ruling creates an unacceptable risk. 
Perpetrators are unlikely to know, or consider, whether officers are 
cross-deputized. In their mind the risk of prosecution now far 
outweighs the risk of fleeing. Today it is the best defense to run from 
all Tribal police. This creates a dangerous situation for the 
perpetrator, the police and the community.
    The Eriksen case is only one example of the type of confusion that 
exists regarding Tribal jurisdication and authority and the type of 
danger that this confusion creates in our communities. The time has 
come for a comprehensive legislative statement that resolves this 
confusion and affirms the complete and inherent authority of Tribes to 
regulate and police the public safety threats that occur within the 
Reservation boundaries.
Juvenile Justice
    The number of American Indian and Alaska Native youth involved in 
the criminal Justice system remains largely unaddressed and unresolved 
under the Tribal Law and Order Act. The June 2011 Bureau of Justice 
Statistics report entitled ``Summary: Tribal Youth in the Federal 
Justice System'' presents a tragic picture of the overrepresentation of 
Tribal youth in the federal justice system. The report notes that 
Tribal youth comprised nearly half of juveniles handled by the federal 
courts in 2008. It also notes that in 2008, Tribal youth served an 
average of 26 months under federal jurisdiction, which is more than 
double the Tribal justice system maximum sentence at that time. Even 
more tragic is the fact that the vast majority of Tribal youth 
committing crimes were previously abused and neglected children.
    In Washington State, the Center for Court research provided 
statistics to the Commission on Children in Foster Care which 
dramatically demonstrated that the more extensive the involvement of 
youth in the child welfare system, the more likely they will become 
juvenile offenders. The report noted that over one-half of all Native 
youth involved in the child welfare system will end up with a new 
offender referral and of those, Native American youth are more likely 
than any other race (79 percent) to commit another offense within 24 
months.
    The intersection of juvenile criminal behavior and child welfare 
involvement cannot be ignored. The notice provisions of the Indian 
Child Welfare Act must be enforced and strengthened. As recommended by 
the National Indian Child Welfare Association, Tribes need a stronger 
voice and larger presence in state and federal delinquency proceedings. 
The same practices that are employed in child welfare cases can and 
should be used to create better solutions for Indian children in 
delinquency proceedings.
Funding
    In 2008, I testified that Tribal courts were the most effective 
administrators of justice in Indian Country and that Tulalip Tribal 
Court demonstrated that effective funding results in substantial public 
safety gains; a principle the Federal Government agreed with by the 
passage of the Tribal Law and Order Act. In the last two years the DOJ 
has stepped up efforts to more effectively meet its prosecutorial 
duties; it has commissioned numerous studies and reports that have 
provided very useful data; and Attorney General Holder, his immediate 
deputies and many DOJ staff have dedicated innumerable hours to 
consultation with the Tribes. All of these measures are greatly 
appreciated by the Tribes. Unfortunately, in the last three years, 
while the Act gives Tribal courts the responsibilities and requirements 
of its state and federal counterparts, one thing has not changed--there 
has been no increase in base funding for Tribal courts.
    It is impossible to discuss the subject of the development of 
Tribal justice systems without the subject of inadequate funding and 
lack of resources taking a central role in the analysis of all problems 
and solutions. The GAO confirmed in its February 2011 report that all 
Tribes rely on federal funding for justice systems, but for the 
majority federal funding is a fraction of their total budget. The GAO 
found that the lack of resources forces Tribes to make critical trade-
offs in services. Lack of funding prevents Tribal courts from 
maintaining adequate staffing and prevents them from recruiting and 
maintaining quality and experienced staff. Given the economic and 
budgetary realities of all governments (federal, state, and Tribal), it 
is unrealistic and unreasonable to simply assert that there needs to be 
more funding. Although more money would be welcome in Indian Country, 
we must instead explore more creative and productive methods of 
distributing the funding that exists and to open doors for the Tribes 
to find and generate new revenue streams so that they can deliver vital 
services to their own communities.
    Although the Federal Government has fallen short in addressing the 
critical public safety problems in Indian Country, Tulalip and other 
Indian Tribes fortunate enough in recent years to raise revenues 
through gaming and new business enterprises have taken on the primary 
role of law enforcement on the Reservation. Since shouldering this 
responsibility, Tulalip and other Northwest Tribes have seen crime 
rates begin to drop, and the quality of life on the Reservation 
improve. Taking a lead role in criminal justice has gone hand in hand 
with steady gains in economic development and employment opportunities 
on the Reservation. Tulalip recognizes, however, that these gains are 
fragile, because Tribes lack reliable revenue sources that 
traditionally fund government justice systems.
    One change that could afford a near immediate infusion of Tribal 
court funding without requiring additional appropriations has already 
been championed to the Senate. It seems like a simple idea, but one 
that has yet to be adopted by any legislators or policy-makers; Tribal 
courts should be considered in the same light as all federal, state and 
local courts for funding resources. Some state court systems are 
beginning to recognize that Tribal courts can be and should be 
important partners in the administration of justice in this country. 
Instead of appearing as strange and foreign bodies, Tribal courts are 
being recognized for their often innovative and effective operations. 
Even so, Tribal courts are often excluded from federal and state 
planning and budgeting. Tribal justice systems should be included in 
funding streams provided to their federal and state court counterparts. 
Judge Raquel Montoya-Lewis and Judge Patricia Martin, President of the 
National Council of Juvenile and Family Court Judges, testified jointly 
before the Senate Finance Committee that Tribal courts should be 
eligible for federal court improvement funds available to other court 
systems. Funding of all court systems must be equal to assure equal 
results.
    I encourage the Committee to identify measures to support and fund 
strong Tribal law enforcement and court operations. More direct funding 
to Tribal courts is drastically needed. In addition to federal funding, 
Congress has a role to play in authorizing an expansion of Tribal 
government authority to raise revenues for Tribal justice systems--
justice systems that benefit both Indians and non-Indians who reside in 
and around Reservation communities. Because Tribal justice systems are 
the most effective means of addressing the public safety problems on 
Reservations, federal funds used to support Tribal justice systems are 
funds well spent. Tulalip has demonstrated that if sufficient resources 
are dedicated to Tribal justice systems, real gains can be made in 
addressing the serious public safety problems in Indian Country. We 
urge the Committee to authorize increased federal funding to what works 
best--building quality Tribal justice systems.
    Tribal Justice systems and Tribal solutions are the best and most 
effective method to deal with public safety issues in Indian Country. 
Passage of the Tribal Law and Order Act and the Administration's superb 
efforts to see effective implementation of the Act are long-overdue, 
but greatly welcomed major steps toward this goal. But we must not be 
satisfied with our current achievements. There is a much longer road to 
journey before we can truly find success. We encourage this Committee 
to make the hard decisions and make the right recommendations that will 
take us down that road. We look forward to the opportunity to work with 
you on changes to strengthen the effectiveness of our justice systems.

    The Chairman. Thank you very much, Judge Pouley.
    Ms. Johnson-Pata. will you please proceed with your 
testimony?

   STATEMENT OF JACQUELINE JOHNSON-PATA, EXECUTIVE DIRECTOR, 
             NATIONAL CONGRESS OF AMERICAN INDIANS

    Ms. Johnson-Pata. Thank you, Chairman. Thank you for the 
opportunity to testify today on behalf of the National Congress 
of American Indians. As you know, we have testified many times 
before, particularly about the Tribal Law and Order Act and the 
need for that, and we join with the others from the previous 
panels and this panel in congratulating Congress once again for 
passing this, and also the Administration for the 
implementation thus far.
    We are pleased and satisfied with the implementation and 
the outreach from the Federal agencies, but of course we would 
be remiss if we didn't talk about some of our recommendations 
to improve. NCAI, as others sitting here on this panel, won't 
be satisfied until the crime rates drop significantly in Indian 
Country and our communities become more safe.
    I want to first start with the first area of our 
recommendations, and I have many more recommendations in my 
written testimony. I am only going to focus on a couple of 
them.
    The first one is something that has already been talked 
about, which is the need for resources. And so not only do we 
have this need for resources that you hear about, but resources 
that were needed even at the beginning of the implementation of 
the Tribal Law and Order Act that we knew were going to be here 
and the critical funding. But on top of that, we are in a 
situation where we are concerned about the Budget Control Act 
of 2011, which would then take those already meager 
discretionary funds and have further cuts for Indian Country.
    And so I want to let you know I think Tribes across the 
Country stand united to reminding Congress of our Federal 
responsibility, our Federal trust obligation and responsibility 
to fund these programs, and particularly these programs that 
are critical to protecting our land, our resources, which 
include the safety of our citizenry. And so as we look at these 
cuts under the Budget Control Act, let us be reminded of that.
    Second, the violence against women issue, and I want to 
again thank this Committee for the work that you have done, not 
only having the oversight hearing that you had in July, but 
also the proposed legislation with statutory changes that you 
have put forward. And, of course, we strongly support those 
efforts and hope that the Committee will continue this work to 
collaborate closely with the Senate Judiciary Committee and to 
be able to ensure that those legislative proposals actually get 
placed in the upcoming violence against women reauthorization.
    And also, as you know, this past summer the Department of 
Justice released their legislative proposal to ensure that 
Native women receive the same protections and equal access to 
justice as other women in America. And we, of course, support 
DOJ's proposal and strongly request your support to include 
those or similar language in the violence against women 
reauthorization.
    And the third thing that I wanted to talk about is the land 
confusion issue, which is really the Carcieri v. Salazar, and I 
appreciate the questions that you asked previous panelists 
about this issue.
    So the decision of the Supreme Court created significant 
confusion and we have seen rising litigation over the status of 
reservation lands in Indian Country. And while Carcieri only 
addressed the land-into-trust issue, there are further negative 
consequences if the IRA Act is not clarified. And that is the 
legal foundation for most Tribal constitutions and the 
jurisdictions that is serves. So then it would bring into 
question Native organizations providing services. It brings in 
the status of land and those provision of those services.
    And so I believe as we look at it, we are concerned that it 
is only a matter of time before somebody uses negatively the 
effect of safety on our reservations to litigate or to find a 
way to get out of some of the jurisdictions of Tribes, 
particularly around the reinforcement of the Violence Against 
Women Act. And of course, we know that that would then harm the 
greater number of victims, which is our children and our women 
in Indian Country.
    And so in summing up, I want to in the three area of 
funding, of course violence against women amendments, and the 
land uncertainty are three big things. But in conclusion, I 
just wanted to make one more comment. And that really is the 
declination rates that Senator Tester asked some questions 
about.
    And of course, that was the driving force behind the TLOA 
was to be able to address those declination rates and to be 
able to really reduce those. And so we are urging the Committee 
to continue your oversight role, to be able to make sure that 
that report comes timely, and that we able to have that 
information so it can help us further address the critical 
needs of improving the protection of our citizens within Indian 
Country and to be able to have those enforced representations 
that are necessary by our Federal partners.
    So thank you very much for this opportunity to testify.
    [The prepared statement of Ms. Johnson-Pata follows:]

  Prepared Statement of Jacqueline Johnson-Pata, Executive Director, 
                 National Congress of American Indians
    Honorable Chairman and distinguished members of the Committee, 
thank you for the opportunity to testify today. Leading up to the 
passage of the Tribal Law & Order Act (TLOA), NCAI provided testimony 
multiple times on an array of public safety issues relevant to Tribal 
nations. We commend Congress for passing this historic legislation last 
year, and we applaud the Administration's implementation efforts thus 
far. However, we are acutely aware that these steps are just the first 
of many that must be taken to remedy the broken system of justice found 
on most Tribal lands. It is imperative that we sustain this momentum, 
not only on TLOA implementation, but on other Indian Country public 
safety initiatives as well. Today, I will briefly highlight progress 
made since enactment of the Tribal Law & Order Act, and--most 
importantly--I will discuss the hard work that is yet to be done.
    Before I do that, I want to first thank the members of the Senate 
Committee on Indian Affairs for their efforts in developing the Act. In 
the tradition of this committee, it was a bi-partisan effort that 
involved a great deal of outreach and consultation with Tribal leaders. 
In particular, I would like to thank Senator Barrasso and the former 
chairman Senator Dorgan for their efforts in shepherding the bill. 
Chairman Akaka, I want to thank you for following up and ensuring that 
the statute is implemented. Implementation and oversight are critical 
to improving reservation law enforcement.
    So far, the results of the TLOA have exceeded our expectations in 
at least one very significant way. The passage of the Act has placed 
focus and attention on law enforcement problems that had flown under 
the radar for many years. It has made people think about ways to 
improve the system. The implementation schedule in the Act has been 
very helpful because it holds agencies accountable for creating change. 
Today we are looking at the Federal Government's implementation 
efforts, but the TLOA is also having a significant impact among Tribal 
governments. Tribes are given more choices under the Act, and it is 
creating an opportunity for Tribal councils to work through their law 
enforcement codes and develop their own solutions.
    Although NCAI is pleased with the implementation so far, we will 
not be satisfied until reservation crime rates have dropped 
significantly and every person in Indian country lives in a safe 
community. So I would like to begin there--the next steps we need to 
take to continue to improve reservation law enforcement.
Work To Be Done
    Despite all of the progress that has resulted from passage of the 
Tribal Law & Order Act and the Obama Administration's commitment to 
public safety in Indian Country, there is still a lot of work to be 
done before Tribal nations can achieve a level of safety comparable to 
non-Native communities in the United States. I respectfully urge the 
Committee to pay special attention to the following three areas.
Funding
    The intended ends of the TLOA cannot be achieved unless Tribes have 
the means to implement them. This requires adequate federal funding for 
critical Tribal justice programs that will support the overarching TLOA 
vision of comprehensive law enforcement reform. Native Americans--like 
all Americans--deserve to live free of fear in their communities, where 
their basic rights are protected and they can trust the justice system 
that serves them.
    We are particularly concerned about the Budget Control Act of 2011 
which requires Congress to reduce the deficit under an uncertain 
process, or cut discretionary spending from FY 2012 through FY 2021, 
with across the board cuts of 14 to 15 percent. Most of the funding 
that fulfills the federal trust responsibility for reservation law 
enforcement is categorized as domestic discretionary spending. We are 
tremendously concerned that impending federal budget cuts will 
devastate reservation law enforcement.
    Tribes stand united in reminding Congress that the Federal 
Government's trust obligation to sustain funding for Tribal programs in 
the federal budget is absolute. This obligation is the result of 
treaties negotiated and agreements made between Tribes and the United 
States in exchange for land and resources. It must be honored and 
protected within each act of Congress, including those acts pursuant to 
the Budget Control Act of 2011.
    Not only must current budgets be maintained, reservation law 
enforcement and justice systems that have been underfunded and 
understaffed for decades must be given a boost. Increased and targeted 
funding in the following program areas will help combat the violent 
crime epidemic on Indian lands and strengthen Tribal justice systems 
for future generations.
    The Senate Committee on Commerce, Justice, and Science recently 
included language in its appropriations bill for a 7 percent Tribal 
set-aside from all discretionary Office of Justice Programs (OJP) 
programs to address Indian country public safety and Tribal criminal 
justice needs. This 7 percent set-aside would provide a more flexible 
grant structure to Tribes, which would complement the Department of 
Justice's Coordinated Tribal Assistance Solicitation (CTAS). CTAS 
attempts to streamline the application process for Tribes, enabling 
them to submit a single application and select multiple purpose areas 
(ranging from juvenile justice to violence against women), as opposed 
to previous years in which they would have been required to submit 
multiple grant applications. However, this streamlined application 
model will not achieve its intended success unless and until it is 
accompanied by a streamlined funding mechanism. NCAI strongly supports 
the creation of a 7 percent Tribal set-aside of OJP programs and urges 
Congress to do the same.
    NCAI supports an increase in the number of FBI agents assigned to 
Indian Country. Funding for additional FBI agent positions, whose sole 
job would be to focus on investigating crimes on Indian reservations, 
would go a long way toward addressing both the perception and the 
reality of lawlessness that exist in some Tribal communities. The BIA 
and DOJ Native American Issues Subcommittee have already indicated that 
adding more agents is a priority. This personnel enhancement would 
enable the FBI to be more proactive in its approach to addressing crime 
on reservations.
    We also urge Congress to continue to fund the Community Oriented 
Policing Services (COPS) Program to fund Tribal law enforcement 
expenses, as well as the COPS Hiring Program used for the hiring and 
rehiring of Tribal law enforcement officers. These programs are being 
threatened with significant cuts in the upcoming appropriations cycle 
which would be devastating to Tribes. These and other federal programs, 
including those within the Department of Interior's Bureau of Indian 
Affairs, are critical to the administration of justice on Tribal lands.
    In this difficult fiscal climate, as Congress weighs various 
options to reduce the federal deficit, NCAI urges Congress to pay 
attention to its most basic responsibilities, and among the most 
fundamental are the responsibilities to provide for public safety on 
federal Indian reservations. The authority to fund programs that 
fulfill this responsibility is founded in the Constitution. Funding for 
Indian Country public safety programs is just one of the many sources 
of domestic discretionary spending dedicated to Tribes that should be 
held harmless during the budget process.
Violence Against Women Act Reauthorization
    I would like to commend the Committee for your efforts to draw 
attention to the plight of Native women fleeing violence--first, by 
hosting an oversight hearing on these issues on July 14, 2011, and 
next, by releasing a discussion draft of proposed statutory changes 
aimed at protecting Native women in August. NCAI strongly supports 
these efforts and hopes that the Committee will work collaboratively 
with the Senate Judiciary Committee to ensure that the legislative 
proposals found within the SCIA's discussion draft are included as a 
part of the upcoming Violence Against Women Act Reauthorization.
    No one denies that violence against Native women in the U.S. has 
reached epidemic proportions: 34 percent of Native women will be raped 
in their lifetimes and 39 percent will be the victim of domestic 
violence. \1\ According to a 2010 GAO Study, U.S. Attorneys decline to 
prosecute 67 percent of sexual abuse and related matters that occur in 
Indian country. \2\ The TLOA takes steps to improve the safety of 
Indian women, but there are still several issues that it leaves 
unaddressed, namely the lack of Tribal authority to prosecute non-
Indians committing heinous crimes on the reservation.
---------------------------------------------------------------------------
    \1\ Tribal Law and Order Act of 2010, Pub. L. No. 111-211,  
202(a)(5) (2010).
    \2\ U.S. GOVERNMENT ACCOUNTABILITY OFFICE, U.S. Department of 
Justice Declinations of Indian Country Criminal Matters, REPORT NO. 
GAO-11-167R, at 3 (2010).
---------------------------------------------------------------------------
    The lack of Tribal jurisdiction over non-Indian offenders on Indian 
lands may be the key reason for the creation and perpetuation of 
disproportionate violence against American Indian and Alaska Native 
women. The 1978 U.S. Supreme Court decision in Oliphant v. Suquamish 
Tribe stripped Indian Tribes of their inherent criminal jurisdiction 
over non-Indians unless such jurisdiction is specifically authorized by 
Congress. As such, Indian women--4 out of 5 of whom describe their 
offenders as white--often have no criminal recourse against non-Indian 
offenders. These non-Indian perpetrators are well aware of the lack of 
Tribal jurisdiction over them, the vulnerability of Indian women, and 
the unlikelihood of being prosecuted by the Federal Government (or 
state government in P.L. 280 states) for their actions. This 
jurisdictional gap feeds the epidemic of violence against Indian women 
and is at odds with the United States' recognition of Tribal 
sovereignty and the policy of Tribal self-determination. Further, it is 
in stark contrast to the purposes of the Violence Against Women Act 
that have guided our nation since its enactment over fifteen years ago.
    This past summer, the Department of Justice released a legislative 
proposal that not only seeks to address the jurisdictional problem 
described above, but goes beyond that to ensure Native women receive 
the same protection and equal access to justice as other women in 
America. The DOJ's proposal addresses three major gaps in the current 
system that too often leave Native women vulnerable to violent crimes 
of domestic violence and sexual assault. First, it recognizes the 
inherent authority of Tribes to prosecute any person who commits 
domestic violence or dating violence against a Tribal member in Indian 
country; second, it clarifies that Tribal courts have full civil 
jurisdiction to issue and enforce protection orders against Indians and 
non-Indians alike; and third, it amends federal law so as to enable 
federal prosecutors to more effectively combat three types of assault 
that are frequently committed against Native women in Indian country: 
assault by strangling or suffocating, assault resulting in substantial 
bodily injury; and assault by striking, beating, or wounding. NCAI's 
membership recently passed a resolution that supports inclusion of 
legislative proposals to enhance the safety of Native women in the 
upcoming VAWA reauthorization and we strongly support DOJ's proposed 
language.
    Under the current scheme, non-Indian perpetrators in Indian country 
are often shielded from accountability at the expense of the safety of 
Indian women. The power to reverse this disastrous trend and restore 
safety in Tribal communities lies with Congress. The DOJ's proposal is 
the product of true government-to-government consultation and 
collaboration with Tribes, and if included in the Violence Against 
Women Act Reauthorization and enacted into law, it would go a long way 
toward protecting the safety and security of Native women and their 
access to justice under the law. That is why I respectfully request 
your active support to ensure inclusion of the DOJ's proposal or 
similar language in the upcoming VAWA reauthorization legislation.
Land Status Confusion (Carcieri)
    Finally, we would like to direct the Committee's continued 
attention to the problems created by the Supreme Court's decision in 
Carcieri v. Salazar, which is creating significant confusion and 
litigation over the status of reservation lands.
    The Indian Reorganization Act (IRA) was created by Congress in 1934 
to reorganize Tribal governments and restore land bases for Indian 
Tribes that had been greatly harmed by prior federal policies. The 
passage of the IRA marked a dramatic change in federal Indian policy. 
Congress shifted from assimilation and allotment policies in favor of 
legislation to revitalize Tribal governments and restore Tribal lands. 
In a decision that runs contrary to these purposes, the Supreme Court 
held the term ``now'' in the phrase ``now under Federal jurisdiction'' 
in the definition of ``Indian'' limits the Secretary's authority to 
provide benefits of the IRA to only those Indian Tribes ``under federal 
jurisdiction'' on June 18, 1934, the date the IRA was enacted.
    The Carcieri decision does not address what it means to be ``under 
federal jurisdiction'' in 1934, and is already creating costly and 
protracted litigation on an esoteric and historic legal question that 
serves no public purpose. Some of this litigation is aimed at Indian 
Tribes who were on treaty reservations in 1934. Over the last 75 years 
under the authority of the IRA, entire Indian reservations have been 
restored, and significant amounts of land have been returned to Tribal 
governments. The Carcieri decision is creating litigation and 
uncertainty on long settled actions taken by the Department pursuant to 
the IRA, as well as on the Secretary's ability to make future decisions 
that are in the best interests of Tribes.
    While Carcieri addressed only land in trust, there will be further 
negative consequences if the IRA is not clarified. The IRA is the legal 
foundation for most Tribal constitutions and serves as a framework for 
Tribal self-government. Future litigation could threaten the integrity 
of Tribal organizations, Tribal reservations and lands, and provision 
of services. It is only a matter of time before criminal defendants 
seeking to avoid federal or Tribal jurisdiction attempt to invoke 
Carcieri, and this would negatively affect public safety on 
reservations across the country.
    When the Supreme Court has narrowly interpreted an act of Congress 
in a manner that is fundamentally unfair and not in accordance with its 
original purposes, Congress should move quickly to amend and clarify 
the law. NCAI urges Congress to amend the IRA to the effect that all 
federally recognized Tribes are included in the definitions section. We 
greatly appreciate your leadership and efforts with Senate Bill 676, 
which will clarify the status of existing Tribal lands and ensure that 
IRA benefits are available to all federally recognized Indian Tribes.
Implementation Update
    July 29, 2011 marked the one year anniversary of enactment of the 
Tribal Law & Order Act (TLOA), and this new law continues to gain 
momentum. The Indian Law & Order Commission, authorized by the Act, was 
recently funded, the long-term plan for detention in Indian Country has 
been finalized, some key provisions have been implemented, and 
consultations are ongoing. Below is a brief update on implementation of 
some of the TLOA's most significant provisions.
Concurrent Federal Jurisdiction
    Section 221 of the TLOA makes a significant amendment to P.L. 83-
280 (PL 280) to allow Tribal governments located in P.L. 280 states to 
request that the Federal Government exercise concurrent jurisdiction 
over reservation crimes, with consent by the Attorney General. The 
purpose of this change is to address long standing concerns that some 
states and local governments have not fully addressed reservation crime 
under P.L. 280.
    NCAI is aware of several Tribes who have placed formal requests 
with the Department of Justice to have the Attorney General exercise 
concurrent jurisdiction over their reservations under this provision. 
No action has yet been taken on these requests.
    On March 1, 2011, the Department of Justice issued a letter to 
Tribal leaders in which it simultaneously announced its plan to 
consider implementing Section 221 through federal regulations and 
provided Tribes with a draft of such regulations. The draft regulations 
propose a framework and procedures for an eligible Indian Tribe to 
request the assumption by the United States of concurrent Federal 
criminal jurisdiction within the Indian country of the Tribe and 
describe the process to be used by the Attorney General in deciding 
whether to consent to such a request.
    Subsequently, the DOJ held a Tribal consultation on Lac Courte 
Oreilles Chippewa Tribal lands in Wisconsin on March 23rd to focus on 
the process for implementation of Section 221. Since that time, the 
Section 221 proposed regulations have been published in the Federal 
Register for comment and publication of the final rule should be 
forthcoming. NCAI is encouraging the Department to make prompt 
decisions on all Tribal requests submitted thus far, notwithstanding 
the delay in getting the final rule published.
Indian Law & Order Commission
    Section 235 of the TLOA mandates establishment of an Indian Law and 
Order Commission made up of Tribal, federal, and state/local justice 
officials, and other experts, tasked with reviewing the current justice 
system on Tribal lands and providing recommendations for improvement.
    Although the September 27, 2010 (60 days from enactment) deadline 
for creation was not met, membership selection for the commission has 
since been completed by Congress and the President, and includes the 
following:

   Presidential appointments: Ted Quasula, Carole Goldberg, 
        Theresa Pouley

   Senate appointments: Jefferson Keel, Troy Eid, Affie Ellis

   House appointments: Stephanie Herseth-Sandlin, Earl Pomeroy, 
        Tom Gede

    The Commission held its first in-person meeting on April 6, 2011 at 
the Buffalo Thunder Resort in Santa Fe, New Mexico, where they 
appointed Troy Eid, former U.S. Attorney for the District of Colorado, 
as the Commission Chair and commenced their work. The Commission has 
acquired a small staff of federal detailees to assist with their work. 
Assistant United States Attorney Jeff J. Davis, a member of the 
Chippewa Tribe, recently joined the Commission as its Executive 
Director, and Eileen Garry, the Deputy Director of the Justice 
Department's Bureau of Justice Assistance, is serving as its Deputy 
Executive Director. The Commission held its first field hearing at the 
Tulalip Reservation in Washington State on September 7, 2011 and 
intends to hold its second at NCAI's upcoming Annual Convention in 
Portland, Oregon on November 2, 2011.
    The Commission was a bit slow in getting off the ground due to 
delay in passing the FY2011 appropriations bill. However, now that it 
is funded, the Indian Law and Order Commission has the potential to be 
an important source of new recommendations for policy changes, as well 
as a body that can continue oversight on implementation of the Tribal 
Law and Order Act.
Office of Tribal Justice
    Section 214 of the TLOA requires the Attorney General to establish 
the Office of Tribal Justice as a permanent component of the Department 
of Justice within 90 days of the law's enactment. On November, 17, 
2010, Attorney General Eric Holder announced that the Office of Tribal 
Justice is now its own, stand-alone component of the Justice 
Department. Making OTJ permanent was a simple, yet critical, step for 
Tribes. Bestowed with the responsibility to develop and direct the 
Department's Indian affairs policies and coordinate and consult with 
Tribal leaders, OTJ is and will continue to be an important resource 
for Tribes on justice matters.
Tribal Court Sentencing Authority
    Section 234 of the TLOA amends the Indian Civil Rights Act to allow 
Tribal courts to sentence offenders for up to three years imprisonment, 
a $15,000 fine, or both for any one offense. (The previous ICRA 
language limited the sentencing authority of Tribal courts to one year 
imprisonment, a $5,000 fine, or both). It also authorizes Tribal courts 
to ``stack'' sentences for up to nine years total imprisonment. 
However, in order to utilize this enhanced sentencing authority, Tribes 
must provide a number of defendant protections, including: defense 
counsel for indigent defendants, legal trained and licensed judges, 
publicly available Tribal codes, and detention facilities certified for 
long term detention. Utilizing the enhanced sentencing provisions of 
the TLOA will require additional resources for the majority of Tribes. 
In addition, it was always assumed that Tribes would use this authority 
relatively rarely. As a result, it will likely take time before Tribal 
courts utilize this new authority.
Long Term Plan to Address Incarceration in Indian Country
    One of the most significant requirements of the TLOA, and included 
in multiple locations throughout the act, is the requirement that the 
Department of Justice and the Bureau of Indian Affairs coordinate, in 
consultation with Tribal leaders, courts, law enforcement officers, and 
corrections officials, to develop a long-term plan to address 
incarceration in Indian country. The plan was to be submitted to 
Congress within one year of the TLOA's enactment.
    DOJ and BIA held numerous consultations with Tribes on the long 
term detention plan. Several regional Tribal consultations were held 
last fall, including one at NCAI's Annual Convention in Albuquerque in 
November. These were subsequently followed by more at the 
Interdepartmental Tribal Justice, Safety & Wellness Sessions #12 and 
#13 in Palm Springs, California in December and Scottsdale, Arizona in 
May. The Bureau of Justice Assistance (BJA) and the Bureau of Indian 
Affairs (BIA) have also co-hosted three separate focus groups with 
Tribal leaders and justice stakeholders at various locations throughout 
the country (Rapid City, SD; Phoenix, AZ; and Billings, MT). Comments 
on the long term plan were also solicited via e-mail at 
[email protected].
    On July 15, 2011, the Departments of Interior and Justice released 
an initial draft of their ``Tribal Law and Order Act (TLOA): Long Term 
Plan to Build and Enhance Tribal Justice Systems.'' Comments and 
feedback on the plan were to be submitted to DOJ by July 21, 2011, 
which left Tribal leaders less than a week to submit additional 
feedback before the plan was finalized. On August 8, just over a week 
past the one-year deadline, DOJ and DOI released the final version of 
their long term plan and submitted it to Congress.
    While we commend DOJ and DOI staff for taking their 
responsibilities under the TLOA seriously, as well as their obligation 
to consult with Tribal leaders and justice experts, I would be remiss 
not to flag our two major concerns with the long term detention plan 
for the Committee. First of all, we think that the plan's heavy 
reliance on evidence-based solutions to problems faced by Tribes is 
problematic. Requiring that federal funding for Tribal alternatives and 
reentry programs be contingent on use of evidence-based models is a 
recipe for failure for many Tribes. The plan should explicitly accept 
and promote successful practices and models that may not have yet 
received the benefits of costly studies.
    Second, we feel that the final plan lacks the strategic long-term 
vision for the future that Congress intended by including it in the 
TLOA. It assesses the current landscape of alternatives to 
incarceration, detention, and reentry in Indian Country and explains to 
Tribes the federal resources currently available to Tribes for those 
purposes. The plan makes only minor recommendations for small 
improvements to the status quo over the next year. We do not believe 
that this type of a report was what Congress intended when it passed 
the TLOA. This was to be a thorough, carefully constructed plan that 
would guide detention in Indian Country and Tribal justice systems for 
the next 25 years to a half century. In particular, Indian Tribes are 
looking for a new approach to juvenile justice and alternatives to 
incarceration so that the detention system is not a factory for 
creating hard core criminals.
    We recognize that the development of a long term detention plan 
raises a number of complex problems, and we are encouraged that the 
Departments of Interior and Justice see their initial plan as only the 
first iteration. We would urge the Committee to continue its oversight 
in this area, particularly on juvenile justice and alternatives to 
incarceration.
Declinations and Investigations
    Perhaps the main driving force behind the creation of the TLOA was 
the concern that Tribal leaders have had for many years about high 
rates of declinations to prosecute major crimes in Indian country by 
U.S. Attorneys. I have been around the National Congress of American 
Indians since the 1980's, and we have consistently heard the same 
message from Tribal leaders for over 30 years. Tribes are very alarmed 
that crimes occur and are often neither investigated nor prosecuted. We 
have seen statistics showing that over two thirds of all Indian country 
crimes are declined. This Administration is working hard to do a better 
job, but we need to be able to keep track of investigations and 
prosecutions to make sure that that the improvements really happen, so 
that we can target problems. That is why the TLOA included Section 211, 
which mandates that the Attorney General submit to Congress annual 
reports that contain all relevant investigation and prosecution data 
regarding alleged violations of Federal criminal law that occurred in 
Indian country that were referred for federal prosecution by law 
enforcement agencies. This is one of the most critical components of 
the TLOA, and Tribal prosecutors will need to coordinate closely with 
their U.S. Attorney counterparts to ensure that it is implemented. The 
first reports will be due at the end of this calendar year, and we want 
to make sure that the reports are useful to Congress and to Tribal 
leaders in addressing the causes of declinations.
    There are many legitimate reasons to decline to prosecute a crime, 
as well as questionable reasons. For example, one of the most cited 
reasons for declining to prosecute is the inadequacy of the 
investigation. If there are problems with the police work, Congress 
needs to know that so that the issues can be addressed. Do we need more 
investigators, or more training, or more access to crime labs? The 
collected data from declination reports should help answer these 
questions. Another commonly cited concern is the creation of arbitrary 
``thresholds,'' particularly in drug cases. We understand that all 
prosecutors have limited resources, but we cannot let non-Indian drug 
dealers run free on Indian reservations when the Tribe has no 
jurisdiction and the U.S. Attorney refuses to prosecute. The collected 
data and related Congressional oversight should assist Congress and the 
Department of Justice in determining the necessary resources to 
dedicate to Indian country prosecutions.
    NCAI would like to begin more communications with the U.S. 
Attorneys on declination reporting. These reports will be a useful 
crime fighting tool if Tribes know how to refer crimes for 
investigation and prosecution and are able to track the results. The 
first reports are due by the end of this year. So far, this dialogue 
with the U.S. Attorneys is only beginning, and we have a lot of work to 
do.
Bureau of Prisons Tribal Prisoner Pilot Program
    As part of the enhanced Tribal court sentencing provisions in 
Section 234, the Department of Justice Bureau of Prisons (BOP) is 
required to establish a four-year pilot program within 120 days of 
enactment, under which the BOP shall accept offenders convicted in 
Tribal court of a violent crime and sentenced to more than two years 
imprisonment. On Friday, November 26, 2010, the BOP met this key TLOA 
deadline by launching its pilot program. However, no Tribes have used 
it to sentence offenders yet.
Indian Alcohol and Substance Abuse
    Under Section 241 of the TLOA, the Substance Abuse and Mental 
Health Services Administration (SAMHSA) is to lead the effort on 
interagency communication by developing a framework and MOA on the 
issue. A draft of the MOA was released for Tribal comment in November 
2010, and on July 29, 2011, exactly one year after President Obama 
signed the Tribal Law and Order Act (TLOA) into law, DOJ, DOI, and HHS 
entered into a Memorandum of Agreement to combat Alcohol and Substance 
abuse among American Indian/Alaska Native Tribes. The Memorandum of 
Agreement was formally published in the Federal Register on August 5, 
2011 and individual notification was mailed to all 565 federally-
recognized Tribes.
Other Advances
    Of equal importance to TLOA implementation benchmarks are the new 
initiatives and improvements to public safety in Indian Country that 
are developing largely as a result of TLOA enactment. Over the past two 
years, the Obama Administration has demonstrated an increased 
commitment toward improving public safety on Tribal lands. The 
Department of Justice, in particular, has shown extraordinary 
leadership on these issues by launching new law enforcement initiatives 
in Indian Country, proposing much-needed legislation that would enhance 
Tribal sovereignty and protect Native women, and advocating for 
increased funding for Tribal programs within the federal budget. At the 
core of this multi-faceted approach is DOJ's pledge to work together 
with Tribal nations to improve the overall administration of justice in 
Indian Country. U.S. Attorney for the District of South Dakota, Brendan 
Johnson, perhaps said it best when he remarked that ``the best ideas 
for making Tribal communities safer come from Tribes, not from 
Washington, D.C.'' NCAI commends DOJ for staying true to that message, 
and we look forward to continued collaboration and dialogue with the 
administration on public safety issues in the future.
    Progress is also being made on the local level to combat crime on 
reservations, due in large part to guidance from the Attorney General's 
office to build permanent infrastructure in Indian Country that will 
sustain Tribal nations long after President Obama's time in office. 
Attorney General Holder's and Associate Attorney General Perrelli's 
leadership on these issues has influenced U.S. Attorney's offices 
across the country, and resulted in more communication between Tribal 
and federal justice officials, stronger working relationships, and 
increased Tribal capacity for investigating and prosecuting reservation 
crimes. There has also been a surge in the number of Tribal prosecutors 
appointed as Special Assistant U.S. Attorneys under the TLOA, enabling 
them to try cases in federal courts. These are just some of the local 
successes that have resulted from TLOA passage and the leadership of 
this Justice Department.
Conclusion
    Public safety problems in Indian Country remain a critical concern, 
particularly domestic violence and violence against women, drug crimes, 
and gang related crimes. While national efforts like implementation of 
the Tribal Law & Order Act and the DOJ's public safety initiatives in 
Indian Country are giving Tribes a renewed sense of hope that much 
needed improvements to the current administration of justice on Tribal 
lands are forthcoming, we must continue to advocate for progress until 
crime rates drop and every Tribal community is safe. NCAI looks forward 
to our continued work to improve public safety within Tribal nations, 
increase access to justice for Native peoples, and protect the health 
and wellbeing of all Native people. We hope Congress will join us in 
these efforts.
    Once again, on behalf of NCAI, I would like to thank the Committee 
for inviting us to testify today. I would be happy to try to answer any 
questions you may have.

    The Chairman. Thank you very much, Ms. Johnson-Pata.
    Councilman Posey, in your testimony you highlight the need 
to focus on youth. Can you please tell us what an effective 
system might look at to deter our young people from criminal 
activity? And what more can we do to support youth?
    Mr. Posey. Thank you, Mr. Chairman.
    There are several avenues. Obviously, on our reservation 
there is a drug court system which gives the judges the 
alternative process of sentencing. Recently, the last couple of 
years, we built a new youth facility there and we have created 
the Boys and Girls Club, which had been in place since 1995, 
which serves hundreds of kids there. Most of them are from 
probably 6 years old to 14 years old, but we see probably among 
Indian nations across the Country here, we are missing the 14 
to 18, 20 year olds. And I think back, way back, they could be 
sentenced to a certain amount of time in being incarcerated. 
Maybe that turned their lives around.
    But I think now we have to look at, I know with us on the 
Wind River, I think we have a valuable resource there in our 
natural resources that we have. And I think we need to just 
think out of the box and develop programs where perhaps they 
could be introduced back into the natural resources systems and 
stuff like this.
    As you know, we are in a fast-paced society. We need some 
way to connect them back to that and connect them back to the 
family. So I think we need to really focus on positive outreach 
to those teenagers where they have a brighter future, instead 
of being ones where they continue to go down that road and 
eventually end up in the penal system, which like I mentioned 
earlier, they come out more hardened.
    So I think that will take collaboration with the schools 
systems, the social services. And one thing is we need to focus 
on those kids that are doing good in our communities. There are 
several of those, youths that are doing very well in our 
community, but we just kind of forget about them. We say they 
are doing okay in school so they need no services. So I think 
we need to balance that and maybe perhaps have a mentoring 
system to allow those kids with positive attributes in life to 
share those with others.
    The Chairman. Thank you, Councilman.
    Judge Pouley, you are one of the Country's leading 
advocates for Tribal courts. The Committee is aware that many 
Tribal courts would like to take advantage of new tools such as 
enhanced sentencing authority available to them under the TLOA, 
but they do not yet meet the necessary requirements. What else 
needs to be done to support the infrastructure and capacity of 
Tribal courts?
    Ms. Pouley. Thank you, Senator. Many things. Number one 
thing, of course, is funding. One of the things I have been a 
huge advocate for is base-level funding for Tribal courts. 
Tribal courts can best decide how to get proper contract 
individuals, for example, for public defenders that need to be 
licensed, as well as balanced probation requirements, as well 
as balance restorative sentencing.
    But they need to have some base-level of funding. And like 
I said, at Tulalip, we only get that at about $30,000 a year, 
although the justice system obviously costs hundreds of 
thousands of dollars a year to run.
    But it has to be flexible because each Tribe individually 
is going to balance each one of those pieces. Not just new 
funding for Tribal courts, there really is a respect issue. 
Tribal courts should be treated the exact same as State or 
Federal courts. Tribal courts and the National Council for 
Juvenile and Family Court Judges testified together in front of 
the Senate Finance Committee about how Tribal courts should be 
able to access court improvement funds.
    So there is a variety of court funding mechanisms out there 
where Tribal courts are just left out of the loop.
    A variety of programs like you just heard described from 
the South Dakota Attorney General that actually go into Tribe 
on-site to help them develop and create particular programs 
that are going to work in their communities and to provide them 
that expertise are absolutely critical.
    So money specifically; availability of funding across the 
board; and training, on-site training for Tribe-specific 
resources.
    Thank you.
    The Chairman. Thank you, Judge Pouley.
    Ms. Johnson-Pata. in your testimony, you mention a new 
danger on the Carcieri decision that a criminal defendant may 
be able to avoid Federal or Tribal jurisdiction. Why is this 
the case?
    Ms. Johnson-Pata. I think because when you bring the 
cloudiness of jurisdiction. We already have a very complex 
structure, and we have had conversations in the past, even just 
last week about the jobs bill and how do we bring more capital 
to Indian Country.
    So you are looking at the access to financing to Indian 
Country, just think of the complication there. Well, it is the 
same complication with law and order. We are dealing with 
cooperative agreements. We are having to deal with high-pursuit 
cooperative agreements. All these things talk about 
jurisdiction, where is the jurisdiction and where does the 
jurisdiction stop.
    And so as Tribes bring land into trust or Tribes have 
recently brought land into trust, it opens up this question of 
what is the status of this piece of land or this parcel within 
the Tribe's jurisdiction, or this Tribe.
    And that cloudiness creates a loss of time and money, but 
what it also does in the law enforcement arena, it brings in 
inaction because it is easier sometimes not to have those 
questions.
    But what hasn't happened yet, and given the number of cases 
that are cropping up having to do with litigation around 
Carcieri and putting into the question of Carcieri, it wouldn't 
surprise me that this kind of defense mechanism could be 
brought forth and somewhat successfully because of the 
controversy or the question of Carcieri and land-into-trust.
    The Chairman. Thank you.
    Councilman Posey, you mentioned that violent crime rates in 
your community have dropped since the implementation of the 
HPPG initiative. Does this demonstrate the initiative's 
success? What part of the initiative have been most important?
    Mr. Posey. Mr. Chairman, the most important aspect of the 
HPPG was getting more cops on the street. Like I mentioned in 
my testimony, it was six cops. Now, we have 22. We have 
enhanced our Tribal court system. The budget for the Tribal 
court system went from $300,000 to $1.7 million, which is good. 
It is good base funding, but we also recognized that we are 
only one of four Tribes that were selected for HPPG. So across 
the Country, they are still dealing in other reservations with 
the same problems that we had.
    We used to go with people calling the cops and nobody 
showed up just because it was maybe 35 miles away on the other 
side of the reservation on a more violent, a more serious call. 
So right now, we do have a good amount of law enforcement 
presence there that has decreased violent crimes. I am not 
saying it completely went away because we continue to have 
those age-old violent crimes and murders and some of those 
types of issue, but the response time is better. The 
cooperation is better.
    And out of this whole issue, as the ladies here mentioned, 
we did create an interagency law enforcement group there that 
is really not official. We just get together every quarter and 
discuss how we could work better together. And I think our 
outside agencies have been very cooperative in helping us when 
we needed help, so we are trying to do the favor back to them, 
but it has dropped.
    Thank you.
    The Chairman. Thank you.
    Judge Pouley, the DOJ is currently developing a declination 
report due at the end of this year. What is the most important 
information that should be contained in that report? And what 
kind of data do you think Tribes and Tribal courts need to know 
about why cases are not being prosecuted?
    Ms. Pouley. I think for declination reports, there are a 
couple of important pieces of information that Tribal courts 
need to know. Number one, they just need to know in a timely 
fashion if that case is going to be prosecuted.
    So because we have concurrent jurisdiction with the Federal 
Government, we may actually be holding that person in detention 
on Tulalip's dime, if you will, waiting to see if the Federal 
Government is going to pick up the prosecution.
    Now, we can only do that within 90 days. And I guarantee 
you, at Tulalip Tribal Court if you have a right to a trial 
within 60 or 90 days, you get it. So that case may actually be 
adjudicated before the Feds even pick it up.
    That means from a resource perspective, we need to know as 
soon as possible if the Feds choose to decline that 
prosecution. If we go forward and they pick it up, then that 
person's being prosecuted twice. So that is a resource issue 
for both of them.
    So the number one thing we would want to see in the report 
is the timeliness of the information provided.
    Number two, the type of crime. Just recently for this 
year's annual report, we had seen an increased filing of sexual 
assault cases in the Tulalip Tribal Court. I haven't seen the 
same increase in filing of sexual assault cases in the Federal 
court. But if there was, I would be interested to know that 
particular piece of information.
    Part of concurrent jurisdiction is we prosecute those 
individuals when they are a danger to our community. So knowing 
what crimes are being prosecuted is urgent.
    And then the last thing is I really would like to commend 
the Department of Justice about this particular issue because I 
have heard from almost every Tribal court judge in the 
Northwest for the very first time they have had them prosecute 
a case that either involved violence against Indian women or 
repeat offenses of domestic violence. So I am appreciative of 
that fact.
    So know what they choose to prosecute, what they choose not 
to prosecute, and timeliness is absolutely critical for the 
Tribal court.
    The Chairman. Thank you very much for your response.
    Ms. Johnson-Pata. respecting Native culture is incredibly 
important as we implement legislation like TLOA. Are there ways 
that we can improve cultural competence and respect for Native 
culture in the administration of justice?
    Ms. Johnson-Pata. Well, I could say that we could do it 
broader than the administration and the Department of Justice. 
But in the administration of justice, clear it is very 
important. In fact, you will see when we talk about the Tribe's 
ability to expand their jurisdiction, the sentencing authority 
and some of the challenges of the decisions they are trying to 
make, and even those who are trying to decide whether or not 
they want to take advantage of the Bureau of Prisons 
opportunity.
    Part of that decision is a cultural decision. In Indian 
Country, these opportunities pose questions for Tribal court 
judges and Tribal leaders, as they contemplate that balance of 
prosecution versus alternative ways of culturally dealing with 
juvenile detention, for example. Are there other methods for us 
to be able to provide that same kind of learning, re-education, 
life style change, that makes that consistent to our cultural 
values and where we want our youth or our younger person to go. 
And all those things are very important.
    In addition, so we have that one piece there, in addition 
to that, making sure that we have culturally sensitive 
administrations, culturally sensitive U.S. Attorneys. All of 
those are very important to once again design a system that can 
be sustained in our community; that is accepted in our 
community, so it is not an us-against-them, but it is us coming 
together and working together to find those kinds of solutions.
    And I think part of that I would like to echo with this 
cultural component was where we go with having other 
governments accept our government as equal government and our 
Tribal courts as equal courts in the court systems and having 
that reciprocal kind of relationship.
    Just because we may have cultural integration into the way 
that we do and how we provide our system isn't different than 
other court systems that are in certain areas of urban America 
as they deal with the cultural needs of the community they 
serve. That same kind of respect can be integrated into having 
those reciprocal agreements that will strengthen our systems 
throughout Indian Country.
    Thank you.
    The Chairman. Thank you very much.
    My final question to all of you on this panel, and this 
reaches back in your experience of things that have happened. 
Were there any important provisions in TLOA that did not make 
it into the final bill that Congress should reconsider?
    Ms. Johnson-Pata. I would just start. I think I am going to 
echo what everybody here is going to say, which is we need to 
be able to have expanded authority over our jurisdictions to be 
able to deal with not only the amendments that you are 
proposing in the violence against women to deal with those 
situations under violence against women.
    But I would go a step further to say if we can accomplish 
that, let's think about jurisdiction of non-Natives beyond just 
violence against women provisions to be able to make sure that 
we not only have the protections in our community for all those 
perpetrators of crimes in Indian Country, and we have a system 
that works whether it is a partnership with the Federal 
Government; whether it is a Tribe who takes on those 
responsibilities; but that recognition of our governmental 
status to be able to provide those systems within our 
communities that are equal to those within the States and the 
local communities.
    The Chairman. Judge Pouley?
    Ms. Pouley. I concur 100 percent. We talk about cases like 
Suquamish v. Oliphant, or I talk about cases like State of 
Washington v. Eriksen. And at the heart of those cases is a 
lack of recognition and respect that Tribal governments should 
be the enforcers of the law within their boundaries.
    And Senator, it leads all of our communities at risk. It is 
not just the Tulalip Tribal people or the Lummi Nation people 
in Eriksen who are at risk from that drunk driver. If they 
didn't stop them, the citizens of the State of Washington would 
be at risk.
    So it is all of our communities that are placed at risk 
when we have people who are convicted or crimes who 
subsequently get to challenge those crimes on some 
jurisdictional basis that doesn't have to do with the crime. 
That, frankly, and you asked the question a couple of times 
about Carcieri and how important it is that we clear up the 
status of the land because that is exactly the same thing that 
is going to happen that sends the message that we should flee 
to the boundaries of the reservation.
    Our law enforcement officers aren't safe. Our Tribal 
members aren't safe. Our police officers aren't safe. But no 
citizen of the United States is safe as long as the message we 
send is run from Tribal police; commit crimes with impunity 
because you won't be prosecuted because at some subsequent 
point in time we will find that there wasn't jurisdiction.
    We simply can't operate that way. You started at the very 
beginning about talking about one in three Indian women can 
expect to be raped in their lifetime. Most of those rapes are 
perpetrated by non-Indian offenders over which we have no 
jurisdiction.
    I came to the Senate in 2000 to plead for a change in the 
law. I came again in 2008 to support the Law and Order Act 
because I look in my daughter's eyes and she asks me the 
question: Am I going to be the one or the three, Mom? And I 
want to be able to answer the question, you are not going to be 
any of those because we fundamentally changed the way we view 
law and justice in Indian Country.
    Thank you.
    The Chairman. Thank you.
    Councilman?
    Mr. Posey. I will be very brief and say that I agree with 
Jackie and Theresa here on jurisdictional issues regarding 
Tribal court. I think the Tribal Law and Order Act has a lot in 
there, and as many other Acts, it is unfunded mandate in some 
instances. So I think Indian Country does need more of those 
resources through funding, through manpower to actually 
implement this area and these issues that have been out there 
way too long in Indian Country.
    So I just echo my sisters' comments over here and thank 
you.
    The Chairman. I want to thank you. I want to say mahalo and 
thank you all, and to our witnesses. This has been, for me and 
for the Committee, a very informative discussion.
    As you know, we are trying to gather as much data and 
information as we can so that we can work on some of these 
needs and changes that should improve the system.
    The Tribal Law and Order Act provides important new tools 
for Native communities to address threats to their public 
safety. But these tools are only effective if they are fully 
and properly implemented. This Committee will continue to 
examine these issues, especially as other legislation important 
to Native communities such as the Violence Against Women Act 
reauthorization continue to make their way through Congress.
    Again, mahalo, thank you to all of you who participated in 
today's hearing. And I want to remind you that the Committee 
record will remain open for two weeks from today. I would like 
to also hear from those who couldn't be witnesses to let us 
know how they feel.
    So with that, let me say thank you, mahalo again, and this 
hearing is adjourned.
    [Whereupon, at 4:15 p.m., the Committee was adjourned.]

                                  
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